A WIDELY SHARED post on Facebook falsely implies that the government can medicate the children of unmarried parents by decree due to the constitutional definition of family.
The post is accompanied by a screenshot from a 2013 court report to back up the claim. However, the report is presented without any context, and the claim itself is untrue.
The post reads: ‘Not Married? Did you know you do not have the full recognition of a family according to the 1937 constitution…Ergo… Your children can be medicated by government decree against your wishes, according to this supreme court ruling from 2012’.”
The screengrab of the court report reads: “In the circumstances, while not coming within the constitutional definition of ‘family’, they had almost all the characteristics of a constitutionally protected family, the judge said.”
‘Natural and imprescriptible rights’
Firstly, the court report relied upon by the claim is from 2013 and not 2012 as suggested. The full report can be read here.
The case in question was about whether an unmarried mother had a superior constitutional right to the father of her child to make a decision about whether to vaccinate that child.
The Supreme Court held that she did not, and that both parents had equal decision-making rights in relation to the child’s medical issues.
The claim that unmarried parents do not have recognition as a family in the Consitution is also false.
Under Article 41 of the Constitution of Ireland, the State recognises the family as “the natural primary and fundamental unit group of society … possessing inalienable and imprescriptible rights, antecedent and superior to all positive law”.
The Constitution does not provide a definition of ‘family’, but Article 41.3.1 does oblige the State to guard the institution of marriage, “on which the family is founded”, with special care and to protect it against attack.
However, Article 42A was added to the Constitution in 2015 and affirms children’s “natural and imprescriptible rights”, as well as the State’s duty to uphold these rights.
Experts told The Journal that the addition of Article 42A ensured that the rights of all children, irrespective of the marital status of their parents, were protected when it comes to the State intervening in their lives,
Dr Conor O’Mahony, Director of the Child Care Law Clinic at UCC, said that the claim on Facebook was a “complete misrepresentation” of the law.
“Article 42A.2 of the Constitution sets down the position in respect of State intervention in family life against the wishes of parents,” he explained.
“It expressly states that the threshold for authorising intervention is the same, regardless of the marital status of the parents.
Families not based on marriage are not covered by Article 41 of the Constitution [which recognises the family], but this has no bearing on the issue of State intervention, as Article 42A.2 makes clear.
Patricia Brazil, a law lecturer at Trinity College Dublin further outlined how, in cases where there is a dispute of this kind between parents, a decision by the State to intervene would be made not “by decree”.
Rather, she says, it would be done by a court, in accordance with Section 11 of the Guardianship of Infants Act 1964. That law allows courts to give directions on any question affecting the welfare of individual children.
“In any such case, before making directions, the court will hear all of the evidence (including if necessary independent expert medical evidence), with the best interests of the child as the paramount consideration,” said Brazil.
The claim that the government can intervene in the lives of children under the terms of the Constitution, simply because their parents are unmarried, is completely untrue.
There is no basis for this claim, nor for suggestions that the State can medicate children as a result of a 2013 Supreme Court ruling.
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