390 / 462
GAZETTE
NOVEMBER 1991
The Provisional Government
established a committee to draft a
Constitution in 1922. Draft A, Draft
B and Draft C were submitted by
the Committee in 1922. Draft B
eventually became the 1922
Cons t i t u t i on. Draft C was
composed by Professor Alfred
O'Rahilly. However, it appears to
have had an influence on the
drafting of Bunreacht na hEireann.
Articles 52 and 54 of Draft C read:
"Family, Education and Religion:
Article 53 (1)
Marriage, as the basis of family life
and national wellbeing, is under the
special protection of the State; and
all attacks on the purity, health and
sacredness shall be forbidden.
(2) The Irish State shall recognise,
as heretofore the inviolable sanctity
of the marital bond.
(3) The civil validity of religiously
solemnised marriages shall be
recognised, provided that the de-
tails of registration prescribed by
legislation are duly complied
with.
Article 54 (1)
Parents have the right and duty of
rearing and educating their children
so as to make them good citizens.
The State has the right of super-
vision. Parents must provide their
children with education at least up
to the completed 14th year of age.
This obligation shall be determined
in detail by law.
(2) Children deprived of parental
care have the right to the help and
protection of the State in the limits
fixed by law. A judicial decree is
necessary to deprive parents of
their rights over the child".
It would be possible to contend
that the basic textual content in the
above i.e. the importance of
protecting the family, the right and
duty of parents to educate their
children, is present in Articles 41
and 42. However, Aquinian philo-
sophy would hold that the family
was a nucleus deserving not only
of protection from the State, but of
a legal position which protected its
rights and duties from encroach-
ments by the positive law. Thus we
have the terminology "inalienable",
which was defined in
Ryan -v-
Attorney General
6
by Kenny J. as
that which cannot be transferred or
given away, and "imprescriptible"
also defined by the learned Judge
as that which cannot be lost by the
passage of time or abandoned by
non-exercise.
7
It is now pertinent
to examine the case law which
developed judicial interpretation of
the Articles. In effect, the judiciary
had the task of integrating this
natural law terminology into
positive law.
Equitable principles -v- Articles
41 and 42
In
Re O'Connor
8
decided in 1946,
Gavan Duffy J. considered the
effect of Articles 41 and 42 on
previously employed equitable
principles, as follows:-
" . . . under
our
own
Constitution, wherein very
definitely
the
family
is
recognised as a fundamental
unit of society and as a moral
institution with imprescriptible
rights [this judge-made theory]
will have to reconsidered under
that new light, because no
inconsistent doctrine of the old
Courts of Equity can prevail
against the principles of the
Constitution. . . where our
children are concerned, we will
have
to
re-examine . . .
certain . . . of our problems with
great care under the guidance
of the
Cons t i t u t i on
of
Ireland."
9
The judiciary, however, continued
to employ equitable principles in
child custody cases despite these
dicta.
In
Re Frost
10
decided in 1947, the
main issue was the question of the
religion in which a child would be
raised. However, interesting dicta
emanated from the case con-
cerning Articles 41 and 42. The
Chief Justice found that he could
not accept the proposition that:
" t he rights of the parents, or of
the surviving parent, are
absolute rights, the exercise of
wh i ch
cannot
in
any
circumstances be controlled by
the C o u r t . . . I am satisfied that
the Court has jurisdiction to
control the exercise of parental
rights but in exercising that
jurisdiction it must not act upon
any principle which is repugnant
to the Constitution."
11
It is clear from these dicta that the
equitable
principle of
the
paramountcy of the child had come
into conflict with Articles 41 and
42.
Three years later,
Re Ti/son
12
was
decided, and Gavan Duffy J's dicta
in this judgment proved to be a
forceful initiation of Articles 41
and 42 into Irish Law. Further,
his Lordship stated of the
Articles:
"The Irish Code marks a new
departure from time honoured
precedents wh i ch are not
ours . . . Articles 41 and 42,
redolent as they are of the great
Papal encyclical
in pari materia,
formulate first principles with
conspicuous
power
and
clarity . . . The strong language
of these Articles arrests
attention . . . for religion, for
marriage, for the family and for
the children, we have laid our
own f ounda t i ons . . . [T]he
confined philosophy of law
bequeathed to us by the 19th
century is suspended by Articles
wh i ch exalt the family by
proclaiming and adopting in . . .
the
Cons t i t u t i on . . .
the
Christian conception of the
place of the family in society and
in the State."
13
The Supreme Court did not endorse
the dicta of the High Court Judge.
However, the Court did recognise
that both parents had the right to
determine the child's religion.
14
Previously the common law had
dictated that it lay within the
father's authority only to determine
his child's religion.
15
372