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Parental Rights in Ireland An Analysis -
National Men's Council of Ireland This extraordinary analysis of parental rights in Ireland is of extreme public interest especially at this point in time when the Government have asked for a Review to be conducted into the position of the Family in Irish society. We believe it is of vital importance that parents know where they stand in Law in relation to their right to protect and nurture their children.
The Personal has become Political - What was Private is now Public One of the very serious difficulties that has been experienced by commentators on these important matters has been the handicap of political correctness whereby a self-selected ‘consensus’ within the media, the State and academia has apparently created concepts, that we are forced to use, which give meanings to words that are in conflict with both their original dictionary definitions and with common sense. By so doing the activist judicial and executive branches of the State have developed an air of legitimacy to their corruption of the status quo. Nowhere is this seen more overt and virulent than in matters concerning personal relationships. We are pleased to herald with the publication of this report that, post the Presidential elections in the USA in November 2004, such political correctness is dead and readers of this analysis will note herein the return to the use of plain language and concepts founded in the Judeo-Christian tradition of moral absolutism and the rule of law. Moreover this report recognises the resurgence in the use of rationality in debating and analysing problems that confound the public in their concern for and striving for the common good. This renaissance is to be welcomed by all family men and women of Ireland and everywhere within the global community where civilised society intends to flourish. The essence of a free society and test of it is the degree of privacy afforded to its citizens into areas where the State has no jurisdiction to interfere. For the past two thousand years and beyond that boundary between what is private and what is public has been delineated by the institution of Marriage. The State has no right to transgress the threshold that exists in law between matters that occur within the Married Family and so are private and those that it must confine itself to which are matters of public interest. The State can only legitimately interfere where matters within the Family themselves transgress the boundary by falling foul of public laws - i.e. by the committing of crimes. This is why the National Men’s Council of Ireland have always urged that any alleged criminal assault or criminal abuse within the Family must be treated as such. This report is a commentary on the ways and means employed by the State in continually attempting to step over that line of privacy and in fact shows how in recent years it has sought to eradicate that boundary all together by fomenting an uprising between mothers and fathers, a virtual war between men and women, that they hoped would lead to a call to abolish Marriage and give them full jurisdiction to interfere with everyone’s lives. In our Preliminary Report on the Family and Marriage in Ireland in 2003, we explored the reality of family life for those Families that had been impacted upon by current state social policy. One of the strongest points arising out of people’s response to that report was their alarm at reading how the reforms of Family Law, all led to a de-stabilisation of Marriage, and had sprung, not from a popular demand from the people or their public representatives, but from an undemocratic source within the Judicial and Executive branches of the State. Family law and social reform of Marriage has never formed any part of any political party’s manifesto. No-one has been elected to represent the views of their constituents on such a platform. The debates of the Oireachtas show that these social reforms did not originate from a groundswell of demand from the people or even from the political party that formed the government at the time. They were presented as part of an ‘ongoing agenda’ that somehow was continued from one government to the next irrespective of their politics. On 14 October 2004 the Government issued a press release declaring that Taoiseach Ahern had ordered a review of the Constitution because he claimed that the Constitution needs to be changed “to give better rights to the Family which he says has undergone a major transformation in the past 67 years” He wants to know “what changes need to be made to Eamon De Valera’s Constitution to bring it in line with modern Ireland”. From our current analysis of the situation we can confirm that the Family has indeed been transformed. What our analysis does is to explain why the Family has been transformed; how the Family was transformed and who did it. In the Government’s press release they verify the success of the state-funded feral breeding programme which can now boast figures showing that one third of all children are now born outside Marriage. In Limerick their success rate is up to 56%. This confirms the findings identified in our report titled, “Brides of the State” which exposed the way that the State has taken the hand of women in ‘Marriage’ away from the next generation of potential husbands. The government’s press release further declares the establishment of a state divorce programme for women with its guarantees of immunity from penalty plus benefits for transgressors of the Marriage contract. Where we would disagree with the Government’s press release is that we found in a straw poll undertaken in city and rural areas that, almost universally, the word “family” in modern Ireland is understood to mean the Married Family, whereas the Department of Social & Family Affairs’ “Changing the Family” Circus claims a dramatical change in the common usage of this word. The aspect we find most incredulous in the Government’s press release is the announcement that the Constitution needs to be changed because in modern Ireland women’s social function has changed such that nowadays women have no desire to have a life within the home! In our experience the place that a woman most loves is her home! We are given to wonder what sort of women the Government are associating with? Similarly one has to wonder what contortions to our Constitution, which gives expression to moral probity, the government expects to initiate in order to accommodate immoral acts that are an offence against the natural law? The only encouraging aspect of this press release is the Government’s honesty at finally admitting that Ireland’s signatory of the United Nations Convention on the Rights of the Child in 1992 was repugnant to the Constitution. The Taoiseach in ordering a review of the Constitution “to give better rights to the Family ... and improve the rights of Mothers, Fathers and children” obviously fails to understand the purpose of the Family provisions of the Constitution. Article 41 of Bunreacht Na hÉireann recognises that the Family has rights and these are derived from the Natural Law. It is beyond the ability of the State or the People to change or prescribe Natural Law. The institution of the Family has by necessity, like all institutions, a hierarchical structure for its efficient management, its safety in emergencies and for its general well-being. The Constitution in Article 41 recognises this and holds the Father, by way of a trust, as the head of and accountable for the Family to the State. This is his social function within the Family. The Mother’s social function within the Family, as recognised in Article 41, is to nurture the children, safe in the protective Custody of her Husband. The State’s function is to honour its guarantee to protect this structure. Article 41 in fact sets the boundary between the Family’s own constitution and authority and the authority of the State - between what is private - where citizens have freedom of choice and autonomy - and what is public - where the State can regulate a person’s behaviour. Any trespass beyond this boundary and interference by the State in the parent’s natural right to raise their children in accordance with their conscience and their means, and Ireland ceases to be a free country. Sadly this report shows that this is already happening by the State’s subversion of the Law of the Family and by the implementation of the United Nations Convention on the Rights of the Child and the State’s claim that it, and not the Family, has the right to decide upon what is in the “child’s best interests”. The state’s assault on the constitution and law of the Family means that as men we find we can no longer lead and protect our Families, nor even have an expectation of having a Family life. Marriage and the Law of the Family ascribes the boundary between the private and the public – between the freedom of choice and state regulation. The State is perpetually attempting to cross that threshold. The people, having rid themselves of a tyrannical rule, gave to themselves a Constitution which imposes on the Irish State the duty of guarding that boundary. What the State is proposing now is that the people relieve the State of this duty by signing up to a new European Constitution which overrides the Irish Constitution and does not protect Natural Marriage and the Law of the Family that derives from it. Nor does it recognise the Natural law that the welfare of children is to be found exclusively within the Family. In the State promoting and encouraging the people to accept and endorse the concept of unnatural marriages that legitimise unnatural practices it can only be intending to debase and degrade Natural marriage and the Family so that Marriage will no longer be respected as the basis of social order and will cease to be a moral institution and will have become an immoral institution. Having regard to the Government’s latest investigation into possible changes to the Constitution of Ireland, clearly what is required by way of an improvement is that the constitution and authority of the Family be better protected from the unfettered activism of the Judiciary and from the unregulated conduct of the Executive in the implementation of social policies and the signing of treaties and conventions which are repugnant to the Constitution. The conclusion that we must come to after compiling this report is that any suggestion that the State should, as a general principle, be entrusted with our children’s lives or ‘ best interests’ should be dismissed. THE FAMILY
Social functions of parents and the Constitution of the Married Family 1. Regarding the Judgement delivered by Murray J. presently Chief Justice and Chairman of the Courts Service, in the Supreme Court, R. v R. and the State, April 2 2004, 436SS.- This case was specifically brought in order to clarify the jurisdiction of the State in Custody matters. Sadly the judgement has deepened our concerns that our Constitutional position as parents has been undermined. The plaintiff, a plumber and Husband, unimpeached Father of five children, asked the Court to respect his position as the natural Guardian of the children and honour his duty as their Protective Custodian. The foremost purpose of Marriage is to secure a position for the Father in the Family through which he is assured, in Law, of his ability to protect his Family. One could even say that this is the function of the institution of Marriage.
This position was clearly assigned him in the Bunreacht Na hÉireann. In 1937, the framers of the Constitution, in particular Eamon De Valera, saw that the downfall of civilised societies, especially those in the UK and the USA, was being caused by the breakdown of Marriage, i.e. the erosion of the Father’s position in the Married Family. As can be seen by recent events in the USA this cycle of the breakdown of society is characteristically followed by a resurgence in Moral Values and a return to a stable society based on Marriage. The framers of the Constitution saw, in their own time, the great threat of social degradation and were determined to use the opportunity granted to them to protect the Common Good. In Common Law countries such as the UK and USA the problem noted by Amneus, above was rooted in the claim that the King had the Crown prerogative, exercised in his Chancery Court, to interfere with a Father’s ability to protect his children. This has been exploited to the utmost in these jurisdictions by subversives within the executive. This was in fact a position the King had previously entirely surrended in mid 17th Century after over a hundred years of petitioning parliament, when statute placed children fully and permanently in the protective Custody of their natural guardian, their Father, in exchange for the payment of a tax, which the people honoured. Prior to 1660, in what had been the scourge of Tudor England, the King and his Court had been involved in asset striping of families and their inheritance, by virtue of the King’s claim that he had ultimate authority over all children. The King of England and his Court soon reneged on this treaty with the people and by the mid nineteenth century were again usurping the position of the Father by permitting a Mother to petition the court for the position of the “protector” of the children by seeking to become their Custodian. This invasion of Married Family autonomy by the Courts of Equity was fully recognised in the well-known Tilson case of 1951. When the people of Ireland claimed their independence from the Crown the State ceased to have the Crown prerogative to interfere in the Married Family. The Irish people put in place a written Constitution guaranteeing their rights and protections so that they would never again be ruled by a tyrant. Article 41
In Murray’s Supreme Court Judgement, R. v R., he States that the Constitution,
This is where the Judgement fails to clarify the specific question that was put to the court. No one doubts that both parents have a role. The plaintiff required that the court qualified those roles in the context of the Constitution of the Married Family. Bunreacht Na hÉireann deals squarely with the issue of Custody by making it quite clear that the Mother’s Natural and Social Function is that of ‘nurturer in the home’ and specifies that a Mother can not be expected to fulfil the role of a Father by being imposed upon to protect the Married Family by providing an income for the Married Family to the detriment of her vital role in the home. Even a cursory glance at the statute and case Law will reveal a plethora of examples where the married Father is bound to his duty as provider – the maintenance of the household being one of the elemental duties demanded in Law of him in his role as Protector of the Married Family and Custodian of the children. It is plain for everyone to see that the Irish State has entirely failed the Married Family in its legislative and Judicial Constitutional function as Guardian of the Common Good. In dramatic contrast to the way that a Husband is treated if he defaults in his Marriage the State fails the Married Family by: (a) -neither providing a remedy for Husbands where their wives fail in their duties, nor any deterrents for wives who choose to dismantle their Married Family for personal gain. The State, through the reform of Family Law under current statute and social welfare policy, in fact assists and encourages deserting wives to benefit from their own wrong-doing. and (b) -by exercising, contrary to the established ethos of the Irish Republic, the prerogative of the English Crown through Section 11. 2(a) of the Guardianship of Infants Act, 1964-1997 which permits a Mother to seek the Custodial position on the spurious claim that since a Mother has rights and duties in the education and welfare of the children she therefore holds an equitable interest in the full Custody of the children and that the State can thus exercise the equitable jurisdiction of the former Courts of Chancery. The State then enjoins with the Mother to overthrow the Father, as head of the Married Family, without the Constitutional requirement of the Father failing morally or physically in his duty. (As a further affront to justice the current legislative provision is a misuse of the Chancery rules which themselves actually require an examination of the conduct of the parents – an element entirely absent from the wording of the Guardianship of Infants Act, 1964.) The Married Father's Lawful Custody of the children of his Marriage is the corollary of his duty to Protect and Maintain them and is clearly enshrined in the Irish Constitution where it pledges to protect his Marriage and therefore defend his Right of Custody which flows from his Marriage. The Supreme Court accepts that a Father is the sole Custodian of his children, and that this position is given legislative effect in the Guardianship of Infants Act, 1964. The dependency and vulnerability of Mothers is fully recognised by the Constitution and there can be no question of imposing on them the full Custodial duties that are the sole responsibility of Husbands. The Supreme Court judgement that claims Jurisdiction to remove Custody from an unimpeached Husband and award it to a wife appears to be at odds with any rational understanding of the Constitution of Ireland. The proposition made by Murray that the Law of Ireland does not “make any provision for giving a superior status or rights to the Father over the Mother” was considered by Parliament in England as long ago as 1925. Then the Lord Chancellor made clear the opposition to the idea of joint guardianship, which the promoters of a Bill had put forward, and the English Parliament rejected the idea as being detrimental to Married Family harmony
If, as is claimed in the Murray Judgement, that the Constitution and the Law of Ireland do not “make any provision for giving a superior status or rights to the Father over the Mother” in the matter of Custody, why then should the Mother be the only parent required to petition a Court to be “granted” the Custody of her children? This position of Husbands as head of the Married Family and the position in Law of his Wife and children as his dependents is outlined in the essay, "The constitutional protection of parental rights" by William Duncan as part of the Report of the Constitutional Review Group, 1996. In it he States,
He refers the reader to Katherine O'Donovan, Senior Lecturer in Law at the University of Kent, where in her book, "Sexual Divisions in Law", her final conclusion after a rigorous exposition of the subject is,
By introducing, in Section 6 of the Guardianship of Infants Act, 1964 Rights of parents to guardianship.
is Justice Murray asserting that Mothers and Fathers, as a consequence have an equal status and that one must infer that the legislators who enacted this provision were so foolish, incompetent or subversive as to purposely create deadlock and drive families into the courts? Plainly the intention of this provision, as Stated by the Minister of Justice and in the Explanatory Memorandum and recognised by numerous eminent judges is that it gives statutory effect to the joint powers and duties held by the Mother and the Father in regard to the education of their children and in no way disturbs the Husband’s position as head of the Family and Sole Custodian of his children. It further makes a nonsense of the claim that the legislators had intended by section 6 to provide for the Mother and Father to have equal status whilst at the same time enacting in section 11.2 a provision for the Mother only to apply for Custody. Not only is the exercise of the Chancery Jurisdiction incompatible with the ethos of the Irish Republican Constitution but in order for the courts to be able to illegally use it they must, of necessity, act with a cruel and invidious discrimination against Fathers by filtering out applications under section 11 from Fathers because only a Mother’s application can invoke this claimed jurisdiction. The Mother, contrary to what has been claimed, holds no equitable interest in the Custody of the children of the married Family. Within the Guardianship of Infants Act, 1964 a definition of the term “welfare” is used in an attempt to cloud and confuse the very separate issues of “Education” and “Custody” and the different social functions of the Mother and the Father Guardianship of Infants Act, 1964 Definitions. Section 2. In this Act, except where the context otherwise requires
ARTICLE 42
The trick that the State seeks to employ is to suggest that the phrase “the religious and moral, intellectual, physical and social education” is interchangeable with the term “welfare” Whereas both parents do indeed have a Constitutional equitable interest in the education of their children, this deception claims that both parents have an equitable interest in the Custody of their children. The purpose of confusing “education” and “welfare” is to draw the public into the belief that their parental rights are described in their entirety within article 42 and therefore, providing the State does not interfere with a parent’s right to be involved in the education of their children (in the narrow sense), then the State is not seen to be violating the inalienable parental rights enshrined in the Constitution. Thereby the State claims that interfering with the Custody of the children is not in fact superseding the parental right and not outside of its authority. Once again we see how the State has gone to enormous lengths specifically to camouflage the reality that the Father is held, in Law, as the head of the Family and as such as the Custodial parent. This can be seen quite clearly from the State’s position where they promote the myth of “Joint Custody” through the government-funded Legal Aid Board in their ‘Leaflet No.2 on General Family Law’ that married parents have the Joint Custody of their children. Similarly the Government information website, www.oasis.ie and the Department of Social Welfare and legal experts who teach Law students constantly reiterate this claim. No more blatantly is this deception illustrated than in the Foreword written by Justice Brian Walsh to “A Casebook On Irish Family Law” By William Binchy where he states,
This “constitutional interpretation” by the Honourable Brian Walsh was displayed in his own Supreme Court judgement in B. v B.; 1970 when he dealt with section 11.3 of the Guardianship of Infants Act (1964) by denying the express purpose of the legislation. The Explanatory Memorandum to the Guardianship of Infants Act (1964) describes the position in 1963 prior to the implementation of the Act:
However, Walsh J. Stated:
If the Honourable Judge were to have interpreted Subsection (3) in its proper enacted manner according to the Explanatory Memorandum the general public would have been left in no doubt that the Husband alone has the real Lawful Custody of the children and the Mother is obliged to apply for it. The effect of this ruling in the Supreme Court has cultivated the spread of confusion and misunderstanding over the true meaning of the term “Custody”, to the extent that it is now belittled to mean “residency” or even just “possession”. Court orders granting “Custody” to any person are in fact ‘conditional’ orders on that person, ie. the Court itself has seized control of the Family and the State has taken over from the Husband as head of the Family and manager of the Family’s affairs. The State retains authority as supervisor in place of him. The Family’s freedom and independence enjoyed under the Father, once taken over by the State, is not relinquished until the children have reached adulthood. The date of the Tilson case in 1951 is well worthy of note - the matter arising almost immediately after the final severing of sovereignty with the British Crown on the passing of the Republic of Ireland Act, 1948. This Act removed any last vestiges with which the Irish State might claim a right to continue to exercise the Crown prerogative through Chancery and the Courts and the Judiciary were then forced to establish Constitutional principles as the grounds for their jurisdiction in Family matters. The most important principle that was created in the Tilson case has been allowed to pass unnoticed. What the judgement contains is the statement that in the Frost case in 1945 the Supreme Court followed the principle that, “where a difference between the Father and Mother leads to a situation in which the child is neglected, the State, through the Courts, is to endeavour to supply the place of the parents” What the Tilson judgement achieved for the benefit of the State, as reiterated in the Murray judgement, was to establish the principle that the State, post Tilson, in viewing the Family as a unit, has a right to intervene in its internal affairs and necessary hierarchical structure when there are mere “differences” between the parents. As we have seen by confusing the issues of “education”, “welfare” and “Custody” in the Guardianship of Infants Act, 1964 and by denying the existence of the Rule of the Law which necessarily governs the constitution and authority of the Family and in promoting it with the ideal and expectation of “equality” between the Spouses, the State has purposely expanded infinitely the potential for such “differences” to arise as acceptable ‘grounds’ on which a Mother can be enticed to invoke the State’s interference. Then it proceeded to provide a free venue in the local District Court - under the guise of “cheaper, speedier and more convenient access to justice".
This was in fact prophesied in the Dáil debates on the Guardianship of Infants Bill, 1963 when Mr. M.J. O'Higgins declared that,
The State has spent vast quantities of tax-payers money in the past sixty years championing women’s rights whilst at the same time suppressing all attempts at informing society of the existence, in law, of differences in social function of the spouses within the Family unit and the benefits that flow from this for all the Family members and for the Common Good. The institution of the Family has by necessity,like all institutions, a hierarchical structure for its efficient management, its safety in emergencies and for its general well-being. The Constitution in Article 41 recognises this and holds the Father, by way of a trust, as the head of and accountable for the Family to the State. This is his social function within the Family. The Mother’s social function within the Family, as recognised in Article 41, is to nurture the children, safe in the protective Custody of her Husband. ARTICLE 41
The State has sought at every opportunity to both deny the legitimate necessity of these social functions within the Married Family and advanced the falsity that their very existence is harmful. In so doing the State has engendered notions in Wives and children which amount to encouragement to mutiny against the Father as the authority in the home. In striving to achieve this goal the State has employed and backed groups whose objective has been to demean and dishonour the image of Husbands and thereby have the effect of destroying the order that must exist between Husbands and Wives for the well-being of the Family. Whilst denying funding to groups who seek to promote the true position of the Married Family for its established benefits to all the family members and to society, groups working in the areas of Domestic Violence, Rape and Child Abuse have been heavily financed by the State to broadcast the message that men in general and Husbands in particular are not to be trusted The State is further implicated in its collusion with these groups by its continued censoring of the Government’s own reports which clearly establish that, the Married Father is the proven most trustworthy of men. The State has thus unjustly diminished the reputation of Husbands and undermined his legal authority within the Family whilst at the same time continuing to hold him legally accountable for the Family unit. Considering the stress that the state has exerted against Husbands it is no surprise to find men whose Marriages have been scuppered by the State in the highest risk group for taking their lives. By promoting the concept of the equality of the spouses and by disseminating propaganda which falsely portrays the Married Father as untrustworthy, what the State has done is to destroy the autonomy of the Family unit specifically to promote its own totalitarian agenda. Considering the Constitutional validity of applying the “Child’s Best Interests” doctrine to the Married Family 2. On the matter of the courts Jurisdiction or right to interfere with the Constitution of the Family Mr Murray, in his Supreme Court Judgement states,
In answer to Mr R seeking clarity as to whether the Guardianship of Infants Act, 1964 is repugnant to the Constitution, Justice Murray, who is presently the Chief Justice and Chairman of the Courts Service, appears to be claiming, in essence, that the Supreme Court derives its authority from Parliament and not from the Constitution! The only reference to the concept of ‘the best interests of the child' which can be found in the Guardianship of Infants Act, 1964 is in the section 11(d) amendment of 1997 which States, "11D.—In considering whether to make an order under section 6A, 11, 14 or 16 the court shall have regard to whether the child's best interests would be served by maintaining personal relations and direct contact with both his or her Father and Mother on a regular basis.". The courts jurisdiction according to the judgement of Murray J. can therefore only be derived from this section. The Oireachtas debates of this amendment clearly show that it was proposed as a direct result of the Irish State having apparently legally signed and ratified, on the advice of the office of the Attorney General, “entirely without any reservations whatsoever”, the United Nations Convention on the Rights of the Child which entered into force on 21st October 1992. The Attorney General is legal adviser to the Government and advises the Government on the constitutional and legal issues including whether the State can ratify international conventions. Justice Murray should be qualified to understand these matters having occupied that office twice and especially during the critical period from 1987 to 1991, when these matters extensively preoccupied the legislature. Despite the Attorney General’s approval, when it came to complying with the States obligations under the European Convention on the Exercise of Children's Rights in January 1996, it was found that the Constitutional position did not allow the State to implement the United Nations Convention on the Rights of the Child and there followed a contorted exercise by the State Ministers for Justice to affect an amendment to the Guardianship of Infants Act, 1964 which they acknowledged to be inconsistent with the Constitution of Ireland. Cynically this amendment was advanced as the only concession they would make to strong petitioning by Deputies, on behalf of their constituents, for a presumption of shared parenting. The discussion exclusively revolved around improving the lot of unmarried Fathers. There was never any suggestion whatsoever that this amendment would be applied to married parents. A reading of the Oireachtas debates of the Children Act 1997, which are readily available on the oireachtas.ie website, shows that the Minister of State, Miss M. Wallace, described this 11(d) amendment in the following terms:
The term coheres indicates that it is 'stuck to' Article 41. It is therefore actually and in effect a 'back-door' Constitutional amendment but having been enacted without referendum it is therefore illegal and must be struck out. One can not make a Convention or Treaty Constitutional by introducing an amendment to current legislation, (that is presumed Constitutional) which has the effect of rendering that legislation unconstitutional. As can be deduced from the Murray judgement the purpose of this amendment was not to benefit the lot of children or unmarried Fathers, but in fact to alter the basis for the Courts’ jurisdiction over married parents by amending Section 3 of the Guardianship of Infants Act, 1964, where it States,
When this was originally passed in 1964 it gave statutory effect to the established Rules of Court declared in the formative Kindersley case, 1943 (see debates, Explanatory Memorandum and Marginal Notes to Bill as passed). These rules were Stated in the Supreme Court and read by O'Byrne J
The principle ‘that the court can not act in opposition to the married parent unless judiciously satisfied that the welfare of the child requires it in some very serious way’ is entirely consistent with the Irish Constitution at article 42.5 where it States,
Both the Constitutional position and the 'Kindersley Rules' enacted in Section 3 of the Guardianship of Infants Act, 1964 are derived from the O'Hara case of 1900 wherein Fitzgibbon L. J. defines, these exceptional cases
He further States,
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