The special definition of the family as based on marriage should be amended in the Constitution, according to Karen Kiernan, director of One Family
"The constitutional protection afforded to marital parents has given rise to another area of discrimination that arguably works to displace children's rights under the Constitution," she told the Oireachtas Committee on the Constitution.
This arose in relation to adoption, she said. Because the rights and duties of marital parents were "inalienable and imprescriptible", marital parents could not even voluntarily place their child for adoption, even if this course of action might be in the best interests of the child. This contrasted with the position of non-marital children, who could be adopted, she said.
One Family wanted "root and branch" constitutional reform, placing the child at the heart of the Constitution, displacing the privileged position of the marital family, and bringing Irish law into line with the European Convention on Human Rights by placing an obligation on the State to respect and support family life in all its manifestations.
Speaking on behalf of Barnardos, Geoffrey Shannon said the privileged position of the marital family left many marital children in care because their parents could not care for them in a legal limbo.
"These children live in a twilight zone between a family that does not want them and a family that cannot have them," he said.
Nora Gibbons gave a number of examples from Barnardos' case files of children whose welfare was being adversely affected by the fact that the rights of their marital parents to access was leaving them disturbed and unable to settle in foster families.
The ISPCC also called for the amendment of Articles 41 and 42 of the Constitution to give rights to all parents and their children irrespective of the marital status of the parents. Referring to Article 41.2, on the role of mothers in the home, it said that this no longer reflected social reality or the present emphasis on shared parenting.
Speaking for the Family Support Agency, Muriel Walls said the committee had the option of either retaining the special status of the married family and adding to it rights of natural fathers and single parents, or retaining the status quo. If the committee did that, other family forms would continue to be disadvantaged.
She said that the European Convention on Human Rights had looked at the reality of the family, rather than legal definitions. In a number of judgments the Supreme Court had passed this issue back to the legislature.
The Law Society said it did not see any need to change the fundamental law on the status of the marital family, but proposed legislation on the rights of cohabitees. This should cover partnership agreements.
There should also be greater emphasis on family support in the family law system, according to the society, with a more tangible link between the courts and the support system. Provision should be made for "clean break" divorce.
The society criticised the failure of the Government to implement some key pieces of legislation that it had passed, including the provision in the 1997 Children Act that children be independently represented.