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Assessing the impact of parental marital status in relation to Irish child law: should Constitution be amended?

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  1. Introduction
  2. A fundamental role of parents' marital status which is highly consequential on Irish child law
    1. An overview of Irish child law about the issue through Constitutional provisions and case law
    2. An issue having critical consequences on children's rights
  3. Should the constitutional provisions at issue be amended?
    1. The inconsistency of Irish child law with the evolution of society and the international legal framework
    2. European Union and Council of Europe laws: a possible trigger for Constitutional change?
  4. Conclusion

?It cannot be contested that a person born outside marriage, is a human person, equal to one born within marriage? . In this statement, Justice Walsh points out the differential treatment between marital and non-marital children which is derived from the Irish Constitution. By letting non-marital families out of the scope of the constitutional protection, it has brought inevitable negative consequences on the children's rights.

The Irish Constitution, adopted in 1937, defines family as family based on marriage. This approach was justified since, in those times, a child born outside marriage was considered as a social outcast; he was a ?filius nullius? and was not regarded as being part of the family. It was then recognized that, because of the special relationship between a mother and her child, unmarried mothers had rights and obligations towards their children. Such rights and obligations have never been granted to the unmarried father. As a consequence, the difference between marital and non-marital children lies in the connection between children and fathers. Now, society has changed, mentalities have evolved whereas the Constitution, the fundamental Irish legal document, has not Because of the status of the Constitution, its provisions have greatly impacted on Irish legislation and jurisprudence.

[...] may question the nature and importance of the impact of parental marital status over children's rights in Ireland. It would be important to wonder if children's rights may not be undermined by not putting all families on an equal footstep. Also, we shall question the appropriateness of such legislation and consider the efficiency of a constitutional reform about the issue. Thus, we shall first focus on the position adopted under Irish child law and consider its consequences on children's rights We will then consider the necessity of a constitutional change by pointing out the drawbacks and inconsistencies resulting from the constitutional provisions granting protection and rights to families based on marriage only (II). [...]


[...] In Keegan v Ireland[30], the ECtHR found that Irish law in relation to the guardianship rights of unmarried fathers violated article 8 ECHR. The court held that even though the parents of the child are not married to one another, they still constitute a family for the purposes of the ECHR. In addition to that, the Council of Europe Convention on the Legal Status of Children born out of Wedlock 1975 prohibits any inferior treatment of children justified by their parents' marital status. [...]


[...] Bibliography: - The Irish Constitution - Andrew Bainham, Children, The Modern Law, (3rd ed, Jordans, 2005) - William Binchy, Casebook on Irish Family Law (Professional Books, 2003) - Shatter, Shatter's Family law, (4th ed, Tottel Publishings, 2003) - Ursula Kilkelly, Children's Rights in Ireland: Law, Policy and Practice (Tottel Publishings, 2008) - Shannon, Child law, (2nd ed, Thomson Round Hall, 2010) - Howard Davis, Human Rights Law : Directions, (2nd ed, OUP, 2009) - Carolan, The Constitutional Consequences of Reform : Best Interests after the Amendment - The Official Website of the European Union, about Children, available at http://europa.eu/youreurope/citizens/family/children/parental- responsibility/index_en.htm - Deputy Brian Walsh's speech during the debate on parental rights with Minister for Justice Alan Shatter June 2011, available at http://www.fathers.ie - Publication of Government's wording on Constitutional Amendment on Children Feb 2007 and 28th amendment to the Constitution Bill 2007 - The EU Charter of Fundamental Rights - The European Convention on Human Rights - The Guandianship of Infants Act 1964 - The Universal Declaration on Human Rights - The 1989 United Nations Convention on the Rights of the Child Walsh in O'B v S IR 316 Andrew Bainham, Children, The Modern Law, (3rd ed, Jordans, 2005) State (Nicolaou) v An Board Uchtàla [1966] IR 567 W'OR v EH & An Board Uchtàla [1996] 2 IR 248 McD v L [2008] IEHC 96; [2009] IESC 81; [2010] IEHC 120 William Binchy, Casebook on Irish Family Law (Professional Books, 2003) G v An Board Uchtàla [1980] IR 32 Shatter, Shatter's Family law, (4th ed, Tottel Publishings, 2003) Ursula Kilkelly, Children's Rights in Ireland: Law, Policy and Practice (Tottel Publishings, 2008) Section 6 of the Guardianship of Infants Act 1964 Section of the Guardianship of Infants Act 1964 Section of the Guardianship of Infants Act 1964 Section [...]

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