The Gazette 1991

GAZETTE

NOVEMBER 1991

The Provisional Government established a committee to draft a Constitution in 1922. Draft A, Draft B and Draft C were submitted by the Committee in 1922. Draft B eventually became the 1922 Cons t i t u t i on. Draft C was composed by Professor Alfred O'Rahilly. However, it appears to have had an influence on the drafting of Bunreacht na hEireann. Articles 52 and 54 of Draft C read: "Family, Education and Religion: Article 53 (1) Marriage, as the basis of family life and national wellbeing, is under the special protection of the State; and all attacks on the purity, health and sacredness shall be forbidden. (2) The Irish State shall recognise, as heretofore the inviolable sanctity of the marital bond. (3) The civil validity of religiously solemnised marriages shall be recognised, provided that the de- tails of registration prescribed by legislation are duly complied with. Article 54 (1) Parents have the right and duty of rearing and educating their children so as to make them good citizens. The State has the right of super- vision. Parents must provide their children with education at least up to the completed 14th year of age. This obligation shall be determined in detail by law. (2) Children deprived of parental care have the right to the help and protection of the State in the limits fixed by law. A judicial decree is necessary to deprive parents of their rights over the child". It would be possible to contend that the basic textual content in the above i.e. the importance of protecting the family, the right and duty of parents to educate their children, is present in Articles 41 and 42. However, Aquinian philo- sophy would hold that the family was a nucleus deserving not only

of protection from the State, but of a legal position which protected its rights and duties from encroach- ments by the positive law. Thus we have the terminology "inalienable", which was defined in Ryan -v- Attorney General 6 by Kenny J. as that which cannot be transferred or given away, and "imprescriptible" also defined by the learned Judge as that which cannot be lost by the passage of time or abandoned by non-exercise. 7 It is now pertinent to examine the case law which developed judicial interpretation of the Articles. In effect, the judiciary had the task of integrating this natural law terminology into positive law. In Re O'Connor 8 decided in 1946, Gavan Duffy J. considered the effect of Articles 41 and 42 on previously employed equitable principles, as follows:- " . . . under our own Constitution, wherein very definitely the family is recognised as a fundamental unit of society and as a moral institution with imprescriptible rights [this judge-made theory] will have to reconsidered under that new light, because no inconsistent doctrine of the old Courts of Equity can prevail against the principles of the Constitution. . . where our children are concerned, we will have to re-examine . . . certain . . . of our problems with great care under the guidance of the Cons t i t u t i on of Ireland." 9 The judiciary, however, continued to employ equitable principles in child custody cases despite these dicta. In Re Frost 10 decided in 1947, the main issue was the question of the religion in which a child would be raised. However, interesting dicta emanated from the case con- cerning Articles 41 and 42. The Chief Justice found that he could not accept the proposition that: Equitable principles -v- Articles 41 and 42

" t he rights of the parents, or of the surviving parent, are absolute rights, the exercise of wh i ch cannot in any circumstances be controlled by the C o u r t . . . I am satisfied that the Court has jurisdiction to control the exercise of parental rights but in exercising that jurisdiction it must not act upon any principle which is repugnant to the Constitution." 11 It is clear from these dicta that the equitable principle of the paramountcy of the child had come into conflict with Articles 41 and 42. Three years later, Re Ti/son 12 was decided, and Gavan Duffy J's dicta in this judgment proved to be a forceful initiation of Articles 41 and 42 into Irish Law. Further, his Lordship stated of the Articles: "The Irish Code marks a new departure from time honoured precedents wh i ch are not ours . . . Articles 41 and 42, redolent as they are of the great Papal encyclical in pari materia, formulate first principles with conspicuous power and clarity . . . The strong language of these Articles arrests attention . . . for religion, for marriage, for the family and for the children, we have laid our own f ounda t i ons . . . [T]he confined philosophy of law bequeathed to us by the 19th century is suspended by Articles wh i ch exalt the family by proclaiming and adopting in . . . the Cons t i t u t i on . . . the Christian conception of the place of the family in society and in the State." 13 The Supreme Court did not endorse the dicta of the High Court Judge. However, the Court did recognise that both parents had the right to determine the child's religion. 14 Previously the common law had dictated that it lay within the father's authority only to determine his child's religion. 15

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