"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.
[...] 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. It has allowed some authors, non-governmental organisations and government members to contemplate an amendment of the Constitution. Indeed, the constitutional provisions dealing with the issue do not seem appropriate since they do not correspond to a social reality and are inconsistent with international conventions. The Irish Constitution was adopted in 1937; its definition of family has never been amended since then. [...]
[...] It seems justifiable that Irish law prefers marriage-based family because this is a stable and permanent form of relationship which constitutes a good environment to raise a child. Nevertheless, it does not legitimate the discrimination against children living in families based on other relationships. Indeed, if adults have a choice to engage in the type of relationship they want, the children have no choice when born from a different kind of relationship[9]. As a consequence, these constitutional provisions reveal important children's rights issues. [...]
[...] As a conclusion, the constitutional definition of family allows mothers and married fathers to be automatically recognised rights towards their child but it is not the case for unmarried fathers. Such discrimination based on parents' marital status inevitably creates discrimination among children. This is not acceptable. Indeed, children should not suffer from their parents' choice to engage in a particular type of relationship. Besides, denying children's rights is detrimental for them, for their personal development. Some may suffer psychological troubles for not being able to know their father. Also, children are unable to defend their rights. Accordingly, awareness as to the protection of children's rights is essential. [...]
[...] The issue of guardianship is important; it deals with rights and responsibilities in relation to a child including different matters such as education, medical treatment . The Guardianship of Infants Act 1964 follows the constitutional approach by granting joint guardianship to both parents if they are married[10] and granting sole guardianship to the mother if she is not married to the father of the child[11]. The only ways for an unmarried father to obtain guardianship of his child is either to be appointed as joint guardian by agreement with the mother through a statutory declaration[12], or to be appointed by the court[13]. [...]
[...] As a consequence, the difference between marital and non- marital children lies in the connection between children and fathers. Until 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. Furthermore, it has consequences on the protection of individuals' rights in Ireland. In this essay, we shall focus on how the constitutional provisions defining family amount to disregard children's rights. [...]
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