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What to do with Article 41.2? 'It hasn't actually contributed anything. It's never been a help'

It has no legal significance and the idea of changing it has been kicking around for almost 30 years – but it’s still unclear what’s going to happen to the Constitution’s most contentious article.

OVER ARTICLE 41 of the Constitution, labelled simply ‘The Family’, lies the long shadow of John Charles McQuaid.

In 1937, the influential priest – then a school headmaster but soon to be Archbishop of Dublin – was helping Éamon de Valera write parts of what became Bunreacht na hÉireann. Among his most significant contributions was to Article 41.2, which says (in English):

  1. In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
  2. The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

Dr Laura Cahillane of the University of Limerick writes that “while Fr McQuaid’s involvement in the drafting of the Constitution has sometimes been overstated”, the specific language of women’s “life within the home” appears in a draft he wrote in February 1937.

The provision was controversial even in the 1930s and now sits uneasily alongside Article 41’s same-sex marriage guarantee, inserted after the 2015 referendum. The Irish Human Rights and Equality Commission says that the text “continues to perpetuate stereotypical attitudes towards the role of women in Irish society”, while the National Women’s Council calls it “sexist and outdated”.

Several successive governments have suggested a referendum on Article 41.2, reflecting a general consensus that the language doesn’t reflect 21st century values. But it has never come to pass – largely because there’s never been an equivalent consensus on what to put to voters.

Ivana Bacik, who chairs a special committee of TDs and Senators considering Article 41.2 and other gender equality issues, says it’s time to stop kicking McQuaid’s can down the road.

“We’ve had numerous reports on this”, Bacik tells The Journal. “What we want to see in the lifetime of this government is the referendum being held”.

But almost 30 years after the first report calling for reform, what exactly people would be voting on in any referendum is still undecided.

What legal effect does Article 41.2 have?

Unlike other parts of the Constitution, Article 41.2 has essentially no legal significance. It doesn’t provide a legal basis for discrimination against women, and attempts to rely on it in court to help stay-at-home mums have invariably failed.

In 1989, for example, a housewife separating from her husband argued that her work within the family home entitled her to a share of the property, whereas under Irish law at the time she would get nothing. While the High Court’s Mr Justice Robert Barr initially ruled in her favour, a unanimous Supreme Court promptly slapped him down.

In 2001, one Supreme Court judge did say “there is no doubt that in an appropriate case the mother might be able to claim breaches of constitutional duties towards her under Articles 41.2.1° and 41.2.2”. In practice though, no such case has ever come along.

“It’s not doing anything, really,” law lecturer Cahillane says. “Apart from being a bit insulting”.

So if a referendum vote simply deleted Article 41.2 altogether, there would be no difference to the constitutional rights of women as the courts currently interpret them. In 2018, the last government proposed a referendum to do just that.

“Sometimes people are worried that if we delete it, women or carers will lose something; that having it in there has contributed to reforms which have taken place in recent years”, Cahillane says. “But that is actually a completely misguided opinion, because Article 41.2 hasn’t actually contributed to anything. It’s never been a help”.

“Deleting it is not going to be a backward step in any way”.

Why don’t we just vote to remove it, then?

Some people think that simple deletion would be a missed opportunity. Instead of scrubbing it from the Constitution, the wording could be changed to talk about the value of work within the home – unpaid caring for elderly or disabled relatives, for example – in a gender neutral way.

Orla O’Connor of the National Women’s Council says “if a simple deletion of Article 41.2 is put to the people, we are only offering the option of removing an old-fashioned definition of the home and women’s role in society, and we are missing this unique opportunity to express the positive contribution of equality in the home, care and work of all kinds”.

Family Carers Ireland supports “rewording Article 41.2 to make it gender neutral and to ensure that the work of family carers is recognised and valued”.

The question then becomes whether an amended Article 41.2 would be worded so as to remain legally meaningless or to become something that women and carers could rely on in court. As the Oireachtas Justice Committee put it in a December 2018 report, the choice is between “symbolic recognition v concrete socio-economic rights”. The committee couldn’t make up its mind.

Governments are traditionally reluctant to put “concrete socio-economic rights” in the Constitution because it means the courts could order the State to spend money providing services or benefits that it hadn’t budgeted for, potentially at the expense of manifesto commitments. Financial decisions are generally for ministers, not judges.

Where are we at now?

The latest report on Article 41.2 reform was by the Citizens’ Assembly on gender equality in April 2021. The Assembly went for amendment rather than deletion, and for enforceable rights rather than symbolism. Its recommendation was:

“Article 41.2 of the Constitution should be deleted and replaced with language that is not gender specific and obliges the State to take reasonable measures to support care within the home and wider community.”

Cahillane says a provision along those lines would leave it up to the courts to decide whether the government of the day is doing enough to comply with the new Article 41.2 or would be required to introduce new measures, such as legislation or higher welfare payments to support carers. It would be quite radical in terms of Irish constitutional law, but designed to be ambiguous enough that the government would feel comfortable putting it to a referendum.

The Citizens’ Assembly report is now being considered by (naturally) another committee. That’s the one chaired by Labour’s Ivana Bacik. It’s due to report within nine months of its first public meeting, which Bacik hopes will be in March 2022.

“We want to achieve tangible and effective steps towards greater gender equality in Irish society,” the Dublin Bay South TD tells The Journal. “The Citizens’ Assembly, through its 45 recommendations, has given us a blueprint for change for a more equal society”.

The proposal on Article 41.2 is “part of the package of measures necessary. We cannot stand over retention of this highly gendered, really sexist text in our Constitution while we’re moving towards a more equal society generally”.

The committee doesn’t have to follow the Citizens’ Assembly recommendation on women in the home. Its 13 members – ten women, three men – could yet end up split on which way to go, like the Justice Committee in 2018.

Bacik says “the Assembly has given us a clear indication of how they think it should be changed. We’ll just have to look at it and see if we follow that and make a recommendation to government”.

“There’s a consensus around the need for change. It’s just how the change is framed that we have to finalise”.

That includes examining concerns about tying the hands of the state in terms of spending decisions: “Any change to the text of the Constitution has implications. That’s one of the issues we’re going to have to look at: to what degree is recognition of care enforceable and what are the consequences of that? One of the things we will be looking at is cost and benefits”.

The risk is that there’s no consensus on the right wording, or a recommendation that the government doesn’t go for. There’s no guarantee of action: the issue has been kicking around committees for almost 30 years, from the Commission on the Status of Women in 1993 through the Constitutional Convention of 2013 to the Citizens’ Assembly in 2021.

But it feels right that while the original Article 41.2 was shaped by men like McQuaid, its fate is now in the hands of women like Bacik.

This work is co-funded by Journal Media and a grant programme from the European Parliament. Any opinions or conclusions expressed in this work is the author’s own. The European Parliament has no involvement in nor responsibility for the editorial content published by the project. For more information, see here.

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    Mute David F. Dwyer
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    Jan 31st 2022, 8:22 PM

    ‘The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.’

    When my grandfather died young, my Granny had to go out to work to keep food on the table and a roof over the heads of their seven children, the youngest of whom were 10 years of age. The state did sweet f.a. to ensure that she wasn’t obliged by economic necessity to engage in labour to the neglect of her duties in the home, in fact they took his medical card off her because it was in his name.

    Article 41.2 is sexist, mendacious, outdated rubbish that isn’t fit for purpose. Get rid of it.

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    Mute Thomas O' Donnell
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    Jan 31st 2022, 8:28 PM

    @David F. Dwyer: Not sure what getting rid of the article would do in that situation. In fact, if that article was followed, your grandmother would have been properly looked after?

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    Mute David F. Dwyer
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    Jan 31st 2022, 8:46 PM

    @Thomas O’ Donnell: It wasn’t followed. It never is, as this article elucidates. What is the point of having something in the constitution that serves no purpose beyond being a bit insulting and making false promises?

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    Mute Joseph Mc Dermott
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    Jan 31st 2022, 10:16 PM

    @David F. Dwyer: plenty of mothers out there that wish to stay at home to bring up their children. What your proposing is taking that right away. I believe it should be more gender neutral. It should apply to mums or dads and not be exclusive

    35
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    Mute David F. Dwyer
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    Jan 31st 2022, 10:31 PM

    @Joseph Mc Dermott: The hell I am. Mothers would have the right to stay at home regardless. The article does protect them and never has. What’s the point of it if it isn’t enforced? And it won’t be either. If it hasn’t since it’s inception, it’s not going to now with the current shower.

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    Mute David F. Dwyer
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    Jan 31st 2022, 10:39 PM

    @David F. Dwyer: The article doesn’t protect them and never has*.

    17
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    Mute Fachtna Roe
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    Feb 1st 2022, 12:26 AM

    @David F. Dwyer: Your point is clearly and cogently made. The State for all it’s false Roman piety is hypocritical in it’s practical effect.

    22
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    Mute Dearbhla O Reilly
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    Jan 31st 2022, 8:35 PM

    Ahhh McQuaid. What a peach he was. Took on his role with gusto. His legacy and the church’s legacy lives on. Lucky us eh? Especially women.
    And thanks Dev too.

    112
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    Mute Benny McHale
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    Jan 31st 2022, 8:26 PM

    Just needs a tweak. Change “woman” to “A citizen”, and “her” to “his/her”

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    Mute The Bolt
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    Jan 31st 2022, 9:28 PM

    @Benny McHale: Isn’t it mad how something so simply solved, has people losing their brain over it. People are getting too touchy over terminology.

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    Mute David F. Dwyer
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    Jan 31st 2022, 9:47 PM

    @The Bolt: ‘People are getting too touchy over terminology.’

    The fact that it promises safeguards that it does not and never has delivered on is the problem. Terminology is the cherry on top. And to the OP, it needs more than a ‘tweak’, it needs enforcement or to be scrapped altogether. Obviously one is cheaper than the other.

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    Mute The Bolt
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    Jan 31st 2022, 10:00 PM

    @David F. Dwyer: Well scrapping it serves no one. As you say, enforcement is what people should be fighting for, not terminology. I read your point about your nan, and no doubt its happened to many others. The fight should be that this shouldn’t happen to anyone, and hopefully and amendment would ensure that.

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    Mute David F. Dwyer
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    Jan 31st 2022, 10:35 PM

    @The Bolt: Be realistic, enforcement has never happened and never will not happen. The state isn’t going to pay for anyone who wishes to be a homebody to do so. The article is a false promise. Better off without it if it can’t be fulfilled.

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    Mute Honeybee
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    Jan 31st 2022, 10:02 PM

    The state has never recognised the role of women in the home, first by having laws that on marriage a woman could not remain in employment / lost half her wages on marriage. The role of caring for children/elderly/infirm was never acknowledged, women in the home had no rights, they were not seen as contributing to the economy/commerce and they relied on handouts from their husbands, they didn’t even have entitlement to health care and still have no proper provision for pension entitlements. It was sickening recently to hear Michael Martin speak about how women are valued when our history of how women were and are treated is a different reality. Look at the provisions of Article 41.2 and know they looked the other way when women needed to have their rights addressed under this Act, imagine if any woman had brought a challenge to vindicate her rights under the Act why they would have thrown the might of the state at her as they did in recent actions by women in healthcare on their deathbeds.

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    Mute Dearbhla O Reilly
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    Jan 31st 2022, 11:25 PM

    @Honeybee: well said.

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    Mute Gavin Linden
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    Jan 31st 2022, 9:03 PM

    Maybe I see view this in the complete opposite it was intended but I think it should be viewed as a very positive article in the constitution to support those women (or indeed men) who choose to contribute to both their family and by extension the state by remaining at home full time at a certain period in their children’s life.
    Ok, words such as ‘duties’ are antiquated but it could be a tool to build a positive system for those such people.

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    Mute Anne-Marie Keane
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    Jan 31st 2022, 10:09 PM

    “endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home”

    Putting the misogynistic view/wording aside for a min, what did they do to ensure a mother didn’t have to work whilst trying to rear children & run a home? Was their monetary value/recognition for the woman? Entitled to a pension? No.

    There should be a vote to keep it but change the language so that it states parents and not mothers. Enforce it to ensure that parents are protected & allowed the time needed to run a home & rear kids without monetary stress/ loss of pensions.
    Childcare costs are so high and it’s women that mainly suffer when it comes to deciding who reduces/leaves their employment to have a quality family life.

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    Mute Neuville-Kepler62F
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    Jan 31st 2022, 9:00 PM

    Kick McQuaid’s can out the window, instead of down the road.

    Don’t miss this unique opportunity to express the positive contribution of equality in the home, care and work of all kinds .. and all the benefits it would deliver for all those currently undervalued by our society.

    Include “The Family Home” special status in the Referendum, to place Family Homes in their rightful place as primary and superior rights supporting primary constitutional values, in particular, human dignity (need for shelter / housing) and self-governance.

    General property rights would ONLY apply to the extent that the property interest immediately serves these primary constitutional values of human dignity (need for shelter / housing) and self-governance.

    https://www.change.org/p/irish-referendum-on-family-home-special-status

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    Mute Peter O'Muiri
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    Feb 2nd 2022, 10:45 AM

    @Neuville-Kepler62F: Few property owners (more than 50% of the population) would vote for what you suggest. They prefer the present arrangements whereby the state can only seize private property under very limited circumstances and subject to full compensation. Neither would foreign direct investment be attracted to a country that might seize or confiscate its property, willy-nilly. The housing crisis won’t be solved by stealing. It will be solved (slowly, because we don’t have sufficient building workers anyway)principally by investment and the taxation needed to fund it. These are matters for the legislature elected by the people.
    (This doesn’t mean that changes aren’t needed to discourage abuses like deliberate dereliction. But this can be achieved by targeted taxes)
    Enforceable property rights, like freedom of expression are fundamental to a functioning civilised society.

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    Mute Neuville-Kepler62F
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    Feb 5th 2022, 4:38 PM

    @Peter O’Muiri: .. good post.
    One couldn’t describe current Irish society as a functioning civilised society with a “locked generation”, rack rents by landlords (getting €7.4 billion of taxpayers money p.a. in HAP) and evictions.

    A referendum on housing was first called for in 1974 (Kenny Report) and if it was passed would have prevented the 2008 crash. We now know why FF & FG buried that one, representing the interests of Developers and Landlords, and the disaster it caused.
    A referendum has been called for again in 2014 by the Constitutional Convention. The German Constitution has such a provision to give special place to the Family home without adversely impacting on the German general property rights.

    We are waiting since 1974 for this Referendum on Housing after many less important referenda have been implemented to fix our badly defective Constitution.

    “All Irish citizens should be able to afford to own their own homes on average incomes in their own country” – NK62F

    Failing to permanently resolve housing by way of a Referendum will ultimately lead to civil unrest – one small spark!

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    Mute eitrebor
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    Jan 31st 2022, 11:45 PM

    Have never come across any instance of this being legally tested through the courts but would enjoy knowledge if it has – the language appears clear on ‘economic necessity’ & I genuinely have wondered to myself why women & their partners have not tested it where maternity benefit was not topped up by the state to the level of their wage/salary to allow them the first few months with newborns in particular where they may wish to but cannot stay with them due to their economic necessity, lack of funds, needing to return to work etc. Generally economic issues are non justiciable due to Art 45 but this is a clear statement signalling economic circumstance & a positive requirement on the state. Have thought about this aspect several times whilst noting the anachronistic nature of the text.

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    Mute Peter O'Muiri
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    Feb 2nd 2022, 10:15 AM

    @eitrebor: I witnessed one instance. At the end of a Circuit Circuit Court sentencing hearing of a woman convicted of defrauding pensioners in a scam which netted her almost €10K. The defence counsel pleaded that because she was mother of two children sending her to prison risked the children being taken into care, and this would , inter alia, be in contravention of the Article. In any case, the judge didn’t imprison her, but didn’t indicate whether this decision was influenced by Article 41.2, or just by the reluctance of Irish judges to lock up female criminals generally.
    Perhaps the present wording should be removed and replaced by one to compel gender-neutral sentencing!

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    Mute eitrebor
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    Feb 2nd 2022, 5:44 PM

    @Peter O’Muiri: thanks for the insight. I suppose in one sense given the interpretation/applicability of Art 34 a Circuit Court judge would correctly leave constitutional interpretation to the superior courts and not seek to advance new ground obiter in such a sentencing.

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    Mute Cian
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    Jan 31st 2022, 8:54 PM

    The only people I can see it insulting is men? How is it ensuring to women to get preferential treatment haha

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    Mute Tom Molloy
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    Jan 31st 2022, 11:21 PM

    @Cian: A positive take on it is needed. The father of the children is been exhorted to provide for his wife and his offspring. Maternity hospitals are stressing the benefits of breastfeeding, will that be next to be called sexist instead of the wonderful and healthy option. ?

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    Mute andrew
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    Jan 31st 2022, 11:30 PM

    Its all about having a conversation about what we want in and out of the constitution we took out articles 2 and 3 to agree to the Good Friday Agreement 1998 and their are those that would like a right to a home to be a constitutional right, its apalling we have such homelessness so it is welcome we are talking about changing the constitution.

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    Mute Dearbhla O Reilly
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    Jan 31st 2022, 11:49 PM

    @andrew: people have been asking for this particular change for decades. So I guess its a priority for a great many. As for changes and conversations, we have had 33 f them leading to amendments. It’s a well written document despite the church’s input. Robust and more democratic than many and more changes can still be made. The right to a home is a good debate to have on it. We are good at debate on constitutional issues. Bring it on.

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    Mute Peter O'Muiri
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    Feb 2nd 2022, 10:31 AM

    @andrew: Some people are under the illusion that creating ‘paper’ rights is the answer to all our problems. It isn’t. The present Russian constitution contains express rights to housing and free health-care. Visitors to Moscow will bear witness to the thousands sleeping on the streets (in spite of constant police harassment and violence). Russians also enjoy a life-expectancy almost 10 years less than we do in Ireland and Western Europe.
    Creation of social entitlements, and how they are to be paid for are best left to the legislature answerable to the people – and sackable by them. Like in Sweden and the other Nordic nations which have short constitutions which set out the organisation of the state, the balance and division of state power, and a few fundamental rights (such as freedom of expression and assembly)

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    Mute Lyn Brookes
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    Feb 1st 2022, 5:55 PM

    How many women have actually taken the state to court to in order to receive financial hep and benefits to raise their family rather than having to head out to work every day. How many women have to leave the family home due to having an abusive partner and have to fight tooth and nail to get housed and then live on the poverty line. Most women have to go out to work in order to provide the household with essentials, one wage is simply not enough any more. The constitution is quite clear, so why are women being forced to take jobs in order to provide heat and food.

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    Mute Máire Daly
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    Apr 5th 2022, 9:06 PM

    I was talking to a Community Welfare officer about this, he said ‘this clause in the constitution is the reason we don’t force lone parents to get a job, as if they were on the dole, it gives them space to raise their children’.

    So yeah, it’s a good clause, that has benefited lone (male) parents too.

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    Mute Peter O'Muiri
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    Feb 2nd 2022, 10:02 AM

    Remove it. Period. The creation of social entitlements, and how they are to be paid for, is properly a matter for the elected legislature.

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