Family & Education Flashcards
1
Q
1. The Family Based on Marriage
Based on Art 41.
A
duty on the State to safeguard the institution of Marriage on which the family is founded), the term ‘family’ has been considered to be the marital family:
2
Q
1. The Family Based on Marriage
State (Nicolaou) v An Bord Uchtála [1966]
A
- SC held a natural, unmarried father wasn’t entitled to rely on Art 41/be heard before adoption
- Rejected the concept that an unmarried unit constituted a family within Art 41.
- Held there is no such thing as a ‘de facto’ family – constitution only protects martial families.
3
Q
1. The Family Based on Marriage
Murphy v AG [1982]
A
- Defined marriage as “a permanent indissoluble union of man and woman”.
- With the referendum, it’s no longer man and woman but still have a special institution of marriage
4
Q
2. Power of Oireachtas to Recognise Non-Marital Families
Murphy v AG [1982]
A
- Held the Income Tax Act that taxed married couples more heavily than unmarried couples was in breach of the obligation on the State to guard the institution of marriage.
5
Q
2. Power of Oireachtas to Recognise Non-Marital Families
Muckley v Ireland [1985]
A
- Ps overpaid tax on basis of Murphy finding and sought to offset the overpayment against a later underpayment. But s.21 Finance Act 1980 prevented this.
- State argued Art 41.3 only prohibited inducements not to marry.
- SC rejected this interpretation on basis 41.3 prohibited the penalisation of marriage by imposing a greater burden on married couples than on cohabiting couples.
6
Q
2. Power of Oireachtas to Recognise Non-Marital Families
MhicMathuna v Ireland [1989]
A
- Challenge to constitutionality of social welfare Act providing for unmarried mother’s allowance
- Carroll J rejected this: but did this rejection re-introduce the inducements concept in M and Muck?
(i) Inducements Argument: Act is inducement not to marry - Carroll held she didn’t believe people would rather remain unmarried and receive this payment bc if they married and were cohabiting, ran risk of criminal sanctions if it was found to be true.
- Due to greater burden of raising kid alone, the support was centred and not an inducement.
(ii) Penalisation Argument: C said unmarried co-habiting couples were worse off in terms of allowances than married and both unmarried and married couples living apart were treated the same re
allowances. Thus there was no penalty in being married. SC approved the decision.
7
Q
3. Position of Non-Marital Families - Unmarried Mothers
State (Nicolaou) v An Bord Uchtála [1966]
A
- Held the rights of an unmarried mother don’t come under Arts 41-42.
- Her rights to care and custody of the child are protected by Art 40.3 (personal rights).
- Didn’t pronounce the extent of other natural person rights other than care and custody.
8
Q
3. Position of Non-Marital Families - Unmarried Mothers
G v An Bord Uchtála [1980]:
A
Natural right of unmarried M and right to surrender her rights re her child.
9
Q
3. Position of Non-Marital Families - Unmarried Fathers
State (Nicolaou) v An Bord Uchtála [1966]
A
- Unmarried F who had no legal right to be involved in the placing of his child for adoption challenged the exclusion on the basis of Art 41.
- SC rejected that the unit of unmarried parents & child constituted a family for purposes of Art 41
- NB: Unmarried father’s have no automatic constitutional rights to child
10
Q
3. Position of Non-Marital Families - Unmarried Fathers
JK v VW [1990]
A
- Court was willing to extend the position of the non-marital child by acknowledging rights of ‘interest and concern’ for the unmarried father. Here, unmarried F applied to be a guardian
- SC held although there’s rights of interest and concern arising from the blood link, no constitutional right to guardianship in the unmarried father exists.
11
Q
3. Position of Non-Marital Families - Unmarried Fathers
GT v KAO [2007] Failed to review position
A
- HC: McKechnie J held the ECHR required him to decide that the natural F may have rights.
- Here, we had a de facto family living together for 3 years then then M took the twins to UK.
- G didn’t consent or know of this. He instituted 3 sets of proceedings under the Guardianship of Infants Act in the DC in Ireland and under The Hague Convention and Brussels II in UK court
- Brussels II: Removal of a C is wrongful if in breach of ‘custody rights’ a person has under the law of the state the C was resident in. HC had to decide whether he had custody rights
- McK starts decision noting the dissent of McCarthy J in JK v VW: ‘I find it hard to accept a loving F, who with the M wanted to have a child, has no natural right to the society of the child’
- Then noted the dissent of Barrington J in W. O’R v EH.
- However, he held his is bound by the above SC decisions and must follow them (only HC judge)
- So, as the constitution gave little protection, he considered ECHR case law on Art 8
- He held the broader concept of family in cases like Keegan v Ireland meant G had rights.
- Held the M and F were at all times a de facto family within the meaning of Art 8 and thus were entitled to respect for their family life under Art 8. Concluded the removal was wrongful.
- Appealed to SC: Appeal was limited bc the judgment was only concerned w the declaration that the retention of the children was wrongful. SC upheld + refused to examine the position of unmarried Fs.
Thus the position is still that in Nicolaou.
12
Q
Children: MArital and Non-marital
G v An Bord Uchtála [1980]:
A
Incl. right to be fed, live, reared, educated, opportunity of working and realising his full personality and dignity as a human being.
13
Q
4. Parental Authority (Autonomy) in Health Care Decisions
Northwestern Health Board v HW [2001] NB: Heel Prick Test
A
- Parents refused to allow the PKU (heel prick) test be taken on 4th child. 3 others had it: negative
- HB applied for an order empowering it to carry out the test without parental consent.
- Both HC and SC refused the order: SC was 4:1 with Keane CJ dissenting.
(i) Murphy J - Held failure of parental duty must be exceptional i.e. such a degree of neglect as to constitute abandonment of the child.
(ii) Murray J - Noted the risk of a liberal approach would involve the State and courts in a sort of micro-management of the family. Noted some parental decisions made be a source of distress to a rational bystander, but again said should only intervene in exceptional circumstances.
(iii) Hardiman J - Critical of lack of legislation in the area.
(iv) Keane CJ (Dissent) - Noted the conscientious weighting by a properly informed parent of the dangers of not having the test versus the minimally invasive nature of the procedure meant this was a failure
14
Q
4. Parental Authority (Autonomy) in Health Care Decisions
Re A Ward of Court (Baby Janice) [2004]
A
- Parents were Jehovah’s Ws. Baby born w heart defect. She needed to undergo surgery to remedy this. Initially consented, then withdrew due to possibility she’d have to have a blood transfusion
- Hospital applied to HC: HC made the baby a ward of court and authorised the treatment
- More treatment required later, and matter came before Abbott J again.
- Based on HW ‘exceptional circumstances’ test, the argument was made that this operation was needed to save her life and the only risk was in 8 in 100 operations but it was a risk any parent would take on behalf of a critically ill child.
- Balancing religious freedoms and the child’s right to health, held the child’s right takes precedence over their religion and held there was a pressing need for surgery. Allowed order.
- Note: Immediate risk here. No immediate risk in HW case.
15
Q
4. Parental Authority (Autonomy) in Health Care Decisions
HSE v B [2016] NB Case Note
A
- HSE sought application for order to force B (pregnant woman) to have a C-section against her will in order to vindicate the right to life of B’s unborn child.
- H claimed on basis of medical evidence that B, who’d had 3 C-sections already, couldn’t naturally deliver as there’d be a risk of rupturing her uterus putting her and the child’s life at risk
- B resisted this and stated she wished to deliver naturally. After the case, she in fact gave birth by C-section and took medical advice and delivered a healthy child.
- Hearing in HC was in camera but B sought an order to lift it. HSE argued in best interests of child.
- C-Section - Refused to order a C-section despite the danger to health of B and child. Said court can’t see why she’d want to take a risk, but issue is not whether they agree with her buy whether she can be forced to have a surgery in the interest of her and her child.
- HSE questioned her capacity: Held as an adult patient she must be presumed to have capacity to refuse
- Unborn Child - Held the right of the courts to intervene in a parent’s decision re an unborn child isn’t any greater than their right to intervene re born children. Thus held NWH v HW was just as applicable
- Applying NWH, held the intervention could only be justified in extreme and exceptional circs.
- Held the increased risk B was taking was not such to justify the court to force a C-section
- HC Decision on Lifting of In-Camera Order - Held it’s B’s choice to make a decision on this and not HSE’s: she’s entitled to seek the lifting even if not in daughter’s best interests. It’s for her to decide.
NB: Ultimately this confirms that NWH v HW is still binding precedent.
