Alice-Mary Higgins (Independent) | Oireachtas source

We have heard quite lengthy journeys through different aspects of the law across the course of the debate. One part of the summary of what we have heard is that families are complicated, and that it is possible to legislate. It is possible to legislate before the referendum and it will be possible to legislate after the referendum. We could improve a lot of our legislation with regard to how different families are treated. We should improve a lot of our social protection codes with regard to how different families are treated. Fundamentally, the question is, given that families are complicated, do we recognise that or not? The question is not a matter of, if people vote "No", somehow we will be back to everyone being in married families. The reality that there are complicated families will still be here. The reality will still be here that our legislation needs to be improved and made more equal in lots of ways. What we will be doing is pretending, and saying that we still want to pretend that "family" is only the married couple. We still want that illusion that there is only one version of family. We want married people to get that because there is already a special line that is still going to be in the Constitution after this referendum, no matter what the result, which will say that marriage gets special protection and recognition, that married people should also be the only ones who get to be called "family", and no one else should be called "family".

There is complexity, and the question is, are we going to acknowledge it? Do we want a Constitution that reflects the reality? It is not a matter of asking if the State is indifferent, and would we prefer if everybody was married or not. By putting it in the Constitution, is it meant to be there as a motivation to encourage everybody to ensure they get into a neat, married family unit? That is what it was seen as, for a long time. Some of the motivation, and some of the actions that were taken to make sure we motivated everybody to get themselves into a neat, married family unit included disappearing those who did not fit the model. When we talk about not recognising them in the Constitution, we also made sure they were invisible. Sometimes we made sure they were invisible in mother and baby homes. Sometimes we made them invisible by adoption laws that were shrouded in secrecy because one could get into a good married family and one's other family could disappear. For example, those are clauses that were used when we discussed the idea of open adoption, something I brought through this Chamber before for discussion. However, there is only one family unit.

This idea has been doing damage with regard to the effect it has had on social policy. The O'Meara ruling, and the widower's pension, is one example of the damage it has done but there are plenty more. There are plenty more in the different treatment that one-parent families have had within our social welfare system. To be absolutely clear, it did damage in the O'Meara case at the High Court. It was that clause regarding the family that was used to deny the widower's pension. It was the other clause, a completely different and recent one - Article 42A, on the rights of the child - that was used in order to combat that and say that actually, the Constitution has changed. We now have the rights of the child as well, and they have to be considered. That was the basis on which the pension was granted.

Regarding the rights of the child referendum, the rights of the child clause and the child and family relationship Bill, all of that work that was complemented here by the detailed work on cohabitation, has tried to work around the big elephant in the room, which is that we have a definition of family in the Constitution that is not true or fair. We have had to work around it. Yes, we can legislate to try and work around it but we are still, at the top tier of our legislation or law in this State, coming up against the fact that the constitutional law permits a discrimination and different treatment. That is fundamentally there.

We can work all around it, and we can produce legislation. Yes, we want the Government to come back - that is why we have amendments here - and make really clear to us how it is going to interpret "durable relationships". What I know is that we will be able to legislate if we need to but what I want to know is how the Government will take action. I want to hear that it is not going to force, for example, one-parent families to have to take cases to vindicate that they are a durable relationship but that the State will take that interpretation and immediately act on it. It will be for the State and the Government, initially, to interpret this new clause in the Constitution and to put it into effect. For example, in this year's social protection legislation, will we see an overhaul of those measures that treated some families unequally, making sure that we are in fact levelling up the protection for families in Ireland?

Again, we hear about concerns about what might happen with regard to durable relationships. It has been open to any persons concerned about the unequal treatment of families in Ireland to take actions in respect of that. If people are concerned around what happens with regard to cohabitees, they can bring legislation on the proposals. I know with regard to one-parent families, for example, when I sat on the social protection committee in the last Oireachtas, that we brought forward concrete proposals that would have improved the treatment of one-parent families in Ireland. Some of those who are most passionate about the family and mothers, and what they might they do and their care role, did not participate in or contribute to that debate. They were not that interested, apparently, in that topic at the time.

When we talk about wanting to improve and give better protections and supports, yes, that is the work of the Legislature and that is something we should all be doing. When it comes to the fundamental message and signal we send, we heard from my colleague Senator Ruane about the message it sends to families. Let us also look to the message it sends to everybody about the Constitution.I want a Constitution that feels true, that feels real. We are losing something. I spoke yesterday about the idea of the fundamental unit of society, those who are contributing to society and shaping it. The family does work in the Constitution. It is not merely about receiving benefits. It is about doing work and contributing. In that idea of contributing, it is important to recognise the contribution of everybody. The State needs everybody who considers themselves to be in a family to also feel that moral role of contributing to the State that is outlined in the vision for the family.

There are other areas also where there are unequal rights that flow. Article 42 refers to "the Family" - with a capital F - as primary educator. Actually in our Constitution only married families are the primary educators. We saw how one-parent families had their children taken from them and put into industrial schools. There are consequences from having an inequality bang in the middle of our Constitution. We can work around it and try to alleviate the negative impacts. We can take advantage of it, if we want to promote some inequalities or if we want to find a group or two that are going to be a little bit easier to kick because they do not have that same protection. Fundamentally, what we are discussing here and what the referendum is going to be about is whether we are okay with pretending that only married people are family. Are we okay with telling one-parent families - the people we talk about when we talk about the parent-child relationship - and cohabiting couples that they are not family? We can shroud it in as many complications as we like but that is the fundamental message. If this referendum does not pass, the message will be that only married people are family. We will be saying that even louder and we will not be able to blame it on the 1930s or John Charles McQuaid for it.

I will quickly go through our amendments. I preferred the wording we had from the Joint Committee on Gender Equality. The committee produced an action plan and I want to hear the Minister will take it forward. The plan set out how, if we put equality of families into the Constitution, that has to be followed through. It states the Minister must start to fix the social welfare code in many ways and ensure better protections and supports are given to all families. The Minister needs to follow through if we have that equality of family. He needs to show us he will do all of that legislative work, which is always complicated. That is fine because that is our job. We want to know the Minister will do that. I want to hear that he is not going to make individuals, particularly one-parent families, take cases to say that the term "durable relationships" applies to them, but that the State will be acting on the assumption that the term covers one-parent families from the beginning and will take actions immediately in respect of that. I want the State effectively to bring that wide, strong interpretation into effect. I want to hear the State will fight for a definition of durable family to include one-parent families if it is put upon to fight for that. That is really important.

We have the European law in respect of durable families. As is its prerogative, it seems to be the intention of the Irish State to have a wider interpretation of "durable" that goes beyond the limits within that European law. I would like to be assured that parent-child relationships will be included. We also have an amendment in which we seek to be specific about cohabitees. That is a huge cohort of persons and families. There is a gap between the 40% and 20% figures. Many couples in Ireland who have been together for decades are not married and have children in their relationships.

As I said, I preferred the wording we had. "Marital family" was the wording used by the committee. I understand that the concern was that marital family would be a new version of the family. I have suggested in our amendment the term "the family based on marriage" because "family" and "marriage" are both terms that have precedent in the Constitution. Our amendment would include but would not be limited to families founded on marriage. The Minister might indicate why that approach was not taken. It might have avoided some of the confusion that has been created around the term "durable relationships". Either way, durable relationship at least is the possibility for a more equal family to be recognised versus the closing of the door yet again on so many families in Ireland.