"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. [...]
[...] The Irish Constitution was adopted in 1937; its definition of family has never been amended since then. Nevertheless, the society and the legislative framework have known considerable evolutions since 1937. Today, the constitutional focus on the concept of family based on marriage seems antiquated and nonsense. Firstly, if, at the time the Constitution was adopted, family based on marriage was widespread and considered as the norm, it is not the case nowadays. A different social reality is reflected by the Constitution: in 1937, only of children were born from unmarried parents whereas one third of children are born outside marriage today[18]. [...]
[...] Taking into consideration the negative impact the Constitution has on children's rights, it would be appropriate to wonder if the constitutional provisions relating to the definition of family should be amended to guarantee equal rights to married and unmarried fathers, and consequently to marital and non-marital children. II. 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. The Irish approach relating to family and the children's rights deriving from it has been subject to significant criticisms. [...]
[...] As we have seen that the constitutional provisions defining family should be reformed having regard to the evolution of society and the international legal framework, we are bound to notice that these two elements do not seem to be efficient incentives for constitutional change in Ireland. We shall wonder if the European Union and The Council of Europe laws can have more influence on the Irish child law and would enable a constitutional evolution European Union and Council of Europe laws: a possible trigger for Constitutional change? [...]
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