Effects of childrens referendum

Little CuChulainn

I'm wondering if the rights afforded to children under the recent amendment could potentially affect existing judgements in relation to things such as marriage and family.

Specifically I'm looking at tax law. The governments position on sharing tax credits puts the children of married couples at an advantage over children of non-married couples due to the ability of one parent to stay home and the second to take advantage of additional tax credits. The government defends this decision by referring to Murphy V AG, stating it would be unconstitutional to allow unmarried couples be taxed in the same way as married couples (an interpretation I don't agree with).

Any thoughts on whether the new amendment would introduce a new aspect to these cases considering the child has now got additional rights guaranteed?

conorh91

Little CuChulainn wrote: »

I'm wondering if the rights afforded to children under the recent amendment could potentially affect existing judgements in relation to things such as marriage and family.

Specifically I'm looking at tax law. The governments position on sharing tax credits puts the children of married couples at an advantage over children of non-married couples due to the ability of one parent to stay home and the second to take advantage of additional tax credits. The government defends this decision by referring to Murphy V AG, stating it would be unconstitutional to allow unmarried couples be taxed in the same way as married couples (an interpretation I don't agree with).

Any thoughts on whether the new amendment would introduce a new aspect to these cases considering the child has now got additional rights guaranteed?

Given the doctrine of harmonious interpretation and the clarity with which the Supreme Court addressed tax inequality in Murphy, I don't agree that there is anything so appealing in the Children's referendum amendment as to diminish the clear primacy of the family based on marriage, as established elsewhere in the Constitution and in case law.

It's impossible to answer these questions in the abstract. How would the argument go?

I can imagine plenty of constitutional implications in light of the Children's Rights amendment, not least the anticipated Direct Provision judgments. But I can't see any obvious reason why it would affect the decision in Murphy.

The courts have long resiled from the headier days of judicial activism, and we are currently in an era of legal austerity and restraint. The Supreme Court is especially conservative. I just can't see it interpreting the Children's referendum amendment in the way you have suggested.

Having said that, the validity of the Children's Referendum is awaiting an appeal to the Supreme Court, maybe this Supreme Court will do something unexpected. But I doubt it.

Little CuChulainn

conorh91 wrote: »

Given the doctrine of harmonious interpretation and the clarity with which the Supreme Court addressed tax inequality in Murphy, I don't agree that there is anything so appealing in the Children's referendum amendment as to diminish the clear primacy of the family based on marriage, as established elsewhere in the Constitution and in case law.

It's impossible to answer these questions in the abstract. How would the argument go?

I can imagine plenty of constitutional implications in light of the Children's Rights amendment, not least the anticipated Direct Provision judgments. But I can't see any obvious reason why it would affect the decision in Murphy.

The courts have long resiled from the headier days of judicial activism, and we are currently in an era of legal austerity and restraint. The Supreme Court is especially conservative. I just can't see it interpreting the Children's referendum amendment in the way you have suggested.

Having said that, the validity of the Children's Referendum is awaiting an appeal to the Supreme Court, maybe this Supreme Court will do something unexpected. But I doubt it.

I suppose the problem with my example is that the government using Murphy v A.G. is not actually a good defence to the prohibition so the connection is hard to make.

But what I'm suggesting is that the prohibition on sharing tax credits between unmarried couples effectively creates two classes of child. The child of the unmarried couple is put at a disadvantage as the family is under increased financial pressure and there is much less possibility of one parent staying at home rather than working.

GerardKeating

Little CuChulainn wrote: »

I suppose the problem with my example is that the government using Murphy v A.G. is not actually a good defence to the prohibition so the connection is hard to make.

But what I'm suggesting is that the prohibition on sharing tax credits between unmarried couples effectively creates two classes of child. The child of the unmarried couple is put at a disadvantage as the family is under increased financial pressure and there is much less possibility of one parent staying at home rather than working.

A parents choice can have an effect on a child, if the parents chose to marry, there is a financial benefit, if the decide not to, there is no benefit, it's all done to choice, changing the law so that a parents choice makes not difference does not make sense.

Victor

Little CuChulainn wrote: »

The child of the unmarried couple is put at a disadvantage as the family is under increased financial pressure

While admittedly the referendum creates competing rights (family -v- child), an unmarried couple isn't recognised as a family under the constitution.

Improving child welfare under the tax code is regressive. It has long been recognised that the best way to do so is through improved services.

Manach

Offhand, the school of though that the constitution is a living doctrine seems to be the dominant model. The Children's referendum is the last one the directly effected the family unit. So that while it might be able to change the direct standard meaning taken about a direct reference from another clause in the constitution, if there is a marginal edge meaning to be derived then it might be influencial in that respect, reflecting what people's view are now.