The Gazette 1983

GAZETTE

N O V

E M B E R

1983

rights of parents under Articles 41 and 42 (and arguably

Article 40.3) to be permitted to rear their children. "

How the Court would respond to such a challenge is

not clear. There is reason to believe that, at present at all

events, it would not look upon it with favour. In

de Burca -

v- Attorney Genera/*

where the Supreme Court struck

down jury legislation that included distinctions based on

sex, Mr. Justice Walsh said that:

"There can be little doubt that the Oireachtas could

validly enact statutory provisions which could have

due regard, within the provisions of Article 40, to

differences of capacity both physical and moral and

of social function in so far as jury service is

concerned. For example, it could provide that all

mothers with young children could be exempt from

jury service. On virtually the same considerations, it

could provide that all widowers, husbands with

invalid wives, and husbands deserted by their wives

would be entitled to a similar exemption if they were

looking after their young children. It might also

provide exemptions for the proprietors of one-man

businesses who have no assistance, whether the

proprietors be men or women. It could provide that

certain occupations, such as a general practitioner

in the medical profession (whether man or woman),

be exempt because of the importance of the social

function fulfilled by persons of such occupation.

However, the provision made in the Act of 1927, is

undisguisedly discriminatory on the ground of sex

only. It would not be competent for the Oireachtas

to legislate on the basis that women, by reason only

of their sex, are physically or morally incapable of

serving and acting as jurors. The statutory

provision does not seek to make any distinction

between the different functions that women may

fulfil and it does not seek to justify the discrimina-

tion on the basis of any social function. It simply

lumps together half of the members of the adult

population, most of whom have only one thing in

common, namely, their sex. In my view, it is not

open to the State to discriminate in its enactments

between the persons who are subject to its laws

solely upon the ground of the sex of those persons.

If a reference is to be made to the sex of a person,

then the purpose of the law that makes such a

discrimination should be to deal with some physical

or moral capacity or social function that is related

exclusively or very largely to that sex on l y . ""

The words "very largely" would appear to permit

legislation reinforcing concepts of "proper" sex roles.

The concept of "social function", of which the Constitu-

tion speaks would appear to be capable of a very wide

range of interpretation. Whether, therefore, the Court in

future decisions will accept the perpetuation of sexual

stereotypes on the basis of differing social functions

remains to be seen. The reference in Mr. Justice Walsh's

judgment to legislation exempting

"ail

mothers with

young children"

but the more qualified reference to

fathers in a similar position would appear to suggest a

tolerance of the concept of motherhood as a social

function, in contrast to a sex-neutral concept of

parenthood.

In the specific context of custody of young

children this probably means that the Court would not

279

regard its present approach as raising a constitutional

issue.

In predicting future developments one should be

realistic: with young fathers now far more involved in the

upbringing of their children and with the increase in the

number of married women working outside the home

there is a strong likelihood of a gradual shift away from

the rather stratified approach that the courts have

generally favoured up to now. A similar trend is already

apparent in other countries

but it is of interest to note

that in England as late as 1977, in

Re K. (Minors)*

Sir

John Pennycuick stated that:

"the mother

not as a matter of law but in the

ordinary course of nature, is the right person to

have charge of young children".

In the same case, Stamp, L. J. referred to:

"the dictates of nature which make the mother the

natural guardian, protector and comforter of the

very young".

Summarising the position in England in 1981, Brenda

Hoggett said that:

"In practice . . . . the court may rely rather heavily

on certain stereotyped ideas of a child's emotional

needs. Here . . . . the mother enjoys a built-in

advantage, for the courts tend to assume that the

natural mother is best for a young child, irrespective

of the real strength of the bond between them."

It seems therefore that the Irish courts have been by no

means acting in isolation in their approach to this

question. Whether in coming years they will change at the

same pace as courts in other countries remains to be

seen.*

•

• This article is w ritten in a personal capacity.

(Footnotes)

1. No. 7of 1964. See generally. A. Shatter.

Family Law in the Republic of

Ireland.

201-202. 210 ff (2nd ed.. 1981),

Custody Disputes in the Irish

Republic: The Uncertain Search for the Child's Welfare?

12 Ir. Jur.

(N.S.) 37 (1977).

2. Cf.

B. V. B..

[1975] I.R. 54. at 61 (Sup. Ct..

per

Walsh J.. 1970).

In re Tilson Infants: Tilson -»•- Ti/son,

[1951] I.R. 1 Sup. Ct.. 1950). See

A. Shatter,

supra,

fn. 1, 207-209. See also

In re Slav. Minors.

I.L.T.R. 1 (High Ct.. Davitt J.. 1957).

4. Section 2.

5. [1975] I.R. 54. at 67 (Sup. Ct.. 1970. afTg High Ct.. Kenny J., 1969).

(Budd J. and FitzGcrald J. were dissenting in thiscase, but since not

all the facts of the case are of direct relevance to the theme of the

article, the reason for the dissent will not be examined here.)

6. [1975] I.R.. at 71.

7. [1975] I.R.. at 69.

8. [1975] I.R.. at 72.

9. 110 I.L.T.R. 45. at 47 (Sup. Ct., reversing Kenny J.. 1971).

10. Id.

.Id.

at 49.

12. Unreported. Supreme Ct.. 31 July 1974 (86-1974). rev'g High Ct..

Kenny J.. 23 May 1974 (I973-I725p).

13. p. 5 of Kenny J.'s judgment.

14. pp. 5-6 of Kenny J.'s judgment.

15. p. 6 of Kenny J.'s judgment.

16. pp. 8-9 of Walsh J.'s judgment.

17. p. IS of Walsh J.'s judgment.

18.

Id.,

pp. 15-16. See also, on this point, p. II of the judgment of

Henchy J., who was dissenting.