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Family and Education - fe1 notes

Constitutional Law (National University of Ireland Galway)

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Family and Education

- Art. 41 – Explicitly recognises the family as the fundamental unit of society. Undertakes to
protect the institution of family and the right of the woman to remain in the home.
- Art. 42 – State recognises the family unit as the natural educator of the child but also
undertakes to provide for free primary education.

Family Based on Marriage

- Art. 41.3.1 – ‘The State pledges to guard the institution of Marriage on which the family is
founded and to protect it from unjust attack.’
- State (Nicolaou) v An Bord Uchtala – Court rejected idea that unmarried unit constituted a
family. Walsh J acknowledged that while some units may ‘have the outward appearance of a
family’ and may for some other purposes be considered as such – just not under Art. 41.3.
- Murphy v AG – Held that a system of taxation which taxed married couples more than
unmarried couples was a breach of the state’s obligation to guard the institution of
marriage.
- Muckley v AG – Ps had overpaid tax on the basis of the finding in the Murphy case and
sought to offset the balance against a later underpayment of tax. However, the Finance Act
1980 strictly prevented this. The State argued that Art. 41.3 simply prevented inducements
not to marry. The SC rejected this and held that any measure which penalises marriage or
makes it a less attractive option is contrary to the Constitution.
- MhicMathuna v Ireland – Concerned a challenge to the constitutionality of social welfare
which provided for an unmarried mother’s allowance. Carroll J could not accept that a
woman would choose to have a child unwed just to collect this allowance. She rejected the
challenge and held that this legislation was child-centred since so it could not be an attack
on marriage. The court held that this could not be seen as an inducement not to marry.

Non-Marital Fathers

- State (Nicolaou) v An Bord Uchtala (1966) – Concerned an unmarried father who had no
legal right to be involved in placing his child up for adoption. He challenged this exclusion on
the basis of Art. 41. The SC rejected the argument that the unit of unmarried parents
constituted a family for the purposes of the Constitution. The court also rejected the father’s
right to custody based on the ‘general lack of interest of father’s in their children.’
- JK v VW (1990) – The court recognised the ‘rights of interest or concern’ of non-marital
fathers in respect of their children while also affirming that no constitutional right to
guardianship exists for fathers. The extent of the father’s rights would be decided on a case-
by-case basis.
- GT v KAO (2007) – McKechnie J held that the ECHR required him to decide that natural
fathers may have rights. In this case, the parents had lived together as a de facto family for
three years. Then in January 2007 the mother took their children, twin boys, to her home in
England. He brought abduction proceedings in England and one asserting guardianship in
Ireland. Art. 3 of the ECHR stated that the removal of children is wrongful where it is in
breach of custody rights assigned to a parent. English courts required their Irish counterparts
to advise on whether such rights existed. McKechnie J held that he did and contended that:
‘relationships that would have been an embarrassment a generation ago are now widely

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accepted.’ The conclusion reached was that he removal of the child was wrongful.
McKechnie J argued that it would be wrongful to deny rights in this case because it had the
hallmarks of commitment.

Autonomy of the Family: Healthcare

- The real issue is not the rights available to children but who asserts them: family or state.
- The State may intervene as per Art. 42.5 in only the most exceptional of circumstances.
- Northwestern Health Board v HW (2001) – Parents refused to allow a PKU test be
performed on their fourth child. All three of their other children had taken the test and
come back negative. The Health Board applied for an order empowering it to carry out the
test without parental consent. HC refused. Appealed to the SC who also refused 4:1, Keane
CJ dissenting.
o Murphy J laid down a test as to the meaning of ‘exceptional circumstances’
justifying State intervention in parental matters. This may only be carried out ‘where
the general conduct or circumstances of the parents is such as to constitute a virtual
abduction of their responsibilities or alternatively, the disastrous consequences of a
particular decision are so immediate and inevitable as to demand intervention.’
o Murray J emphasised that the risk of a liberal approach in respect of State
intervention is that it would embroil the courts in the micro-management of
families. In order to justify intervention, the circumstances must be so exceptional
so as to jeopardise the ‘capacity of the child to continue to function as a human
person’.
o Denham J acknowledged the strength of family bonds and held that the State should
not intervene to weaken them unless there are exceptional circumstances so as to
constitute an immediate threat to the health or life of the child.
o Hardiman J grounded his decision in the primary afforded to familial decision-
making in the Constitution. The applicant must rebut the presumption that the
family has the best interests of the child at heart in order to justify intervention.
o Keane CJ dissenting focused less on the unit concept and more of the position of
family members as individuals. He noted the minimally invasive nature of the
procedure led to only one conclusion – failure by the parents to protect the rights of
the child and his health against unnecessary and avoidable dangers.
- Re A Ward of Court (Baby Janice) – Concerned the difficult problem caused by the beliefs of
Jehovah’s witnesses in refusing medical treatment. Janice was born with a hole in her heart.
Her mother initially consented to treatment but later refused. Upon application to it, the HC
made the baby a ward of court and authorised the treatment. Further treatment was
needed at a later date and so the matter came before Abbot J who had to decide whether
the threat posed justified state intervention. Held that there was a need for further surgery
on the facts.
- Eastern Health Board v MK – Held that unmarried mothers derive rights from Art. 40.3 as
opposed to 42 even though this mattered very little in effect on the facts of the case.

Custody and Adoption

- DG v An Bord Uchtala – In order for consent for adoption to be valid the mother must be
aware of (i) the nature of her rights in relation to the child (ii) the nature of the adoption

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process (iii) the effect of making an adoption order (iv) the effect of legislative provision
which may allow a court to overturn a failure to give final consent.
- Re JH – Child placed for adoption, but consent withdrew before it was finalised, and mother
married the child’s father. Dispute arose, and child returned to natural parents.
- N v HSE – Daughter born in 2004 to unmarried parents and placed for adoption. The couple
got married in 2006 and sought immediate return of their daughter. HC ordered that the
adoptive parents should retain custody. However, the SC reversed his decision on the
grounds that the child is far better off in the company of its natural family.

Non-Citizens and Residency Rights

- Questions arise where non-nationals who upon entering the country bear a child here.
- Fajujonu v Minister for Justice – An application was made by illegal immigrants fearing
deportation ostensibly on the basis that a child born in Ireland could not be deported. It was
held that deportation was permissible but only where the Minister had considered the
specific case and determined that it was in the interests of the common good and by the
need to protect the State and its society. A notable feature of this case was the fact that the
family had been resident in Ireland for several years. Would the same result be achieved
where immigrants came to Ireland simply to have a child and avail of entitlements?
- Osayande v Minister for Justice – In this case, the immigrants had only been in Ireland a few
months but in that time the woman had given birth to a child. After this case Ireland
amended its Constitution – Art. 9 now provides that a person born in Ireland who does not
have at least one Irish citizen parent is not entitled to citizenship save as is provided for by
law.

Parental Autonomy in the Context of Education

- Article 26 and the School Attendance Bill 1942 – Under S 4 of this Bill the Minister could
issue certificates to parents of home-schooled children to certify that they were receiving
suitable education. This was deemed repugnant to the Constitution as it seemed to allow the
Minister to dictate the manner in which children received education.
- DPP v Best – D was prosecuted under schools attendance legislation for not sending their
children to school. She counter-argued that she was supplying sufficient primary education
in the home. Problem was ‘minimum level of education’ was not defined by statute. Court
held that provision of education in the home was consistent with the Constitution.
- O’ Donoghue v Minister for Health – Held that the meaning of basic elementary education
was not limited to mere scholastic instruction but also included advice and instruction on
using ones inherent physical, mental and moral capabilities.
- Sinnott v Minister for Education – Concerned a 23-year-old profoundly autistic man who had
only received two years of primary education. He sought damages for a failure to provide
him with adequate education. SC rejected his argument that education should be provided
indefinitely – constitution extended rights only to children up to the age of 18.
- O’ Sheil v Minister for Education – Plaintiffs wanted to educate their children on the basis of
the Steiner principles and wanted to compel the State to fund a school to this end. The court
held that while the State should be obligated to provide a rational choice in terms of schools,
the Minister could provide a forum where parents voice their concerns about schooling. This
request would be taken on board. No obligation to build schools upon request.

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Referendum on the Child

- This, the 31st amendment to the Constitution was passed in December 2012.
- Art. 42.5 allows for intervention where the parents fail in their physical or moral duty
towards the children. There is also somewhat of an implied assertion of non-marital families.

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