The Gazette 1991

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GAZETTE NOVEMBER 1991
The Development of Judicial
Interpretation of Articles 41 and 42
In this article Angela O'Reilly traces the development of
judicial interpretations of Articles 41 and 42 of the
Constitution that deal with family rights. The article is based
on a lecture delivered last February in memory of the late
Antonia O'Callaghan BL.
Before we examine Articles 41 and
42, it is appropriate that we should
look at the legal status of the family
based upon marriage before the
enactment of the 1937 Constitution
and indeed before the enactment of
the 1922 Constitution. The common
law espoused the paramountcy of
paternal rights, or indeed more
correctly the paramountcy of
paternal rights. The father had a duty
to protect any minor child of his and
this right was absolute, even against
the mother. In certain cases where
the father's conduct would seriously
endanger the child's health or morals
the mother would be awarded
custody of the child. At common
law, therefore, the father was
entitled to custody until the child
was 21. After his death, the mother
was entitled.1
A growing jurisprudence developed
in the Chancery Courts whereby it
was held that the welfare of the
child was the first and primary
consideration in any dispute
concerning a child and a father
could lose his rights if it would be
contrary to the child's interests to
allow the father exercise those
rights. By the end of the 19th
century the Courts of Chancery
were quite willing to exercise their
jurisdiction to award custody of a
child to its mother if there was any
threat of physical or moral harm to
the child from the father. Also, if a
father abandoned or abdicated his
rights once, for example if he
deserted his family, he would not
be allowed arbitrarily to reassert his
rights if by so doing he would
endanger the child's welfare. In Re
Eliot2 and in Re O'Hara3 the Irish
Courts decided that the Court may
supersede the rights of the parents
over the child if the circumstances
of the case dictated that the moral,
mental and physical welfare of the
child warranted superseding the
parental rights. Thus the judicial
perspective before the enactment
of the 1922 Constitution concern-
ing the resolution of parental/child
conflicts in areas of family life
affecting the child, was one
dominated by equitable principles.
The enactment of the 1922
Constitution did not effect any
change in this judicial attitude
which continued in the same vein
as it had done in the late 19th and
early 20th century. The reason,
perhaps, for this lack of change lay
in the fact that there were no pro-
visions concerning the rights of the
family in the 1922 Constitution.
However, in 1937, Articles 41 and
42 of the Constitution heralded a
profound change in judicial attitude.
The 1937 Constitution
In providing exclusively for
protection of the family unit, the
1937 Constitution differed greatly
from the Constitution of the Free
State.4 Personal rights, such as
habeas corpus, freedom to practise
one's own choice of religion,
freedom of association, the right to
free elementary education and the
inviolability of the dwelling, were
protected by the 1922 Constitu-
tion. However, there was no
reference in the provisions of the
Constitution to "equality", "due
process", or to the "family".
When Mr. de Valera came to draft
the "Fundamental Rights" pro-
vision of Bunreacht na hEireann, he
chose that the State should
expressly vindicate the individual's
right to equal treatment before the
law and-the "personal rights" of
the citizen. The " f am i l y" is
recognised as a moral institution
possessing inalienable and impre-
scriptible rights antecedent and
superior to all positive law. One
inalienable" right is enumerated.
This is the right of parents to
educate their children. This detailed
recital of fundamental rights
derived from both the natural rights
philosophies and, more particularly,
from the natural law doctrine
expounded by St. Thomas Aquinas.
St. Thomas Aquinas lived in the
13th century. He espoused the
classical natural law doctrine which
became a foundation stone of the
Catholic Church. He argued in
support of the existence of a
hierarchy of law derived from God
in which human law had a rightful
but inferior place. Early Christian
thinkers had argued that social and
political institutions were the result
of sin and its divine remedy. St.
Thomas refuted this argument by
submitting that sin does not affect
the existence of natural values
which existed independently of it.
He argued that natural law doctrine
found a practical mode of
expression in politics. The State
has a duty to facilitate the
fulfilment of the individual's duty to
follow natural law precepts. The
whole tenor of the 1937
Constitution reflects the employ-
ment of a social contract to protect
the individual's natural rights. The
people enacted the Constitution
which Constitution created modes
of government and the Government
is bound, through the Constitution,
to vindicate the fundamental rights
of the citizen. Before we look at the
Aquinian thought present in the
substance of Article 41.1 and
Article 42, it is interesting to look
at the background to the format
and layout of the Articles.
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