Can the rights of a family be protected without a home?
In February 2016, the Superior Court of Justice of Madrid upheld the decision of the High Court to grant an eviction order to the Housing Institute of Madrid for the forcible eviction of a family with three children, from the home they had illegally occupied for a number of years. However, this decision was ultimately overturned by the Spanish Supreme Court which mandated consideration of the rights of children before an eviction order could be granted. This decision thus established a requirement under Spanish law that judges prioritise the needs of children before authorising the eviction of a family. The decision of the Supreme Court was anchored in the Spanish Constitution which expressly guarantees its citizens the right to housing. As in Spain, the right to housing is recognised in the Constitutions of Belgium, Finland, Greece, the Netherlands, Portugal and Sweden. In Austria, France, Germany, Luxembourg and the United Kingdom the right to housing is enshrined in legislation and internationally, the right to housing is incorporated in eighty-one Constitutions.
In Ireland, the right to housing is not enshrined in the Constitution nor in legislation. Whilst Irish citizens have rights to apply for social housing, to be assessed for such housing and to an independent evaluation, they do not have any legal right to secure housing under Irish law. The absence of a legal entitlement to adequate housing has become the focus of an intense debate in recent years due to the growing number of people experiencing homelessness in Ireland. In November 2017, 1,530 families and 3,333 children were officially recorded as homeless. Many of these families are forced to live in hostels, B&Bs, hotel rooms or local authority emergency accommodation for protracted and indefinite periods of time, which arguably contravenes their rights to private and family life, to dignity, to bodily integrity, and the rights of their children to adequate food, shelter and a stable environment to grow and develop.
Whilst, the Irish Constitution does not recognise the right to housing, it both recognises and guarantees under Article 41, the right of the family to be protected. The Constitution also places an obligation on the State under Article 42A to intervene in family life in exceptional circumstances where children’s safety or welfare “is likely to be prejudicially affected.” Many would argue that the current housing crisis and its impact on the lives of families and children constitutes a violation of their Constitutional right to be protected and safeguarded. If Ireland is to uphold its commitment to the family and its individual members, then the right to housing must be incorporated in the Constitution. This would not only ensure that the State’s policies in relation to housing and homelessness receives adequate attention and funding, it would also give Irish citizens the legal basis to directly challenge the State for these failures. Most fundamentally, it would also give greater value and currency to the State’s obligation to protect and defend the rights of the family as defined by the Constitution.