Family, children and education

Question 1

Article 41.1 - key point

Answer 1

‘inalienable and imprescriptible rights’ means they cannot be given or they cannot be taken away

Question 2

Article 41.2 - key point

Answer 2

guarantee to ‘protect the family in its authority and constitution’ reluctance of court to interfere with decisions of parents but needs to be balanced against art 42A on best interests of children and state role as guardian of the common good where the parents fail in their duty towards the children

Question 3

Article 42

Answer 3

• Article 42 concerns the child’s education
• it describes the family as the natural and primary educator of the child
• it states parents have freedom to choose what type of education their children receive and the state cannot force the parents to attend a particular school, nor can the state force a child to attend a religion class. However, the state can require a certain minimum education

Question 4

The right to marry

Answer 4

The right to marry was identified as an unenumerated right in Ryan v AG. Since the insertion of Article 41.4 into the constitution by the Marriage, equality referendum, marriage can either be a heterosexual or homosexual union

Question 5

Does the right to marriage extend to a polygamous marriage

Answer 5

The right to marriage does not extend to a polygamous marriage. This issue arose in HAH v SAA where the supreme court had to consider the legal status of polygamous marriage entered into in another country. The Court held that it would recognise a marriage which was potentially polygamous, but would only recognise the marriage which was first in time. Thus a second or subsequent marriage is not recognised in Ireland

Question 6

what are the facts of the case Murphy v AG

Answer 6

The case concerned provisions of income tax acts which resulted in high tax for married couples than unmarried couples. The Court held that this amounted to an ‘unjust attack’ on the institution of marriage.
Thus the case is authority for the proposition that a married couple cannot be placed in a worse off position due to their marital status

Question 7

Right of a residence - case of McHugh v Minister for justice and A v Minsister for justice

Answer 7

In the case of McHugh v Minister for justice -The Minister for Justice had issued a deportion order against a nigerian woman who was engaged to marry an irish man. The court found that marriage does not confer an automatic right on a non-irish spouse to reside in Ireland.

However in the case of A v Minister for justice the court found that Article 41 was breached by the deportation of a nigerian man whose wife was on social welfare and was caring for their two children

Question 8

A marriage of convenience

Answer 8

The supreme court has accepted that in the context of immigration matters the minister was entitled by virtue of the 2015 regulations, to have regard to the fact a marriage was one of convenience

Question 9

what are the factss of north western Health board?

Answer 9

• 14 month old child, refusal by parents to allow child undergo PKU testing
• SC held there was presumption that welfare of child was best found in family unit -> noted the language in article 42.5 that only in ‘exceptional cases’ could the state supply the place of the parents thus was only in exceptional cases and for reasons of physical or moral failure on the part of the parents could the state interfere.
• Court gave the following examples:
  i) immediate threat to the life of child
  ii) parental neglect amounting to abandonment and
  iii) threat to the capacity of the child to function as human person

On the facts, court held that this test was not met and to sanction the test would amount to micro-management of the family by the courts.

Question 10

spousal equality

Answer 10

Both parties to a marriage are equal and come with equal decision making rights

Question 11

what are the facts of BB v AA - spousal equality

Answer 11

• Parents could not agree on the school their son should attend
• Court held that articles 41 and 42 presupposed a marriage of equals, where both parents took active role in their child’s upbringing then each had equal voice but where they could not agree the task of the court was to reach the objectively best decision in child’s best interest
• Hogan made decision as to what school child should attend.

Question 12

Does the De facto family have any protection under the constitution

Answer 12

The non-marital family does not enjoy protection under the constitution

Question 13

Does an unmarried mother have any protection under the constitution

Answer 13

Even though the mother and child are not recognised as a family within the meaning of article 41, the mother does not enjoy personal rights under Article 40.3 in relation to her child

Question 14

does the unmarried father have any protection under the constitution

Answer 14

The unmarried father is in a much weaker protection – he doesn’t have rights under art 41 or 40.3.

• He does now enjoy certain statutory rights in relation to adoption and guardianship.
• Courts consistently stated that this does NOT put him in same position as married father or as unmarried mother.
• Favourable development is that fathers position may be improved by virtue of his relationship with the child

Question 15

what are the facts of M v Bord Uchtala?

Answer 15

• Unmarried mother, gave up son for adoption, Section 14 of Adoption Act 1952 provided that consent could be withdrawn at any time before the final order made, section 15 required that the adoption board must be satisfied that mother aware of this and understands consequences -> section hadn’t been complied with and 2 years after the adoption the mother and natural father married.
• Further 2 years sought return of child on grounds that the adoption order was unlawful
• SC held the order was void as it didn’t comply with the act -> further held that the child was now legitimate and must be returned to family

Question 16

what are the facts of N v HSE (2006) ‘Baby Ann case’

Answer 16

• child born and placed for adoption, mother withdrew consent, married father and sought return of child.
• Initiated habeas corpus proceedings on basis there was no lawful basis for Ann to remain with adoptive parents
• SC directed the child to be returned and felt there was a strong presumption that a child’s welfare is best protected within the family.

Question 17

what was held in the case of JK v VW

Answer 17

in terms of assessing what was in the child’s best interest, the blood link between father and child was a factor to be taken into account.

Question 18

what are the facts of WO’R v EH

Answer 18

Mother and father had 2 children, split up and mother and new partner sought to adopt children, father seeking guardianship to prevent adoption, no issues with children continuing to reside with mother

• CC stated case to the SC as to the relevant law -> held that there is no right to guardianship – merely the right to apply pursuant to the Guardianship of Infants Act

Question 19

what are the facts of McD v L?

Answer 19

• 2 respondents same sex relationship, applicant donated sperm, agreed that child would be aware of real father but that he would have no parental role, instead he would be akin to favourite uncle, after birth of child parents became concerned that the ‘father’ was acting too much like a father, the couple made the decision to spend a year in Australia and the father brought proceedings seeking guardianship/access

Supreme court held that there is “no defacto family” in ireland law; overturned high court decision and found that it had not given sufficient weight to the fact that the plaintiff was the child’s biological father and as such had rights as the child’s natural father.

Question 20

what are the facts of O’shiel v Minister for Education

Answer 20

The parents wanted the department to fund a steiner school. The state was not obliged to provide a particular type of education or fund it

Question 21

what are the facts of sinnot v mInister for education?

Answer 21

• Phrase ‘primary education’ was considered by the SC, held that a severely autistic child with profound mental and physical disability was entitled to suitable education up until age of 18.
• Judges expressed different views on what precisely this meant e.g. of the view that in respect of a normal child it could end at age 12 but continue to 18 in respect of children with learning disabilities
• Court was agreed it applied only to children and therefore could not extend beyond the age of 18

Question 22

what are the facts of DPP v Best?

Answer 22

• def was home schooling her children
• The School Attendance Act 1926, required that children be sent to school unless the child received ‘suitable elementary education’ at home.
• DC judge found that children were not receiving education in line with the national curriculum, stated a case to the HC on the meaning of ‘suitable elementary education’, this issue ultimately came before the SC, held that the phrase could not be interpreted as requiring more than the ‘certain minimum education, moral, intellectual and social’ referred to in article 42.3.2

Question 23

what was held in the case of carter v the minister for education

Answer 23

Court of appeal considered whether there was an unenumerated right to third level education in the const, HC held that such a right existed

Question 24

Article 41.3.1 - Key point

Answer 24

protects the institution of marriage from unjust attack