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Article 41 The Family Notes

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This is an extract of our Article 41 The Family document, which we sell as part of our Irish Constitutional Law Notes collection written by the top tier of Trinity College Dublin students.

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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 Uchtala (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 Uchtala (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 Uchtala (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.
? Held, that the burden arising as a result of the plaintiffs' marriage was similar to that in Murphy and was thus unconstitutional. H v Eastern Health Board (HC)
? The disability income of a wife was reduced due to her husband receiving unemployment benefit.
? Held that, since the man's unemployment insurance was relevant only as he was married to the woman, to construe the Regulations in question as allowing a reduction in light of this payment would be, prima facie unconstitutional.
? However, since a husband is obliged by common law and statute to devote an appropriate part of his income to the support of his wife this is a valid distinction for the Oireachtas to draw. Greene v Minister for Agriculture (HC)
? The applicants challenged regulations that made farming aid contingent on the combination of the relevant farmer's income, when combined with that of his wife, was below a certain level.
? Held that, the discrimination between cohabiting married and unmarried couples was unconstitutional in so far as it penalised individuals who chose to marry. MacMathuna v Ireland (HC, SC)
? The plaintiffs challenged tax provisions that provided that single parents were entitled to tax free allowance in respect of children living with them on the grounds that it treated them disadvantageously compared to unmarried parents.
? (HC) This was not an inducement to people not to get married - it is impossible to accept that a woman would choose to have a baby so she could draw the unmarried mother's allowance.
? Similarly it is not more advantageous to be alone in bringing up children as a result of the legislation.
? (SC) While the total withdrawal of financial support from the Family might be in breach of the State's obligations under Article 41, what was alleged in this case was that such support was insufficient - this was an issue not capable of adjudication by the courts Ennis v Butterly (HC)
? Plaintiff sought damages for breach of an agreement to cohabit.
? Held that, non-marital cohabitation does not and cannot have the same legal status as marriage given the Constitutional guarantee.
? These were traditionally prohibited at common law as injurious to marriage and morality.
? Again, in light of this guarantee, an agreement to cohabit was unenforceable - prior to the enactment of the Constitution such contracts were unenforceable and the enactment of the Constitution would have reinforced this position.
? To hold otherwise would be to dilute the strength of the protection. F v F (Engaged Couple)(HC)
? The applicant sought child support for the children of a non-marital cohabitation, which the respondent sought to have dismissed as frivolous and vexatious for showing no cause of action.
? Held that, the constitutional guarantees to protect marriage are to be tempered to ensure that non-marital children are nurtured without diminishing the guarantees for marriage and the marital family (especially since the guarantee not to require that women in the


home to work is not necessarily restricted to the marital context - this would indicate that these constitutional concerns are subject to pragmatic and utilitarian limitations) TF v Ireland (HC, SC)
? The plaintiff challenged legislation providing for judicial separation as being an attack on marriage as it did not provide enough time for the parties to effect a reconciliation.
? (HC) The effect of the granting of a decree of judicial separation was simply that the parties were no longer obliged to cohabit and it did not affect the bond of marriage or finally preclude the resumption of cohabitation - thus the grant of such a decree amounted to little more than official recognition of an existing state of affairs and an appropriate attempt by the Oireachtas to reconcile the needs and rights of the parties concerned.
? (SC) the constitional obligations re marriage are aimed at securing not only the welfare of the parties to the marriage and family, but also the common good.
? In many cases, the common good will require that married couples be separated, and the provision of grounds for judicial separation has never been recognised as an attack on marriage.
? The possibility of judicial separation in this case is an attempt by the Oireachtas to deal with the unfortunate situation created by the breakdown of marriage.

The right to marry and the rights of married couples The nature of the right to marry under the Constitution
? Ryan v Attorney General (HC)
? The right to marry is an unenumerated under Article 40 which stems from the Christian and democratic nature of the State.
? O'Shea v Ireland (HC)
? The plaintiffs were brother and sister-in-law and sought to challenge the constitutionality of the legislation which precluded them from marrying, when that relationship was the result of a marriage that had ended in divorce.
? Held that, the right to marry was a personal right protected under Article 40 - it was not unlimited however and could be regulated by the Oireachtas in accordance with the common good.
? The section challenged was inconsistent with the plaintiffs right to marry - the question of proportionality did not arise as no benefit arose from the restriction and no rational basis existed to support it.
? Zappone & Gilligan v Revenue Commissioners (HC)
? A lesbian couple sought to have their Canadian marriage recognised.
? Held that, the central question at issue in this case is whether the right to marry inherent in the Constitution encompasses the right to same-sex marriage?
? From the enactment of the Constitution to recent case law it is clear that marriage has always been understood to be between a man and a woman.
? There is a difference between ascertaining previously unidentified unenumerated rights and redefining a right which is implicit in the Constitution and clearly understood - marriage is in the latter category and should not be redefined.
? Prevailing ideas and concepts of marriage do not indicate a consensus in favour of the plaintiffs' case anyway.
? Finally, having regard to the ordinary meaning of the words in Articles 41 and 42, it is difficult to see how they could encompass same-sex marriage. The rights of married couples
? McGee v Attorney General (SC)
? The right to marital privacy extending to contraception.
? M v Drury (HC)

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