“Romeo and Juliet”: Gender discrimination law challenge rejected

The High Court has today rejected a challenge to the Criminal Law (Sexual Offences) Act, 2006 which was based on a claim of gender discrimination. The case involved a young man, now aged 18, who had sexual intercourse with a girl of 14 when he himself was 15.

The legislation in question provides for the offences of “defilement of a child under 15 years of age” (s. 2) and “defilement of a child under 17 years of age” (s. 3). Under both of these provisions it is an offence to engage in a sexual act with a child under the relevant age. However, s. 5 of the 2006 Act states that

A female child under the age of 17 years shall not be guilty of an offence under this Act by reason only of her engaging in an act of sexual intercourse.

The claim before  the High Court was that the 2006 Act involved old-fashioned gender discrimination, which had no legitimate justification.

Children and the Criminal Justice System

The return of Jon Venables, one of the men (then boys) convicted of the murder of Jamie Bulger has sparked a fresh debate on how we respond to children who commit crimes and what we expect the criminal justice system to achieve in such cases.

Today the Ministry of Justice in the UK has announced that it has rejected calls to raise the age of criminal responsibility from ten to twelve. Scotland is in the process of amending its legislation to raise the age of responsibility from eight to twelve. Ireland made similar moves in 2001 under the Childrens Act, however in serious cases (murder, manslaughter, rape or aggravated assault) ten or eleven year olds can be prosecuted.

Recent Stories in Children’s Rights

We are still awaiting a draft version of the proposed children’s rights amendment to the Constitution. Aoife blogged about the proposal here. The government serves children very badly, as the Children’s Rights Alliance reminded us last week.  In the fortnight since the announcement was made that the draft constitutional amendment was on the brink of publication  a number of important stories touching on children’s rights in Ireland have broken.

• Fine Gael provides a very good summary of the outstanding issues in the child protection system here .
• The Examiner reports on the serious consequences for children with learning difficulties of the budget-driven withdrawal of support teachers here.
• Last year was the worst year since 2006 for migrant children disappearing from State care. Fine Gael’s response is here and you can read the Irish Times report on the same issue here . The HSE on Monday said that  ‘it has been unsubstantiated that any of the children who go missing from HSE care have been trafficked’. However, the Children’s Rights Alliance provides this statement in which it convincingly argues that  ‘it is a matter of public record that children, who have disappeared from HSE care, have subsequently been ‘found’ in situations where they were being exploited by traffickers. ‘

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

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.

Reform of the One Parent Family Allowance?

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.

Guest Post: Nic Suibhne on the Adoption Bill 2009

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.

Special Edition of Irish Educational Studies

The newest edition of Irish Educational Studies is entitled ‘Education and the Law: Modern Challenges’ and contains a number of interesting articles including:

• Religious freedom as a function of power relations: dubious claims on pluralism in the denominational schools debate – Eoin Daly
• Schools and the law: a patron’s introspection Paul Colton
• Religious education and the law in Northern Ireland’s Controlled Schools David Armstrong
• State liability for abuse in primary schools: systemic failure and O’Keeffe v. Hickey Conor O’Mahony
• In the eye of a divorce storm: examining the modern challenge for Irish schools educating children of divorced and separated families– Clare Daly

New IPRT Report Launched Today

Dr. Ursula Kilkelly of University College Cork , who currently serves as chair of the Irish Penal Reform Trust has an informative article on the detention of children in today’s Irish Examiner. The article promotes a new report, which will be launched today by the Irish Penal Reform Trust. The report is titled Detention of Children in Ireland: International Standards and Best Practice. We have already posted on the report here.

The full text of this comprehensive and informative report is now available here. It is especially noteworthy for its foreword by the Ombudsman for Children, Emily Logan, reported here.

Guest Post: Kieran Walsh on Murphy and Interagency Co-operation

We are delighted to welcome this guest post on the Murphy Commission Report from Kieran Walsh of UCC and Griffith College Cork. You can learn some more about Kieran on our Guest Contributors page

One of the major issues highlighted in the Murphy Commission’s report is the lack of inter-agency cooperation on child protection issues. Any allegation of abuse requires that a massive infrastructure springs to life to ensure that the complaint is handled appropriately. This is true at the investigative stage as well as the stage of ensuring the rights of the victim to appropriate aftercare. As a result, the various agencies involved – the Gardaí, the HSE and depending on the circumstances, the organisation of which the perpetrator was a member – need to follow clear and unambiguous guidelines outlining the various steps which should be taken. The Murphy Report highlights the lack of coordination within the Catholic Church as well as the lack of coordination, stemming in part from governmental inaction on child protection.

The church issued a set of instructions on the matter of child sex abuse in 1922 entitled Crimen Solicitationis. A new version was issued in 1962. The Report makes clear that these were, as official church documents, written in Latin but there was never an official English translation. Quite apart from the linguistic difficulties, evidence was given by Cardinal Connell that he was not aware of the 1922 document when he became Archbishop, that the 1962 version may never have reached the Archdiocese and that its existence was unknown until the late 1990’s, and that he had never met anyone who had ever even seen it. That the document which was supposed to set out the procedure for dealing with sex abuse complaints was unknown to the Irish church hierarchy is a surprise, that such ignorance helped to engender a culture of indifference is not. It was only in 2001 that the Vatican issued a more widely available set of instructions, Sacramentorum Sanctitatis Tutela.

Media Mashup: Report by the Commission of Investigation into the Archdiocese of Dublin

Friday update: More excellent indepth coverage from the Irish Times here, here and here. It also runs an interesting story on the ‘good value’ insurance policy that the Dublin Archdiocese took out to protect itself against child sex abuse litigation, queries government delays in updating child protection law and highlights the role of canon law in this debacle.

PrimeTime’s special on the report is here.

—–

The Report of the Murphy Commission is now online here at the website of the Department of Justice, Equality and Law Reform. The Irish Times explains the background to the report here and here. The Times has the main findings of the report in respect of Dublin’s Archbishops from John Charles McQuaid to Desmond Connell here. The response of advocacy groups is reported by RTE here and here and by the BBC here. One in Four has called for a criminal investigation into all those who “colluded and conspired to protect the Catholic Church” from sex-abuse allegations in the Dublin Archdiocese. Amnesty and Barnardos have urged the Taoiseach to respond with a referendum on children’s constitutional rights. The Archbishop of Dublin’s response to the report is here.

Speaking after the publication of the report, the Minister for Justice, Equality and Law Reform said:

‘The persons who committed these dreadful crimes – no matter when they happened – will continue to be pursued. ‘They must come to know that there is no hiding place. That justice – even where it may have been delayed – will not be denied.’

Minister for Children, Barry Andrews followed Ahern’s speech with this statement on Ireland’s child protection regime.

The government has also released a statement in response to the report,which concludes:

It is a fundamental feature of our democracy that no Government can seek to prescribe how Churches are run. But Government can and must ensure that all institutions are subject to the laws of the State. Central to those laws must be the protection of children. It may be cold comfort to the victims of abuse in the past, but as a Government we pledge, on behalf of the Irish people, that we will do whatever is necessary to make sure that the dark days of sexual abuse of children, compounded by cover up and complicity, are over for good.

Patsy McGarry, reporting in the Irish Times writes:

The Commission of Investigation into Dublin’s Catholic Archdiocese has concluded that there is “no doubt” that clerical child sexual abuse was covered up by the archdiocese and other Church authorities….In its report, published this afternoon, it has also found that “the structures and rules of the Catholic Church facilitated that cover-up.” It also found that “the State authorities facilitated the cover-up by not fulfilling their responsibilities to ensure that the law was applied equally to all and allowing the Church institutions to be beyond the reach of the normal law enforcement processes.” Over the period within its remit “the welfare of children, which should have been the first priority, was not even a factor to be considered in the early stages,” it said. “Instead the focus was on the avoidance of scandal and the preservation of the good name, status and assets of the institution and of what the institution regarded as its most important members – the priests,” it said. In making its main findings, the report it concluded that “it is the responsibility of the State to ensure that no similar institutional immunity is ever allowed to occur again. This can be ensured only if all institutions are open to scrutiny and not accorded an exempted status by any organs of the State.”