Family Relations Interference
Older Torts Abolished
The Family Law Act 1981 abolished certain old long-standing civil wrongs; criminal conversation, enticement and harbouring of spouses. It also abolished an action for breach of contract to marry.
The civil wrongs reflected the historically subordinate status of women. They no longer protect any legitimate interest in modern times.
Loss of Consortium
Some older potentially anomalous torts still exist. The action for loss of consortium is a common law action that a husband can take for the loss of his wife’s company and services.
At common law, a husband could recover for medical expenses incurred by reason of an injury to his wife and the loss of domestic services. He could recover the cost of hiring domestic servant in substitution for a spouse’s services.
These quantifiable losses were easily ascertained. However, general damages are allowed for the loss of a wife’s company. The loss of company might be constituted by separation.
The claim applies to both a partial and complete loss of consortium. The surviving scope of the tort is unclear. Some aspects of it may be unconstitutional.
Consortium in Modern Times
The Law Reform Commission has considered the tort of loss of consortium. They recognised that despite its anomalous historical nature, it does protect legitimate family relationships.
The English courts refused to extend the tort, to make it be available to a married woman in the 1950s, on the basis that it was already anomalous and should not be extended.
The Irish Supreme Court upheld the tort in the 1990s in a claim by a spouse and extended it to a married woman. In that case, the Supreme Court, by a majority of two to one, allowed a wife of a member of the Defence Forces who had been injured in an explosion causing sterility and impotence to maintain a claim for loss of consortium.
Some Applications
Later claims which sought to extend the tort to cover interference with familial relationships on the death of a parent have been rejected.
The Supreme Court has suggested in one case that in the case of the fatal injury case, it should be an element of the special limited claim for non-material losses (capped at €35,000 arising on death for family members in aggregate, by reason of a civil wrong.)
This approach was later criticised and the case has been interpreted narrowly. Later cases indicate that there was not intended to be a fixed ceiling and in fact and awards have been made in excess of these ceiling afterwards.
Seduction
Seduction is an old and somewhat anomalous tort. It provides a civil action for the family of an unmarried female, who has had a child outside marriage, to obtain compensation from the child’s father.It also applies where the female has been removed from her family.
It is based on a notional service relationship between the parent and the role of the women concerned.
The Law Reform Commission recommended its abolition over 30 years ago. It is not clear if the action is consistent with the Constitution.
Enticement
Enticement is a similar anomalous common law tort. It applies when a person entices a child away from his parents or parent’s control. The action is open to the parents based on the notional loss of service.
The only precedents are old English precedents of considerable antiquity. It is necessary to show that the child left her home and that the defendant induced the child to do so.
The Law Reform Commission proposed amendments over 40 years ago, which were not enacted. It is not clear if the tort is consistent with the Constitution.
Child’s Services
There is a common law claim for loss of child services caused by injuries inflicted or damage caused by another to the child. Its constitutional status is open to question.
Once again, it is based on notional domestic services provided by the child. Where actual services are provided, such as where a person is looking after the family member, that family member may have an action in damages on ordinary negligence principles.
The Law Refom Commission has proposed that the tort to be reformed into a civil action based on loss of family rights.