The Gazette 1983

N O V E M B E R

1983

GAZETTE

rights of parents under Articles 41 and 42 (and arguably Article 40.3) to be permitted to rear their children. " How the Court would respond to such a challenge is not clear. There is reason to believe that, at present at all events, it would not look upon it with favour. In de Burca - v- Attorney Genera/* 2 , where the Supreme Court struck down jury legislation that included distinctions based on sex, Mr. Justice Walsh said that: "There can be little doubt that the Oireachtas could validly enact statutory provisions which could have due regard, within the provisions of Article 40, to differences of capacity both physical and moral and of social function in so far as jury service is concerned. For example, it could provide that all mothers with young children could be exempt from jury service. On virtually the same considerations, it could provide that all widowers, husbands with invalid wives, and husbands deserted by their wives would be entitled to a similar exemption if they were looking after their young children. It might also provide exemptions for the proprietors of one-man businesses who have no assistance, whether the proprietors be men or women. It could provide that certain occupations, such as a general practitioner in the medical profession (whether man or woman), be exempt because of the importance of the social function fulfilled by persons of such occupation. However, the provision made in the Act of 1927, is undisguisedly discriminatory on the ground of sex only. It would not be competent for the Oireachtas to legislate on the basis that women, by reason only of their sex, are physically or morally incapable of serving and acting as jurors. The statutory provision does not seek to make any distinction between the different functions that women may fulfil and it does not seek to justify the discrimina- tion on the basis of any social function. It simply lumps together half of the members of the adult population, most of whom have only one thing in common, namely, their sex. In my view, it is not open to the State to discriminate in its enactments between the persons who are subject to its laws solely upon the ground of the sex of those persons. If a reference is to be made to the sex of a person, then the purpose of the law that makes such a discrimination should be to deal with some physical or moral capacity or social function that is related exclusively or very largely to that sex on l y . "" The words "very largely" would appear to permit legislation reinforcing concepts of "proper" sex roles. The concept of "social function", of which the Constitu- tion speaks would appear to be capable of a very wide range of interpretation. Whether, therefore, the Court in future decisions will accept the perpetuation of sexual stereotypes on the basis of differing social functions remains to be seen. The reference in Mr. Justice Walsh's judgment to legislation exempting "ail mothers with young children" 34 but the more qualified reference to fathers in a similar position would appear to suggest a tolerance of the concept of motherhood as a social function, in contrast to a sex-neutral concept of parenthood. 35 In the specific context of custody of young children this probably means that the Court would not 279

regard its present approach as raising a constitutional issue. In predicting future developments one should be realistic: with young fathers now far more involved in the upbringing of their children and with the increase in the number of married women working outside the home there is a strong likelihood of a gradual shift away from the rather stratified approach that the courts have generally favoured up to now. A similar trend is already apparent in other countries 36 but it is of interest to note that in England as late as 1977, in Re K. (Minors)* 1 Sir John Pennycuick stated that: not as a matter of law but in the ordinary course of nature, is the right person to have charge of young children". "the mother "the dictates of nature which make the mother the natural guardian, protector and comforter of the very young". 38 Summarising the position in England in 1981, Brenda Hoggett said that: "In practice . . . . the court may rely rather heavily on certain stereotyped ideas of a child's emotional needs. Here . . . . the mother enjoys a built-in advantage, for the courts tend to assume that the natural mother is best for a young child, irrespective of the real strength of the bond between them." 39 It seems therefore that the Irish courts have been by no means acting in isolation in their approach to this question. Whether in coming years they will change at the same pace as courts in other countries remains to be seen.* • (Footnotes) 1. No. 7of 1964. See generally. A. Shatter. Family Law in the Republic of Ireland. 201-202. 210 ff (2nd ed.. 1981), Custody Disputes in the Irish Republic: The Uncertain Search for the Child's Welfare? 12 Ir. Jur. (N.S.) 37 (1977). 2. Cf. B. V. B.. [1975] I.R. 54. at 61 (Sup. Ct.. per Walsh J.. 1970). 3. In re Tilson Infants: Tilson -»•- Ti/son, [1951] I.R. 1 Sup. Ct.. 1950). See A. Shatter, supra, fn. 1, 207-209. See also In re Slav. Minors. 92 I.L.T.R. 1 (High Ct.. Davitt J.. 1957). 4. Section 2. 5. [1975] I.R. 54. at 67 (Sup. Ct.. 1970. afTg High Ct.. Kenny J., 1969). (Budd J. and FitzGcrald J. were dissenting in thiscase, but since not all the facts of the case are of direct relevance to the theme of the article, the reason for the dissent will not be examined here.) 6. [1975] I.R.. at 71. 7. [1975] I.R.. at 69. 8. [1975] I.R.. at 72. 9. 110 I.L.T.R. 45. at 47 (Sup. Ct., reversing Kenny J.. 1971). 10. Id. II .Id. at 49. 12. Unreported. Supreme Ct.. 31 July 1974 (86-1974). rev'g High Ct.. Kenny J.. 23 May 1974 (I973-I725p). 13. p. 5 of Kenny J.'s judgment. 14. pp. 5-6 of Kenny J.'s judgment. 15. p. 6 of Kenny J.'s judgment. 16. pp. 8-9 of Walsh J.'s judgment. 17. p. IS of Walsh J.'s judgment. 18. Id., pp. 15-16. See also, on this point, p. II of the judgment of Henchy J., who was dissenting. In the same case, Stamp, L. J. referred to: • This article is w ritten in a personal capacity.