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Archive for December, 2009

Reform of the One Parent Family Allowance?

December 30, 2009 8 comments

The front page of this morning’s Irish Times carries this story reporting the Minister for Social Welfare Mary Hanafin’s (left) view that some reform of the one parent family allowance may be required. In the Minister’s view “The idea of continuing to pay somebody until their child is 22 if they’re in full-time education, it just mitigates against that lone parent herself having a stable relationship or marrying or even taking a full-time job, because of the attachment to ‘the book’”. The article reports that the Minister is considering discussing a situation where one parent family allowance would cease around the time that a child went to secondary school and that she seeks a ‘social policy’, rather than economic, discussion around this welfare allowance. It should be noted, first of all, that changes along these lines were proposed in the Government Discussion Paper: Proposals for Supporting Lone Parents (2006) and are therefore not new. In addition, the discussion is prompted by an awareness that lone parents are reportedly four times more likely to live in poverty and a desire to try to improve state-based supports for lone parent families.

Originally lone parents were supported through the poor law and such support was, in fact, reflective of a very punitive and moralistic approach to single parents (and single mothers in particular). Lone fathers were not originally entitled to any lone parent support from the state; a situation that was upheld by the Supreme Court in Lowth v Minister for Social Welfare [1998] 3 IR 321 on the basis of ‘social function’.

Part III of the Social Welfare Act 1990 introduced a means tested, non-gender-specific lone parent’s allowance payable to those with at least one qualifying child. Part V of the Social Welfare Act 1996 then introduced the one parent family payment to replace the lone parent’s allowance, deserted wife’s benefit and deserted wife’s allowance. This gender neutral, means tested payment is intended to support those who are bringing up a child without the support of a partner and without access to income from other sources. Qualifying children are children up to the age of 18 or, when in full-time education, up the age of 22 where the recipient is the main carer of the child. Rather controversially, qualification for the one parent family allowance is dependent on one complying with the “non-cohabitation” rule, i.e. a rule that prohibits the payment of OPF allowance to anyone who resides with another adult “as husband and wife” regardless of whether the other cohabiting adult in fact parents or supports the child to any extent. Read more…

China Executes Mentally Ill Man

December 29, 2009 1 comment

China has been roundly criticised for executing Akmal Shaikh, a 53 year old British national with a proven mental illness, at 2.30am GMT this morning.

Mr. Shaikh was convicted of smuggling 4kg of heroin into China in September 2007. It is understood that he believed that he was travelling to China to record a hit single that would usher in world peace and was duped into carrying a suitcase packed with heroin by his “producer” (who was working for a criminal gang) on a flight from Tajikistan to the remote city of Urumqi in Northern China. Mr Shaikh had no experience of singing in public. Mr. Shaikh’s brother, Akbar Shaikh, stated that during his thirty minute trial his brother insisted on holding his own defence and was adamant that neither he nor his family had a history of mental illness. Witnesses say that his testimony was at times “so absurd” that even the judges were laughing. Read more…

On This Day

December 29, 2009 Leave a comment

These are special days in the history of Irish constitutional rights. On December 29, 1937 the Irish Constitution came into force, having been passed by a national plebiscite in July. The picture shows Eamon De Valera, architect of the new Constitution and then President of the Executive Council, standing with members of his cabinet at Government Buildings during the inauguration of the new Constitution. On December 28, 1960, the Oireachtas passed the Health (Fluoridation of Water Supplies) Act, 1960, which required local authorities to fluoridate public water supplies to reduce childhood tooth decay. Mrs. Gladys Ryan had a strong objection to the the fluoridation scheme and challenged the constitutionality of the 1960 Act. Her case; Ryan v AG [1965] IR 294, marks the origin of the doctrine of unenumerated rights in Irish constitutional law.

If you feel like celebrating these milestones, why not raise a glass of fizzy pop to the five young Ryans, whose parents – the case report tells us – ‘did not encourage their children to eat sweets, lollipops or ice cream, and [only permitted them] soft drinks… on Christmas Day.’

Christmas Season Developments in Irish Human Rights

December 28, 2009 Leave a comment

We may be out of term but the backlog of holiday-time Irish human rights stories is growing. Here are some of the most important stories in Irish human rights which have broken over the past week or so. We will blog some of these in more detail when term begins again. If we have missed out on anything important, please let us know in the comments.

The Oireachtas and Human Rights Treaties

December 27, 2009 Leave a comment

As we head into 2010 it is worth taking stock of the status of international treaties in Ireland in general and the current status of numerous international human rights treaties in particular. Article 29.6 of the Irish Constitution marks Ireland clearly as a dualist jurisdiction when it comes to international law, providing:

No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.

As a result, for international treaties to become binding in domestic law they must be expressly incorporated by means of legislation, giving the Oireachtas an important role in relation to human rights treaties. Of course, once Ireland has ratified those treaties they are binding in international law; simply not in domestic law. This, of course, is the basic (and admittedly very simplified) principle of dualism: that there are two sphere of legal operation—the domestic and international—and that what a state becomes bound by in the international sphere overlaps with the domestic sphere only inasmuch as it is either expressly incorporated or forms part of the general principles of international law (a.k.a. customary international law).

In the context of human rights law, the fact that Ireland has signed a treaty but not incorporated it into domestic law does not necessarily mean that it is of no recourse to the individual who wishes to avail of the rights and protections within it. There are a number of ways in which unincorporated treaties can be useful in domestic litigation, including as interpretive aids or persuasive precedents. In addition, many human rights treaties have individual complaints mechanism that operate in international adjudicatory bodies like the European Court of Human Rights, the UN Human Rights Committee etc… Once someone has exhausted all domestic remedies (or established that there is no reasonable prospect of success in domestic law) they might avail of those adjudicatory mechanisms as a method of dispute resolution. Importantly, however, and as the case of Kavanagh v Governors of Mountjoy Prison demonstrated with some force, the decisions of those international bodies are not binding on the domestic courts. Thus, one might get a favourable decision in an international treaty body but if one returns to a domestic court the finding of that international body is merely persuasive authority in the absence of an incorporating act for the treaty in question.

Read more…

The Holiday Season at HRinI

December 23, 2009 Leave a comment

As we move into the holiday season we here at Human Rights in Ireland would like to thank all of our readers, guest contributors and commentators for partaking in the blog. Since our founding on 31 August 2009 we have welcomed over 30,000 readers to the blog as well as the hundreds of people who read us through various blog readers. We also have many followers on Twitter and on our Facebook fan page.

For the next week or so the blog is likely to be very quiet, not only because most of us will be enjoying the holiday season with our families and loved ones but also because a number of us have substantial examination correction obligations over the next few weeks. However, normal service will resume in the new year.

In the meantime, all of us here at HRinI thank you for your support and readership and wish you all a peaceful holiday season.

Guest Post: Nic Suibhne on the Adoption Bill 2009

December 22, 2009 1 comment

We are delighted to welcome this guest post from Brid Nic Suibhne on the Adoption Bill 2009. Brid is a researcher at the Law Reform Commission but this post is contributed in a personal capacity.

Adoption legislation in Ireland has been referred to an “incomprehensible jigsaw” encompassing seven pieces of legislation.[1] In 2003 the government announced a review of adoption law, to take account of the social and economic changes which had occurred since the principal act of 1952. Following an open consultation, the Adoption Bill was published in January 2009 and is moving through the various stages of the legislative process.[2] This recent attempt to clarify the law, by incorporating the previous adoption acts into one piece of legislation is much welcomed[3].

In relation to both domestic and intercountry adoption, section 19 of the Bill states that in any matter, application or proceeding before the Adoption Authority or any court, the welfare of the child is regarded as the first and paramount consideration. It is imperative that the child is at the centre of the adoption process and the emphasis is on providing a child with a suitable family, rather than providing a family with a child.

Read more…

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