The Constitution of Ireland
national |
rights, freedoms and repression |
news report 
Tuesday September 20, 2005 18:08
by Global Women's Strike - Global Women's Strike
womenstrike8m at server101 dot com
087 7838688
Proposed Wording for Article 41.2 on the Recognition of Workers in the Home and of Pay Equity
Proposed wording for 41.2.1
The State recognises caring work done within the home, often extending to the community, as a social and economic activity that produces social welfare and economic wealth, and entitles carers, starting with mothers, to economic and other support.
The State also recognises that in rural areas caring work has included work on the land which has kept families and communities alive and strong despite poverty and emigration.
...
Angelica Alvarez (centre) of Venezuela's Women's Development Bank, March 2005 in Galway, where she spoke about the constitution as part of a European tour organised by the Global Women's Strike
Proposed wording 41.2.2
The State shall therefore ensure that carers, starting with mothers, are not obliged by economic necessity to engage in waged work which would increase their workload, and shall provide workers in the home with independent remuneration and pensions.
Proposed wording for additional 41.2.3
The State shall also ensure that women, particularly mothers who do most of the vital work of caring for children and/or other dependants, or men who do similar work, do not suffer discrimination in wages, pensions, health care and social welfare when they go out to work, and that pay equity, that is, equal pay for work of equal value, is fully implemented.
Current wording of article 41.2.1
In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
Current wording of article 41.2.2
The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.
Why the proposed changes
Some have called for abolition of Article 41.2 on the ground that it is sexist. While it is obviously sexist to refer to work in the home as a woman’s “life” and as her “duty”, it would be even more sexist to obliterate the only constitutional recognition of unwaged caring work, done at great personal cost by generations of women and up to the present day, and its vital contribution to society’s survival and welfare. Article 41.2 must be reworded to reflect accurately the value of this work, the skill of the workers who do it and the entitlements it should earn them, and thus help end the gross discrimination women have suffered both as workers in the home and workers outside.
The Global Women’s Strike (GWS) – a network with national co-ordinations in 11 countries, including Ireland, and participating organisations in over 60 countries - was formed to urge the economic and social recognition of unwaged caring work. As early as 1952 the GWS’s international co-ordinator was speaking out to make visible this unwaged contribution of women.
Unremunerated work entered the international agenda in 1975, at the opening conference of the UN Decade for Women in Mexico City. The mid-decade conference in 1980 in Copenhagen, Denmark, gave it additional legitimacy with the International Labour Office (ILO) figure (conservative in our view) that women do 2/3 of the world’s work, yet receive only 5% of its income. In 1985 at the final conference of the UN Decade in Nairobi, Kenya, we won Paragraph 120 which stated that the work women do in the home, on the land and in the community is to be included in national statistics. Finally in 1995, in Beijing, China, the International Women Count Network (co-ordinated by the International Wages for Housework Campaign which also co-ordinates the GWS), supported by more than 2,000 organisations worldwide (including from Ireland), won the decision that national accounts are to include measuring and valuing unwaged work: how much of their lifetime women (and to a lesser extent men) spend doing unwaged work and how much value this work creates. It was a turning point globally.
Trinidad & Tobago was the first country to put this into law in 1996. Spain followed in 1998. The Bolivarian Republic of Venezuela went further, enshrining in its 1999 Constitution the social and economic recognition of unwaged work in the context of equality and equity between the sexes. Article 88 states:
The State guarantees equality and equity between men and women in the exercise of their right to work. The State recognises work in the home as an economic activity that creates added value and produces social welfare and wealth. Housewives are entitled to social security in accordance with the law.
In March 2005, the GWS organised a European speaking tour for Nora Castañeda, President of Venezuela’s Women’s Development Bank, and Angélica Alvarez, the Bank’s promoter in Bolívar state. When speaking about the importance of Article 88, Ms Castañeda explained that, “Women are the carers of the species, there is no work more important than that and society has a debt to women.”
In her weekly radio programme, Ms Castañeda quotes Selma James, GWS co-ordinator:
Caring for others is accomplished by a dazzling array of skills in an endless variety of circumstances. As well as cooking, shopping, cleaning and laundering, planting, tending and harvesting for others, women comfort and guide, nurse and teach, arrange and advise, discipline and encourage, fight for and pacify. This skilled work, which requires judgement and above all self-discipline and selflessness, is most often performed within the family. Taxing and exhausting under any circumstances, this service work, this emotional housework, has an additional emotional cost when it is done for and on behalf of those whom the woman is emotionally involved with. But all this is expected of women by everyone: friends and neighbours, workmates, employers (why else is the secretary called the 'office wife'?), as well as family; this emotional work is done both outside and inside the home. The Global Kitchen, London 1985
Soon after Ms James added:
We women are the first to defend and protect those in our care. It goes unremarked that it is usually women – mothers, wives, partners, sisters, daughters, grannies and aunties – who are the driving force of justice campaigns, whether or not we are prominent or even visible in them.
Recognition of the work that women do in the new Venezuelan Constitution and Venezuela’s determination to deal with poverty, starting with women (70% of those living in poverty are women), have led to other anti-sexist measures such as Article 14 of the Land Act which prioritises woman-headed households for the redistribution of idle land to those ready to work it, and the creation of the Women’s Development Bank, a state micro-credit institution which has distributed 51,000 credits so far.
Venezuela’s Article 88 has set a new standard for the world, including for Article 41.2 of the Irish Constitution. We have adapted it to the Irish situation, in the wording we are proposing for Paragraphs 41.2.1 and 41.2.2, and for an additional Paragraph 41.2.3.
In rural Ireland caring work, done mainly by women, has traditionally included making the land fruitful – tending orchards, gardens and fields, rearing and tending animals, gathering berries, herbs, etc. For centuries this field and yard work has helped to keep families and communities alive and strong in the face of poverty and emigration. Although large numbers of people have now moved to live in urban areas, 40% of us still live in rural areas and many more have roots in the countryside, wherever we live – we are the product of the caring work our mothers, grannies, sisters, aunties and other women single or married, and their mothers before them bestowed on us in times of great hardship.
The Irish constitution has never before recognised the vital contribution of rural women. It is too late for those who while they lived received no pension or other entitlements in their own right which their work should have earned them. But it is not too late to pay tribute to their work by recognising its continuing value to society and the economy, and by recognising the role women continue to play in rural life today – particularly as the livelihoods of small farmers and all who depend on them are increasingly under threat in the global market.
In response to the international grassroots movement of women for the recognition of unwaged caring work, which has the support of many men, many countries are carrying out time-use surveys. And increasingly, unwaged work, its quantity and economic value, is a consideration in court decisions and governments’ policies.
Many women are forced by economic necessity to work the double or triple day, going out to one or more waged jobs while also carrying the responsibility of caring work at home. At the waged workplace women are discriminated against in wages and working conditions – paid less than their male colleagues even when both do the same job. Even more widespread is the segregation of women in service work which is much like the caring work most of us do at home. While many of these jobs are highly skilled, these skills are not recognised financially, and the status of the work is dragged down by the low status of unwaged caring work at home. To end the sexist pay gap between women and men, equal pay for work of equal value must be added to the Constitution.
Pay equity is already the agreed standard in a number of international policies and agreements which the Irish State has signed on to, e.g. the ILO Equal Remuneration Convention, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Beijing Platform for Action.
Article 2.1 of the ILO Convention states:
Each member shall, by means appropriate to the methods in operation for determining rates of remuneration, promote and, in so far as is consistent with such methods, ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value.
(Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, 1951)
To enshrine in the Irish Constitution the principle that caring work in the home – which extends to caring for the whole community and in rural areas to caring for and protecting the land and the environment – is valued socially and economically, would ensure that women, particularly mothers, are not penalised with the lowest pay when they go out to work or discriminated against in areas such as pensions, health care, childcare, and social welfare. It would be a major step towards raising all women's status and entitlements.
Last but not least, it is our experience that men are aware of their dependence on caring work, starting with the work of their mothers. Many also agree that not counting caring work maintains the traditional division of labour between the sexes. They agree that raising the status of the carer would put women in a stronger position to demand that men, who often miss out on children’s upbringing, take their full share of responsibility and become carers too.
Contact address:
Global Women’s Strike
National co-ordination, Ireland:
Tel: 087 7838688
Email: Ireland@allwomencount.net
International co-ordination:
Crossroads Women’s Centre, 230A Kentish Town Rd, London, NW5 2AB.
Tel: +44 (0) 207 4822496
Email: womenstrike8m@server101.com
__________________________________
Why the Irish Constitution Must Recognise Workers in the Home and Pay Equity
VILLAGE magazine, Ireland's Current Affairs Weekly, 2-8 September 2005
by Maggie Ronayne for the Global Women’s Strike, Ireland
Some say Article 41.2 of the Constitution is sexist and should be abolished. While it is sexist to refer to work in the home as a woman’s “life” and “duty”, it would be even more sexist to obliterate the only constitutional recognition of unwaged caring work done at great personal cost by generations of women, and its vital contribution to society’s survival and welfare.
Article 41.2 should reflect the value of unwaged work, the skill of the workers who do it and the entitlements it should earn them. This would help end the discrimination women suffer both as workers in the home and workers outside, where their segregation in low paid service work, much like the caring work most of us do at home, is widespread.
And pay equity, equal pay for work of equal value, should be added to the Constitution – a commitment to end the sexist pay gap between women and men.
To enshrine the principle that caring work in the home – which extends to caring for the community, and in rural areas to caring for the land and the environment – is valued socially and economically, would raise all women's status and entitlements. It would also put women in a stronger position to demand that men, who often miss out on children’s upbringing, become carers too.
Decades of campaigning have won United Nations recognition and legislation in Trinidad and Tobago and Spain. In 1999 Venezuela set a new standard: its Constitution recognises work in the home as “an economic activity that creates added value and produces social welfare and wealth”, and “entitles housewives to social security”.
Let’s extend this victory to Ireland. Endorse our wording.
Article 41.2.1
The State recognises caring work done within the home, often extending to the community, as a social and economic activity that produces social welfare and economic wealth, and entitles carers, starting with mothers, to economic and other support.
The State also recognises that in rural areas caring work has included work on the land which has kept families and communities alive and strong despite poverty and emigration.
Article 41.2.2
The State shall therefore ensure that carers, starting with mothers, are not obliged by economic necessity to engage in waged work which would increase their workload, and shall provide workers in the home with independent remuneration and pensions.
Additional Article 41.2.3
The State shall also ensure that women, particularly mothers who do most of the vital work of caring for children and/or other dependants, *or men who do similar work*, do not suffer discrimination in wages, pensions, health care and social welfare when they go out to work, and that pay equity, that is, equal pay for work of equal value, is fully implemented.
[Please note Article 41.2.3 was amended after publication in The Village - see change between asterisks]
Global Women’s Strike, Ireland: Tel: 087 7838688
Email: Ireland@allwomencount.net
Website: www.globalwomenstrike.net
Comments (13 of 13)
Jump To Comment: 1 2 3 4 5 6 7 8 9 10 11 12 13the above changes in the Consttution and any other changes in Irish law that would give long overdue equality to women
the above changes in the Consttution and any other changes in Irish law that would give long overdue equality to women
When you discuss Bunreacht na hÉireann or any changes that you might deem to be required, you must first face up to a few vital facts that you must understand and the fraud and corruption from the state that you will have to consider.
The following report compiled by the NMCI will give you the necessary insight.
Observations on
The Law relating to the Custody of Infants in Ireland
National Men’s Council of Ireland
The Law relating to the Custody of Infants in Ireland
The Common Law position that the Husband - the married Father - has the Original Lawful Full Protective Custody of his children pertains in Ireland today. Contrary to disinformation broadcast about the Guardianship of Infants Act, 1964, it did not introduce as one of its provisions that Mothers be given an equal right to the Custody of the children of the Marriage. The Husband’s right and duty to maintain and protect the children of the Marriage is undisturbed by the Act or any other legislation.
It is quite clear from a thorough reading of the Guardianship of Infant’s Act, 1964 and with the clarity provided by an inspection of the debates in the Oireachtas which show the intention of the Act, that in the Republic of Ireland, Married Fathers – solely – retain the full Custody of the children of the family as their Protectors, Providers, Carers and Educators.
It is settled law that Married women in the Republic of Ireland have an equal right and duty to their Husbands as Nurturers, Carers and Educators of their children, but they do not have an equal right and duty of full Custodial responsibility in law to “keep” and “safe-keep” their children as Providers and Protectors.
This hierarchy of accountability in law as a form of management is necessary, as in all hierarchies, for the efficiency and safety that it confers on the Family as a group.
This is the “constitution and authority” referred to in Article 41 of Bunreacht Na hÉireann, where it states,
1. The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
2. The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
Contrary to the propaganda spread by the state about there being “equality” in the family, the absence of a hierarchy in law would result in stalemate over all decision-making. This would be to the detriment of the institution as a whole and to the vulnerable members, the children, in particular.
The hierarchy of the family is as necessary to the good governance and well being of the family as it is in numerous other institutions where a similar hierarchy of accountability is present. No one would suggest that there should not be someone ultimately accountable for decision-making in government or in business or on board a ship.
Not having, in law, the automatic right OF Custody of their children the only course open for a Married Mother to secure any lawful authority to keep her children, against the will of the father, is to invoke the Jurisdiction of a competent Court of Law under subsection 11(2) of the 1964 Act, and she may be granted, at the discretion of the Court, the care and control of her children.
The marginal notes provided with the Guardianship of Infants Bill to members of the Oireachtas show that Part (A) of Subsection 11(2) re-enacts Section 5 of the Guardianship of Infants Act, 1886. Sections 9 & 10 of that Act set out the Jurisdiction of the Court wherein it states that these matters must be heard in a Court of Chancery.
Section 5.
The court may, upon the application of the mother of any infant (who may apply without next friend) may make such order as it may think fit regarding the custody of such infant and the right of access thereto of either parent, having regard to the welfare of the infant, and to the conduct of the parents, and to the wishes as well of the mother as of the father, and may alter, vary, or discharge such order on the application of either parent, or after the death of either parent, of any guardian under this Act and in every case may make such order respecting the costs of the mother and the liability of the father for the same or otherwise as to costs as it may think just.
As indicated in the marginal notes in the Bill as passed by the Oireachtas, Section 18.2 of the Guardianship of Infants Act, 1964 re-enacts Section 2 of the Custody of Infants Act 1873 wherein it states:
“No agreement contained in any separation deed made between the father and mother of an infant or infants shall be held to be invalid by reason only of its providing that the father of such infant or infants shall give up the custody or control thereof to the mother”.
The Explanatory Memorandum, which accompanies proposed Bills for the benefit of facilitating the understanding of and explaining the intent of the legislation to the Oireachtas, relating to this section states:
“Prior to this provision any agreement by which a father divested himself of the Custody of his children was at Common Law considered to be void.”
All legislation must be in conformity with the Bunreacht Na hÉireann, the Irish Constitution given to the people, the sovereign power in Ireland in 1937. Any legislation that is in conflict with Bunreacht Na hÉireann is considered repugnant to it and is invalid and is considered to have never been enacted.
Similarly all legislation must be in conformity with all other legislation otherwise they are in conflict and it would be impossible for the courts to adjudicate on.
The corollary of this is that all legislation enacted by the Oireachtas is presumed to be Constitutional and to not be in conflict with any other legislation already passed or amended legislation, which has not been repealed.
The statement that “The law that the Husband, the married Father has the Original Lawful Full Protective Custody of his children is still the position in Ireland” is further supported by the following legislation that the Guardianship of Infants Act, 1964 did not repeal on its enactment or in any way disturb or modify;
a) The Constitution of Ireland. 1937. Re. Article 41.2 wherein the mother is specifically excused the liability to maintain the family, one of the principle duties of Custodianship.
2 1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
2.2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.
b) The Children Act 1908. The Custody in the definitions of that Act specified that
“as between father and mother, the [married] father shall not be deemed to have ceased to have the Custody of the child or young person by reason only that he has deserted, or otherwise does not reside with, the mother and child or young person”.
This is still the position at law today; see Section 18.2 of Guardianship of Infants Act, 1964 above and The Children Act 2001, Section 245 (2)
For the purposes of this Part- (a) any person who is the parent or guardian of a child or who is legally liable to maintain a child shall be presumed to have the custody of the child, and, as between parents, one parent shall not be deemed to have ceased to have the custody of the child by reason only that he or she has deserted or does not reside with, the other parent and child, and
c) The 1886 Maintenance and Desertion Act, which provided reliefs for a Mother only to sue her husband for his failure to carry out his sole Custodial duty to Protect and Maintain the family. There was no corresponding provision for a Husband to sue his wife and this Act was not repealed by the Guardianship of Infants Act, 1964; in fact the law on maintenance was not amended until the passing of the Family Law (Maintenance of Spouses and Children) Act, in 1976.
This means that for a period of twelve years after the passage of the Guardianship of Infants Act, 1964 the only legislation in place by which a spouse could sue for maintenance for themselves was the 1886 Act which only allowed for a wife to apply for maintenance. This shows that the Guardianship of Infants Act, 1964 did not in any meaningful or lawful way make provisions that wives would have the Custodial duty of maintaining their husbands. Even though the 1976 Act on its face appears to be gender neutral there is a presumption that it is not in conflict with the Guardianship of Infants Act, 1964 or the Constitution and therefore the provisions do not allow for a husband to sue his wife for his maintenance.
The additional proof that the Husband is the Custodian in law of the children of his marriage is that there is NO PROVISION under the Guardianship of Infants Act, 1964 or under any Civil law by which a Husband could question his wife’s fitness to hold a Full Custodial office. If the children of married parents were in the “joint custody” of those parents, as claimed by the State agencies, then the legislative law would have to provide for circumstances where a married Father could seek sole Custody of his children.
Further proof is given by the States‚ inability to produce an application form for subsection 11(2) of the Guardianship Act 1964, as it is obliged to do in order to conform with the District Court Rules. The existence of such a form would show that only the Mother could apply and would expose the true position regarding the Custody of children in the family.
Examination of the Explanatory Memorandum to subsection 11(3) of the Act of 1964 provides even more evidence of the position of the married Mother regarding the Custody of the children.
The Explanatory Memorandum describes the position in 1963 prior to the implementation of the Act:
“At present, a mother cannot seek the custody of her children without first leaving the family home. An order under
subsection (2) will not be binding while the parents reside together and will cease to have effect altogether if the parents live together for 3 months after it is made.”
It added,
“the proposed subsection 11(3) enables the court to make the necessary orders even where the parents reside together.”
However, Walsh J. in his Supreme Court judgement in B. v B.; 1970 went to the extent of denying the express purpose of subsection (3) when he stated:
“it is to be noted that it is only in the instance where they [mother and father] are not residing together that the question of the custody of the infant may be made the subject of an order.”
If the Courts were to have implemented Subsection (3) in its proper enacted manner the general public would have been left in no doubt that, even within an intact married Family, it is the Husband who alone has the real lawful Custody of the children.
The “custody” referred to by Walsh J. above is not Full Custody but the custody resulting from a Court order which merely relates to residence, day to day care and control of the child.
This effect of this ruling in the Supreme Court has cultivated the spread of confusion and misunderstanding over the true meaning of the term “Custody”, to purposely reduce it to mean “residency” or even just “possession”.
Court orders granting “full Custody” to any person are “conditional” orders on that person, ie. the Court has seized control of the family and the State has taken over from the Husband as manager of the family’s affairs and retains authority as supervisor in place of him. That freedom and independence, once taken, is not relinquished until the children have reached adulthood.
Society now has many misconceptions such as “joint custody” and “custody just means where the children live” and a Mother having “de facto custody” when in fact she has abducted the children. This is deliberate and is intended to alter the true meaning of the term “Custody” within the general population, thereby undermining the status of married Fathers, destroying their ability to protect their children and has resulted in the social devastation with which we are faced today.
The married Father’s Original Lawful Full Protective Custody of his children imposes on him the full responsibility to Keep his children well and safely. He also has full accountability for the behaviour of the child and therefore must ultimately have authority over and control of the child, even having regard to the joint rights and duties he holds with his wife. The rights and duties of parents in Article 42.1 of the Constitution are in matters of Education only. Had this Article been intended to disturb the position regarding the Custody of children it would have stated so.
Section 3 of the Guardianship of Infant’s Act, 1964 states;
Where in any proceedings before any court the custody, guardianship or upbringing of an infant, or the administration of any property belonging to or held on trust, for an infant, or the application of the income thereof, is in question, the court in deciding that question, shall regard the welfare of the infant as the first and paramount consideration.
In enacting this section the elected representatives in the Dáil, voted in favour of this section of the Bill being brought into legislation strictly on the basis of the statement given to the house by Minister for Justice, Charles Haughey wherein he stated that in the Tilson Case
“ the Supreme Court accepted the principle that the paramount consideration was the welfare of the infants concerned. In doing so it had full regard to Article 42 of the Constitution.”
However, the Husband in the Tilson case had forfeited, by desertion, his Lawful Custody of his children.
Interference by a Court with a married Father’s Original Lawful Full Protective Custody was not examined in the Tilson Case.
The Chancery Rules referred to in Section 3 of the Guardianship of Infants Act, 1964, are only applicable in Custody matters where that Custody is in question.
The phrase “in question” means in circumstances where two parties with an equal interest in the Custody of a child have a “difference” of opinion and cannot agree. The married Father’s Original Custody of his children cannot be brought “into question” by his wife because she does not have an equal responsibility to him in Law and she cannot, therefore, have a “difference” with him over the Full Custody of the children of the marriage. Nor is his Original Custody ever “in question” in the sense that is intended by Section 3 and these Chancery Rules cannot be applied whilst a Husband has not been found to be unfit to hold his office as Custodian of the Family.
In short, a Father’s Original Custody of his children cannot ever be “in question” - it is a Fact of Law. He may only forfeit it by his own misconduct. The State has no Jurisdiction to interfere in any way with an unimpeached Husband in the exercise of his duties.
This position in Law is entirely consistent with the Constitution of Ireland, Bunreacht na hÉireann, wherein it states in Article 42.5
“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”
The Custody of infants in a family founded on Marriage can not, therefore, be brought into question unless the Father has prior been shown to have failed physically or morally in his duty, or divested himself of his Custody. The infants are under his Protection and the State can not step in.
Furthermore, although Section 6 of the Guardianship of Infants Act, 1964 recognises the right of Married mothers to dispose of the educational rights and duties they enjoy – under Article 42.1 of the Constitution – to a testamentary guardian to act jointly, upon their death, with their husband. It does not purport to provide that they hold or may dispose of the Original Full Custodial responsibilities that are the burden solely of a Husband under the Law – that is the Protection, Maintenance, Education of the child and the Management of the child’s estate.
It would appear from the report of the leading case, B v. B (Supreme Court, 24 April, 1970) that the Supreme Court did in fact claim Jurisdiction and applied the Chancery Rules in a case where the Court was of the opinion that the Father was a fit parent to have the Custody of his children.
It appears, from a reading of the record, that the Supreme Court did not protect the constitution and authority of that family, as is their obligation under Article 41.1.2 of the Constitution.
1 1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
The Husband in that case was found to be “a fit and proper person” to have the Custody of his children.
It is impossible to comprehend how the Courts claimed to have jurisdiction to interfere in any way with his Custody of his children. The Supreme Court did not dismiss his Wife’s claim to custody of the children as would appear to be the logical conclusion and instead endorsed the High Court‚ in exercising a jurisdiction to interfere with his Custody of his youngest son, dismissing his Appeal against the High Court Order granting his wife custody of that child.
The following matters regarding proceedings taken under Section 11 of the Guardianship of Infants Act, 1964 reflect the purposeful confusion generated by the state in order to interfere with the married family.
Matters legitimately brought before the Court under section 11.1 of the Guardianship of Infants Act, 1964 require the existence of a “difference” between married parents, which affect the welfare of the children. However, as we have shown, the Custodial situation can not be questioned under this provision of the Act because a Husband and a Wife under Irish law do not carry an equal burden of Custodial responsibility and therefore a difference in this aspect can not arise since the Mother is not in a position to challenge the Father’s superior rights.
A Court granting “Custody” in this way to a wife is acting entirely without jurisdiction unless the court finds the Husband impeached as the Married Father enjoys a Superior Jurisdiction to the Courts and the State.
The state through the courts has no right or authority under Irish law to obstruct an unimpeached Husband in exercising his full Custodial responsibilities to Protect and Provide for his children.
It should be noted that the District Court Rules relating to Custody and Guardianship specify that all applications and orders be made on the forms provided.
The form 58.18 exists in the format where it provides on the same sheet for both a married and an unmarried parent to apply for Custody – there is absolutely no need for this to be done except with the obvious intention of confusing the enormous difference in position and status between married and unmarried parents.
It is a device by which a Custody order can be made on foot of an 11(1) welfare application.
The device relies on the confusion purposely created by intermittently mixing and alternating deleteable options throughout the form involving married and unmarried persons applying under two entirely separate and different provisions of the ‘64 Act.
These are unrelatable and disparate provisions of the law and there is no legitimate reason to do so.
It is to be noted that every application and respective order form in the District Court (Custody & Guardianship) Rules, 1999 specifies in the heading exactly which Section and Subsection the application and order is being made under so that there can be no possible confusion.
The application form 58.17 however specifies in the heading that this form is to be used for an application under Section 11(1) or 11(4) whereas the form 58.18 to be used for making an order in respect of an application under Subsections 11(1) or 11(4) is merely headed “Section 11. - Order on question affecting welfare of children”, which is only relevant to Subsection 11(1).
On examination of the Act one is confronted with the glaring peculiarity of the use of words in Subsection 2 of Section 11 where it states that
“The court may by an order under this SECTION –
a) give such directions as it thinks proper regarding the custody of the infant and the right of access to the infant of his father or mother
b) order the father or mother to pay towards the maintenance of the infant such weekly or other periodical sum as, having regard to the means of the father or mother, the court considers reasonable.
If this use of the word “section” instead of “subsection” is deliberate, the only conclusion that can be drawn is that any application under section 11(1) regarding a difference on a question of any welfare matter whatsoever by a fit parent can be used by the court to claim jurisdiction so that they can interfere with the custody of the child. The courts err by interpreting this in exactly this way and this explains why the order form as stated above has been made deliberately misleading and confusing.
It is to be further noted that there is no form available for making an application under section 11.(2), which is a provision solely for married Mothers seeking care and control of their children.
The Custody of the infants is not properly in question for applications under Section 11(1). This is in fact the qualifying requirement for an application under this section since the applicant is not questioning the fitness of the respondent but is merely disagreeing with them over a welfare matter where they have an equal right and duty, thus requiring the direction of a competent adjudicator. The Court relies on the unimpeached character of both parents for their Jurisdiction under this provision. See Tilson (1951)
Other provisions exist for applications where the fitness of the parent or the Custody of the children is in question.
The court, under its own rules, is only allowed to act in opposition to a fit Husband’s will if and only when it was judicially satisfied that the welfare of the children required that his wishes should be overruled. (See Walsh J,; B v B)
The court has no jurisdiction to interfere with a fit Husband’s Lawful Custody.
The Constitution protects the Family.
The Republic of Ireland is an independent, sovereign nation, and a parliamentary democracy.
Bunreacht na hÉireann is the Constitution of the state. No law can be passed that contradicts the principles enshrined in Bunreacht na hÉireann.
The Constitution protects the People who are the sovereign power
Fundamentally, the 1937 Constitution of Ireland recognises that the greatest possible danger to the freedom and well-being of its people lies in interference by the State in the Family.
By observation of the breakdown of social structure by other Nations the People of Ireland were able to identify that the root cause of the problem was founded in the unfettered authority of the State.
It can come as no surprise, therefore, that Ireland’s Constitution is incompatible with many of the international Conventions at present in existence. This was the deliberate intention of the Family provisions of the Constitution and their sole purpose is to protect the Irish people from descending into the pit of moral and social chaos that has engulfed many other nations.
Successive Irish governments over the past forty years have betrayed the Irish people through the introduction of legislation repugnant to the Constitution and through signing, ratifying and implementing International Conventions, which are in conflict with the fundamental rights of Irish people.
“First of all, the Family stands as a bulwark against the State. It has been described as the greatest fortress of human liberty. All serious tyrannies have tried to undermine it”.
– Baroness Young in “Standing Up For The Family”
It is important to note the fundamental principles relating to the Family, which are recognised by the enactment of the Constitution.
1. The State no longer has the authority of the Crown of England. The people are no longer subjects of the King and are free persons and as citizens hold the sovereignty of the nation.
2. The Institution of Marriage must be protected by the State
41. 3 1° The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.
3. The Family is an institution with its own Constitution and Authority. This is declared in Article 41.1
ARTICLE 41 1 1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
From the debates on the Constitution 2 June 1937, there can be no doubt as to the proper interpretation of Article 41.1
Mr. McDermot: “There is one question I would like to put to the President: what is the meaning of sub-section 2º of Section 1: “The State, therefore, guarantees to protect the Family in its constitution and authority...” What does ’authority’ mean? Does it mean the authority of the head of the Family over the Family? If it does not mean that, what alternative meaning is there?”
President de Valera: The President: “It is the authority of the heads of the Family over their children, their right to look after their education and not to be interfered with by another authority in the State except for reasons that would be mentioned; that is to say where there was failure or neglect on their part to provide for the children, or, from the social point of view, failure to see that the children received a proper education. The Family have rights antecedent to and superior to all positive law, and any interference with the authority of the head of the Family will have to be justified on certain grounds. That is the authority that is referred to there.”
4. The only grounds on which the State can interfere with the Authority of the Family are stated in and controlled by Article 42.5.,
“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”.
The Family has inalienable and imprescriptible rights derived from God which can not be invaded by the State.
President De Valera continues to define exactly what is meant by Article 41 in the debates on the Constitution 2 June 1937
“The President: ... The inalienable and imprescriptible rights are the rights to look after the maintenance and control of the children .... We want to stress the fact that these inalienable and imprescriptible rights cannot be invaded by the State.”
“Article 41 put and agreed to.”
The existence of this record from the Dail debates ensures that no other interpretation can be placed upon Article 41.1 unless it is amended by a referendum of the people.
Articles 46 and 47 of Bunreacht Na hÉireann provide for this mechanism of amendment
46.1. Any provision of this Constitution may be amended, whether by way of variation, addition, or repeal, in the manner provided by this Article.
2. Every proposal for an amendment of this Constitution shall be initiated in Dáil Éireann as a Bill, and shall upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by Referendum to the decision of the people in accordance with the law for the time being in force relating to the Referendum.
47.1. Every proposal for an amendment of this Constitution which is submitted by Referendum to the decision of the people shall, for the purpose of Article 46 of this Constitution, be held to have been approved by the people, if, upon having been so submitted, a majority of the votes cast at such Referendum shall have been cast in favour of its enactment into law.
The Constitution can not be changed or interpreted differently by any other means.
5. The Family’s Constitution is hierarchical - this is essential for the protection of the Family from external forces. It has by necessity, like all institutions, a hierarchical structure for its efficient management, its safety in emergencies and for its general well-being.
In England in 1925 the Lord Chancellor made clear the opposition to the idea of joint equal guardianship, which the promoters of a Bill had put forward, and the English Parliament rejected the idea as being detrimental to Married Family harmony
Objections, stressed by the Lord Chancellor, to parents holding equal guardianship were that,
“[the] net result of the Bill would be to substitute a legal for a domestic forum in every household ... “that to put Mothers on an equal footing with Fathers in all matters concerning their children would simply produce deadlock”; that although woman “has almost the same status as man, she has not altogether the same status because it is necessary to preserve the Family as a unit and if you have a unit you must have a head.”
In 1937 the head of the Family institution was acknowledged to be the Father. His Authority and position was recognised by the courts in the matter of N.P. an infant [1943] 78 I.L.T.R. 32[HE]
“the Father is the head of the household and is liable to contribute to the cost of maintenance of his Wife and Family. [and in the matter of custody] if the circumstances show that he has not disentitled himself I rather lean in favour of conceding to him a greater claim than to the Mother”
The Constitution of the Family has not changed and can only be changed by referendum of the people. At the present day the Father is held to be head of the Family.
6. In exercising his Authority in his position as head of the Family he must respect his Wife’s rights and implement any agreement he makes with her regarding the children’s education.
7. Authority within the Family is transferred hierarchically, under certain circumstances (such as death or failure), from the Father to the Mother and so on through the available relatives.
Despite the father being recognised in the Constitution as head of the family and as having authority this is not made explicit in the Guardianship of Infants Act, 1964 so that it might assist him to exercise his duty to maintain and protect his Family.
Instead the state through the courts uses this position against him under cover of the ‘in-camera’ rule which prevents justice from being seen to be done, one of the maxims of law.
Thus the position of a Married Father vested with the authority to protect his Family from the State puts him in the front line of attack from the very State that is pledged in the Constitution to not interfere with his Family and protect his Marriage from attack.
The result of these secret laws implemented in secret courts, which persecute good men and deprive honest women of their real rights, is that thousands upon thousands of Families have been dismantled without any regard to their Constitutional rights, thousands of children have been deprived of the love, protection and guidance of their Fathers, who themselves have been stripped of their children, their homes, condemned to destitution, debt-bonded slavery and driven to desperate acts – many taking their own lives in utter despair.
This is an incalculable atrocity perpetrated upon the Irish nation.
As well as protecting the people from state interference, the Constitution is mandated to guarantee freedom of worship, freedom of the press, economic liberty, the rule of law, and the limitation of power through a whole series of checks and balances. It is therefore necessary to understand that those in positions of authority who act to derail Bunreacht na hÉireann unlawfully are violating the Constitution and are plainly acting contrary to the Common Good and as such their acts are arguably seditious.
“An intellectual commits treason against humanity when he or she propagandises for ideas, which lend themselves to the use of tyrants and terrorists”. Eric Raymond
The evidence is mounting as to who is responsible for the violation of the Constitutionally protected Family.
When we contemplate the destruction of the stability and security of family life created by the corrupted Family Law regime and State policies we can no longer disregard the reports of the victims of this vast self-serving racket.
Analyses by the National Mens Council of Ireland show this baseless and destructive ideology is motivated by nothing other than a raw lust for money and power over the People.
We believe it is the duty of all citizens who trust in God and who must owe their allegiance to the Common Good to ensure that the perpetrators of these attempts to violate the Constitution be exposed and their transgressions reversed so that we can return to a decent civilised society where children can be safe within their family and we can all once more look forward to a secure future of hope and joy.
I find that organisation the NMCI abhorrent mysoginistic, homphobic, anti-secular and frankly as a man am appaled that they pretend to represent Irish men
Try answering the points raised and show us how a man like you would deal with the issues raised.
By the way , in your opinion, who does represent men against the blatent curroptions of the state as described and the now proven attack on our Constitution?
Yours in support
Harry
Sure poor old Harry is to be pitied really. The father as head of the household, indeed! Fact is, whatever the offical legal position, 'twas never the case anyway!!! We should leave Harry and his friends wittering and fulminating amongst themselves, God love them. Take no notice.
The same Constitution, Bunreacht na hÉireann, that provides for the hieratical Married family structure to be enshrined in our country as the fundamental unit group of society is the same Constitution that allows for the establishment of the Oireachtas, Judges and the courts, the Army and the same Constitution that allows the citizens of Ireland to be known as sovereign owners of the democratic republic called Ireland.
Which part do you find hard to accept?
Supporting even you,
Harry
The part that says that family is based upon marriage - discriminating against gay parents, single parents, foster parents, cohabiting parents is wrong
The part that suggests that a womans place is in the home is wrong
also facilitated sectarianism, mass emigration, TB, child abuse, marital abuse, slavery of unmarried mothers, corruption and indeed gave you the soil your political and social attitudes grew in.
We need a new constitution.
Lets look at some facts here:
1 Buffy, This person!!! is appalled at the whistle blowers who indisputably identifies state corruption in Ireland and then refuses to comment on the facts of the or the biggest scandal our country has ever had to face. An outrage that goes beyond any reasonable persons worst nightmare, the state is directly involved in the destruction of families with the potential for manslaughter charges now looming through constructive suicide.
2 Shipsea: If ever there was someone ‘on the take’ Shipsea takes the biscuit. “whatever the offical legal position” Huh? “whatever the official legal position?…. it is the ‘legal position’ that allows us to have a civilised society. Shipsea is definitely a man with an open mind, I can feel the draft from here!
3 Ian McGahon: Ian, one of the most important aspects of accepting the responsibility for being parents a couple must face is their fidelity and when you say ‘gay parents’ I presume you mean ‘same sex attraction’ couples which really is quite sad. Don’t you understand, if people of same sex attraction remained faithful to each other, they could not become parents.
All of the couples you mention will always be an inferior substitute for married parents who commit to themselves and their offspring. In fact, think about it, many married couples have lost their relationships because one or other of them chose to act in the way that seemingly your preferred choice of partners tend to act.
Finally, you said, “The part that suggests that a womans place is in the home is wrong”. Bunreacht na hÉireann does not say or insinuate that at all. What it actually says in Article 41 is:
2. 1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
2. 2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.
Check out the words “mothers shall not be obliged”. That does not mean what you said it means.
Isn’t it shocking, there are no comments on the report above that proves that the state is openly attacking the Married family and it’s Constitutional protections. If what we in the National Men’s Council of Ireland are reporting above is factually wrong, why not tell us where? If we are right, why are you not outraged?
I'm not outraged becuase I spent years waiting on my parents seperation and divorce.
And where would your parents go for a divorce? To the family court? Did you not read the report above that exposes the fraudulent money making racket employed by the ‘FAMILY’ court and it’s courtiers???
Do you not realise that the right to have a marriage was NOT granted by a court, but by the decision of a man and a woman to make their commitment to each other and to any children they might have as a promise to each other - in public?
That the decision they make to form a Married family is the cornerstone of any decent society?
That the decision they make to have a Married family is made before God if they make it through the church?
That it is also made before God if they make it in a state registry office because that office can only exist because the state exists by the power vested in it by the Irish people's Constitution.
Do you not know that the Irish Constitution has an opening preamble that relies on God for it’s very existence.
Bunreacht na hÉireann
Preamble
“In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred,
We, the people of Éire,
Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial, Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation,
And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations,
Do hereby adopt, enact, and give to ourselves this Constitution.”
Most importantly, do you not realise that if the facts here are not true then you would not have had to be so frustrated “waiting on your parents separation and divorce” because they would never have had a Marriage in the first place?
Do you honestly think that the tyranny now exposed by the state is of no significance to every man, woman and child who might ever aspire to be part of a decent social community that lives for the Common Good?
Do you not see that in just a short few years we have been moved from being known as “The land of Saints and Scholars” to a land like Sodom and Gomorrah.
Do you not consider that if we accept this we can no longer claim to have a nationality. The Irish will have succumbed to totalitarian oppression? And worse, it happened during our watch.
See you at the battlements.
Harry Rea
You certainly have done a pile of very good research and I know its frustrating u havent got as many probing replies as it deserves but i think a lot of readers simply dont have the legal knowledge u have and are afraid to cross swords with such an expert.
I dont have that knowledge either so i dont feel free to comment on ur article in depth i just thought id make one point and that is that maybe under the practical realities of the current irish court system the finer points of ones contitutional rights are just not relevant. Unfortunately i can just picture a judge looking at his watch when u would be giving that spiel, many of them just dont care ?
In which case its far more important for u to be able to bring some political preassure to bear on the system so that all defendants and "the little guy" in the court system get more fair play than they are currently getting. I know thats easier said than done but a lot of people are comming forward from donegal etc talking about that kind of ongoing injustice in the system and maybe if u could get together with them and all the other dissolusioned elements in ireland then maybe u could form a bloc big enough to demand change? Just a thought.
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