The Gazette 1991

GAZETTE

NOVEMBER 1991

The Development of Judicial Interpretation of Articles 41 and 42

In this article Angela O'Reilly traces the development of judicial interpretations of Articles 41 and 42 of the Constitution that deal with family rights. The article is based on a lecture delivered last February in memory of the late Antonia O'Callaghan BL.

vision of Bunreacht na hEireann, he chose that the State should expressly vindicate the individual's right to equal treatment before the law and-the "personal rights" of the citizen. The " f am i l y" is recognised as a moral institution possessing inalienable and impre- scriptible rights antecedent and superior to all positive law. One inalienable" right is enumerated. This is the right of parents to educate their children. This detailed recital of fundamental rights derived from both the natural rights philosophies and, more particularly, from the natural law doctrine expounded by St. Thomas Aquinas. St. Thomas Aquinas lived in the 13th century. He espoused the classical natural law doctrine which became a foundation stone of the Catholic Church. He argued in support of the existence of a hierarchy of law derived from God in which human law had a rightful but inferior place. Early Christian thinkers had argued that social and political institutions were the result of sin and its divine remedy. St. Thomas refuted this argument by submitting that sin does not affect the existence of natural values which existed independently of it. He argued that natural law doctrine found a practical mode of expression in politics. The State has a duty to facilitate the fulfilment of the individual's duty to follow natural law precepts. The whole tenor of the 1937 Constitution reflects the employ- ment of a social contract to protect the individual's natural rights. The people enacted the Constitution which Constitution created modes of government and the Government is bound, through the Constitution, to vindicate the fundamental rights of the citizen. Before we look at the Aquinian thought present in the substance of Article 41.1 and Article 42, it is interesting to look at the background to the format and layout of the Articles. 371

Before we examine Articles 41 and 42, it is appropriate that we should look at the legal status of the family based upon marriage before the enactment of the 1937 Constitution and indeed before the enactment of the 1922 Constitution. The common law espoused the paramountcy of paternal rights, or indeed more correctly the paramountcy of paternal rights. The father had a duty to protect any minor child of his and this right was absolute, even against the mother. In certain cases where the father's conduct would seriously endanger the child's health or morals the mother would be awarded custody of the child. At common law, therefore, the father was entitled to custody until the child was 21. After his death, the mother was entitled. 1 A growing jurisprudence developed in the Chancery Courts whereby it was held that the welfare of the child was the first and primary consideration in any dispute concerning a child and a father could lose his rights if it would be contrary to the child's interests to allow the father exercise those rights. By the end of the 19th century the Courts of Chancery were quite willing to exercise their jurisdiction to award custody of a child to its mother if there was any threat of physical or moral harm to the child from the father. Also, if a father abandoned or abdicated his rights once, for example if he deserted his family, he would not be allowed arbitrarily to reassert his rights if by so doing he would endanger the child's welfare. In Re Eliot 2 and in Re O'Hara 3 the Irish Courts decided that the Court may supersede the rights of the parents over the child if the circumstances

of the case dictated that the moral, mental and physical welfare of the child warranted superseding the parental rights. Thus the judicial perspective before the enactment of the 1922 Constitution concern- ing the resolution of parental/child conflicts in areas of family life affecting the child, was one dominated by equitable principles. The enactment of the 1922 Constitution did not effect any change in this judicial attitude which continued in the same vein as it had done in the late 19th and early 20th century. The reason, perhaps, for this lack of change lay in the fact that there were no pro- visions concerning the rights of the family in the 1922 Constitution. However, in 1937, Articles 41 and 42 of the Constitution heralded a profound change in judicial attitude. The 1937 Constitution In providing exclusively for protection of the family unit, the 1937 Constitution differed greatly from the Constitution of the Free State. 4 Personal rights, such as habeas corpus, freedom to practise one's own choice of religion, freedom of association, the right to free elementary education and the inviolability of the dwelling, were protected by the 1922 Constitu- tion. However, there was no reference in the provisions of the Constitution to "equality", "due process", or to the "family".

When Mr. de Valera came to draft the "Fundamental Rights" pro-