Michael McDowell (Dublin South East, Progressive Democrats)

Article 8 of the European Convention on Human Rights deals with the right to respect for private and family life and provides that everyone has the right to respect for his private and family life, his home and his correspondence and that there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The Senators' motion puts forward the idea, by implication, that Ireland is in breach of the European Convention on Human Rights and that a plan is needed to rectify this situation. I do not necessarily agree with that analysis which implies that some serious and long-standing problem exists. However, I am not aware of any outstanding judgments against Ireland under Article 8 of the convention and nor am I aware of any imminent case that might put us on the wrong foot. In saying this, I do not wish to be critical of the Senators who tabled the motion. I welcome their initiative in doing so because it affords us a valuable opportunity to discuss the provisions of the European Convention on Human Rights relating to the family and the increasingly important subject of the rights of non-marital and one parent families. However, as regards the motion to be passed by the House at the conclusion of this debate, it was my intention to make the point that the Government amendment was preferable.

By means of the amendment, the House is asked to note that it is the Government's objective that Ireland should fulfil its obligations under international law, including its obligations under the European Convention on Human Rights. This is most important and it is just as true of past Administrations as it is of this Government. Ireland has always taken its international obligations seriously. It is never our practice to accede to international treaties without ascertaining whether and to what extent domestic legislation and administrative practice must be changed to comply with the treaty in question. Other countries are somewhat inclined to sign documents on an aspirational basis. We are very careful in signing international treaties and sign them only when we have our own house in order and believe that our laws comply with the demands of a treaty.

In the past, Ireland has been found to be in breach of Article 8 of the convention in three cases, namely the Johnson, Norris and Keegan cases. In the Johnson case, the unequal treatment between children born outside marriage and marital children was found to violate Article 8. That was dealt with in the Status of Children Act, to which Senator Henry referred. In the Norris case, the Court of Human Rights held that the criminalisation of certain sexual activity under the Offences Against the Person Act 1861 was in breach of the convention. This violation was remedied by the Criminal Law (Sexual Offences) Act 1993. In the Keegan case, the court held that the rights of an unmarried father regarding the adoption of his child had not been respected. This was put right by the Adoption Act 1998. Since the coming into force of this Act, all fathers are consulted about the adoption of their non-marital children.

Ireland's adherence to the European Convention on Human Rights is further enhanced by the coming into force last December of the European Convention on Human Rights Act 2003. As Senators know, this measure was introduced on foot of a commitment by the Government in the 1998 Good Friday Agreement. Prior to the coming into force of this Act, the convention was binding on Ireland at international level but was not part of our domestic law. The Act alters that position fundamentally as it facilitates the bringing, in Irish courts, of cases involving alleged breaches of rights under the convention. In other words, it will make rights under the convention enforceable in Irish courts. This means that cases of this type can be processed much more expeditiously, and with associated savings in legal costs and expenses, than under the arrangements previously existing, such as when Senator Norris was obliged to go to Strasbourg to have his rights vindicated. In addition, Irish judges can now, as a matter of law, take full cognisance of the jurisprudence of the European Court of Human Rights in the domestic situation.

Irish law takes account in a number of ways of non-marital relationships and the situation of unmarried parents. I will outline the laws I am referring to, first, those within my ministerial responsibility. The Guardianship of Infants Act 1964, as amended by the Status of Children Act 1987 and the Children Act 1997, provides for the appointment of an unmarried father as the guardian of his child by a court order under section 6(a) of the Act or by statutory declaration of the father and mother. The appointment of the father as guardian means that he can apply to the court under section 11 of the Guardianship of Infants Act for its direction on any question affecting the welfare of the child. Also, regardless of whether he has custody of the child or shares custody, the guardian-father has a say, jointly with the mother, in decisions affecting the upbringing of the child. Even where the father is not a guardian, he still has the right to make an application to the court regarding the custody of the child and the right of access to the child.

The Domestic Violence Act 1996 also recognises non-marital relationships. Persons who may apply for a safety order under the Act include a person who is not the spouse of the respondent but has lived with the respondent as husband or wife for a period of at least six months in aggregate during the period of twelve months immediately prior to the application for the safety order. It also includes a person, being of full age, who resides with the respondent in a relationship the basis of which is not primarily contractual. A person who has lived with the respondent as husband or wife for a period of at least six months in aggregate during the immediately preceding period of nine months may apply for a barring order.

I am aware that these provisions have been the subject of a number of criticisms on the basis that they seem to distinguish between heterosexual relationships and those of persons of the same sex, that they are too tightly drawn and on other grounds. However, the significant point is that they afford the far-reaching relief available under the Domestic Violence Acts to people in non-marital relationships and in this way recognise the reality of such relationships and the need to protect vulnerable people from violence in their own homes.

A further example is the Civil Liability (Amendment) Act 1996, which amends the definition of "dependant" contained in the Civil Liability Act 1961 for the purpose of actions in respect of fatal injuries. The definition now includes as a dependant a person who was not married to the deceased but who had, until the date of the deceased's death, been living with the deceased as husband or wife for a continuous period of not less than three years.

Going outside my own area of responsibility, non-marital relationships are recognised in a number of other Acts, for example, in the Department of Social and Family Affairs. I will not go into too much detail regarding what has been done in the social welfare legislation, but I have supplied the text to the House for people to consult later.

For capital acquisitions tax purposes, a member of a couple can apply to avail of dwelling house relief. Essentially, capital acquisitions tax no longer applies on the transfer of the home on or after 1 December 1999 provided it is the principal private residence of the disponer and-or the recipient and the recipient has been living in the home for the three years prior to the transfer. That provision brought in by the Minister for Finance, Deputy McCreevy, takes no regard of the sexual relationship involved, whether it be homosexual or heterosexual. Cohabitation is sufficient. That reflects a significant change in the law. The recipient must not have an interest in any other residential property because we do not want people moving in together in order to avoid the provisions of the Act. Subject to exceptions, the recipient must remain in possession of the house for six years after the transfer. That provision was made in order to stop people claiming to have some kind of cohabiting relationship, getting a tax free gift and then moving on.

Point 1(c) of the amendment calls on the House to note the content of Article 41.3.1° of the Constitution. This provides that 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. It is in this area that there is something of a difference of approach between our constitutional provisions and Article 8 of the European convention as interpreted by the Court of Human Rights. Article 41.3.1° pledges the State to guard the institution of marriage on which the family is founded. It thus places the family solely in the context of marriage. In the Nicolaou case, Mr. Justice Walsh said it was quite clear to him that the family referred to in Article 41 is the family based on matrimony. We have an elaborate jurisprudence based on that point.

In contrast, the approach taken by the Court of Human Rights in the context of Article 8 of the convention is that family life extends beyond the family based on marriage. In the Keegan case, to which I already referred, the court recalled that the notion of the family in Article 8 is not confined solely to marriage-based relationships and may encompass other de facto family ties where the parties are living together outside of marriage. In the Keegan case, the court said that there existed between a non-marital child and his parents a bond amounting to family life even if at the time of his birth the parents are no longer cohabiting or if their relationship has ended.

The constitutional position is clearly something that needs to be kept in mind in considering this motion and any draft legislation that comes before this or the other House. The difference between this position and that which has emerged from the Court of Human Rights is something which was addressed by the Constitution review group and will no doubt be considered by the All-Party Oireachtas Committee on the Constitution in the future. The view of the review group was that the protection of the family as a unit, as distinct from the protection of the individual's right to family life, presented particular difficulties if the definition of the family unit was to be extended beyond the family based on marriage because of the uncertainties inherent in such an approach. The European convention does not protect the family unit as such, rather the individual's right to respect for his or her family life, the meaning of this being developed on a case by case basis in the jurisprudence of the Court of Human Rights. The Constitution review group took the approach that the Constitution should continue to contain a pledge by the State to guard with special care the institution of marriage and to protect it against attack. This should, however, be subject to a proviso that this provision should not prevent the Oireachtas from legislating for the benefit of families not based on marriage or for the individual members thereof. According to the review group, there should also be a guarantee to all individuals of respect for their family life whether based on marriage or not.

Even in the absence of changes along these lines, it does not follow that Ireland is in breach of the European convention solely because the so-called de facto family is not, as such, given constitutional protection. We must ensure that the obligations in the convention are given effect in our statute law, subject to the constitutional pledge of special care for the institution of marriage.

I agree with Senator Quinn. I do not believe protecting the institution of marriage ever involves, by some kind of analogy, penalising unfairly those who are not in matrimonial relationships. It may involve, on some occasions, discrimination in the technical sense between married people and unmarried people because if there is no difference, there is no special status but by the same token discrimination, in the other invidious sense of the term, in terms of inflicting penalties, suffering and unfairness on people, is not a necessary concomitant of protecting the family.

All of this brings me to the recently published consultation paper of the Law Reform Commission on rights and duties of cohabitees. I stop here to ask, in the presence of Senator Norris, what is wrong with the phrase "cohabitants". "Cohabitees" seems to be a passive phrase, and I do not understand it. It annoys me when I see lists of people who are in attendance on an occasion being referred to as "attendees". It is a misnomer.