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The Family - Marriage and Children

The Law of the Family founded on Marriage in Ireland

The position of husbands as head of the Family and the position in law of his Wife and children as his dependents is outlined in his essay, "The constitutional protection of parental rights" by William Duncan in the Report of the Constitutional Review Group, 1996. In it he refers the reader to Katherine O'Donovan, Senior Lecturer in Law at the University of Kent, where she states in her book, "Sexual Divisions in Law",

"Within the modern bureaucratic state the nuclear Family of Husband, Wife and their children is treated as a unit. The head and public representative of this unit is the Husband, whose Wife and children are legally constituted his dependants, not only economically but also because they are subject to his orders. His role is to control what goes on within the Family in private."

We feel the need to state this fact publicly simply because information disseminated widely by the Government and the Legal Aid Board, and latterly in a Supreme Court Judgment by Lord Chief Justice John Murray, insists on proliferating the deceit that within the married Family Mothers and Fathers have equal status and that the Father is not the head of the Family unit.

The Legal Aid Board, in their explanatory leaflets and www.Oasis, the government's web-based information site even go as far as to assert that the married Mother and Father hold the right and duty of Custody over their children jointly.

This is plainly not true and those responsible for the spreading of this lie must be held accountable.

In law in Ireland, even today a married Father is held liable for the Custody of the children of his Marriage. He exercises his Custodial role in the protection of his Family - in practice through the act of providing for and maintaining his Family and conserving the family resources. He is entrusted to Husband the Family like a farmer husbands his stock - he manages with prudence and frugality.

In law the married Mother does not have the duty of Custody of the children of the Family but rather has the complementary right acknowledged in the Constitution to nurture the children of the Family, safe in the protection afforded her by her Husband. Being a Guardian with inalienable rights she is of course entitled to apply for Custody if her Husband has misconducted himself so as to have failed in his duty.

It is very strange that no-one ever talks about what this duty entails and how it differs from the duty and rights that a Guardian has. In the Supreme Court in B. v. B. [1975] I.R. 54 SC’, O’Dalaigh C.J. is quoted as stating,

“It only remains to repeat that the court's order in respect of the custody of the children is interlocutory in character; moreover, the court order does not diminish the duty of the parents to be concerned about the welfare and education of their children. The parents, whatever their own difficulties and differences, should be concerned to remain in closest consultation in all that concerns the welfare of the children. Specifically, the parents should seek agreement with regard to their plans for the future education of their children to avoid the necessity of invoking the direction of the court”

In the same case, Walsh J. is quoted as stating,

“I agree with the Chief Justice when he says that the provisions of s. 11 also underline that any order as to the custody of an infant, or any other order it may make affecting the welfare of the infant under that section, is necessarily only interlocutory in character because circumstances may change from time to time 

The change of circumstances may be due to the current position of the parent or parents or the growing up of the child and the changes which the passage of time may bring about, not merely in the relationship of the parents to one another but in their relationship to the child, and the change which may be brought about in the fortunes or health or opportunities of any of the parties concerned. In a case such as this where one is dealing with young children, it appears to me that, in the absence of agreement between the parents from time to time as to what the welfare of the child requires, the court invoked under S. 11 of the Act may have to exercise something in the nature of a continuous supervision during the infancy of the child.”

As for how and where their children will be educated precedent, statue and the Constitution recognise that the Mother and Father share the right and duty to make such arrangements. Once an agreement is reached neither parent can unilaterally change it.

It would appear from the above that the duty and 'right' of Custody amounts to little more than, say the position of the Chairperson of a committee of two! - made up of the Husband and Wife. Although, theoretically the chairperson - the Custodial parent - might have the deciding vote, as anyone knows who has worked on a committee it often means that, for the sake of keeping the committee happy and functioning, the chair would often have to sacrifice their own preference and compromise. When it comes to sacrifice God has chosen men to step forward so there is nothing sexist or chauvinistic about the Husband being held to the Custodial role. It is part of his 'social function'. He shows his love for his Family most often by sacrificing the comfort of his home and the enjoyment of the company of his Wife and children and working outside the home. His love ironic and unseen. It is measured by his ability to bear the separation he feels from his Family and to do work which is often dirty, dangerous and unsocial but necessary to provide for the welfare of his Family. This also explains why men care less about their own health than everyone elses in the Family.

The definition of "custody" is the "keeping and safe-keeping" so the role also encompasses the duty of providing financially for the children. This still falls primarily to men. Even where the wife has been 'granted Custody' legitimately - in the rare case where the Husband has abandoned his Family duties - the law still expects him to provide through maintenance payments. Women are excused this duty within the Constitutional provisions and we know of no situation where the Wife pays maintenance for the Husband and children even where she is the deserter.

We believe that knowledge offers the best hope for an end to Marriage breakdown which is the real tragedy for children and for society.

In the matter of the welfare of children we believe, and this is clearly shown by all the evidence, that what is best for them is simply being reared by their two parents, supported and respected by the state to share this onerous task and our work is dedicated to ensuring that children are conceived and remain within a Family unit with their two committed parents.

We believe it is the role of the state to at all times assist citizens to avail of the safeguards afforded them and their children in Marriage as recognised in the Constitution. This means that the primary focus of the Family Support Agency must be to ensure reconciliation in cases of conflict between Husband and Wife and to provide education and training, supported by social welfare policies, which will ensure that all young adults who intend to procreate are informed of the benefits of Marriage.

Everyone must be told of the serious damage that is done to children when their parents fail to honour their commitment to each other and the children and stop acting in unison as one flesh - ie together, preferably under one roof, with the children as their principal focus.

We can not find evidence which shows a benefit to children of supporting groups who merely demand that they, as parents, have "CONTACT with their children!" We strongly support Fathers who insist on "protecting and caring for their children - all the time"

No amount of generating an 'equitable' outcome for parents after separation is going to prevent the damage already done to children, adults and society by the separation itself.

Our extensive inquiry into the law and outcomes for children and their parents leads us to require:

1. That Marriage be protected and defended from attack because it offers to children and adults the best arrangement for a satisfying stable Family life and provides the elemental structure required for a civilised society
   
2. That fault in Marriage carries a penalty because children hold their parents as role models
   
3. That the practice of unlicensed procreation be discouraged so as to encourage licensed procreation - Marriage.
   
4. That social policies, like tax and welfare codes, be geared to promote and benefit stable Families with children.
   
5. That parents are respected as the primary educators of their children with the state's function being confined to facilitating the parent's role.
   
6. That Custody, the duty a married Father is, in law, held liable for is respected by the courts and by social policy until the people decide otherwise by amending the Constitution.
   
7. That the Courts desist from improperly allowing and encouraging married Mothers to apply for the Custody of their children against a fit Husband. Wives do not have the right of Custody of their children in these circumstances and can not make a Section 11 (1) application under the Guardianship of Infants Act, 1964 for Custody or to regulate their Husband's 'access.'. A difference over Custody can not apply where only the Father has the right. Similarly wives can not make an application under Section 11(2a) under this Act as this section is derived from the Jurisdiction of the Crown of England and this can no longer be considered appropriate.

The claim made by the state that the Husband and Wife have an equal right to the Custody of their children was considered and rejected as being detrimental to family harmony as long ago as 1925 when The Lord Chancellor, then of England and Ireland, made clear the opposition to the idea of joint stewardship of the married Family when he stated, "the net result ... would be to substitute a legal for a domestic forum in every household' and 'that to put Mothers on an equal footing with Fathers in all matters concerning their children would simply produce deadlock'

The notion of 'equality' within the Family is in urgent need of public debate. Within society as a whole citizens have the right to be treated equitably. However certain organisations and institutions necessarily require a hierarchical structure for their efficient and safe operation. These include the management of a business, the administration of a government, the running of a football team or the command of a crew on board a ship.

It is patently naïve to suggest that these organisations must exercise the strict adherence to the rules of equality. What necessarily exists within them and also within the Family are differences of social function where different levels of authority are balanced with corresponding differences of levels of liability and accountability.

If a Chief Executive makes the wrong decisions we sack him not the Personnel Officer or Head of Research. If a football team gets relegated we sack the manager, not his Physio or Goalkeeper. If a ship founders on the rocks and the crew or cargo are lost it is the Captain who we put on trial, not his Bosun.

The married Family is arguably the most important institution in society and its hierarchical structure is as important and necessary as that in any corporation and especially, when it comes to emergency decision-making in these troubled times, like those made by the captain of a ship in a storm,.

To continue the analogy, if there is confusion and conflict by the crew in stormy seas and the crew is encouraged to believe by the Ministry for Marine that it can disrespect the orders of its captain and mutiny without reproach the ship will doubtless flounder.

That is precisely what is being experienced in the Married Family today. The state, as we have seen, is deceiving Mothers into believing that there is no 'captain on board' yet the state is at the same encouraging Mothers, through the Family courts, to hold their Husband to account if there is Family break-down.

The Husband, like the captain in his treatment from the mutinous crew, is literally thrown overboard or 'made to walk the plank.' Rather than reprimand the mutinous crew, the state ensures that they are well rewarded. If the man thrown overboard survives the stormy sea and manages to scramble his way back to dry land he will find the courts waiting for him to force him to continue making payments for the purchase of the boat which he can no longer use and ordered to reward his mutinous crew with the fruits of his labour for the rest of his miserable life. It is no wonder that the suicide rate for Fathers after they have been treated so cynically and unjustly is eight times the rate for the rest of the population.

The real dishonesty of the feminist/socialist movement is that rather than deal with the necessary hierarchical structure in the married Family and debate whether, for instance, the Mother should take over the position of being the accountable parent, they have employed deceit and unscrupulous reports and false allegations to poison the good name of Husbands and of Marriage itself.

They intend to abolish Marriage all together and force everyone to remain outside of any protected Family unit and instead live as separate individuals who lack any support structure from their immediate or extended families. Once in this vulnerable condition the state can then force them to do its will unopposed.

We believe that these revelations of the legal position of men and women within Marriage that the National Men's Council of Ireland have 'uncovered' must lead to an urgent debate amongst every citizen of the country so we can decide what we want to do with the information.

Our first priority must be publish the names of the people who have deceived us for so long and put them on trial for the crime of corrupting public morality. This is important as it sets the moral tone of the ensuing discussion as to what we do to safeguard our natural right to found a Family and within the Family unit to have our authority and constitution respected by the state as recognised in the Constitution and in the European Convention on Human Rights.

The Constitutional Review Group delegated by the Taoiseach to examine this issue must now take the lead and immediately initiate an educational programme which will show, clearly and without further deception the legal position that exists at present within the married Family and the benefits that flow from this for all the members of the Family and for the common good of society.

Based on the new knowledge the People can then have a thorough, searching and sober debate of the issues so they, and not the state, can decide what changes they want to make, if any, to the Constitutional protections of the Family founded on Marriage.

Roger Eldridge,

Chairman. National Men's Council of Ireland