[Constitutional Convention][3][16 Feb 2013] The role of women in the home

RangeR

Greetings. My name is Keith Burke. I'm from Kildare. I was chosen to be one of the 66 citizens of Ireland to represent the wider citizen base in the Constitutional Convention. Some broad information can be found here. It looks mostly accurate

I'm not an expert in law, the constitution or politics. I want to educate myself in the various proposals to better allow myself discuss it on the day. I also want to hear what the wider citizen base think about the proposals.

The Convention are meeting on February 16th and 17th 2013 to discuss the third issue put to us.

Amending the clause on the role of women in the home and encouraging greater participation of women in public life

The Irish Constitution [PDF] currently states

Article 41.2.1 - Page 162 wrote:

In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved

and

Article 41.2.2 - Page 162 wrote:

The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

Request : This thread is not to discuss the Convention itself, please only discuss the pro's and con's of the thread topic.

#ccven - Discussing on the day.

I welcome your comments. Discuss.

P_1

Immediate thoughts would be to attempt to change the wording of both sections of the Constitution to remove any gender bias.

So:

Article 41.2.1 - Page 162 wrote:

In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved

should read

In particular, the State recognises that by their life within the home, the citizen gives to the State a support without which the common good cannot be achieved

and

Article 41.2.2 - Page 162 wrote:

The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

should read

The State shall, therefore, endeavour to ensure that parents shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

Podgerz

P_1 wrote: »

Immediate thoughts would be to attempt to change the wording of both sections of the Constitution to remove any gender bias.

So:

should read


and


should read

The State shall, therefore, endeavour to ensure that parents shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.


While I agree the first provision you recommended should be implemented, the second provision should be deleted in its entirety. While not acted on it originally meant that the state should give a payment to mothers in the home in exchange for them working as a housewife; which for obvious reasons was unaffordable and could never practically be out into practice. If the proposed change above is implemented it would reinvigorate the notion that any person who does not work and is a parent and not working is entitled to a higher payment, open to both men and women, higher or equal to their normal working pay, from the government "so they are not obliged by economic necessity" to leave the home.


In short; amend the first provision as stated above and scrap the second provision in its entirety.

P_1

Podgerz wrote: »

The State shall, therefore, endeavour to ensure that parents shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.


While I agree the first provision you recommended should be implemented, the second provision should be deleted in its entirety. While not acted on it originally meant that the state should give a payment to mothers in the home in exchange for them working as a housewife; which for obvious reasons was unaffordable and could never practically be out into practice. If the proposed change above is implemented it would reinvigorate the notion that any person who does not work and is a parent and not working is entitled to a higher payment, open to both men and women, higher or equal to their normal working pay, from the government "so they are not obliged by economic necessity" to leave the home.


In short; amend the first provision as stated above and scrap the second provision in its entirety.

Good point, in effect the first provision is sexist and the second provision is outdated.

Cookie_Monster

P_1 wrote: »

should read
"The State shall, therefore, endeavour to ensure that parents shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home. "

to me that reads like it is being left open to massive abuse. By stating parents not having to work a certain minority of society would see that as all the excuse they need for the welfare lifestyle.

Annasopra

Cookie_Monster wrote: »

to me that reads like it is being left open to massive abuse. By stating parents not having to work a certain minority of society would see that as all the excuse they need for the welfare lifestyle.

Yes but I don't think court cases upto now have interpreted it that way in terms of women

Annasopra

Keith

There is a lot of really good background reading in Chapter 8 and the Conclusion of the 10th report from 2006.

https://www.constitution.ie/Constitution.aspx

RangeR

mango salsa wrote: »

Keith

There is a lot of really good background reading in Chapter 8 and the Conclusion of the 10th report from 2006.

https://www.constitution.ie/Constitution.aspx

Cheers. Sometimes you don't see what's right in front of you

MagicSean

When this comes up for discussion you can be sure a large amount of people in the convention will completely misunderstand the article and assume it to be a categorisation of women as nothing but homemakers. It's a common misunderstanding.

I would say remove the first section. It has no relevence or use.

The second section should remain in a gender neutral form but relate it more to child rearing. Something like "The state recognises the importance of parental guidance to the upbringing of the child and will endeavour to ensure that a parent shall not be obliged by economic necessity to neglect this duty."

RangeR

I'm in favour of the entire Constitution being gender, race, religion, other [discriminatory aspect] neutral. They have no place in the document.

However, I'm also in favour of the unmarried father's right to child. At the moment, the unmarried father has absolutely no rights, as far as I can see. I need to check this out as to if it's in Law or Constitution. However, I don't think it's in our good book, so it should be "easily" changed

Annasopra

RangeR wrote: »

However, I'm also in favour of the unmarried father's right to child. At the moment, the unmarried father has absolutely no rights, as far as I can see. I need to check this out as to if it's in Law or Constitution. However, I don't think it's in our good book, so it should be "easily" changed

Chapter 6 of the 10th report that I mentioned above discusses that - Obviously though the 10th report was published in 2006 so some things may have changed

RangeR

mango salsa wrote: »

Chapter 6 of the 10th report that I mentioned above discusses that - Obviously though the 10th report was published in 2006 so some things may have changed

Very good. I'll line that up. I'm totally wrecked after the weekend. Sitting in work.... struggling to get stuff done. I'll read over those docs during the week or next weekend.

Thanks again.

P_1

Keith, I'm not to sure where this would fit in, or even if it is in the remit of the Convention, but where does the Constitution fit in with regards to Employment Equality Acts 1998-2011 and the Equal Status Acts 2000-2011? Specifically the 9 illegal grounds for discrimination?
[QUOTE= http://www.citizensinformation.ie/en/employment/equality_in_work/equality_authority.html]Under the equality legislation discrimination based on any one of 9 distinct grounds is unlawful. These grounds are:

Gender
Civil status
Family status
Sexual orientation
Religion
Age (does not apply to a person under 16)
Disability
Race
Membership of the Traveller community.[/QUOTE]

If it fits under that it looks like there might be whole sections of it that would need to be rewritten as it appears that under its provisions it is certainly being discriminatory under the grounds of Gender, Family status and Sexual orientation.

Now I could be totally in the wrong here but it is certainly one of the bigger issues that should well be brought up.

RangeR

P_1 wrote: »

Keith, I'm not to sure where this would fit in, or even if it is in the remit of the Convention, but where does the Constitution fit in with regards to Employment Equality Acts 1998-2011 and the Equal Status Acts 2000-2011? Specifically the 9 illegal grounds for discrimination?


If it fits under that it looks like there might be whole sections of it that would need to be rewritten as it appears that under its provisions it is certainly being discriminatory under the grounds of Gender, Family status and Sexual orientation.

Now I could be totally in the wrong here but it is certainly one of the bigger issues that should well be brought up.

I have yet to complete my readings, however, more fundamental The good book states

Article 40.1 wrote:

All citizens shall, as human persons, be held equal before the law

However, it then goes on to say [and could be seen as a quasi "get out clause"]

Article 40.1 wrote:

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function

I'm unsure if this has been tested.

P_1

RangeR wrote: »

I have yet to complete my readings, however, more fundamental The good book states



However, it then goes on to say [and could be seen as a quasi "get out clause"]


I'm unsure if this has been tested.

That's interesting, so in effect the Constitution has a get out clause that basically means that it superceeds all laws passed?

I think it might have been tested in the recent 'right to die' case before the Supreme Court

Annasopra

P_1 wrote: »

Keith, I'm not to sure where this would fit in, or even if it is in the remit of the Convention, but where does the Constitution fit in with regards to Employment Equality Acts 1998-2011 and the Equal Status Acts 2000-2011? Specifically the 9 illegal grounds for discrimination?

If it fits under that it looks like there might be whole sections of it that would need to be rewritten as it appears that under its provisions it is certainly being discriminatory under the grounds of Gender, Family status and Sexual orientation.

Now I could be totally in the wrong here but it is certainly one of the bigger issues that should well be brought up.

What do you mean by the part written in bold?

P_1

mango salsa wrote: »

What do you mean by the part written in bold?

Ok to give one specific example

Article 41.2.1 - Page 162
In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved

This is discriminatory against men, is it exclusively women that would provide "the State a support without which the common good cannot be achieved"?

Where do house husbands (horrible term IMO), single men or working men fit into this? Do they not do the same as a woman would within the home (i.e. cooking, cleaning, looking after ill family members etc)?

The only other "support without which the common good cannot be achieved" that men can't provide is give birth to children. Is this what this snippet alludes to I wonder?

Annasopra

It's worth looking at Chapter 8 of the 10th report in full
https://www.constitution.ie/Documents/Oireachtas%2010th-Report-Family%202006.pdf

Chapter 8

Woman in the home


Article 41.2.1° reinforces the position of the traditional family incorporated in the Constitution in Article 41.1 by asserting the particular value of the contribution of the woman in the home. Article 41.2.2° adds further support by committing the state to an effort to ensure that mothers will not be forced by economic need to seek paid employment outside the home that forced them to neglect their duties in the home. Articles 41.2.1° and 41.2.2° have been attacked by supporters of the equality model of the family as being outdated, stereotypical, biologically deterministic, and even insulting to women. The import of the attack is that the Articles should be deleted or at least amended so that they are gender neutral.

WITH/Cúram, the Irish national parent and carer NGO, while not associating itself as an organisation with any particular model of family, stated in its detailed submission to the committee that constitutional protection for unremunerated workers, especially those in the role of parent or carer, should be strengthened and that the wording should be gender-neutral’.

WITH members, unremunerated parents and carers, want Constitutional recognition for their role, their work, and their contribution to the economy and society. WITH aims to ensure that family-based care be recognised and financially viable. Article 41.2 represents a key instrument for recognising unremunerated work in a variety of domains and situations and it forms the basis for legal, tax and social welfare provisions of benefit to parents and carers on a fulltime or part-time basis.
……
The UN’s Commission for the Status of Women will undertake in March 2005 a ten-year review of the Beijing Platform for Action, which calls for the recognition of unremunerated work as a central aspect of ensuring equality
for women. WITH will be participating in this process asrepresentative of our EU umbrella group FEFAF (la Fédération Européenne des Femmes Actives au Foyer). FEFAF has submitted a statement requesting UN bodies and national
governments to implement Strategic Objective H3, on the collection of data on unremunerated work. It is not only in Ireland that this is an important question: the process of changing Article 41.2 will be tracked with interest in other countries by parents, carers and their representative
organisations as well.
……
Unremunerated work in Ireland refers to many activities which benefit the economy and society, and more specifically local communities, families and individuals. It is estimated that the total value of this work equals between 30% and 50% of Gross Domestic Product, or between A40,435,800,000 and A67,393,000,000 (source: calculated on the basis of the CSO GDP figure for 2003, A134,786m, available on http://www.cso.ie/principalstats/pristat5.html).

Unremunerated work includes:
• parenting and other childcare
• caring for dependent elderly and/or disabled relatives
• farming and farm support
• voluntary work in the community
• housework and domiciliary upkeep.

Ireland collects statistics on some of this unpaid work and those who carry it out.

The submission provides a summary of these statistics and other relevant research data, and continues:

Although unremunerated workers clearly create value-added goods and services, they lack the protections of other workers and are therefore more reliant on constitutional recognition for their role. Protections other workers enjoy include:

• the structured access to income based on their work
• pension and social welfare contributions and entitlements
• the protection of employment legislation and the Equality Act
• inclusion of the value of their work in the GDP and other statistics.

If the protection afforded to unremunerated workers is weakened through this process, how will they be able to vindicate their rights? How will families access choice in the area of care?

The case for retention

In general those who support the traditional model of the family embrace it as perennially relevant: it provides stable and loving support for children, and stability to family life – and thereby promotes the common good. They do not want any changes to be made in the Articles relating to it. They point out that it was not the intention of the constitution-makers to cabin and confine women in the home: for example Article 45 recognises the right of men and
women equally to make a living and does not envisage that the only role for women lies in homemaking. DeValera’s draft papers show that he never intended that the clause would confine women to the home; his intention was rather that the state should provide economic support if the mother needed to stay at home. The papers of John Hearne, who prepared the original draft heads of the Constitution, also make clear that there was no intention at the time to limit the rights of women. Moreover Denham J in Sinnott v Ireland has recently stated that Article 41.2 was ‘not to be construed as representing a norm of a society long changed utterly’ but rather was to be construed ‘in the Ireland of the Celtic Tiger’.

She continued:

Article 41.2 does not assign women to a domestic role. Article 41.2 recognises the significant role played by wives and mothers in the home. This recognition and acknowledgement does not exclude women and mothers from other roles and activities. It is a recognition of the work performed by women
in the home. The work is recognised because it has immense benefit for society. This recognition must be construed harmoniously with other Articles of the Constitution when a combination of Articles fall to be analysed.

Supporters of the traditional model of the family point out further that judicial interpretation has effectively made the Article gender neutral. Thus in DT v CT Murray J in an obiter commented:

The Constitution … is to be interpreted as a contemporary document. The duties and obligations of spouses are mutual and, without elaborating further since nothing turns on the point in this case, it seems to me that [the Constitution] implicitly recognises similarly the value of a man’s contribution in the home as a parent.

Some of these supporters would accept a gender-neutral presentation of Article 41.2.1° through the use of the form ‘carers’ instead of ‘woman’. Most of them are insistent on retaining Article 41.2.2° because it gives constitutional purchase on the possibility of attaining practical financial recognition for caring in the home, at present unremunerated. Many point out that the directive in Article 41.2.2° has been feebly pursued by the state.

NEART (Coalition of Pro-Women’s Rights, Pro-Family and Pro-Life Groups) states:

The Constitutional reference to a woman’s ‘life within the home’ is a very important and relevant one, and must remain in the Constitution. The trouble is that the right of women to work within the home has been sadly and deliberately neglected by successive governments over the years, and has resulted in the break-up of families and the deprivation of children’s basic right to the essential love and care of their mother in their formative years. The increase in the incidence of suicide, particularly in the case of teenagers and young adults; the breakdown of discipline in the schools; the increase in teenage pregnancy (often, sadly and tragically, resulting in the abortion of unborn children); alcohol abuse on the part of young people – all of these situations flow from the decline in official government support for the family based on marriage. Why can the government of the day not acknowledge that government policies that do not support the traditional family lead to chaos and are calculated to undermine society still further?

Comhar Críostaí states:

We do not agree that the Constitution’s reference to the woman’s life within the home should be deleted. Mothers should not be forced through economic necessity to take up paid employment outside the home. Had the state over the years fulfilled its obligation to protect the mother working in the home then the majority of mothers would have opted to remain at home and rear their children. Mothers working in the home exercise a tremendous influence for good, with consequent major benefit to society. This Article in the Constitution does not prevent any mother from engaging, if she so desires, in outside paid employment so there is no question of the rights of any person being limited by this provision. Article 41.2, in fact, could be strengthened by stating that the mothers working full-time in the home should have the same social welfare and tax benefits as a person working outside the home.

European Life Network states:

This is a very important provision and one which reflects the desire of the majority of Irish women, as shown in many surveys, to stay at home and rear their children. The Constitution demands that the government should ensure that women are not driven out to work by economic necessity. The choice of mothers to stay at home and their constitutional right to do so has never been vindicated by the State. Article 41.2 of the Constitution should not be changed but should instead be taken seriously by the State.

Family & Life states:

There is increasing evidence in western countries that many working women would prefer to be at home with their young children but are forced to take full-time work for financial reasons.
There is evidence that even high quality (and expensive) childcare cannot have the same value as a mother’s undivided care for her young children. Does paid childcare answer the needs of small children? Or those of working parents?
There is evidence that, rather than juggle a career with children, women are postponing having children, having fewer children, and then often experiencing serious fertility problems.
The Irish Constitution calls on the government to ‘endeavour to ensure that mothers shall not be obliged by economic necessity’ to work outside the home. Is this so out of date? Or does it offend feminist theory? We suggest that many mothers in Ireland regret the government’s neglect of this constitutional exhortation, and the Supreme Court’s refusal to support it. Today, there is every need to retain it in the Constitution.

Muintir na hÉireann states:

It is an important provision as recent statistics show that the majority of women work part-time outside the home. Indeed a survey done a few years ago revealed that most women, if given a choice, would prefer to stay at home. Economic conditions and the need of governments, due to falling birth
rates, to force more women into the work-force to keep economic growth has proved in other countries as well as here to be very short-sighted. When both partners work the size of the family decreases – hence the falling population in Europe and Ireland. It has recently been estimated that Europe, in the next twenty years despite huge immigration, will still not have enough people for its economies. France has taken action and introduced measures to try to reverse this trend and increase its population. One of the things it has done is to allow the mother to stay at home until her child is of school age. A lot of social problems are due to the absence of mothers in the home.

Right Nation states:

In presenting the case for changing the Constitution to remove the recognition given to women working in the home, no one has even attempted to present a case of imperative necessity, nor even any single benefit that would accrue to society from doing so. That women who do work in the home perform an enormous and unpaid service to society is obvious, that the emotional wellbeing of children is vastly improved by them is a given. Why should it not be recognised? Surely in fact that recognition should involve a
more practical acknowledgement, in the form of financial support? And that is what is clearly indicated by the provision that they not be forced out of the home by ‘economic necessity’. Thus society would benefit and women would
benefit. In fact the only group in society which could possibly uphold a grievance are men, and until such time as they are willing, in any appreciable numbers, to take on the role of homemaker, their case is weak.

In reality of course each and every government since the foundation of the State has reneged on its responsibilities outlined in Article 41 of the Constitution. In the early years the measures enacted were designed to force women into the home with punitive measures rather than the incentives which were clearly indicated, and in the later years they have sought to force women out of the home by ‘economic necessity’.

It is an example of how public policy in this country is dictated by middle-class political mores, without regard to how the majority of ordinary people actually live, that the debate on this Article has largely concerned the issue of women with ‘careers’. In fact very few women or men have ‘careers’, rather they have jobs, and the primary motivation in getting and keeping a job is financial necessity, not some notion of personal fulfilment. For ordinary people, which is to say the real working people of Ireland, personal fulfilment
is derived from many sources, very rarely their job, and usually in one sense or another, their family.

The Mother & Child Campaign states:

This is a vital constitutional provision and one that reflects the desire of the majority of Irish women, as shown in many surveys, to have the right to stay at home and rear their children. Mothers who make many sacrifices to rear their children at home do the State an inestimable and unrewarded service, and that the emotional well-being of children is vastly improved by their sacrifices is now universally accepted. Most recently, research undertaken by Professor Jay Belsky, Director of the Institute for Studies of Children at Birbeck College, London, has found that there is no substitute for a child’s parents, and especially for a mother in the early years of a child’s life. He also says that childre n who spend more than twenty hours a week away from their parents, in childcare, from an early age are likely to be problem children, more aggressive and less well-behaved. The debate regarding childcare has shifted, in that we now discuss how damaging it may be – that it is damaging is widely accepted.

Mothers at Home states:

MAH believes that the Family’s needs are not being attended to by policies that force mothers to work outside the home. If parents are to be enabled to ‘together assume responsibility for the care and maintenance of … and the socialisation of children’, one parent – usually the mother – must be free to
choose to be a full-time carer, a stay-at-home mum. Article 41.2.1° and Article 41.2.2° of the Irish Constitution enshrines this principle.

MAH also endorses the view held by a number of international and European women’s movements (Mouvement Mondiel des Meres – MMM International, to
which MAH is affiliated, and also FEFAF – Federation Européene des Femmes Actives au Foyer, and others) that if a study was carried out of the social and economic value of the work done in the home, it would be apparent to all but the most blinkered of policy makers that the cost of replacing home care by state care would be enormous and not cost effective.

A notable presentation of the need to recognise the practical value of workers in the home was made by Global Women’s Strike, Ireland, part of a network reaching to over sixty countries:

Some have called for abolition of Article 41.2 on the ground that it is sexist. While it is obviously sexist to refer to work in the home as a woman’s ‘life’ and as her ‘duty’, it would be even more sexist to obliterate the only constitutional
recognition of unwaged caring work, done at great personal cost by generations of women and up to the present day, and its vital contribution to society’s survival and welfare.

Article 41.2 must be re-worded to reflect accurately the value of this work, the skill of the workers who do it and the entitlements it should earn them, and thus help end the gross discrimination women have suffered both as workers in the home and workers outside.

The submission goes on to point out that unremunerated work entered the international agenda in 1975, at the opening conference of the UN Decade for Women in Mexico City. The mid-decade conference in 1980 in Copenhagen, Denmark, gave it additional legitimacy with the International Labour Office (ILO) figure that women do two-thirds of the world’s work, yet receive only 5% of its income. A campaign continues to have national accounts measure and value unwaged work, that is to say how much of their lifetime women (and to a lesser extent men) spend doing unwaged work and how much value this work creates. Trinidad & Tobago was the first country to put this into law in 1996. Spain followed in 1998. The Bolivarian Republic of Venezuela enshrined in its 1999 Constitution the social and economic recognition of unwaged work in the context of equality and equity between the sexes.

Global Women’s Strike, Ireland continues:

To enshrine in the Irish Constitution the principle that caring work in the home – which extends to caring for the whole community and in rural areas to caring for and protecting the land and the environment – is valued socially and economically, would ensure that women, particularly mothers, are not penalised with the lowest pay when they go out to work or discriminated against in areas such as pensions, healthcare, childcare, and social welfare.

Comhairle states:

The role of the family as a caring unit has been the subject of much discussion and debate in recent years due mainly to changes in work patterns and in the role of women in society. Care in the home, whether for small children, dependent older people or people with disabilities of whatever age, is more and more becoming an issue of concern.

Increasingly, potential carers are, either by necessity or choice, working outside the home. Contributory factors are career choice, spiralling housing costs, and a social welfare and tax system that does not provide adequate incentives and supports to people to stay at home to care for children or other dependants. Increased women’s participation in the labour market has resulted in greater attention being given to the phenomenon of caring in the home and its associated costs and the urgent need to reconsider how work and familial organisation can be harmonised.

The Association of Irish Evangelical Churches addresses the question of datedness:

If the reference to a ‘woman’s life within the home’ sounds dated or old fashioned it is important to ask why. Ideas and social theories about the place of women in society go in and out of fashion and it can be difficult to get a properly objective view on one’s own culture since it is as close to us as the air we breathe. How can we know that we are not being unduly influenced by an idea that is merely tremendously fashionable? What are the human consequences of applying social theories through the laws of the land? In the twentieth century there were many examples in many different nations of ideas that were enacted as laws and which failed as they did not match up to what is true about people, human nature or society. One could refer to the
kibbutz experiment in Israel, where all expectations were confounded when women who were free to choose high status jobs and day care for their children, repeatedly and insistently turned these things down so that they could nurture their own children and attend to their own living space. In other countries where legislation of social ideals has been brought in more forcefully, such as in the former USSR and China, the cost of failure has been very high.
Untold misery and suffering resulted where social ideals did not match with reality, and what is true about human nature.

… Many women in Ireland today work outside the home not because they are ideologically committed to a career but out of economic necessity specifically the cost of financing a mortgage in most cases … Interestingly, the Constitution expressly states that having to work outside the home from economic necessity should not happen. While the factors involved are undeniably complex, it can be seen that the cost to society of taking the mother out of the home has been very high. Society is now more fragmented than it has ever been, and the trend seems to be for families to become ever
more fragmented.

… Let us make sure that the women of Ireland can give the greater share and the best part of their time to the people that need it most, and whom they most love: their families. Uireasa a mhéadaíonn cumha (Absence increases sorrow).

The case for abolition or change

In general, adherents of the equality model embrace that model because it seems to offer greater freedom and choice to both men and women in their lives both within the family and outside of it. They would like to see the Article removed or at least made gender neutral because they perceive it as a threat to their freedom and choice. This group, again in general, acknowledges the contribution to the common good made by parents and carers in the home. They would see the equity of practical recognition being given provided that such a measure was expressed in gender-neutral terms.

The Family Support Agency points out that:

Article 41.2.1° provides that the State shall recognise that by her life within the home a woman gives to the State a support without which the common good cannot be achieved. This concept is now outdated. Increasingly fathers share this role within the family. Often both a father and a mother may do so at different times for different lengths of time. The Family Support Agency also considers that joint parenting, of which this is a form, should be encouraged. The State should actively support families who both work outside the home with appropriate facilities and services.

AIM – Family Services states:

This definition is patriarchal and sexist and reflects social thinking of the 1937 period. Thankfully, this has altered somewhat. It is also at odds with equality legislation that our membership of the EU has required from us. However, we feel that it is important to give practical recognition and value to the caring function in the family, a function which has had mainly lip service only paid to it to date. Apart from the provisions in the Separation and Divorce legislation of 1989, 1995 and 1996, the provisions of Article 41 have done little to improve the economic lot of women, whether wives or mothers; for those who remain married, their economic lot is tied to their ability to earn it for themselves, or dependent on the goodwill of their spouses. (We do recognise that social welfare provision has improved, but intra-family – there is no community of property regime, for example).

AMEN states:

Article 41.2.1° recognises the contribution given to the State by women in the home. This provision is discriminatory in that it gives no recognition to the contribution made by women outside the home or to the contribution made by
men either in the home or outside the home. It is wrong to give recognition to the contribution made by one sex within one domain and ignore the contribution made by others. There does not appear to be any reason why women in the home should be given such exclusive recognition. There may
have been some justifiable reason for inserting this Article in 1937 but, given the changes in society in the intervening period, it appears to be somewhat redundant at this stage. Article 41.2. 1° should either be removed or similar
recognition should be given to the contribution of men in the home and both men and women outside the home.

Following on from this Article, 41.2.2° imposes an obligation on the State to endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home. Even though this Article does not contain an absolute guarantee it imposes a very strong obligation on the State. It is surprising that no mother has taken a case against the State because of its abject failure to ensure that mothers are not obliged, through economic necessity to work outside the home. What is equally surprising is the manner in which this amazing commitment to mothers, to the exclusion of fathers, has been portrayed as discrimination against women rather than men. The points made in relation to 41.2.1° above apply to this Article also. There is no reason why a similar obligation should not apply in relation to fathers in the home. As with other Articles it is doubtful if the State could be said to be fulfilling its obligations under this Article given the number of mothers who feel obliged to go out to work because of economic pressures. Article 41.2.2° should either be removed or amended to impose a similar obligation on the State to endeavour to ensure that fathers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

The Council on Social Responsibility of the Methodist Church in
Ireland states:

[W]e note that Art 41.2 again includes a very specific and detailed issue of social policy (which should not be there at all), but also expressing a viewpoint that is totally contrary to current opinions (and indeed legislation) on equality and anti-discrimination based on gender or marital status. This
existing Article should be removed, in our opinion, and replaced with a new Article which

• confirms a basic right to marry, in accordance with law
• states that the State respects and supports the important role, in support of of the common good, which families undertake in the care and nurturing of dependents, especially children.

The Law Society states:

[T]he Society feels that Article 41.2.1° should be removed from the Constitution or altered. One way of dealing with this matter would be simply to amend this Article to read as follows ‘In particular, the State recognises that by his/her life within the home, a parent gives to the State a support without which the common good cannot be achieved’. The alternative, and the Society’s preferred approach, is that Article 41.2.1° should be removed. The Society does not see any reason why ‘life within the home’ should have a greater value than life outside the home.

The National Women’s Council of Ireland states:

The Constitution should not ascribe gendered roles to either women or men, therefore it is the view of the NWCI that this reference should be removed.

Despite amendment over the years, the Constitution has not kept pace with social change and still bears the imprint of the period at which it was originally drafted. One of the ways in which this manifests itself is in its reference to women in certain roles, and its correlative lack of reference to men in these roles. Specific mention is made of the role of women in the home and as mothers (Article 40.3.3° and 41.2.1° and 2°). Nowhere in the Constitution is the word ‘father’ to be found; nor is the role of men in the domestic sphere specifically addressed. Furthermore, it is clear from the tenor of the relevant
constitutional provisions that it is in their role as wives and mothers that women are especially valued.

It is abundantly clear that society should value the care work which predominantly women perform. The Irish Government has signed up to commitments under the Convention on the Elimination of Discrimination Against Women and under the 10 critical areas of the Beijing Platform for Action. The patriarchal assignment of women to perform certain roles within family and within society has not been to the advantage of women and has undermined the progression of equality for women.

The ICCL states:

The role of carers in society, particularly within the home is essential. This function may be carried out by a parent, grandparent, sibling or other relative or de facto guardian. Carers in the home not only provide security, care and
respect for those in need of care, but make an invaluable contribution to society – and the economy. Yet according to the Carers Association, fewer than twenty per cent of all those devoted to caring full time for others in the home in Ireland receive any financial assistance from the state. The ICCL submits that this reflects the complete undervaluation of carers in government and public policy.

The ICCL therefore believes that the role which carers play in the home should be explicitly recognised in a gender-neutral provision.

Another factor for change is Ireland’s ratification of the UN Convention on the Elimination of Discrimination Against Women (CEDAW).

The Irish Human Rights Commission states:

In accordance with Article 2(a) of CEDAW Ireland is required to embody the principle of equality of men and women in its national Constitution or other appropriate legislation. Article 5 of CEDAW also requires states to take all appropriate measures to modify the social and cultural patterns of conduct of men and women in order to promote gender equality. These measures should aim to eliminate prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes, or on stereotyped roles for men and women. One of the appropriate measures in this context would be the amendment of Article 41.2 of the Irish Constitution which is based on a stereotyped view of the role of women in Irish society.

… This provision has been described as reflecting a sexual division of labour which is ‘based on a biological determinism that assumes that one’s social destiny is dependent on whether one is female or male, thereby closing off the options for both women and men, but particularly for women.’ In their Concluding Observations on Ireland’s second and third periodic reports, the Committee expressed concern about the continuing existence in Article 41.2 of concepts that reflect a stereotypical view of the role of women in the home and as mothers.

The state is under continuous international political pressure so long as it fails to respond to the requirements of CEDAW. In July 2005 the CEDAW Committee on Ireland’s implementation of the provisions of the Convention, following a presentation by an Irish delegation led by Minister of State Frank Fahey TD, stated in its concluding comments:

The Committee recommends that the state party take additional measures to eliminate traditional stereotypical attitudes, including through sensitization and training of all educational actors and sustained awareness-raising campaigns directed at both women and men. It recommends that the All-Party Oireachtas Committee on the Constitution take the Convention fully into account in considering any amendments to Article 41.2 of the Constitution as well as including a provision to underline the obligation of the state to actively pursue the achievement of substantive equality between women and men. The Committee also suggests that the state party consider replacing male-oriented language with gender-sensitive language in the Constitution to convey the concept of gender equality more clearly. Considering the important role of the media in regard to cultural change, the Committee furthermore recommends that the state party encourage the media to project a positive image of women and of the equal status and responsibilities of women and men in the private and public spheres.

The Constitution Review Group (CRG) took the view that Article 41.2 was indeed outdated:

Article 41.2 assigns to women a domestic role as wives and mothers. It is a dated provision much criticised in recent years.

The CRG however considered it important that there should continue to be constitutional recognition of the significant contribution made to society by the large number of people who provide a caring function within their homes for children, elderly relatives and others. It favoured the retention of the Article in a revised form as follows:

The State recognises that home and family life gives to society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others within the home.

Focus on the Family states:

Where one or other spouse chooses to remain at home, to raise children particularly, they should not in any way be discriminated against, as in making this choice they serve to strengthen the bedrock of family life and society, based upon the family, which has been a tremendous strength in this Nation for the past generations. Should there be any proposed changes, we would recommend something expressing a similar sentiment but in a gender neutral fashion, as per the wording suggested in the Report of the Constitution Review Group (1996).

The Irish Catholic Bishops’ Conference states:

The reference is frequently dismissed as dated and this would seem just if it were read to suggest that women only have a contribution to make in the home or that work in the home were to be the exclusive duty of women. The provision may, however, be seen as a ‘pedestal rather than a cage’.

… A revision of this Article in more gender neutral form as suggested by the Review Group might be appropriate but perhaps unnecessary.

Conclusion

A great number of people strongly support the retention of Article 41.2.1° and Article 41.2.2°. The courts are disposed to interpret Article 41.2.1° as applying to either fathers or mothers caring in the home. The need to change the Article to make it gender neutral is therefore not a legal necessity. There is general support for recognition of the value of the work done by those who care for others in the home, and therefore for whatever practical support for them that the Houses of the Oireachtas, relying upon Article 41.2.2°, can provide.

Many people – they include people from supporters of both models of the family – believe that the language in which the Articles are expressed is outdated and even sexist. They feel the Articles should be rendered in a gender-neutral form. In addition the UN Convention on the Elimination of Discrimination Against Women (CEDAW), which Ireland has ratified, regards the employment of sexist language as a practical obstacle to women’s drive for equality with men. They regard the language of the Articles as sexist and require change in them. Change, therefore, in the Articles is at least desirable.

Woman in the home

The committee’s analysis has shown that while the language of the Article can be criticised for stereotyping a mother’s role, there are hints by the courts that in the relatively few cases where Article 41.2 has been judicially considered the references in respect of the caring role within the family might permit of a possible genderneutral interpretation.

One external pressure for change is derived from the State’s ratification of the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW). CEDAW is charged to seek the removal from legislation, including constitutions, of sexist stereotyping. The committee proposes an amendment which would render Article 41.2.1° gender-neutral. That objective is, perhaps, not quite as simple as it might seem.

There are at present two elements to this Article. First, Article 41.2.1° recognises the importance of women’s contribution within the home and, secondly, Article 41.2.2° provides that the state shall, therefore, endeavour to ensure that ‘mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home’. The first element can readily be rendered gender-neutral. The second element is more problematic, since the state can scarcely guarantee that neither mothers nor fathers should be obliged to work outside the home!

The CRG recommended a gender-neutral version thus:

The State recognises that home and family life gives to society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others within the home.

It may be noted that the CRG felt that the ‘retention of Article 41.2.2° may not be appropriate to a gender-neutral form of the Article’. In other words, the CRG did not think (and this committee agrees) that the Constitution could give a guarantee (or even a quasi-guarantee) that neither parent would be obliged by economic necessity to work outside the home.

Advantages of the CRG version

The CRG version is simple and captures the essence of the idea – the value of family life – in a gender-neutral fashion. While the wording does not impose any strict obligation (‘shall endeavour’), it seeks to ensure that the value of carers (including, of course, parents) is recognised.

Disadvantages of the CRG version

By deleting Article 41.2.2° the CRG version undermines whatever concrete guarantee exists at present. The second sentence is, moreover, ambiguous. Childminders and au pairs come within this sentence, yet it is unlikely that it was intended that they should have this sort of special constitutional protection in an Article dealing with the family. Against this background, the committee suggests an alternative wording.

Alternative version

1. The State recognises that by reason of family life within the home, a parent gives to the State a support without which the common good cannot be achieved.

2. The State shall, therefore, endeavour to ensure that both parents shall not be obliged by economic necessity to work outside the home to the neglect of their parental duties.

Advantage

This version re-instates the essence of Article 41.2.1° and Article 41.2.2° (albeit in a gender-neutral fashion), resonates with the language in which they are expressed, and does not import new values.

Disadvantage

Article 41.2.2° only makes sense when understood against the background of the traditional pattern of male breadwinner and mother staying at home to rear children. Would not the new version of it invite adverse comment as carrying some vestigial stereotyping?

Conclusion

The committee is satisfied that its alternative version of Article 41.2.1° and Article 41.2.2° meets the objective of rendering the Articles gender neutral. It therefore recommends the following amendments to Article 41.2:

Amend Article 41.2.1° to read

The State recognises that by reason of family life within the home, a parent gives to the State a support without which the common good cannot be achieved.

Amend Article 41.2.2° to read

The State shall, therefore, endeavour to ensure that both parents shall not be obliged by economic necessity to work outside the home to the neglect of their parental duties.

Legislative

The committee believes the capacity of the Department of Social and Family Affairs to support the work of carers in the home should be progressively increased. In its exploration of the issue the committee found that there is a growth of individualism in our society which creates a demand for institutional solutions by the state to meet the needs of the young, the disabled and the aged. These are increasingly expensive to provide; it is also difficult to ensure quality control within them. However, one of the great contributions made by the traditional family is social solidarity.

Within the extended family the young, the disabled and the aged were cared for. State services were called upon only when specialised needs could not be provided by the family. The committee believes that an endorsement by the state of the traditional family should be accompanied by a scheme of practical
support for its primary social role. In order to allow the state to invest in such a scheme with confidence the following steps should be taken:

• a solid research base should be established
• a rigorous cost/benefit analysis should be carried out to establish the value to the state of care within the home as opposed to institutional care
• reliable output measures should be established to allow the development of an accountable system.

Minority conclusions

While a majority of members of the committee endorsed the above changes, some members did not consider that they went far enough.

General right to family life

The minority members were of the view that the Constitution should expressly provide that all persons had a right to family life, irrespective of their marital status. This would not only ensure that the Constitution was not out of step with Article 8 of the European Convention on Human Rights (where this right is not confined to the traditional family based on marriage), but it would further
ensure that all members of non-marital families enjoyed constitutional protection. While marriage would still retain special status, the significance of this change would be to extend fundamental constitutional guarantees in respect of family life to the non-marital family.

Such a change would also reverse the Nicolaou jurisprudence, grounded as it is on traditional understanding of the family based on marriage and stereotypical views of the role of the mother as opposed to the father. This line of authority – which concludes that natural mothers (but not natural fathers) have constitutional rights to the custody of the child – simply reinforces sexist stereotyping of the role of fathers, often to the disadvantage of the child. This line of reasoning would be regarded as objectionable by many today and is, in any event, out of step with contemporary demographic realities.

To be relevant, the Constitution must keep pace with these contemporary realities. If more than one quarter of births are outside of marriage, the Constitution must accommodate itself to these facts and ensure that all persons (irrespective of marriage) have a right to family life.

Minority proposal

Insert at the end of Article 41

The state also recognises and respects family life not based on marriage. All persons, irrespective of their marital status, have a right to family life. The Oireachtas is entitled to legislate for the benefit of such families and of their
individual members.

Annasopra

P_1 wrote: »

Ok to give one specific example


This is discriminatory against men, is it exclusively women that would provide "the State a support without which the common good cannot be achieved"?

Where do house husbands (horrible term IMO), single men or working men fit into this? Do they not do the same as a woman would within the home (i.e. cooking, cleaning, looking after ill family members etc)?

The only other "support without which the common good cannot be achieved" that men can't provide is give birth to children. Is this what this snippet alludes to I wonder?

Yeah I agree that it is discriminatory - I just wasn't sure why you were bringing in the issue of the equality acts

P_1

First of all thanks for providing the report, made for very interesting reading.

mango salsa wrote: »

Yeah I agree that it is discriminatory - I just wasn't sure why you were bringing in the issue of the equality acts

Ok this is going to be very long winded so I'll try to get the point across as coherently as I can so please bear with me

At the moment, with a particular focus on family law, the Constitution promotes an adversarial approach rather than a consensual one.

Simply put, women tend to benefit and men tend to lose (very generally speaking).

IMO by removing reference to gender the Constitution would promote a consensual approach to family law.

Simply put, the better (possibly needs a better term) party to the argument should benefit and the worse (again needs a better term) party to the argument should lose.

Annasopra

P_1 wrote: »

First of all thanks for providing the report, made for very interesting reading.


Ok this is going to be very long winded so I'll try to get the point across as coherently as I can so please bear with me

At the moment, with a particular focus on family law, the Constitution promotes an adversarial approach rather than a consensual one.

Simply put, women tend to benefit and men tend to lose (very generally speaking).

IMO by removing reference to gender the Constitution would promote a consensual approach to family law.

Simply put, the better (possibly needs a better term) party to the argument should benefit and the worse (again needs a better term) party to the argument should lose.

Again I agree. I'm just not quite sure why the equality laws were mentioned. The constitution could not be found to be unlawful under legislation.

P_1

mango salsa wrote: »

Again I agree. I'm just not quite sure why the equality laws were mentioned. The constitution could not be found to be unlawful under legislation.

TBH it was more a case of me wondering out loud than anything else. Perfect scenario would be a Constitution that doesn't favour the one interest group over any other but being realistic and not idealistic I can't see that ever happening.

RangeR

The Constitutional Convention are meeting to discuss this issue at the end of next week. I'm going to try find a free hour or two to go through this thread; to combine the votes and opinions. When done [hopefully in the next few days], I'll post the summary here.

If you want to get your opinion across and counted, please do so before Friday 15th February 2013.

Thank you to everyone who discussed so far, for taking to time out to do so.

RangeR

Draft report made available to the 100 this morning. It is hoped that this is agreed and wrapped up by end of next week.

Draft attached.

RangeR

eMail in

Dear Member


The Convention’s second report on the Role of Women in the Home will be debated in the Dail on Thursday morning...... You can view the proceedings on oireachtas.ie at:

http://www.oireachtas.ie/viewdoc.asp?DocID=24433&&CatID=60 or UPC channel 207.


Regards,

sparkling sea

MagicSean wrote: »

When this comes up for discussion you can be sure a large amount of people in the convention will completely misunderstand the article and assume it to be a categorisation of women as nothing but homemakers. It's a common misunderstanding.

I would say remove the first section. It has no relevence or use.

The second section should remain in a gender neutral form but relate it more to child rearing. Something like "The state recognises the importance of parental guidance to the upbringing of the child and will endeavour to ensure that a parent shall not be obliged by economic necessity to neglect this duty."

The only person misunderstanding Art 41 is you.

So again

Article 45.4.2. of the draft Constitution again attempted to restrict the eemployment opportunities of women. The Article stated that:

"The State shall endeavour to ensure that the inadequate strength of women and the tender age of children shall not be abused, and that women or children shall not be forced by economic necessity to enter vocations unsuited to their sex, age or strength."

Taken from Woman a Historical Review "Women, citizenship and Catholicism in the Irish freestate, 1922-1948"

There is no doubt that traditional assumptions about the role of women in twentieth-century Irish society mirrored the teaching of the Catholic Church. Pope Leo XIII clearly outlined the ‘natural’ duty of womenwhen he wrote in the encyclical Rerum Novarum (1891) that a “woman is by her nature fitted for home work and it is this which is best adapted to preserve her modesty and promote the good upbringing of children and thewell being of the family”

A number of women’s organisations objected to the draft Constitution and joined together in a protest campaign. The organisations involved in the campaign included the National University Women Graduates’ Association,the Joint Committee of Women Societies and Social Workers and the Irish Women Workers’ Union. Letters were written to the Taoiseach and the press outlining the dangers for women in the draft Constitution. Public meetings and deputations were organised while the draft was beingdiscussed in the Dail. Throughout May and June 1937, considerable press coverage was given to the campaign and to the reaction of de Valera and Fianna Fail to the protestors

Cody Pomeray

What's the draft provision got to do with it?

There's a list as long as a donkey's shaft the amount of draft provisions of the constitution; many of them are totally nuts, and consequently didn't make it into the final edition. The drafts which were drawn from the encyclicals of Leo the 13th and John Charles Mc Quaid re: private property and consequent individualism are particularly ludicrous, but mercifully the actual text, with corresponding fundamental rights turned out to be a good deal more accommodating and secular.

The draft provisions of the constitution are of very very limited relevance.

In fact, Article 41.2. has never, in Irish legal history, been used, nor relied upon, to limit the fundamental, economic, nor family rights of women. Quite the opposite. To my knowledge, it has only ever been invoked by WOMEN who sought to vindicate their RIGHTS - especially unmarried mothers who sought to secure as good a life as possible for their children, from men who tried to abandon their duties.

Please, if you can show us where this provision has ever limited or constrained women, do so.

I am all for making the paragraph gender neutral, as was recommended in 1996 by the Constitutional Review Group of the day. But please lets not pretend we're doing it to liberate womanhood.

sparkling sea

Cody Pomeray wrote: »

What's the draft provision got to do with it.

The church and political class constrained Irish women. there wasn't a need to rely on Art 41. - the aspirations and values of the Constitution supported these institutions - no point in rehashing this fact.

The draft provision has every thing to do with it and Irish history and research supports this fact . There are many example of this Gerad Hogan (The Origins of the Irish Constitution, 1928 - 1941, p.520) the Constitution’s treatment of women in this and other provisions “ was the single biggest issue which
dominated much of the debate at the time both inside and outside the Dáil.”

It wasn't as you suggest just another draft provsion.

Cody Pomeray

Just to confirm, you're not saying that the draft provision actually affected anyone then?

So why is it relevant?

Judge Hogan's book, from which I also drew on above, is a valuable resource but only to the constitutional historian or the student of history.

T runner

P_1 wrote: »

First of all thanks for providing the report, made for very interesting reading.



Ok this is going to be very long winded so I'll try to get the point across as coherently as I can so please bear with me

At the moment, with a particular focus on family law, the Constitution promotes an adversarial approach rather than a consensual one.

Simply put, women tend to benefit and men tend to lose (very generally speaking).

IMO by removing reference to gender the Constitution would promote a consensual approach to family law.

Simply put, the better (possibly needs a better term) party to the argument should benefit and the worse (again needs a better term) party to the argument should lose.

This is the case already as family law puts childrens rights above those of parents. The "better party" as you phrased it, is usually the primary carer.

The gender neutralising may contribute slightly to a less patriarcal looking state, where more primary carers may be men.

The "better party" will still normally be the primary carer, no change there and rightly so, although the proportion of men as primary carers may be larger.`

Changing a patriarcal state may make more men "the better party". That is not the same as starting that these men are currently "the better party" from a childs rights viewpoint.

sparkling sea

Cody Pomeray wrote: »

Just to confirm, you're not saying that the draft provision actually affected anyone then?

So why is it relevant?

Judge Hogan's book, from which I also drew on above, is a valuable resource but only to the constitutional historian or the student of history.

I would posit Judge Hogans book would be of interest to wide variety of people.

I think you need to reread what I said, just to confirm, the conclusion your drawing is unsurprisingly not what I am actually saying !!

Cody Pomeray

sparkling sea wrote: »

I think you need to reread what I said, just to confirm, the conclusion your drawing is unsurprisingly not what I am actually saying !!

You're pursuing some fol de rol about the draft constitution.
All I'm saying is that it's irrelevant to the actual Article 41.2, and to that article's jurisprudence, which has *never* been used except to vindicate the rights of women.

Why do I care?

Because in this thread, and in the blasphemy thread, people are making all sorts of calls which, although valiant and well-intentioned, are likely to undermine the rights that those provisions have accorded to the Irish people, and in this case, Irish women.

In both threads, the demands are based on 'gut feelings'. I'm sorry, but you can't rip up the constitution based on your gut feeling. You should have some sort of relevant examples to show how the provisions have harmed society. In neither case have posters been able to show that.

Why?

Because contrary to what one's gut feeling might tell you, these provisions have been extremely useful in extending important freedoms to us as citizens.

drkpower

Did the constitutional review group base their recommendation to retain 40.2.1 in a gender neutral form on a gut feeling? Or did they base their reccomendation to reword the preamble based on a gut feeling?

Of course not.

The reality is that all you have done is point to a few judgments in which the courts have referenced these articles on the way to making a decision. But that does nothing for your ultimate argument. What you need to do - and what you have failed to do - is to show that these judgments would not have been decided as they were with suitable gender neutral and religious neutral ( or areligious) provisions in place in the constitution.

The Corinthian

T runner wrote: »

The "better party" will still normally be the primary carer, no change there and rightly so, although the proportion of men as primary carers may be larger.`

I'm afraid it doesn't work that way. Were that the case, the primary carer would be chosen on the basis of being in the best interests of the child - in possibly the majority of cases we don't do that, we assign the role automatically to the mother, if she is unmarried, for example - there's no assessment of whether she would be a "better party" than the father or, for that matter, whether neither biological parent would be in the best interests of the child.

I point this out because there appears to be a misconception that custody is awarded on the basis on the best interests of the child; it's not. In short, custody is presently based upon the parental interests, not the child's.

Cody Pomeray

The Corinthian wrote: »

I'm afraid it doesn't work that way. Were that the case, the primary carer would be chosen on the basis of being in the best interests of the child - in possibly the majority of cases we don't do that, we assign the role automatically to the mother, if she is unmarried, for example - there's no assessment of whether she would be a "better party" than the father

Simply not true; it's not a simplistic father v mother issue.

Married parents have joint custody, and joint guardianship. Either parent can seek an order to vary custody and guardianship, or can (as is typical) come to an arrangement between themselves.

Unmarried parents: The most up to date figures show that 70% of the unmarried  fathers who applied for guardianship had orders granted.

And those are just the contentious matters. Most fathers, in this country, automatically acquire guardianship and custody or else acquire it without ever coming before the courts. And as you can see, even in contentious matters, they are usually successful.

In every jurisdiction in the world, there is a preference for the mother to be the primary care giver. That seems to be more culturally/ sociologically ingrained than anything else. It would be very surprising if we were out of line with the rest of the human race in terms of mothers being statistically more likely to surrender their custodial rights or, to take many private individuals' apparent view of it, their duties.

The Corinthian

Cody Pomeray wrote: »

Simply not true; it's not a simplistic father v mother issue.

I said absolutely nothing about a father v mother issue. I suggest you read my post again before jumping to conclusions.

In every jurisdiction in the world, there is a preference for the mother to be the primary care giver. That seems to be more culturally/ sociologically ingrained than anything else. It would be very surprising if we were out of line with the rest of the human race in terms of mothers being statistically more likely to surrender their custodial rights or, to take many private individuals' apparent view of it, their duties.

Are you justifying this? If not, what is the purpose of you pointing this out?

Cody Pomeray

The Corinthian wrote: »

I said absolutely nothing about a father v mother issue. I suggest you read my post again before jumping to conclusions.

You are attempting to portray an image of the family law environment which is either misinformed or carelessly incorrect. A blanket statement like

"there appears to be a misconception that custody is awarded on the basis on the best interests of the child; it's not."

is not something that should go unchallenged. Granting custody rights to fathers (in those cases where they do not already have inherent rights) in the family courts is the rule, and not the exception. As one solicitor put it in the Irish Family Law Journal, you would need to produce medical records to demonstrate incapacity not to be granted shared custody in this country.

I am not a big fan of how the family law courts operate in this country, by any means. But at the same time, myths like those you're perpetuating add to a general culture of cynicism on gender issues that have been seen throughout this thread, and are not based on facts.

There are clearly quite a number of people who would have us tear up our constitution on the basis of popular myths.

The Corinthian

Cody Pomeray wrote: »

Granting custody rights to fathers (in those cases where they do not already have inherent rights) in the family courts is the rule, and not the exception. As one solicitor put it in the Irish Family Law Journal, you would need to produce medical records to demonstrate incapacity not to be granted shared custody in this country.

What on Earth are you on about? Did you even bother to read my post as I suggested (beyond the first line)? I even summed it up at the end; "custody is presently based upon the parental interests, not the child's."

Parental, as in either parent - the rights of the parents versus the child. Nothing about mothers versus fathers. Absolutely nothing. Are you going to persist in your delusional gender battle or simply accept that you've gotten what I wrote completely wrong?

I am not a big fan of how the family law courts operate in this country, by any means. But at the same time, myths like those you're perpetuating add to a general culture of cynicism on gender issues that have been seen throughout this thread, and are not based on facts.

What myth is that exactly? You'll have to explain as it's not based on anything I've written.

There are clearly quite a number of people who would have us tear up our constitution on the basis of popular myths.

This from the person who's just invented an argument in a post that was never there in the first place. Bit ironic, methinks.

Amirani

I'd be strongly in favour of making the clause gender neutral or removing it altogether. It is a remnant of an outdated patriarchal society that existed when the document was written. It's discriminatory and demeaning.

Cody Pomeray

The Corinthian wrote: »

"custody is presently based upon the parental interests, not the child's."

What are you basing this on?

Any facts? Any facts at all?

The theme in family law judgements of the superior courts goes against the precise point you are attempting.

Cody Pomeray

To return to the issue of the constitutional convention on 41.2., this report is a great resource.

I don't understand why, having regard to the information in this report, particularly the expert reports therein, people would attack 41.2., nevertheless people are free to make up their own minds.

https://www.constitution.ie/AttachmentDownload.ashx?mid=268d9308-c9b7-e211-a5a0-005056a32ee4

The Corinthian

Cody Pomeray wrote: »

What are you basing this on?

Is this your backhanded way of admitting that your earlier accusation was based on your complete lack of comprehension of what I wrote, but you're still spoiling for an argument?

The theme in family law judgements of the superior courts goes against the precise point you are attempting.

Theory and reality are not always the same thing. I gave an example in my first post here illustrating the latter.

Cody Pomeray

The Corinthian wrote: »

Theory and reality are not always the same thing. I gave an example in my first post here illustrating the latter.

So now you want to return to the issue of unmarried mothers?

Grand. I will return to my answer. My answer is

1. That it would be incomplete to stop examining the facts there. Yes, because quantitative evidence shows that the overwhelming majority of applications for custody and access - i.e. where the unmarried father does not already have inherent rights, or where the parents do not come to an agreement between themselves - are granted. That is to say, in 5,867 applications for custody, custody and access, or access coming before the District Courts in 2012, 5,640 were approved. That is to say, a 96% approval rate.

2. That it is the consistent theme of the written family law judgements in this country that orders are always made in the child's best interest. Of course there is a rebuttable presumption that a child belongs with his or her parents, but where that presumption is contested, and the parents do not fulfil their rights and duties, the courts show a ready willingness to intervene. Everyone will remember a case within the last few weeks where the High Court ordered a child be removed from the child's parents shortly after birth. However, that was the most recent of other superior court judgements (this summer, let alone this year) where the courts have consistently, and expressly, approached care issues from the point of view of the child, and not the child's parents.

Again I ask what facts are you relying upon?

The Corinthian

Cody Pomeray wrote: »

So now you want to return to the issue of unmarried mothers?

No, the example I gave was just an example. I could have also used a happily married couple or even a widower with sole custody and guardianship. I was pretty clear in this, so I'm really not sure what your obsession with turning this into a gender debate is.

So tell me; is custody/guardianship awarded to married men or married/unmarried women on the basis of the best interests of the child? Last time I checked, it was automatic (oh, look a fact!). So if not, how exactly does that fit in to that 'theme' you were talking about earlier?

And again, please try not to see gender wars everywhere, when responding, as it's getting silly now.

Cody Pomeray

The Corinthian wrote: »

Last time I checked, it was automatic

No, the Guardianship of Infants Act 1964 provides what is, in effect, a rebuttable presumption that the custody and guardianship of a child is the right of the child's parents.

As soon as somebody contests that, such as in any of the 1,500 or so care orders granted last year, the courts will intervene. Again I say the consistent theme of the written judgements cut straight to the best interests of the child. Nowhere is this more relevant than in one of the most important family law cases of recent times, McD v. L, where the then Chief Justice stated

...that the situation of a party other than a natural parent, and in particular such a person’s relationship with the child, should be a material factor in determining the custody and associated rights of the child is not unique to the situation which has arisen in this case. It may also arise in a variety of other situations such as a household consisting of a mother and child and one, or both, parents or where a child has been raised for a number of years by grandparents or foster parents. In the end these often so difficult situations have to be determined by the best interests of the child being considered paramount and, subject to that, with due regard to constitutional and other rights in law vested in other parties.

This was echoed by the other judges, including

Considering the child’s best interest therefore, the blood link is always a factor to be taken into account but any conclusions that are drawn, having taken it into account, may vary enormously depending on the circumstances.

Again I ask, what facts are you relying on, in saying that custody is not based on the child's best interests?

Wherever a concern about custody is raised, the courts are more than willing to examine it and, where required, to intervene.

Anything else is popular myth.

Cody Pomeray

The Corinthian wrote: »

Last time I checked, it was automatic

No, the Guardianship of Infants Act 1964 provides what is, in effect, a rebuttable presumption that the custody and guardianship of a child is the right of the child's parents.

As soon as somebody contests that, such as in any of the 1,500 or so care orders granted last year, the courts will intervene. Again I say the consistent theme of the written judgements cut straight to the best interests of the child. Nowhere is this more relevant than in one of the most important family law cases of recent times, McD v. L, where the then Chief Justice stated

...that the situation of a party other than a natural parent, and in particular such a person’s relationship with the child, should be a material factor in determining the custody and associated rights of the child is not unique to the situation which has arisen in this case. It may also arise in a variety of other situations such as a household consisting of a mother and child and one, or both, parents or where a child has been raised for a number of years by grandparents or foster parents. In the end these often so difficult situations have to be determined by the best interests of the child being considered paramount and, subject to that, with due regard to constitutional and other rights in law vested in other parties.

This was echoed by the other judges, including

Considering the child’s best interest therefore, the blood link is always a factor to be taken into account but any conclusions that are drawn, having taken it into account, may vary enormously depending on the circumstances.

and

“n cases where the issue of guardianship, custody and access arise the kernel of the issue is the welfare of the child.

Again I ask, what facts are you relying on, in saying that custody is not based on the child's best interests?

The Corinthian

Cody Pomeray wrote: »

No, the Guardianship of Infants Act 1964 provides what is, in effect, a rebuttable presumption that the custody and guardianship of a child is the right of the child's parents.

You mean 'yes, it is automatic'. Don't confuse that with 'absolute' or 'irreversible' - although, in the case of a mother's guardianship, outside of adoption, it is irreversible.

Now, explain to me how the child's best interests are paramount if custody and guardianship are automatically assigned, rather vetted on a case by case basis? Of course, I completely understand to do so would be impractical, but my point is that people like to claim that the child's best interests are paramount, when in reality it's not so simple - in that case the rights of the parents supersede it, unless successfully challenged.

The same goes for the rights of the guardians, with regard to educational, medical and religious matters. Is home-schooling really in a child's interests? Strict religious upbringings? Or lack of any religious upbringing? Unnecessary surgery? Refusing surgery? Vaccinations?

How often is the right of the parent challenged, let alone overturned in the best interests of the child? And the best interests of the child need not mean serious danger, before we run after that strawman.

Let me know if you wish to challenge any of the above on factual accuracy.

Cody Pomeray

The Corinthian wrote: »

explain to me how the child's best interests are paramount if custody and guardianship are automatically assigned, rather vetted on a case by case basis?

I find it hard to believe this re-calibration.
If you were referring to the presumptive fitness of natural parents, why would you have said...

"the primary carer would be chosen on the basis of being in the best interests of the child - in possibly the majority of cases we don't do that, we assign the role automatically to the mother, if she is unmarried, for example"

In possibly the majority of cases, it is not in the best interests of the child to be raised by his natural parents? Well there is no possibly about the fact that presumptive fitness applies to most cases, so you must be arguing that in possibly the majority of cases, the natural parents are unfit.

I'm sorry but this is clearly a case of furious back-pedalling or gross exaggeration, and I'm not sure which is the better.

The Corinthian

Cody Pomeray wrote: »

In possibly the majority of cases, it is not in the best interests of the child to be raised by his natural parents?

I didn't say that though. I said possibly in the majority of cases the primary carer would be chosen on the basis of being in the best interests. And it's not, it's chosen on the basis of being a biological parent, which is not the same thing even if one accepts the assumption that biological parents tend to be best for the child - the criteria remains biology, not merit, regardless of any overlap.

So your rebuttal is either a straw man or another failure on your part to understand English. Can't say which, as you've been very generous in your contribution of both to the discussion.

Cody Pomeray

The Corinthian wrote: »

I said possibly in the majority of cases the primary carer would be chosen on the basis of being in the best interests. And it's not, it's chosen on the basis of being a biological parent

I find this hard to believe.

If, using this construction, why would you employ the term "possibly"?

No rational human person, unless prone to exaggeration, can deny that presumptive fitness of natural parents applies to the extreme majority of births in this country. It would not be in doubt, not for a moment.

Therefore, and considering that used words are intended to carry meaning, no such person would say " in possibly the majority of cases we don't do that, we assign the role automatically...", intending to mean "in possibly the majority of cases, we [apply presumptive fitness]".

How could a person, unless exaggerating, doubt that "possibly" just does not apply.

No, for this reason, I don't find that re-calibration credible. I read the original statement as misunderstanding the current situation, and without having regard to the facts.

Nevertheless, I have relayed the facts and I accept that the former is what you are now saying so what more is there to say.

The Corinthian

Cody Pomeray wrote: »

If, using this construction, why would you employ the term "possibly"?

For obvious reasons, I would have thought - read what I actually wrote:

"the primary carer would be chosen on the basis of being in the best interests of the child - in possibly the majority of cases we don't do that"

While it can be shown, as we discussed earlier, that the primary carer is not chosen on the basis of being in the best interests of the child (but simply because of biological relationship), there are also cases (generally when custody is contested) where the courts will attempt to make a dispassionate choice based upon the basis of the best interests of the child.

But is that a tiny minority? A minority? Or in reality a majority of cases? Realistically, I suspect it is very much a minority (as contested cases are not the norm), but without hard facts or at least statistics at hand, I cannot say that for certain.

Hence 'possibly'. In retrospect, I think I should have written 'probably'.

No rational human person, unless prone to exaggeration, can deny that presumptive fitness of natural parents applies to the extreme majority of births in this country. It would not be in doubt, not for a moment.

I think you're confusing the assessment of something with not bothering to assess it on the basis of a blanket presumption. The rights of the parents are being looked after, if the rights of the child are, then it is based upon a presumption, not any actual, active assessment.

And I've already pointed out that the two are not the same thing.

No, for this reason, I don't find that re-calibration credible. I read the original statement as misunderstanding the current situation, and without having regard to the facts.

There was no recalibration, as I explained above. Also how could it be a recalibration if you're citing my first post? A recalibration from posting nothing? Perhaps you meant to use another term?

And, lets be clear, you read the original post as some sort of men versus women commentary, which took several posts before you finally accepted that there was absolutely nothing there that mentioned any type of men versus women commentary.

So now, I'd have to admit that I suspect you're just making another misinterpretation.

Nevertheless, I have relayed the facts and I accept that the former is what you are now saying so what more is there to say.

TBH, most of what has been said has been driven by you and your various interpretations of what I wrote. I just get the impression you were spoiling for a fight and so have repeatedly looked before you leaped whenever responding.

Not all discussions on Boards need be belligerent, you know.