Introduction (Ch1) Flashcards
Article 41.1.1° of the Irish Constitution recognises the importance of 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.
Article 41.3.1° provides that
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.”
Article 42.1
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.
Re Article 26 and the School Attendance Bill 1942 [1943] IR 334.
In circumstances where parents for physical or moral reasons fail in their duty to educate their children, then the State is obliged to intervene
Article 42.5 of the Constitution
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.
North Western Health Board v. W (H) and W (C) [2001]
The Supreme Court held that the respondents would not be required to permit the appellants to conduct the PKU test on their son. The Court explained that the authority and autonomy explicitly recognised by the Constitution as residing in the family as an institution in society meant that parents had primary responsibility for the upbringing and welfare generally of their children. While the authority of parents was not absolute the court would intervene and make an order contrary to the parents’ decisions only in exceptional circumstances in the interest of the common good, or where the parents had failed for physical or moral reasons in their duty towards their children.
new Article 42A, which reads:
- The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.
- 1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
2° Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require. - Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.
- 1° Provision shall be made by law that in the resolution of all proceedings—
i. brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or
ii. concerning the adoption, guardianship or custody of, or access to, any child,
the best interests of the child shall be the paramount consideration.
2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.
McD (J) v. L (P) and M (B) [2010] 2 IR 199; [2010] ILRM 461
The case concerned a gay man who donated his sperm to a lesbian couple. This resulted in the birth of a boy in 2006. The parties signed a contract which stated that the applicant would have no parenting role but would play the role of a “favourite uncle” and would have contact with the child at the discretion of the respondents. Relations began to deteriorate between the parties and the applicant applied to the High Court to obtain an injunction to restrain the respondents from moving to Australia with the child.
There is no institution in Ireland of a de facto family. Reference has been made in cases previously . . . to a de facto family, but it is a shorthand method of referring to the circumstances of a settled relationship in which a child lives.
In practical terms, the fact that a de facto family was not legally recognised as an institution meant that the relationship of the two women could not be weighed in the balance against any rights the applicant may have. However, Denham J explained that the relationship of the women was a factor to be considered as an element of the overall circumstances in determining what is in the best interest of the child given the loving environment in which the child was being raised by the respondents.
Criteria to Determine Marriage of Convenience: Civil Registration (Amendment) Act 2014 s 18
- if the parties to the intended marriage speak a common language;
- the period prior to the relevant notification of the intended marriage during which the parties to the intended marriage are known to each
other; - if the parties to the intended marriage have lived together in the past or
if they currently live together; - the extent to which each party to the intended marriage is familiar with
the personal details of the other party; - the extent to which each party to the intended marriage intends to
continue an existing commitment to mutual emotional and financial
support of the other party to the intended marriage; - the immigration status of one or each of the parties to the intended
marriage who is a foreign national; and - other than in a case where money is paid as a dowry as appropriate to
the culture of one or each party to the intended marriage, if money was paid as an inducement for the marriage.
The State Nicolaou v. An Bord Uchtála
For the State to award equal constitutional protection to the family founded on an extra-marital union would in effect be a disregard of the pledge which the State gives in Article 41.3.1. to guard with special care the institution of marriage.
The Health Service Executive v. N. (L.) & Anor. [2013] 4 IR 49: In Camera Rule
addressed the issue of criminal contempt of court for breach of the in-camera rule. In a case stated from the District Court, in which three newspaper editors were found in criminal contempt of court and fined €1,000 each for publishing details of a child care case, it was determined that:
- there is no requirement to establish an intention to breach the in camera rule in making finding of criminal contempt of court;
- that the District Court judge was correct in law in determining that it constituted contempt of court to publish the facts of the making of an order in proceedings under child care legislation where the publication in question did not identify or tend to identify the children who were the subject of those proceedings;
- there is no basis for suggesting that European human rights law required that the newspaper editors be permitted to publish the articles complained of;
- that the penalty imposed was, in the circumstances, a lawful one.
