Constitutional Provisions RE: Family and Children

johnnyskeleton

The bill is here:

http://www.oireachtas.ie/documents/bills28/bills/2015/515/b515d.pdf

The proposed amendment fits into the current provisions as follows:

ARTICLE 41


1.1 The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

1.2 The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.


2.1 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.


2.2 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.


3.1 The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.


3.2 A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that—
i. at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,
ii. there is no reasonable prospect of a reconciliation between the spouses,
iii. such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and
iv. any further conditions prescribed by law are complied with.


3.3 No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved.


4 Marriage may be contracted in accordance with law by two persons without distinction as to their sex.


ARTICLE 42


1 The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

2 Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.


3 1 The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.


3.2 The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.


4 The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.


ARTICLE 42A


1 The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.


2.1 In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.


2.2 Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.


3 Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.


4.1 Provision shall be made by law that in the resolution of all proceedings -
i brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or
ii concerning the adoption, guardianship or custody of, or access to, any child,
the best interests of the child shall be the paramount consideration.


4.2 Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.

If someone wants to make an argument that the proposed amendment affects children, please refer to the specific provisions of the Constitution which relate to same.


This is perhaps a more difficult task for people in favour of the amendment as they have to prove a negative, but it is worth noting the exact wording of the provisions in order to avoid any further arguments where the no side asserts it is about children and the yes side asserts that it is not.


The following points may be of assistance:

• Marriage, the Family, Parents and Children all seem to be different concepts are are not all treated the same in the different articles.
• There is no reference to surrogacy anywhere in it.
• The Family is the "natural primary and fundamental unit group of Society" which possesses "inalienable and imprescriptible rights" (Article 41.1).
• The Family is founded on the institution of Marriage (Article 41.3).
• Marriage can be entered into without distinction as to gender (Proposed Amendment by inserting Article 41.4).
• The only reference to Children in the Article is in relation to propoer provision in divorce (Article 41.3)
• The primary educator of the child is the Family, and the State respects the right and duty of Parents "to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children" (Article 42.1)
• This is the only reference to Family in Articles 42 and 42A. When discussing the religious, educational, social moral etc rights of children and the obligations towards them, it talks about Parents
• Article 42A.2 refers to when "parents, regardless of their marital status, fail in their duty towards their children". It doesn't refer to the Family
• In all proceedings concerning children's welfare and in relation to adoption, guardianship etc, the interests of the child are the paramount consideration (Article 42A.4.1)

Any arguments that the refernedum will affect children's rights should reference the above. If you want to claim that there will or won't be an impact on children, adoption, surrogacy etc, plese refer to the actual constitutional provisions.

johnnyskeleton

Comments in this post are welcome if I have misstated any of the provisions or if there are useful links etc. Please keep the debates to the other threads