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The Role of Natural Law As a Basis for Developing Rights for the Unmarried

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The Role of Natural Law As a Basis for Developing Rights for the Unmarried THE UNCONSTITUTIONAL FAMILY; The role of natural law as a basis for developing rights for the Unmarried Family under the Irish Constitution by Laura Gleeson, LLB A thesis submitted to the School of Law, University of Limerick in fulfilment of the award of MASTER OF LAWS BY RESEARCH (LLM) Thesis Supervisor: Una Woods, BCL LLM Submitted to the University of Limerick in August 2010 Table of Contents Acknowledgements i Table of Cases ii Table of Statutes xi Introduction 1 Chapter I Constitutionalism in Ireland 1.1 What is a constitution? 6 1.2 Historical development of the 1937 Constitution 9 1.2.1 The ‘First Dáil Constitution’ of 1919 9 1.2.2 The Free State Constitution of 1922 9 1.3 Bunreacht na hÉireann, 1937 11 1.3.1 The drafting process 11 1.4 Church and State 14 1.5 The ‘Family Articles’ 18 1.5.1 Article 41 16 1.5.2 Article 42 16 1.6 Defining ‘the family’ 22 1.7 Misguided? 26 1.8 The European Convention on Human Rights 30 1.9 Conclusions 34 Chapter II The law relating to guardianship and custody in Ireland 2.1 Defining guardianship and custody 36 2.2 Common law development of parental guardianship and custody rights 38 2.2.1 Married parents and the ‘Doctrine of Unity’ 38 2.3 Regulation of custody and guardianship post-1937 42 2.3.1 The Guardianship of Infants Act 1964 43 2.4 What a difference an ‘il’ makes – the conceptualisation of Illegitimacy 45 2.5 The statutory rights of ‘Illegitimate parents’ 48 2.6 The Status of Children Act 1987 49 2.7 The Children Act 1997 52 2.8 Illegitimacy and the legalisation of Adoption 54 2.9 The adoption process and parental rights 57 2.10 Conclusions 59 Chapter III The development of ‘natural rights’ under the Irish Constitution 3.1 Defining the indefinable - what is natural law? 62 3.2 Natural law in the Irish context 64 3.3 The development of natural rights jurisprudence in Ireland 67 3.3.1 ‘The Honeymoon’ period – Ryan and the ‘Christian and democratic’ basis for recognition 69 3.3.2 The gradual entrenchment of natural rights within the Irish Constitution - McGee and the promotion of ‘justice’ 72 3.3.3 The high and low point of Irish natural law jurisprudence – Norris v the Attorney General 75 3.4 The constitutional connection between natural law and the Family 79 Chapter IV Considering the rights of the non-marital child in Ireland 4.1 The non-marital child and the Irish Constitution 83 4.1.1 The State (Nicolaou) v An Bord Uchtála 86 4.1.2 G. v An Bord Uchtála 88 4.1.3 TD v Minister for Education and Science 90 4.2 The welfare principle’ 92 4.2.1 Early operation of the welfare principle in Ireland 93 4.2.2 Legislative grounding of the welfare principle 96 4.2.3 ‘Welfare’…an unenumerated right? 100 4.3 Growing tension between the principle of ‘paramountcy’ and the 1937 Constitution 101 4.3.1 Re J, an Infant 101 4.3.2 In the matter of J.H. an Infant; K.C. and A.C. v An Bord Uchtála 103 4.4 Recent endorsement of the constitutional presumption – the case of “Baby Ann” 107 Chapter V Development of ‘natural rights’ for the unmarried mother 5.1 Early discussion of the rights of the unmarried mother in Ireland 112 5.2 G v An Bord Uchtála 115 5.3 Classifying the unmarried mother’s rights 119 5.4 MO’C v Sacred Heart Adoption Society 120 Chapter VI The constitutional position of the unmarried father 6.1 Slamming shut the constitutional door - The State (Nicolaou) v An Bord Uchtála 125 6.2 Re S.W., an Infant, J.K. v V.W. 132 6.3 Keegan v Ireland 140 6.4 W.’OR. v E.H and An Bord Uchtála 142 6.5 Recent discussion of the unmarried father 149 6.5.1 Considering “Mr G.” 149 6.5.2 W.S. v The Adoption Board & Others 155 6.5.3 McD v L & Another 157 6.6 Conclusions 161 Chapter VII The future of natural law as a basis for articulating constitutional rights for individual members of the Unmarried Family 7.1 Criticisms of natural law 164 7.1.1 ‘The many voices of nature’ 165 7.2 Classifying constitutional rights...‘constitutional’ or ‘constitutional in nature’ 167 7.3 ‘Discovering’ natural rights and the Separation of Powers 170 7.4 The basis of natural law...theocratic or secular? 172 7.5 The end of the affair? The recent decline of natural law 174 7.6 The future of ‘Article 40 rights’ 178 Conclusions 179 Bibliography 185 Acknowledgements I would first like to acknowledge the help and support of all the staff of the University of Limerick over the past number of years. I would also like to thank the School of Law faculty and in particular, Ray Friel, for providing me with the opportunity and the facilities to undertake and complete this research. I would, of course, like to express my genuine and sincere gratitude to my supervisor Una Woods for her encouragement, insight and guidance. Thank you Una, for keeping my ever- wandering mind on track! Finally, it would not have been possible for me to undertake this research without the understanding and unending patience of my parents. I would like to take this opportunity to thank you both for supporting me in this and all my endeavours. Table of Cases A Abbey Films Ltd v Attorney General [1981] IR 39 Andersson v Sweden (1989) Series A no 226 14 EHRR 615 Andrews v Andrews [1885] 15 LR IR. 199 Attorney General v Paperlink Ltd. [1984] ILRM 373 Attorney General v X. and Others [1992] IR1; [1992] ILRM 401; [1992] 2 CMLR 277 B B. v B. [1975] IR 54 B. v R.. [1996] 3 IR 549 B.L. v M.L. [1992] 2 IR 77 Berrehab v Netherlands (1988) 11 EHRR 322 Bradwell v Illinois 16 Wall. 130, 141 (1872) Buckley v The Attorney General [1950] IR 67 C C. v C. [1947] 2 All E.R. 50 C.A. v St Patrick’s Guild Adoption Society unreported, High Court, Flood J, July 31 1995 Cahill v Sutton [1980] IR 269 Conroy v Attorney General, [1965] IR 411 Crowley v Ireland [1980] IR 102 D De Búrca and Anderson v The Attorney General [1976] IR 38 D.B. v Minister for Justice [1999] 1 IR 29; [1999] 1 ILRM 93 D.F.O’S. v C.A High Court (McGuinness J.) April 20, 1999 (1998 No. 111M) D.G. v Eastern Health Board (1998) 1 ILRM 241 D.P.P. v Christine Best [2000] ILRM 1 D.P.P. v Shaw [1982] IR 1 E East Donegal Co-Operative v The Attorney General [1970] IR 317 Egan v Canada (1995) 124 DLR (4th) 609, 2 SCR 513 E.K. v M.K., Supreme Court, unreported, July 1974 Ennis v Butterly [1997] ILRM 28 (HC) E.N. v R.N. [1990] IR 384 E.R. v O’B. v The Minister for Justice, Equality and Law Reform, Ireland and the Attorney General [2009] IEHC 423 F F.B. and E.B. v C.O. [2004] 4 IR 305 Foy v An t-Ard Chláraitheoir & Others [2007] IEHC 470 F.N. v The Minister for Education [1997]1 IR 409 G G. v An Bord Uchtála [1980] IR 32 Gillick v West Norfolk and Wisbech AHA 3 All. E. R. 402 Goodwin v The United Kingdom [2002] 35 EHRR 447 Greene v Minister for Agriculture [1990] 2 IR 117; [1990] ILRM 364 Griswold v Connecticut [1965] 381 US 479 G.T. v K.A.O and the Attorney General [2007] IEHC 326; [2007] IESC 55 H Handyside v UK (1976) 1 EHRR 737 Hanrahan v. Merck Sharp and Dohme [1988] ILRM 629 H. v H. Unreported, HC, June 1989 Hyde v Hyde & Woodmansee (1866) I P. & D 130 at 133, Hyland v Minister for Social Welfare [1989] IR 624; [1990] ILRM 213 I I.O’T. v B [1998] 2 IR 231 In re A. & B. (Infants) 1897 1 Ch 786, 790 (CA) In re Agar-Ellis (Agar-Ellis v Lascelles) [1883] 24 Ch. D. 317 at 329 In re a Ward of Court (No. 2) [1996] 2 IR 79 In re a Ward of Court; “Baby Janice”, unreported, High Court, August 5 2004 In re Article 26 and the Adoption (No.2) Bill 1987 [1989] IR 656 In re Article 26 and the Matrimonial Home Bill, 1993, [1994] 1 IR 305 In re Article 26 and the Offences Against the State (Amendment) Bill 1940 [1940] IR 470 In re Article 26 and the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill 1995 [1995] 2 ILRM 81 In re Article 26 and the School Attendance Bill 1942 [1943] IR 334; 77 ILTR 96 In re B. (a Minor) (Abduction) [1997] 2 FLR 59 In re Connor [1919] IR 1 In re Doyle, An Infant: State (Doyle) v Minister for Education and the Attorney General IR 217 (HC); [1989] ILRM 277 (SC) In re Frost (Infants) [1947] IR 3 In re Grey, Infants[1902] 2 IR 684 In re Gyngall [1893] 2 QB 232 In re J., an Infant [1966] IR 295 In re J.H. an Infant.; K. C. v An Bord Uchtála [1985] IR 375 In re Haughey [1971] IR 217 In re K D (Minor) (Ward: Termination of Access) [1988] 1 All ER 577 In re Kindersley, an Infant [1944] IR 111 In re M., an Infant [1946] IR 334 In re Nevin [1891] 2 CH 299 In re O (Contact: Imposition of Conditions) [1995] 2 FLR 124 In re O’Brien, an Infant [1954] IR 1; 87 ILTR 156 In re O’Hara, an Infant [1900] 2IR 232; (1899) 34 ILTR 17 (CA) In re Ó Laighleis [1960] IR 93 In re Plomney 47 L.
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