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Archive for the ‘Families and the Law’ Category

No to Symphysiotomy Inquiry

February 19, 2010 2 comments

“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

February 8, 2010 1 comment

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.

Read more…

Immigration and ‘Marriages of Convenience’

January 30, 2010 Leave a comment

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.

Read more…

Civil Partnership Bill, Second Stage….Of Tatchell, MacLiammoir, Fathers and Left-Wing Extremist Feminism

January 28, 2010 Comments off

Gilligan and Zappone

On Wednesday the second stage debate on the Civil Partnership Bill continued in the Dail (see an explanation of the Irish legislative process here). The Bill has now passed the second stage and has been referred to the Select Committee on Justice, Equality and Women’s Rights. An archive of the customary liveblog (and very entertaining it is too) is here.

References were made throughout the debate to two Bills which preceded the present government’s efforts; the Norris Civil Partnership Bill of 2004 and the Labour Party’s ill-fated Civil Unions Bill of 2006 (notable for its provision for children’s rights and for adoption).

Some highlights of the debate (I am confining myself to comments which introduced new points or made old points in an important way. We have blogged the second stage already here and here )included:

A Threat to Marriage?

Beverley Flynn (FF) emphasised the special protection afforded to marriage under the Constitution. This was a theme taken up by Brian Hayes (and by many his FG colleagues) who, unusually (perhaps almost uniquely) for this debate, actually discussed and demonstrated some understanding of the applicable law: One of the myths that has been circulated is that the Bill will downgrade the position of marriage. I wish to refute that assertion because I do not believe marriage will be downgraded at all. The clear protection afforded to marriage under Article 40 of the Constitution is absolute. That protection can be changed only on foot of a referendum and it cannot be altered by an Act of Parliament. That was made abundantly clear in the remarks of Ms Justice Dunne in the High Court in the case taken by Dr. Zappone and Dr. Gilligan, in which they attempted to have recognised a marriage of their union in Canada in Irish domestic law. It is worth putting on the record what Ms Justice Dunne said in that case, which, I understand, is still under appeal in the Supreme Court. She said: I think one has to bear in mind all of the provisions of Article 41 and Article 42 in considering the definition of marriage. Read together, I find it very difficult to see how the definition of marriage could, having regard to the ordinary and natural meaning of the words used, relate to a same sex couple… The definition of marriage to date has always been understood as being opposite sex marriage. How then can it be argued that in the light of prevailing ideas and concepts that definition be changed to encompass same sex marriage? Having regard to the clear understanding of the meaning of marriage as set out in the numerous authorities opened to the Court from this jurisdiction and elsewhere, I do not see how marriage can be redefined by the Court to encompass same sex marriage… Marriage was understood under the 1937 Constitution to be confined to persons of the opposite sex. In no way will the passage of this Bill downgrade or undermine marriage because absolute and clear protection is given in Articles 40 and 41 to marriage as an act between persons of opposite sex. I am not saying that in the future that could not change. However, the only way it could change is if there is a referendum. It is the people who will decide whether that definition of marriage as expressed in Bunreacht na hÉireann can change. I reject the notion that in some way the Bill downgrades marriage because absolute and fundamental constitutional protection is given to marriage in Articles 40 and 41.

It is interesting to note that the Minister for Justice in his response referred to two ways in which the Bill bears the marks of the government’s desire to protect the institution of marriage. First, he discussed the balance to be struck between a past spouse and a current co-habitant: I do not believe that establishing the duration of cohabitation under the provisions in the Bill will be a particularly difficult matter, although there are certain necessary variations in a case where either of the cohabitants has been married to another person during the period of cohabitation. This is consistent with the Attorney General’s advice that we must ensure that in such cases the spouse, being a party to a marriage, must take priority over the potential claims of any other cohabitant. Second he distinguished between the relief available on marriage breakdown and that sought to be made available when cohabiting relationships end: The Bill’s redress scheme is not designed to redistribute the property or finances of a couple who split up; it is designed to mitigate hardship where a relationship ends leaving one former cohabitant financially vulnerable. The Government has no proposals to widen the provisions for cohabitants in a way that would serve to undermine the institution of marriage.

Read more…

Should the Civil Partnership Bill 2009 contain a ‘conscience clause’?

January 28, 2010 7 comments

In the continued second stage debate on the Civil Partnership Bill 2009 which took place in Dáil Éireann yesterday the matter of so-called ‘conscience clauses’ arose with a number of Deputies suggesting that the Bill ought to include such a clause to allow people whose ‘conscience’ indicated that homosexuality or civil partnerships were a moral wrong to refuse to engage in the creation of such civil partnerships. This proposal, which did not gain purchase in the Dáil to any great extent, brings a number of questions to my mind that I want to briefly address here. In the main the debate concentrated on the public servants and registrars, but previously noises were made about private service and goods providers as well (marvellously covered by Suzy Byrne here and here) so I will briefly address that matter below.

Should ‘conscience clauses’ exist within equality legislation?

The first question is one of principle. If a piece of legislation is introduced with the purpose of trying to create formal legal equality or in some way to reduce inequalities (and I think the Civil Partnership Bill can be firmly placed in that latter category) then ought such legislation contain any ‘get out’ clauses of this nature? One’s conscience, surely, is a private matter. Directing that registrars may not refuse to conduct a civil partnership ceremony on the basis of their own beliefs does not direct that those beliefs may no longer be held; it simply precludes someone from using those beliefs as a reason to refuse to carry out a state function. The registrar, as a private citizen, may hold and profess whatever moral positions s/he wishes but as a public servant s/he is required to carry out public functions. This separation of the private individual and the professional is a normal requirement of professional life; there seems to me to be no basis for changing that in the context of this Bill. If the Oireachtas has, through legislation, decided to take equalising/decreasing-inequality measures then it seems nonsensical for such a clause to be included as, through such clauses, agents of the state would be enabled to act in a manner squarely in contrast with the policy and legislative objectives of the State. At the very least this sends unwelcome mixed messages from the State to those affected. It also does nothing to minimise the likelihood that same-sex couples would come into contact with behaviours of the state that are perceived as being homophobic. It therefore has the capacity both to undermine the State’s objectives and to give rise to feelings of humiliation and grievance in gay and bisexual people’s interactions with the State.   Read more…

Civil Partnership Bill, 2nd Stage Debate (2): Rhetoric, Religion and the Republic

January 22, 2010 Leave a comment

Narratives of Progress: Who Stands by the Republic Now?

In his speech in yesterday’s Civil Partnership debate, Deputy James Reilly (FG) said:

 I know that some speakers do not feel it goes far enough, but it is useful to remind ourselves from whence we have come. It is well within living memory when homosexuality was a crime in this country. Before that, it was even considered to be an illness. Awareness and enlightenment has slowly come, but it has come nonetheless.

 Yesterday saw the Civil Partnership Bill claimed from both sides of the house as emblematic of Ireland’s move towards not merely progressive but secular politics. Labour’s Ciaran Lynch, for instance said that ‘this Bill is a milestone, as Ireland moves from a theocracy to a democracy’.  The Civil Partnership Bill, it seems, is the mirror in which we look when we no longer want to see the Ireland of the Ryan Report gazing back.

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Civil Partnership Bill, 2nd Stage Debate (1) – Practical Points

January 22, 2010 2 comments

Labour's Ruairi Quinn speaking yesterday in the Dail.

On Thursday, the second stage debate on the Civil Partnership Bill picked up where it left off on December 3rd. The Adoption Bill was debated (see our guest post from Brid Nic Suibhne here) on the same day. 

You can read the liveblog of the Civil Partnership Bill debate, including my contributions to it here. We blogged the beginning of the second stage here

For reasons of space, there will be 2 posts about yesterday’s debate. On will focus on some important arguments made about the operation  of the Bill. The second will flag up a line of rhetoric which developed in the course of the debate about the proper place of religion in the republic.

Read more…