New from the LRC: On the Legal Aspects of Family Relationships
Following on from Aoife’s recent post about the state of children’s rights in Ireland, I wanted to draw readers’ attention to the Law Reform Commission‘s recent Consultation Paper on the Legal Aspects of Family Relationships. The principal researcher on the paper was Claire Murray, who is – amongst other things – a PhD candidate at the Centre for Criminal Justice and Human Rights at UCC and a future star of Irish feminist legal theory.
By ‘family relationships’ the paper means the relationships between children and adults. Its particular focus is on the rights of the child’s extended family and the rights of unmarried fathers. It proposes important reforms in an area of law where antiquated notions of guardianship, custody and access presently hold sway. The Irish Times reported on the paper here and a summary of the key proposals is here. My aim here is to note one of the more important themes in the paper’s approach (in very broad brush-strokes). Perhaps substantive discussion on the technical elements of the proposals will ensue in the comments. And for those of you with strong views on the matter, the Commission invites your submissions on its proposals.
The paper advocates an important shift away from the current adult-centred legal framework towards a new model which places the child at its centre. In particular, the paper spends an entire chapter on the legal terminology used to describe adult-child relationships, preferring the terms ‘parental responsibility’, ‘day to day care’ and ‘contact’ to ‘guardianship’, ‘custody’ and ‘access’. More importantly, the paper reflects a strong determination that the welfare of children should not be compromised by the status categories into which their parents and other loved ones are shepherded by law.
By way of the obligatory critique- and I shift here to considering the LRC’s general approach – in terms of the established primacy/paramountcy dichotomy, the paper seems to favour the former – stating at the beginning that the child’s rights and welfare are an important guiding principle for reform in this area, but they are not the end of the story. The Paper references the UNCRC as providing the benchmark for decision-making on behalf of the child, but its approach falls short of that advocated in Article 21 of the CRC. So the LRC advocates a ‘balancing’ of parents’ and children’s rights. Now, a ‘balance of rights model’ presents special difficulties in this country given that the Irish courts have frequently taken the Constitution as requiring the balance of rights to be heavily weighted in favour of the parent. How will new legislation connect with this difficult judicial approach? What is more, we have to wonder – and this is a broader political question – whether rights discourse can adequately capture the tangle of interests represented by the ‘money’ case with which these reforms are concerned: that of the unmarried father and his children. The marital family form has often worked a brutal hegemony in Irish law. Unmarried fathers in particular consider that law in this area addresses a particular justice claim – a claim to recognition of their status, their equivalence to married fathers and a claim to a sort of emotional or affective property in their children which should not be connected to their relationship with a child’s mother. Account has to be given of those claims, even – and perhaps especially – in those hard cases where the desires of the father are not congruent with the welfare of the child, and somehow this must be done without reburying the child’s welfare.
That said, this paper has a limited remit, the LRC is charged with the task of law reform, not revolution, and although this attempt at reform should be understood as pushing the boundaries of the existing model rather than proposing a radically new one, the proposals are sound and deserve to be taken seriously. This is a fine paper and further evidence, if any were needed, of the folly of recent suggestions that disbanding the LRC would represent a worthwhile saving for the public purse. We look forward to the final report.