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We are pleased to welcome a third guest post from Kieran Walsh. In this post, Kieran continues Mairead’s discussion of forced marriage in the Republic and considers whether child abduction law could be used in Ireland to protect children from being forced into marriage. He argues, in particular, for a child-focused approach to child abduction, which would allow the relevant law to be deployed effectively even outside the realm of custody disputes.
The recent forced marriage decision in Northern Ireland raises some interesting, and perhaps interminable, problems for cross-border levels of compliance with children’s rights and child protection instruments. As outlined previously by Mairead, the Northern Ireland courts granted an order to under the Forced Marriage (Civil Protection) Act 2007 which prevented two girls, aged 12 and 14, from travelling to Pakistan where they were to be married. Ireland has no similar means of protecting children from forced marriage.
Friday 14 May 2010
Brookfield Health Sciences Complex, U.C.C., Room G10, 10.30 a.m. to 2 p.m.
Speakers at the symposium include:
- Prof. Andrew Sharpe, School of Law, Keele University
- Prof. Stephen Whittle, School of Law, Manchester Metropolitan University (pictured above)
- Ms. Eilís Barry, Barrister at Law
- Mr. Michael Farrell, Solicitor, Free Legal Advice Centres; Irish Human Rights Commission
- Ms. Tanya Ní Mhuirthile, Faculty of Law, University College Cork
Further information is available from Ms Noreen Delea, Faculty of Law, UCC, Cork Tel. (021) 490 2728. E-mail: email@example.com
For full details and a booking form for the symposium, see http://www.ucc.ie/en/ccjhr/fullstory,97981,en.html
This symposium forms part of an IRCHSS-funded project, Gender, Religious Diversity and Multiculturalism (PI: Dr. Siobhán Mullally, Law, UCC).
Delegate Fee: €20.00 CPD Points: 3 hours
I was asked yesterday to give a sense of the extent to which situations like that of G and D – the Northern Irish case of two young girls who were at risk of being forced by their parents into marriage in Pakistan which we wrote about here- are of relevance in the Republic.
I am not aware of any ‘G and D’ type cases which have come before our courts. As yet, forced marriage does not seem to be seen as a mainstream ‘family law’ or ‘women’s law’ issue in the way that it is in the UK and Northern Ireland. In 2007, the Minister for Health and Children stated in the Dail that she was satisfied ‘that all reasonable measures are in place to prevent forced marriages and to provide a remedy where full, free and informed consent is absent’. She referred to the law of nullity which allows a marriage to be set aside where it was contracted in the face of fear, duress, intimidation or undue influence. She noted that the criminal law provided several bases upon which violence used in the context of forcing another into marriage can be prosecuted. Read more…
Today, Senator Ivana Bacik of Labour (pictured left) will be introducing a Bill to prohibit Female Genital Mutilation in the Seanad during the Labour Party’s private members’ time. The Bill and its Explanatory Memorandum are available here. The Minister for Health and Children has welcomed the Bill, indicating that it will be read a second time in a year or so. Labour’s press release notes that FGM Bills were introduced by Labour TDs Liz McManus (see Bill here) and Jan O’Sullivan (see Bill here) in the Dail in 2009 and 2001. Senator Bacik has said:
We urgently need a law specifically criminalising this barbaric practice which has destroyed the lives of so many girls and women world-wide. I welcome the Minister’s commitment to address this issue, but there has already been a great deal of work done on developing a legal framework, and delaying the introduction of this legislation by another year is unacceptable.
Senator Bacik’s Bill would:
- Introduce an offence of performing female genital mutilation on a woman or girl (note the gender-specific nature of the offence), the penalty for which shall be a fine or a term of imprisonment up to 14 years or both.
- Have extra-territorial effect so that an Irish citizen or resident who performs FGM outside of Ireland still falls within the terms of the Act.
- Rule out any defence of parental consent in the case of a minor.
- Allow a medical defence where the procedure was performed by a registered medical practitioner who ‘honestly believed, on reasonable grounds, that the operation was necessary to safeguard the life or health of the woman or girl concerned or to correct a genital abnormality or malformation’.
The Bill appears, to some extent, to take its cue from the UK Female Genital Mutilation Act 2003. In that jurisdiction, the legislation has fallen at the prosecution hurdle, and thus appears to have largely symbolic and perhaps deterrant value. For open-access articles which critique the UK legislation see this study by Sadiya Mohammad on the legislation’s efficacy and this article by Moira Dustin and Anne Phillips which considers the legislation in the broader context of UK law-making in the general area of women + gender + culture.
In November of last year the Ministry for Justice reported that some 86 forced marriage protection orders were made in the first year of operation of the Forced Marriage (Civil Protection) Act 2007 (see the Guardian on the shortcomings of the order scheme here).
Last month, in the case of G and D (Risk of Forced Marriage: Forced Marriage Protection Order)  NIFam 6 (26 March 2010), Stephens J. examined these orders in what appears to be Northern Ireland’s first major case under the Act. The judgment is available on BAILII and the Belfast Telegraph reports here. G and D are sisters of Pakistani Muslim descent living in Northern Ireland. They are aged 12 and 14 and have 4 older brothers. When the girls were aged 10 and 11, a Trust, as the judgment has it:
brought wardship proceedings on the basis that the parents had arranged for G and D to travel to and remain for a number of years in Pakistan so that they could be educated in that country. The Trust alleged that this was a pretext, that no arrangements had been made for their education [The relevant facts are set out at -] and in reality, based in part on the previous experience of the forced marriages of their brothers S and T [now in their 20s] in 2005, [the High Court had determined in the course of wardship proceedings brought in respect of T in 2006 that he had indeed been forced to marry. The circumstances of his religious marriage ceremony are described at -] that once in Pakistan they were to be isolated, attended to and prepared so that they also could be forced to marry… . The Trust also contend[ed] that the parents either chose to ignore the distinction between a forced and an arranged marriage or have no insight into the emotional and physical pressures that they have applied in the past and for instance still apply in a different context in relation to [their son] U [who had been excluded from the family home for refusing to obey rules established by the mother]. [Their sons U and V had visited Pakistan without being forced to marry].
The latest edition of the Cork Online Law Review is now available (free) here and features a number of interesting articles by undergraduate and postgraduate law students from Ireland and abroad. Articles likely to be of interest to our readers include:
- Alternatives to Traditional Sentencing Methods – The Efficacy and Constitutionality of Periodic Imprisonment in South Africa
- The Criminal Justice (Surveillance) Act 2009: An Examination of the Compatibility of the New Act with Article 8 of the European Convention of Human Rights
- Balancing Conflicting Interests during Pregnancy: Ultrasound v Reality
- In the Name of the Most Holy Trinity: Religious Anachronisms and the Need for a Secular Constitution
- Designing Climate Change Law: A Comparative Analysis of the U.S. and the E.U.
- Scientific Uncertainty and the Precautionary Principle
- Limiting the Potential for Bystander Apathy: On the Introduction of a Duty to Rescue in International Law
The editors invite submissions for the 10th edition by December 12 2010. I should mention that two of us here at HRinI were on the first editorial board of the Review while many more of us had our first publications in the journal. Although it is terrifying to think that COLR will be 10 years old in no time, it is wonderful to see that the publication has gone from strength to strength.
The latest edition of the Trinity College Law Review, dedicated to the memory of the late Gernot Biehler, was launched in February. Subscription information will be available on the website shortly and articles of interest include:
- Lesbian Co-Parenting and Assisted Reproduction
- I Can’t Get No Satisfaction : An Analysis of the Influence of the European Convention on Human Rights on the Repossession of Public Housing in Ireland
- The Case for an Originalist Approach to Constitutional Interpretation in Ireland
- Maximising Justice: Using Transitional Justice Mechanisms to Address Questions of Development in Nepal
- Subsidiarity and Seanad Eireann
- Informed Consent, Patient Autonomy and Causation: Competing Perspectives – The United States, Ireland and Germany
- Roche v Roche: Some Guidance for Frozen Embryo Disputes
- An Analysis of the Courts’ Interpretation of Article 40.1 in JD v Residential Institutions Redress Committee
Student-run law reviews are thriving in Ireland at the moment. NUI Maynooth has established a new one while the next editions of the UCD Law Review (available on HeinOnline), the Hibernian Law Journal (Blackhall Place) and the Irish Student Law Review (King’s Inns) are in the pipeline.
Liam and Cian have already summarised the election manifestos of the main(land) political parties (Lab., Lib. and Tory) in the forthcoming UK General Election. A number of NGOs and civil society organisations have already published their own manifestos as well as instructive responses to the party pledges. Here are some of the most interesting from a human rights perspective:
- Amnesty International (UK) has produced a series of election briefings on Women’s Rights, Security and Human Rights, the Human Rights Framework, Poverty and Human Rights and the Asylum System. All are available here.
- The Law Society’s Manifesto is here.
- The Manifesto for Justice (AdviceUK, the Bar Council, the Institute of Legal Executives, JUSTICE, the Law Centres Federation, the Legal Action Group, the Legal Aid Practitioners’ Group and Liberty) is here
We are delighted to welcome this guest post from Siobhan Cummiskey, managing solicitor of the Irish Traveller Movement Independent Law Centre. You can find out more about Siobhan on the Guest Contributors page.
Travellers have once again been both literally and figuratively sidelined by the Irish government upon being consigned to the Appendix of Ireland’s State Report to CERD (Convention on the Elimination of All Forms of Discrimination) in their combined 3rd and 4th report to the CERD Committee submitted in December 2009. The consignment of Travellers to a mere Appendix of a state report on racism is a most overt method of affirming the policy-endorsed position that Travellers are social dropouts, failed settled people and an economically deprived social group, as opposed to an ethnic minority.
The Irish government reiterated its tired mantra on the recognition of Travellers as an ethnic minority in their 2009 state report:
“The exact basis for this claim is unclear. The Irish Government’s view is that Travellers do not constitute a distinct group from the population as a whole in terms of race, colour, descent or ethnic origin.”1
Our neighbour, the jurisdiction of England and Wales, has recognized Irish Travellers as an ethnic minority through the courts2 and Northern Ireland expressly includes Irish Travellers in their equality legislation under the definition of an ethnic minority3. Our own Equality Acts 2000-2004 fail to include Travellers as an ethnic minority and instead list them as a separate group to whom protection will be provided in that particular legal instrument. The Irish government maintains in their 2009 report to CERD that equality legislation that fails to define Travellers as an ethnic minority but instead singles them out as a separate group worthy of protection, “does not provide a lesser level of protection to Travellers compared to that afforded to members of ethnic minorities. On the contrary, the specific identification of Travellers in equality legislation guarantees that they are explicitly protected.”