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36 Cards in this Set
- Front
- Back
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Article 42
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Education
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. 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. 5. In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child. |
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Definition of Education
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In Ryan -v- The Attorney General [1965] I.R. 294, having quoted Article 42.1 and Article 42.2, O'Dalaigh C.J. defined education at page 350 in the following terms:-
"Education essentially is the teaching and training of a child to make the best possible use of his inherent and potential capacities, physical, mental and moral." O’Higgins C.J. stated in Crowley v. Ireland [1980] I.R. 102 at p. 122: “. . . the imposition of the duty under Article 42, s. 4 . . . creates a corresponding right in those in whose behalf it is imposed to receive what must be provided. . . . it cannot be doubted that citizens have the right to receive what it is the State’s duty to provide for under Article 42, s. 4.” |
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Ryan -v- AG
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Mr. MacBride contends that the provision of suitable food and drink for children is physical education. In the Court’s view this is nurture, not education. Education essentially is the teaching and training of a child to make the best possible use of his inherent and potential capacities, physical, mental and moral. To teach a child to minimise the dangers of dental caries by adequate brushing of his teeth is physical education for it induces him to use his own resources. To give him water of a nature calculated to minimise the danger of dental caries is in no way to educate him, physically or otherwise, for it does not develop his resources.
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Protection of the Family
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•Family based on marriage
•Authority of the family- health, custody and education •Non-citizen family members •Divorce |
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Family Based on Marriage
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Article 41.3: ‘The State pledges to guard… the institution of Marriage, on which the Family is founded’
Therefore ‘family’ is considered to be the married family State (Nicolaou) v An Bord Uchtala: the court rejected that an unmarried unit could constitute a family within Article 41 Murphy v AG: marriage= ‘a permanent indissoluble union of man and woman’, therefore unconstitutional for Oireachtas to legislate for gay marriages Ennis v Buckley: non-marital cohabitation cannot have the same constitutional status as marriage •NOTE: Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 - rights in re jointly held property etc, but still no protection under Constitution (also allows for civil partnership between same sex couples) |
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Murphy v AG
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Court held that system of taxation, provided for in Income Tax Act 1967, taxing married couples more heavily than non-married was in breach of constitution
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Muckley v Ireland
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FACTS: plaintiff overpaid tax based on Murphy and sought to offset overpayment against later underpayment of tax.
S.21 Finance Act 1980 prevented this. It required married persons who had not paid their taxes pursuant to the provisions of the Income Tax Act which had been declared unconstitutional in Murphy, to pay same amount as if provisions had not been invalid during those years. HELD: S.21 was unconstitutional, it penalised the married state |
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MhicMhathuna v Ireland
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FACTS: challenge to constitutionality of social welfare legislation providing for unmarried mother’s allowance. Was this an inducement not to marry?
HELD: inducement argument: court did not accept that woman would have baby to claim allowance in preference to marriage. Allowance was child centred, based on difficulty of bringing up children alone HELD: penalisation argument: did legislation penalise institution of marriage? No penalty in being married and thus no incentive to avoid marriage SUPREME COURT: agreed, but based decision on deferential approach to the legislature |
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Ennis v Buckley
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Non-marital cohabitation cannot have the same constitutional status as marriage
NOTE: Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 - rights in re jointly held property etc, but still no protection under Constitution (also allows for civil partnership between same sex couples) |
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State (Nicolaou) v An Bord Uchtala (1966)
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Rights of non-marital mother come under Art 40.3, rather than Arts 41 & 42
FACTS: unmarried father had no right to be involved in placing of child for adoption -HELD: the unit of unmarried parents and child did not constitute a family for purposes of Art 41. Father’s right to custody was rejected concerned an unmarried father, who had no legal right to be involved in the placing of his child for adoption, challenged this exclusion on the basis of Article 41. Supreme Court rejected the argument that the unit of unmarried parents and child constituted a family for the purposes of Article 41. The court also rejected the father's right to custody of his child based on the possible 'casual' nature of the child's birth and the general lack of interest of natural fathers in their children " it is not difficult to appreciate the difference in moral capacity and social function between the natural father and the natural mother .. .in the adoption process." |
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G v An Bord Uchtala (1980)
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Court referred to natural right of non-marital mother and right to surrender rights in relation to her children
Where there is a failure by the parent the State can intervene under Art 42.5, and Art 40.3 for non-marital child |
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JK v VW (1990)
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FACTS: non-marital father applied to be appointed guardian of child
HELD: no constitutional right to guardianship, depends on each individual case NOTE: dissent of McCarthy J JK v VW (often cited asK v W) [1990] 2 IR 437 the court was willing to extend somewhat the position of the non-marital child by acknowledging "rights of interest or concern" for the non-marital father. In this case a non-marital father asserted his rights to the custody and care of his child. He applied to be appointed guardian of his child as, as a guardian, he would have a say in the adoption process. Supreme Court (case stated from High Court)- "although there may be rights of interest and concern arising from a blood link between the father and the child, no constitutional right to guardianship in the father of the child exists." Finlay CJ did acknowledge that it may be "desirable for the child to enjoy the society, protection and guardianship of its father", but the extent of these entitlements vary greatly depending on the circumstances of each individual case. As a example, he referred to the situation of a child conceived by "casual intercourse" where the "rights might be so minimal as practically to be non-existent" versus a child born out of "a stable and established relationship .. .. .in a situation bearing nearly all of the characteristics of a constitutionally protected family, when the rights would be very extensive indeed." |
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WOR v EH
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Court upheld JK v VW (NOTE: dissent of Barrington J)
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Children Marital & Non-marital
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Children have all rights in the Constitution, and some specific rights, such as education
G v An Bord Uchtala: where there is a failure by the parent the State can intervene under Art 42.5, and Art 40.3 for non-marital child. M v M [1986] -HELD: “The illegitimate child has an equal right with legitimate children to the constitutional protection of its personal rights to life, to be fed, to be protected, to be reared and educated” Note how the above rights are particular to a vulnerable child (i.e., they are not simply the normal, “Citizen” Article 40.3 personal rights) Hence, by some arguments, the redundancy of having a Referendum on Children’s Rights |
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M v M [1986]
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HELD: “The illegitimate child has an equal right with legitimate children to the constitutional protection of its personal rights to life, to be fed, to be protected, to be reared and educated”
Note how the above rights are particular to a vulnerable child (i.e., they are not simply the normal, “Citizen” Article 40.3 personal rights) Hence, by some arguments, the redundancy of having a Referendum on Children’s Rights |
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Art 41.1.2- The Authority of the Family
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Normally, parents have primary role in asserting rights of children, with State only intervening in exceptional circumstances
Position of parental assertion of rights of their child versus intervention by State arises in three contexts: -Health -Custody -Education |
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Northwestern Health Board v HW (2001)
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FACTS: parents refused PKU test for fourth child
HELD: Murphy J: need ‘such a degree of neglect to constitute abandonment’ before State can intervene Murray J: need something exceptional before State will intervene Denham J: exceptional circumstances… include immediate threat to health or life of child Hardiman J: presumption that welfare of child to be found in the family, had not been rebutted here Keane J (DISSENT): failure of parents to protect and vindicate constitutional rights of their child to be ‘guarded against unnecessary and unavoidable dangers to his health and welfare’ |
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Re a Ward of Court Baby Janice (2004)
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FACTS: mother would not consent to blood transfusion as Jehovah’s witness
HELD: High Ct made baby a ward of court and authorised treatment. Risk to health of child and pressing need for surgery. NOTE: would the decision be the same if non-marital family? No. State could intervene in either case. |
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EHB v MK & MK [1999]
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FACTS: Annulled Roman Catholic Marriage. Respondent woman married again. Her first marriage was not civilly annulled. So, are the Respondent’s rights over her children from second marriage less because she is not legally married?
HELD:“I doubt however if the distinction is of any real importance in the circumstances of the present case and certainly the rights of the children are the same whether they arise under Article 40.3 or under Article 42” |
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McK v Information Commissioner [2006]
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FACTS: Widower and father. Separated from deceased wife. Wanted hospital notes pertaining to his daughter and an illness she had. FOI request. FOI Commissioner did not presume that the father knew best. Should the FOI Commissioner have presumed this? After all, the father was not married to the mother of the child at the time he sought the information.
HELD: Nonetheless, just like EHB v MK, Court held that the State should only reluctantly intervene to question the welfare of the child against that of the father |
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Custody & Adoption
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2-stage process:
(i)Consent to placement is made (this never equates to extinguishment of mother’s rights OC v Sacred Heart Adoption Society) (ii)Consent to final adoption is made DG v An Bord Uchtala: sets out law on consent, mother must be aware of: (i)Nature of her rights re the child but without their categorisation as constitutional or legal rights (ii)Two-stage nature of adoption process (iii)Effect of making of adoption order on her rights (iv)Effect of legislative provisions which may allow court to overturn failure to give final consent |
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DG v An Bord Uchtala (1996)
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Sets out law on consent, mother must be aware of:
(i)Nature of her rights re the child but without their categorisation as constitutional or legal rights (ii)Two-stage nature of adoption process (iii)Effect of making of adoption order on her rights (iv)Effect of legislative provisions which may allow court to overturn failure to give final consent |
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GT v KAO [2007]
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(commonly known as the "G case")
The High Court McKechnie J held that the ECHR required him to decide that the natural father may have rights. This was in the context of a very complicated background. G and the respondent (the mother of the child) had lived as a de facto family for about three years. Then in January of 2007 the mother took the children (twin boys) to her parents' home in England. Mr G did not consent and had no knowledge of this. He instituted three sets of proceedings, under the Guardianship of Infants Act 1964 before the District Court in Ireland. The father also brought proceedings before the High Court in England under both the Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25th October 1980 ("The Hague Convention") and Council Regulation No 2201/2003 (Eq ("The Brussels II Regulation"). Article 3 of the Brussels II regulation provides that the removal or retention of a child is to be considered wrongful where it is in breach of 'rights of custody' attributed to a person or other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention. The English court required the Irish courts to answer whether such rights exists in Ireland. G claimed he had such rights. McKechnie J agreed, on the basis of the ECHR. Interestingly, his decision begins by length citation of the dissent of McCarthy J in JK v V.W which was in the following terms: I find it difficult to accept that a loving father, who with the mother wanted to have a child, has no natural right to the society of the child. He then referred to the dissent of Barrington J in WOR v EH which was critical of the underlying assumption that natural fathers have no interests in their children. Acknowledging the doctrine of stare decisis, McKechnie J then held: For my part I am of course bound by the majority judgments of the Supreme Court in both of the above cases. Without in any way questioning that principle, I would like however to make some very brief observations, of my own, on the issue. The vast majority of people might readily agree, that parenthood, by itself and no more, may give very little rights, if any, to an unmarried father. Examples of circumstances at this end of the spectrum are numerous and very definitely include casual encounters, rape, incest, etc. But what about a person who fathers a child within an established relationship, and who from the moment of birth, nurtures, protects and safeguards his child; sometimes to a standard which all too frequently married fathers fail to live up to. As Murphy J. said in O.R. [1996] 2 I.R. 248 at 286: "For better or for worse, it is clearly the fact that long-term relationships having many of the characteristics of a family based on marriage have become commonplace. Relationships which would have been the cause of grave embarrassment a generation ago are now widely accepted." Indeed could I say that even in the past decade, such relationships have multiplied and continued to so do. In any event, where the above described circumstances exist, could anyone possibly object to what Finlay C.J. said in S. W. where he described such a situation as " . . . bearing nearly all of the characteristics of a constitutionally protected family, when the rights would be very extensive indeed"? If as I respectfully suggest, that our society, which is governed by a Constitution which declares the principles of prudence, justice, charity and human dignity, might in its maturity so agree, should there not be a greater recognition of the type of father whom I mention? At a minimum should there not be a means readily available so that such a father, whose children had been removed without forewarning or knowledge, can assert and vindicate his rights? I strongly believe that there should be. Therefore, as the constitution offered little protection to the natural father, the judge then considered the position under the ECHR. Based on an examination of Article 8 and the related case-law he held that the broader ECHR concept of "family" as outlined in cases like Johnston v. Ireland 3 and Keegan v Ireland meant that G had "rights". He concluded on the ECHR case-law as follows: When dealing with whether a non-marital relationship can be said to amount to family life, a number of factors may be relevant, including whether the couple lived together, the length of their relationship and how and by what means they demonstrated their commitment to each other. See Kroon and Others v The Netherlands (1995). These must have existed in practice close personal ties between the parties. In my view there can be no doubt but that under article 8 of the European Court on Human Rights the applicant and the respondent through their relationship, which included cohabitating with each other for almost three years in a number of different jurisdictions, their engagement, and the birth of their boys who were conceived out of a loving commitment which each parent had for the other, constituted, at all relevant times a de facto family within the meaning of that article. As a result there exists " ... between the child and his parents a bond amounting to family life .. . [and] the Court further recalls that the immediate enjoyment by parent and child of each other's company constitutes a fundamental element of family life, even if the relationship between the parents has broken down . . . ". See para. 43 of the judgment of the European Court of Human Rights in Elscholz v Germany (2002) 34 E.H.R.R. 1412. Accordingly it is beyond argument but that the applicant and his children are entitled to respect for their family life within the meaning of article 8. He thus concluded that the removal of the child was wrongful. The Supreme Court (the Court gave judgment on the 22nd November 2007. 5) It is arguable that the appeal was conducted in a limited manner with the Court noting that " ... this judgment is only concerned with the declaration made by the learned High Court Judge that the retention by the respondent of the infants in question outside the jurisdiction is a wrongful retention within the meaning of Article 3 of the Hague Convention and constitutes a breach of the rights of custody attributed to the District Court." |
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Re JH (1985)
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FACTS: child placed for adoption and before finalised mother withdrew consent
HELD: child to be returned to natural parents. Constitutional presumption that welfare of child is found within the family, unless compelling reasons why this cannot be achieved. Supreme Court: The relevant guardianship legislation must be interpreted "as involving a constitutional presumption that the welfare of the child . .is to be found within the family, unless the court is satisfied on the evidence that there are compelling reasons why this cannot be achieved or unless the court is satisfied that the evidence establishes an exceptional case where the parents have failed to provide" for the child. It ordered the child to be returned to her natural parents. |
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N v HSE (2006)
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FACTS: daughter born in 2004 to unmarried parents, placed for adoption in late 2004. Parents married Jan 2006, adoption not finalised, they sought return of child
HELD: SUPREME CT: child returned to natural parents. Welfare of child best found within the family, and can only be interfered with if compelling reasons. ‘There must be a clearly demonstrated failure of duty before the State mat exercise its power to supply role of parents’. The daughter was born in 2004 when the parents were unmarried and placed for adoption in late 2004. The adoption was not yet formalised when the parents got married in Jan 2006 and immediately sought return of their daughter. The High Court ordered that the adoptive parents should retain custody. However, the Supreme Court unanimously reversed the High Court decision and ordered the release of the child into the custody of its natural parents. Hardiman J endorsed the Re JH approach to the constitutional presumption that the welfare of the child is best found within the family and this could only be interfered with if there were compelling reasons why the welfare of the child cannot be secured in the custody of its parents. He referred to "misapprehensions" within the public domain relating to the position of children namely that "the Constitution puts the rights of the parents first and those of the children second". He considered this to be untrue. Hardiman J said that the Constitution did not "prefer parents to children. The preference the Constitution gives is this: it prefers parents to third parties, official or private, priest or social worker, as the enablers and guardians of the child's rights." This preference is subject to limitations in the form of Article 42.5. Fennelly 1 also referred to a constitutional presumption "that the rights of the child are best secured within the family constituted by nature and by marriage". He referred extensively to the precedent case of Northern Western Health Board and in particular the comments by the various judges as to the application of Article 42.5 He concluded that based on these comments "there must be a clearly demonstrated failure of duty before the State may exercise its power to supply the role of parents" . There was no evidence in this case of a moral or physical failure on the part of the natural parents. |
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Non-citizens & Residency Rights
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Non-nationals who give birth to a child in Ireland?
Fajujonu v Min for Justice: non-national parents of Irish citizens cannot claim any constitutional right to remain in Ireland. Deportation possible, where Minister considered the specific case. But, a high threshold set by the Supreme Court: the Minister would have to be satisfied that granting such parents leave to remain in Ireland would be contrary to the common good and the protection of the State. (Here, the family had been in the State several years) Osayande: non-national parents of Irish citizens are not automatically entitled to reside in the State. Children born in Ireland of non-national parents are Irish citizens and as such, cannot be deported. But, family rights of children who are Irish citizens are not absolute and therefore, can be restricted. One such restriction is that their family members can be deported. In 2005 under the Irish Born Child Scheme (IBC/05) a number of foreign national parents of children born in the State prior to 1 January 2005 were granted leave to remain for an initial period of 2 years (can be extended by further periods) Bode: State guarantee personal rights of Irish citizen child under Art 40.3.1. Breach of the rights of the citizen child under Art 40.3 for Minister to refuse applications under IBC05 scheme without any consideration of the rights of the citizen child. Dimbo v Minister for Justice: again, Supreme Court held that Minister should have expressly considered the Constitutional and Article 8 ECHR rights of the citizen child when deciding applications under IBC 05. |
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Marital child
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Art 42.5
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Non-marital child
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Art 40.3
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Divorce
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Art 41.3.2 & Family Law (Divorce) Act 1996 provide for divorce
Act refers to provision being made for the ‘dependent’ members of the family, even though ‘dependency’ not referred to in Constitution DT v CT: ‘clean break’ model of divorce not consistent with Art 41.3.2 as continuous maintenance obligations are part of many divorce orders. |
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DT v CT (2002)
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'clean break’ model of divorce not consistent with Art 41.3.2 as continuous maintenance obligations are part of many divorce orders.
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Article 26 & The School Attendance Bill 1942
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FACTS: S. 4 of the Bill provided that Minister could issue certificates to parents of home schooled children certifying they were receiving suitable education
HELD: repugnant to Constitution for 2 reasons: (i)Minister could dictate standard of education to higher level than an objectively viewed minimum (ii)Minister could certify not only the actual education received but also manner in which received So long as general standard of education provided by parents, manner in which education given not a matter for the State |
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DPP v Best [2000]
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FACTS: defendant prosecuted under schools attendance legislation for not sending children to school. What was meant by ‘suitable elementary education’?
HELD: onus was on defendant to show on balance of probabilities was providing certain minimum education. Assessing what is suitable elementary education can be done in two ways: (i)Interviewing and assessing proficiency of child (ii)Relying on evidence of the parents as supported by experts As the Constitution allows for home tuition, the minimum standard cannot include something which cannot be achieved at home, and parental choice and involvement is essential. |
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Comerford v Minister for Education [1997]
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Concerned a disadvantaged boy with A.D.D. McGuiness J acknowledged the dual responsibility of the State and parents and the high threshold for State interference with the decision of parents. Therefore, the State was only culpable in terms of its failure to follow the requirements of the school attendance legislation.
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Sinnott v Minister for Education [2001]
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Concerned a 23 year old profoundly autistic man; who had only received two years of primary education; sought damages for failure to provide him with education orders to provide for his ongoing education. The Supreme Court did not challenge the services requested by Sinnott rather his argument that they should be provided indefinitely. For varying reasons, the majority held that the obligation to provide free primary education related to children only, a child being a person under the age of 18.
Denham J-- In carrying out an examination of when the duty to provide primary education ends, Denham J summarised the foundation of education- "It is clear from the wording of Article 42 that education is grounded in the family sphere. The family consists of children and parents. The primary educator is the family, which is expressly protected. Both the parents and children have rights. A balance is created. Whilst the family remains the primary educator, the State, as guardian of the common good, shall require a certain standard .. " |
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O'Sheil v Minister for Education [1999]
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The plaintiffs wanted to educate their children on the basis of the Steiner principles and wanted to compel the State to fund a school that would apply these principles. Clearly, under Article 42.3.2 this form of education met the requirements of a certain minimum standard and the parents were free to educate their children in this manner at their own expense. The question was whether the State could be obliged to fund that education.
Laffoy J referred to the philosophy of parental choice that underpins Article 42. It would be contrary to the intent of the Constitution to interpret the obligation to provide free primary education as merely being to fund "a single system of primary education which is on offer to parents on a "take it or leave it" basis." He rejected the assertion that the State could argue that it had discharged its constitutional obligations through the provision of aiding 15 denominational schools in the area as it would render meaningless parental freedom of choice (they were all the one type of education). He acknowledged that this was not the approach being adopted by the Minister as the provision of non-denominational and Gaelscoileanna would show. In relation to the role of parents, Laffoy J noted: "In order to fulfil its constitutional obligation to provide for free primary education, in my view, the State must have regard to and must accommodate the expression of parental conscientious choice and lawful preference". This obligation was not without limits and required a balanced approach "However, this does not mean that the State must accede to an application for financial aid from any group of parents who are united in their choice of primary education ... .It is also implicit in Article 42.4, in my view, that the scheme by which the arrangements are put in place, involving as it must, the disbursement of public money, be rational. Even though the State must have regard to the constitutional guarantee of parental freedom of choice in framing such a scheme, nonetheless it is proper for the State and, indeed, I would say incumbent on the State, to incorporate in the scheme measures to ensure that need and viability are properly assessed and there is accountability." The above principles seem to place an onus on the State to provide a rational choice in terms of alternative forms of education. The Minister much provide a mechanism through which parents who wish for a different form of education to be provided can have their case heard. Presumably, if he were to refuse their request, he would have to be able to show that he gave it a full and proper consideration. However, parental wishes must acceded to ensuring that any scheme for a different provision of education are actually needed (in terms of children likely to benefit/avail of that scheme and whether it can be incorporated into an existing form of educational provision) and that there is a system for accountability in terms of standards included. The reference to the use of public funds could also allow for the financial viability of the scheme to be assessed. are put in place, involving as it must, the disbursement of public money, be rational. Even though the State must have regard to the constitutional guarantee of parental freedom of choice in framing such a scheme, nonetheless it is proper for the State and, indeed, I would say incumbent on the State, to incorporate in the scheme measures to ensure that need and viability are properly assessed and there is accountability." |
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Ruiz Zambrano v Office national de l'emploi (ONEm) (2011)
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Citizenship of the Union requires a Member State to allow third country nationals who are parents of a child who is a national of that Member State to reside and work there, where a refusal to do so would deprive that child of the genuine enjoyment of the substance of the rights attaching to the status of citizen of the Union
This requirement applies even when the child has never exercised his right to free movement within the territory of the Member States. |
