Friday 18 October 2019

The danger lurking under surface of the referendum

Marriage and adoption rights for same-sex couples involves discrimination against children and existing parents

The blended family from the Brady Bunch.
The blended family from the Brady Bunch.

John Waters

Could any of us look back and decide that the particular identities of the parents who raised us were random factors in our development? I doubt it. Yet, with increasing vehemence, proponents of the same-sex marriage amendment insinuate that genetics are passe.

In an article headed "Does it matter to a child who their 'real' parents are?", published in the Irish Independent on March 10, the "clinical psychologist, author and television personality" Dr David Coleman questioned the importance of biological parenthood. In support of his thesis, he cited the circumstance that children of the same parents who are reared in the same house and go to the same school "still grow up to be different". So, the fact that you're distinguishable from your brothers or sisters means your parents should have been regarded as interchangeable with others adults.

This typifies a form of logic which will be heard more frequently in the coming weeks in debates about the same-sex marriage referendum (SSM) and the Children and Family Relationships (C&FR) Bill being bundled through the Oireachtas. Already, we appear to have "progressed" from the idea that it might be possible to accommodate unconventional models of family in certain circumstances to the persistent insinuation that biology is an arbitrary or inconsequential aspect of parenthood. Politicians, commentators and "experts" tell us that what matters in child-rearing is solely the quality of the "love" on offer and it is time for us to overcome our "obsession" with biological parenthood.

Would you vote for such a brave new world? Well, on May 22 you can - because this, buried just beneath the surface, is the radical edge of the sweeping new family-related measures contained in the C&FR Bill and converging in the logic of the "marriage equality" amendment.

Proponents of the amendment have repeatedly insisted that it has no connection to the C&FR Bill, but this is so fatuous as to be transparent to a child of eight. Any individual change in the constitutional treatment of marriage and family is likely to have implications for the future interpretation of all other such provisions. Therefore, in considering the SSM amendment, the voter needs to contemplate implications arising from the inter-working of the amendment with other family-related constitutional provisions, as well as the C&FR Bill and no less than 18 other Acts of the Oireachtas mentioned in its text.

If there is no connection between the C&FR Bill and the SSM amendment, why was it necessary to introduce the bill before the referendum? The reason is clear: the Government wishes to deny the people the right to decide on the question of gay marriage and adoption together, rendering the more contentious issue of same sex adoption a fait accompli and confining the referendum to the question of gay marriage alone.

The Irish Constitution divides child-parent relationships into two distinct categories, which it treats in two quite different ways. Whereas in many other jurisdictions legal parenthood arises automatically from biology, Irish jurisprudence identifies rights between parents and children as deriving from legal ties defined under the constitutional provisions governing the married family. An Irish child does not enjoy the right to be a member of a constitutionally-protected family by virtue of his or her birth to his or her mother and father, but acquires such protections only if his or her parents are married to one another. In a society prohibiting divorce, with most children living with their married biological parents, this dispensation worked, in general, to maximise protections of the natural rights of parents and children. Under our Constitution, a married family enjoys a high degree of autonomy, having rights that are inalienable and imprescriptible. In recent times, there has been growing dissatisfaction and protest concerning this constitutional way of seeing things, in part because it excludes from full constitutional protection unmarried families, now accounting for a third of all Irish families with children. Unmarried fathers fare especially badly, being essentially bereft of rights unless awarded them, on a concessionary basis, by a court. No matter how you shuffle it, this creates two different categories of children under the law.

Here, the C&FR Bill performs an extraordinary sleight-of-hand, which may take many years for the courts to tease out. In the context of break-ups of relationships involving children, marital or otherwise, the Bill shifts the balance of protections away from such a prior parental relationship to favour the claims of a subsequent relationship involving whichever parent is regarded as the primary carer for the child or children. Among the effects will be to place what is called "psychological parenting" - ie the role of nurturing, interaction, companionship, etc above biological parenthood, enabling someone who has developed such a relationship with a child or children due to their relationship to the child/children's other parent to "trump" the claims of a natural parent, and in effect pirate her or his rights. And this could adversely affect even the rights of a parent who already has guardianship and/or custody, or who has previously been married to a child's other parent.

Because the courts have consistently found that, in practice, a single mother has rights equivalent to a married family, the most ominous implications here might appear to be for fathers and children in non-marital situations. However, this may not necessarily be the situation in practice. Hitherto, disputes concerning children almost invariably occurred between fathers and mothers, with fathers almost always losing out. In the future, such disputes may more and more occur between single or divorced parents of either sex and couples who seek parental rights for themselves under a new constitutional definition of "family".

The C&FR Bill makes it possible for same-sex couples to adopt children, extending high degrees of protection to the parent-child relationships thus created. The change to the definition of marriage implicit in the SSM amendment will also expand the definition of family, and extend to same-sex couples the premium level of constitutional protection in respect of parental rights. It is true that the C&FR Bill will transform the parenting landscape regardless of whether or not the SSM amendment is passed, since it proposes that adults cohabiting or in civil unions with the parents of children should be entitled to apply for parenting rights. However, the ability to marry will enable a couple - same sex or opposite sex - to access significantly stronger parenting rights than either other couple categories or single, separated or divorced parents seeking to rely upon biological connection or rights presumed to derive from a dissolved marriage. This will extend the negative impact of the present two-tier system of rights, placing at a radical disadvantage biological parents of either sex, whether they have been married or not, who become involved in custody battles with one of the new categories of "family".

Suppose that a father leaves his non-marital family and enters into a same-sex marriage with another man. If this couple goes to court seeking custody rights over the former family's child or children, they will find themselves with greatly enhanced rights compared to the biological mother of the children. This situation may seem less likely than the converse case whereby the mother leaves the unmarried family and enters a lesbian relationship. But in either case it's clear that the left-behind parent will be in a position of serious disadvantage. In the "new rights" dispensation, a divorced father or mother, or an unmarried father who is deemed to be a source of "conflict" because of the childrearing practice of the new co-habiting, civil partner, or married partner of the other parent, can have his or her guardianship rights revoked if the alleged climate of conflict is deemed contrary to "the best interests of the child".

Because the C&FR Bill's mean-spirited treatment of single fathers has garnered considerable negative attention, the Government may effect some fudge or other to prevent this aspect having an adverse impact on the referendum. Speaking in the Dail last month, the Minister for Justice said that she was now open to the idea of automatic guardianship for unmarried fathers, rather than the absurd mechanism proposed in the C&FR Bill whereby a father would need to prove that he had cohabited for a year with the mother of his child - including three months during the life of the child. The Minister said she would reconsider this issue at committee stage.

But this is a relatively minor element compared to the implications for all categories of family which do not qualify under the designation "new", and the implications of broadening the marriage base without adequately protecting existing family bonds. Although the Government claims it is using the C&FR Bill to legitimise families currently excluded from constitutional protection, the Bill does nothing to change the most fundamentally discriminatory aspects of Irish family law. What it does, rather, is extend the categories of adult relationships which will be entitled to legally call themselves parents, while perpetuating discrimination in respect of parents who are not married to, or in a formal relationship with, the other parent. It therefore threatens to exacerbate the situation whereby at least one in every three children will continue to be excluded from full constitutional protection. Hence, "marriage equality" will result in further childhood inequality.

This, really, is what we will be voting for on May 22. The total changes proposed in the amendment and the other relevant statutory instruments amount to the most radical shake-up of family jurisprudence in the history of the State. If the SSM amendment is passed in its present form, any court seeking to consider the disputed constitutionality of any aspect of family-related legislation will have to weigh in the balance the consideration that, in the full knowledge of the contents of the C&FR Bill, the Irish people went to the polls to vote Yes to a radical change in the definitions of marriage and family and must therefore have done so with the intention of endorsing all aspects and implications of the total package of changes. The aggregate effect will be to radically transform the entire landscape and ecology of our legal and constitutional provisions in respect of family affairs.

The main problem with the SSM amendment, therefore, has to do not with the principle of "same-sex marriage", which might have been ceded without radically compromising other elements of the law in respect of families. In seeking to establish workable rights for a tiny minority of new categories of family, the C&FR Bill threatens to radically undermine many existing rights and, in the case of other categories of family, fails to make the kinds of changes which were indicated long before the current push for same-sex marriage began. In effect, it means that the "marriage-equality" referendum amounts to a proposal to extend "human rights" to certain categories of people while undermining further the rights of others.

It is unfortunate that the Dail parties have been unanimous in supporting not just the SSM amendment but also the C&FR Bill, thus depriving the people of their constitutional right to a parliamentary opposition. This means that rejecting the amendment may be the only way left for the electorate to communicate disapproval of any of the radical provisions implicit in both instruments. By saying no to this particular formula, the electorate may be able to force the Government to amend the C&FR Bill and then make a second attempt to introduce a same-sex marriage provision.

It is not too late for the Government to mend its hand. Many people might be prepared to agree to a form of same-sex marriage provided it created a minimal disruption of the existing ecology of family rights - and there is a way of achieving this. A friend of mine, the psychologist Dr Gerry Fahey, makes a proposal which, if implemented, would do much to reduce the danger to biological relationships arising from the combination of the SSM amendment and the C&FR Bill. Unfortunately it involves changing the amendment wording, but this may be the lesser of risks. (The Government has already agreed to effect changes to the Irish-language wording of the amendment following a decisive intervention by the journalist Bruce Arnold.)

The change proposed by Dr Fahey would involve the addition of a sentence to Article 40.3.1 of the Constitution taken directly from Article 9 of the UN Convention on the Rights of the Child, to read as follows (new section in italics):

40. 3.1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. In particular, the State shall respect the right of the child who is separated from one or both of its biological parents to maintain personal relations and direct contact with both parents.

There is too much at stake here for us to think in isolation about the idea of legitimising same-sex marriage, convincing ourselves that we can simply engage in a "progressive", "enlightened" and "compassionate" measure without consequences in other contexts. It would be naive of the Government to think that, in a critical piece of legislation governing the rights of families, it could again ignore all pleas to deal with the bedrock rights pertaining to natural parent/child relationships, and then demand that the electorate trust its motives and intentions implicitly.

There's still time. But if the Government is not prepared to take steps to retain or enhance protections for families of the "old" kind, voters will be entitled to arrive at their own conclusions as to whether it is safe to usher in the new.

Sunday Independent

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