Current Study

The Family
The committee's current study

Bunreacht na hÉireann (the Constitution of Ireland) makes its main provisions in relation to the family in Article 41. Article 42, which deals with education, is closely linked and has been construed by the courts as containing in Article 42.5 a guarantee of children's rights which go beyond education. In addition Article 40.3 is relevant because the rights of a child born of unmarried parents have been held to be personal rights protected by it.

Article 41 states:

1  1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

  2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

2  1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

  2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

3  1° The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

  2° A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that -

i. at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,

ii. there is no reasonable prospect of reconciliation between the spouses,

iii. such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and

iv. any further conditions prescribed by law are complied with.

  3° No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved.

Article 42 states:

1 The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

2 Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.

3  1° The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.

  2° The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.

4 The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.

5 In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

Article 40.3.1° states:

   1°       The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

Following the enactment of the Constitution, legislation relating to the family has been developed in line with the above Articles and elucidated by the courts in a substantial body of case law.

The All-Party Oireachtas Committee on the Constitution, which is charged with reviewing the Constitution in its entirety, is now examining these Articles to ascertain the extent to which they are serving the good of individuals and the community, with a view to deciding whether changes in them would bring about a greater balance between the two.

In order to inform itself as fully as possible, the committee invited individuals and groups to make written submissions to it by 31 January 2005 on any legal aspects of the family that concern them. It cited as examples of these but not as an exhaustive list:

• how should the family be defined?

• how should one strike the balance between the rights of the family as a unit and the rights of individual members?

• is it possible to give constitutional protection to families other than those based on marriage?

• should gay couples be allowed to marry?

• is the Constitution's reference to the woman's 'life within the home' a dated one that should be changed?

• should the rights of a natural mother have express constitutional protection?

• what rights should a natural father have, and how should they be protected?

• should the rights of the child be given an expanded constitutional protection?

• does the Constitution need to be changed in view of the UN Convention on the Rights of the Child?

Because of the complexity of the issues, the committee conducted oral presentations from representative groups and experts in the area in April 2005.

Transcripts of the oral hearings are available by clicking here.

The committee's concern is to analyse the issues to determine whether or not legislative provision has been constrained by the Constitution so as to prevent a proper balance being achieved between the rights of the individual and the good of the community; and if it has, to make recommendations for constitutional change.

The Report of the Constitution Review Group (1996) is cited in the committee's terms of reference as a resource. The chapter from that report dealing with the family is included here.

Chapter from Constitution Review Group Report