Guest Post: Kieran Walsh on Forced Marriage and Child Abduction

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.

Forced Marriage in the Republic of Ireland

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.

Cohabitation, Default Protection and the Civil Partnership Bill 2009

I have written before on the Civil Partnership Bill 2009 focusing mostly on the introduction through the Bill of civil partnership as a legally recognised relationship form for same-sex couples. We have, however, spent some time on the cohabitation proposals both ourselves and in an excellent guest contribution from Andrew Hayward of Durham University. The last few days, however, have seen a surge in analysis of the cohabitation provisions of the Bill with various voices, including Prof John Mee of UCC, expressing concern about the default protections within the Bill as it stands. Indeed, last night’s Prime Time on RTE featured a long report on the implications of the Bill for unmarried and un-civilly-partnered cohabitants. So what is the cause of this concern?

First of all there is the fact that certain protections, entitlements and obligations kick in automatically following a three-year cohabitation period or, if there is a child of the couple, a two-year cohabitation period. If a couple should manage to live together without getting married or civilly-partnered for two or three years, depending on the context, they will be termed ‘qualifying cohabitants’ and these default provisions will apply. The definition of a cohabiting couple (i.e. a couple in relation to whom we can start to count time in order to see whether they are ‘qualifying’) is contained within s.170 of the Bill.

Bye Bye Justice, Equality & Law Reform; Hello Community, Equality and Gaeltacht Affairs?

The  Irish cabinet reshuffle (see here, here, here and here) has resulted in the  Department of Justice, Equality and Law Reform , being divested of issues relating to equality, disability, integration and human rights. These important areas will be subsumed into the new Department of Community, Equality and Gaeltacht Affairs. The comments below are some initial reactions to this news.

Justice, Equality and Human Rights-Why?

I do not believe in making structural changes for their own sake. Too often, changes in structures can be pursued to disguise a lack of clear priorities or the determination to implement them. This Government has a clear agenda which I am determined will be driven forward with energy and commitment. There is no time to be wasted on extensive restructuring at the expense of action to implement our policies.

An Taoiseach Brian Cowen T.D.  23 March 2010

From 1992 until 1997, there was Minister for Equality and Law Reform, however post the 1997 general election, this was subsumed into the Department of Justice (to become the Dept. of Justice, Equality and Law Reform (DJELR).This was a time of enormous economic growth within the Republic of Ireland and a number of months before the signing of the Belfast/Good Friday Agreement. The thrust of today’s speech by An Taoiseach’s recognised the need for a re-invigorated economy based on job creation and innovation. For reasons highlighted by the statement of An Taoiseach above, structural changes were made to a number of departments.

Update on the Civil Partnership Bill 2009

The progress of the Civil Partnership Bill 2009 through the Oireachtas continues and today’s Irish Times contains two pieces on the cohabitation provisions of the Bill. As we have documented here and here the cohabitation provisions (i.e. for cohabiting couples who are neither married nor in civil partnerships) attempt to establish a kind of safety net. However, they apply only to ‘qualifying cohabitants’ and there is a serious fear—articulated in the Irish Times by Professor John Mee of UCC—that non-qualifying cohabitants will assume themselves protected when in fact no such protection exists.

Call for Papers: Postgraduate and ECR Workshop with Professor Lois McNay

‘Subjects Before the Law: Membership, Recognition and the Religious Dimensions of Women’s Citizenship.’

We invite PhD students and Early Career Researchers (no more than 3 years post-doc) from any discipline to apply to participate in a workshop, to take place on Thursday, September 9, 2010. The workshop is hosted by the Centre for Criminal Justice and Human Rights and the Institute for Social Science in the 21st Century, University College Cork, Ireland. The workshop is organised as part of an IRCHSS Thematic Project on Gender Equality, Religious Diversity and Multiculturalism in Contemporary Ireland.

The workshop organisers are Eoin Daly and Máiréad Enright.

Inaugural Annual Law and Society Lecture at DCU: “‘Fatherhood, Law and Personal Life”

THIS EVENT HAS BEEN POSTPONED  – THE SPEAKER IS UNABLE TO ATTEND DUE TO THE DISRUPTION TO AIRLINE SERVICES CAUSED BY THE VOLCANIC ASH CLOUD.

The School of Law and Government, along with the Socio-Legal Research Centre, at Dublin City University is hosting its Inaugural Annual Law and Society Lecture on Wednesday April 21st, 2010 in the Mella Carroll Lecture Theatre, Nursing Building, DCU. The lecture will begin at 6.30pm and will be followed by a reception.

 

The lecture is entitled

“Fatherhood, Law and Personal Life: Rethinking Debates about Fathers and Law”

and will be delivered by Professor Richard Collier from Newcastle Law School. The Chairperson for the evening will be the Honorable Mrs. Justice Catherine McGuinness, President of the Law Reform Commission.

 

About the Speaker

Richard Collier is Professor of Law at Newcastle University, UK. His primary research interests concern questions around law and gender, with a particular focus on issues surrounding men and masculinities, ranging from law, families and social change to legal education, crime and criminology.

His books include The ‘Man’ Of Law: Essays on Law, Men and Gender (2009),  Masculinity, Law and the Family (1995), Fragmenting Fatherhood: A Socio-Legal Study (with Sally Sheldon, 2008), Masculinities, Crime and Criminology: Men, Corporeality and the Criminal(ised) Body (1998) and Fathers’ Rights Activism and Law Reform in Comparative Perspective (edited with Sally Sheldon, 2007). Richard is an Editorial Board member of Social and Legal Studies.

No to Symphysiotomy Inquiry

“If Minister Harney was in my body even for one day we would have the review the next day”.

Kathleen Naughton, Survivors of Symphysiotomy

Following last night’s Prime Time  report on symphysiotomy, the group  Survivors of Symphysiotomy has called on the Taoiseach  to initiate an immediate inquiry into the use in Irish hospitals of the childbirth surgery which permanently widens the pelvis. IrishHealth.com carries a good report on the issue and on the survivors’ campaign here.

The Minister for Health, Mary Harney (above left), has refused to set up any inquiry . Calls for an inquiry in 2002 met with a similar response. Survivors of Symphysiotomy have now called for the Minister to be dismissed from cabinet.

Ireland was the only country in the developed world where symphysiotomy was practiced in the 20th century. It was used into the 1980’s and has left many women with lifelong serious medical difficulties including chronic pain, difficulty walking and incontinence. The Institute of Obstetricians and Gynaecologists, however, has said that the practice was considered valid at the time when it was employed.

A health package has been made available to women who are suffering the after-effects of the operation, but it seems entirely reasonable that, in addition to this provision, their claims should be examined and debated in the public sphere. This is especially the case because survivors have raised issues around their consent to the practice, and about its use on young mothers and mothers who were in the ‘care’ of state and religious organisations at the time of their operations.

You can watch some very interesting presentations on the issue given at a meeting hosted by the Feminist Open Forum in October here. Speakers included solicitor Colm McGeehin, who represents over 100 women affected by the practice. BBC’s Women’s Hour also discussed the issue in 2002.

We hope to have more indepth commentary on the story as it develops.

Polygamy in the High Court

The Sunday Times reported yesterday that the High Court will soon rule on the validity of an Irish citizen’s marriage under s. 29 of the Family Law Act, 1995. The man is Lebanese. He married two women in Lebanon, where polygamous marriage is permitted. He entered Ireland with his second wife and claimed asylum. His first wife arrived in Ireland much later.  The man has children with both and  apparently lives with both in Ireland.  Seven years ago the Department of Justice had refused to grant a visa to the man’s first wife. However, after the man challenged the refusal in the High Court, the Department agreed to quash its initial refusal. As part of this settlement, the man is required to seek a s. 29 ruling. The Times reports that ‘[t]he state and the wives are all represented in the case. The residency rights of both spouses will depend on the decision. A number of similar cases are awaiting the outcome.’ The case looks to be (or is very similar to) that of Hussein Ali Hamoud. The Irish Independent reported on his case in 2003 here.  There is been remarkably little media discussion of the case today. Marian Finucane discussed the issue, to some extent, on RTE Radio 1 yesterday. The podcast is here (from minute 21). The Examiner also published a short opinion piece.

Immigration and ‘Marriages of Convenience’

On Monday, the Irish Times reported on a new operation which has been undertaken by the Garda National Immigration Bureau (GNIB) to detect and prevent what they believe to be marriages of convenience for the purpose of securing EU residency rights. A Pakistani man, Muhammad Shafi, was recently convicted of offences related to the possession of ‘false instruments’. Gardai also intervened to halt his marriage to a Lithuanian woman. The Irish Times reports that marriages designed to circumvent certain legal obstacles to residency in Ireland are an important informal feature of  our immigration regime, with the Minister  for Justice estimating that  “30 per cent of all our applications for recognition under the EU directive on freedom of movement and residency involve persons who were illegally present in Ireland or on a temporary or limited permission when making their applications”. The Times explains:

These marriages are typically arranged by failed asylum seekers or former students from Asia who no longer have permission from immigration authorities to stay in Ireland.

Minister for Justice Dermot Ahern told his EU counterparts at a meeting in Spain at the weekend that there was evidence of growing abuse of immigration laws with a growing number of non-EU nationals marrying women from the Baltic states.

Some 110 of the 384 residency applications made by Pakistanis in the Republic in 2009 were based on marriages to Latvians.

A further 50 applications were based on marriage to Polish nationals while 47 applications were based on Pakistanis marrying Estonians.