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.

Symposium: Towards A Gender Recognition Framework for Ireland

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: ccjhr@ucc.ie

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

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.

The Female Genital Mutilation Act 2010?

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.

G and D: The Forced Marriage (Civil Protection) Act 2007 in Northern Ireland

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) [2010] 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 [42]-[57]] 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 [31]-[41]] 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].

StandUp: LGBT Awareness Week

This week is LGBT Awareness Week, during which–among other things–BelongTo, a fantastic organisation for LGBT youth, are running their StandUp campaign. According to their website, the campaign “is aimed at creating positive understanding of lesbian, gay, bisexual and transgender young people and their issues”.

Awareness of the needs of younger LGBT people in our schools, universities, sports clubs and society in general is vital to ensuring full flourishing. Being young and being gay, bisexual, trans or intersex is not a whole lot of fun for many people, particularly before they go to university and discover lots of other people “like” them. If you work somewhere with younger people, why not print out one of the posters or logos and put it in your office space or on your door. Show the young people in your environment that you support them and their friends and colleagues who are not LGBT that they should support them too. Even if there are not many younger people in your work place, put the poster up. The likelihood is that one of your colleagues or friends has an LGBT child, relative or friend. Supporting their children supports them. If you are a parent, this might be an opportune time to ask the principle or teachers in your child’s school about their policies on homophobic bullying and diversity within the school and express your support for ensuring a safe educational space for all young people.

Stand Up and support your LGBT friends and colleagues.

We Want to See Your Face: The Burqa in France, Belgium and Quebec

Poster for Montreal film-maker Natasha Ivisic's documentary 'I wear the Veil'

 

On International Women’s Day, the EU Commissioner for Human Rights, Thomas Hammarberg released a viewpoint which argued against restrictions on women’s religious dress. He stated that: 

Those who have argued for a general ban of the burqa and the niqab have not managed to show that these garments in any way undermine democracy, public safety, order or morals. The fact that a very small number of women wear such clothing has made proposals in such a direction even less convincing.  Nor has it been possible to prove that these women in general are victims of more gender repression than others. Those who have been interviewed in the media have presented a diversity of religious, political and personal arguments for their decision to dress themselves as they do. There may of course be cases where they are under undue pressure – but it is not shown that a ban would be welcomed by these women. 

Hammarberg seems to be in something of an unfashionable minority.In the past fortnight, three significant stories have broken about the regulation, in France, Belgium and Quebec, of the niqab and burqa worn by some Muslim women.  

Conseil d’État rejects proposed prohibition of burqa, niqab

The French Conseil d’État, in its capacity as advisory body rather than as administrative court of final appeal, yesterday issued a lengthy report, on the request of the Prime Minister, on the “legal possibilities surrounding the prohibition of the full veil.” This follows controversy and debate in France in recent months surrounding the wearing of the burqa in particular, the publication of the Gerin parliamentary report in January, and the report today that Belgium appears likely to become the first European state to legislate on this issue. In a measured, comprehensive and nuanced report, the Conseil concluded, somewhat predictably, that an outright prohibition on the wearing of the full Islamic veil would like contravene a number of provisions of the French Constitution as well as the European Convention on Human Rights (the report is published online here and the very useful summary here; it is unlikely, however, that either will receive an official translation into English).

Combating Hate Crimes Perpetrated Against LGBT Persons and Persons with Disabilities

The Commencement Order for the Offences (Aggravation by Prejudice) (Scotland) Act 2009 was issued last week bringing the Act into force.  The legislation creates new statutory offences that protect victims who are attacked on the basis of their disability, sexual orientation or transgender identity in Scotland.   Specifically section 1 of the Act makes provision for offences aggravated by prejudice relating to disability (or presumed disability).  Section 2 of the Act makes provision for offences aggravated by prejudice relating to sexual orientation (or presumed sexual orientation) or transgender (or presumed transgender) identity.  Under the Act where it is proven that an offence was motivated by malice or ill will towards a victim on the basis of their identity the court is required to take that motivation into consideration when determining the sentence to be imposed.   This legislation builds upon Scottish law on hate crimes carried out on the basis of race and religion or belief under the Crime and Disorder Act 1998 and the Criminal Justice (Scotland) Act 2003.  Similar legislation is in force in England and Wales.

Symphysiotomy in the Courts: Kearney v. McQuillan

On Friday the Supreme Court cleared the way for Louth woman Olivia Kearney to bring an action in respect of the symphysiotomy which was performed on her in Our Lady of Lourdes Hospital Drogheda in 1969, when she was 18.  The judgment is here. We blogged about the question of symphysiotomy in February. The Minister for Health has since commissioned a report into the practice from the Institute of Obstetricians and Gynaecologists. Although symphysiotomy is often argued to be justified where it would be dangerous for a woman to attempt to deliver her baby without it, Ms. Kearney was – for reasons which are not clear – subjected to the operation after the birth. Her argument is that ‘there was no justification whatever, in any circumstances, for the performance of symphysiotomy on the plaintiff at the time it was performed and following delivery by caesarean section’. The hospital, as Hardiman J. noted, will be able to ‘defend the case by establishing in credible evidence some realistic reason for the procedure in the circumstances actually prevailing in relation to the plaintiff in 1969’.