We use cookies to collect and analyse information on site performance and usage to improve and customise your experience, where applicable. View our Cookies Policy. Click Accept and continue to use our website or Manage to review and update your preferences.

Strictly necessary cookies

Cookie name Duration Cookie purpose
ASP.NET_SessionId Session This cookie holds the current session id (OPPassessment only)
.ASPXANONYMOUS 2 Months Authentication to the site
LSI 1 Year To remember cookie preference for Law Society websites (www.lawsociety.ie, www.legalvacancies.ie, www.gazette.ie)
FTGServer 1 Hour Website content ( /CSS , /JS, /img )
_ga 2 Years Google Analytics
_gat Session Google Analytics
_git 1 Day Google Analytics
AptifyCSRFCookie Session Aptify CSRF Cookie
CSRFDefenseInDepthToken Session Aptify defence cookie
EB5Cookie Session Aptify eb5 login cookie

Functional cookies

Cookie name Duration Cookie purpose
Zendesk Local Storage Online Support
platform.twitter.com Local Storage Integrated Twitter feed

Marketing cookies

Cookie name Duration Cookie purpose
fr 3 Months Facebook Advertising - Used for Facebook Marketing
_fbp 3 months Used for facebook Marketing
SC judgment finds limits to primacy of family life
UCD Sutherland School of Law

23 Mar 2021 / courts Print

SC judgment finds limits to primacy of family life

The Gorry/ABM v Minister for Justice judgment last September tells the State that it has to stay out of family behaviour, UCD constitutional law lecturer Dr Eoin Carolan SC told a college webinar yesterday (22 March).

“The State needs to recognise that the family has a zone within which it is paramount, and entitled to take its own decisions,” Dr Carolan explained at the UCD Sutherland School of Law constitutional law update.

The judgment says that the State cannot make decisions on what could be termed family matters, because the family is seen and protected as a unit and an institution.

This zone of decision-making primacy applies most notably in the education of children, under Article 42, or how many children the parents might want to have, as in the McGee v AG case.

Horizontal and vertical limits

These decisions have both horizontal and vertical limits, however, and are not absolute, according to the judgment.   

The Constitution expressly provides that the State may require basic standards of education.

The more these decisions have public implications, the less likely they are to come within the Article 41 zone, Dr Carolan noted, though there are a range of matters outside the realm of constitutional protection.

Individual rights, and the rights of individual family members, to do certain things or take certain decisions, are most likely to be recognised under Article 40.3, Dr Carolan said.  

Married family

However, while Article 41.3 is the only constitutional reference to a married family, the judgment expressly does not recognise a constitutional right to cohabit, or to protection of cohabitation arrangements, he said.

Also, the “woman in the home” clause in Article 41.2 has never been perceived as applying solely to mothers in married families, he said.

So, while the married family is protected for the benefit of society, any relationship of some permanence which treats itself, and is regarded by others, as a unit, has social value.

Social order

“It would be wrong and inconsistent with the social order envisaged by the Constitution to disregard it or to treat that unit as being of no value simply because they are not founded on marriage,” the judgment says.

This is a signal that the Supreme Court is unsure about the traditional conception of Article 41.3, Dr Carolan said.

There may be a willingness on the part of the Supreme Court to broaden the recognition of the family, or certainly to recognise that non-married families have a level of constitutional protection that is similar, if not identical.

Gazette Desk
Gazette.ie is the daily legal news site of the Law Society of Ireland