Fathers and the Law seminar at DCU postponed due to volcanic ash aviation disruption

Unfortunately, the seminar on “Fatherhood, Law and Personal Life: Rethinking Debates about Fathers and Law” which was to be delivered by Professor Richard Collier at Dublin City University on this Wednesday April 21st has had to be postponed due to the current disruption in aviation caused by the cloud of volcanic ash. It will be re-arranged in the Autumn – details to follow.

Reminder: Fathers and the Law Seminar at DCU

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

This is a reminder that 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 at 6.30pm on Wednesday April 21st, 2010 in the Mella Carroll Lecture Theatre, Nursing Building, DCU.

The lecture, entitled “Fatherhood, Law and Personal Life: Rethinking Debates about Fathers and Law” will be delivered by Professor Richard Collier from Newcastle Law School and will be chaired by the Honorable Mrs. Justice Catherine McGuinness, President of the Law Reform Commission.

Further information is available here.

To RSVP for this event please email martina.reddy@dcu.ie

Ryan on Family Law and the Children’s Rights Amendment

You can learn more about Fergus Ryan on our guest contributors page.

Waiting for family law reform is a bit like waiting for a bus. You linger forlornly for what seems likes an eternity, stoically weathering the elements. Then, just as you are about to give up, along comes a bus — and two more buses directly behind it.

In the past year, the Republic of Ireland has seen three major proposals for family law reform. The Civil Partnership Bill 2009, which is currently before the Dáil, promises a substantial new civil status for registered same-sex couples, with additional protective measures for cohabiting couples, same-sex and opposite-sex. The Law Reform Commission consultation paper, The Legal Aspects of Family Relationships, provisionally recommends some long overdue reforms to the law as it relates to guardianship, custody and access.

There is much to be welcomed also in the proposed constitutional amendment on children. For one, the proposed new Article 42 will apply to all children, and not just those born within marriage. The proposed amendment contains, in particular, a ground-breaking assertion that “[t]he State shall cherish all the children of the State equally.” This will banish, one hopes, the spectre of O’B v S, [1984] IR 316, a Supreme Court decision that affirmed the constitutional validity of measures that discriminate against non-marital children. The Court concluded that the constitutional preference for marriage trumped the child’s right to equality. This constitutional amendment would arguably reverse that stance.

Civil Partnership Bill Second Stage This Evening

The second stage debate on the Civil Partnership Bill takes place this evening starting from 6.45 pm. We have already blogged about the bill here, here and here. Maman Poulet has been providing excellent coverage of the politics around the Bill here. Of particular interest is discussion of the addition of a so-called ‘religious freedom optout‘ to the bill. Padraig has blogged on that issue here. Maman Poulet carries details of a liveblog of the debate, which is hosted here and will kick off at around 6.30 pm. You can join in on twitter, where the hashtag is #cpbill. And, as Suzy says ‘if you just want to watch the debate without the wit, banter and outrage of the viewing masses then you can watch it here.‘

Guest Contribution: Hayward on Cohabitation in England Wales-Learning from Ireland?

We are delighted to feature this guest contribution from Andrew Hayward of Durham University Law School. You can find out more about Andrew on the Guest Contributors page. Unfortunately we do not have a photograph of Andrew but he has supplied us with the photograph on the left of an unhappy–presumably cohabiting–couple.

For family lawyers in England and Wales, cohabitation has long been the hot topic for debate. Various reform proposals have been produced here that, if implemented, could have provided some amelioration to the current legal provision offered to cohabitants on relationship breakdown. Optimists were hoping that the proposals in the Law Commission’s Report Cohabitation: Financial Consequences of Relationship Breakdown in 2007 would have been introduced to remedy the current unsatisfactory position by providing qualifying cohabitants an array of remedies on the breakdown of their relationship. No draft bill was inserted and due to the politically contentious nature of the provisions it was unsurprising that the Government chose to await findings from a similar scheme in Scotland by way of the Family Law (Scotland) Act 2006 (see the ministerial statement here). Since then two Private Members bills have been introduced, both with unlikely chances of success. So after reading the thought provoking posts from Fiona and Mairead on the cohabitation aspects of the Irish Civil Partnership Bill 2009, it appears that, yet again, England and Wales will be lagging behind.

Civil Partnership Bill – The Cohabitation Provisions

As a supplement to Fiona’s timely post on the Civil Partnership Bill 2009 and its implications for same-sex couples, I wanted to expand on the Bill’s undernourished second child; its cohabitation provisions. These are of relevance both to same-sex and opposite-sex couples.  The most important element of the  Bill is Part 15;  a hybrid redress-contract ancillary relief regime which will apply to the breakdown of relationships between ‘qualified cohabitants’ (those who have been living together for 3 years; 2 where they have a child together).  The legislation takes its cue, by and large, from the Law Reform Commission’s Report The  Rights and Duties of Cohabitees. The contract element concerns the proposed statutory recognition of property agreements between cohabitants. The cohabitation agreement provisions represent an important move towards recognition of ‘private ordering’ in Irish family law. Cohabitation agreements will be enforceable subject to certain limited formalities.  The court may set aside a provision in an agreement only in exceptional circumstances where its enforceability would cause serious injustice. There is, as yet, no comparable provision for a married couple to order their financial and property affairs before or in the course of marriage: The Report of the Study Group on Pre-nuptial Agreements is instructive here. It would be very interesting to see how the courts – which have by and large jealously guarded their wide powers to redistribute assets and income upon divorce or judicial separation  – would respond to cohabitation agreements.  However, the primary aim of the cohabitants’ scheme is to recognise the financial interdependence of partners in a non-marital couple by empowering a court, in the exercise of its discretion, to make any of a range of  orders to provide for a financially vulnerable ex-partner when a relationship ends.  This is the redress element.

The human rights implications are set out in the IHRC’s excellent 2006 Report; The Rights of De Facto Couples and many were also raised in the All Party Oireachtas Committee on the Constitution Hearings on Family Issues in 2005. In short, this legislation represents a significant expansion of the boundaries of  ‘legitimate family forms’ at Irish law beyond that founded on marriage and brings  our law much closer to the hospitable vision of respect for private and family life embodied in the ECtHR Article 8 jurisprudence.  Of course, it falls far short of the constitutional reform – recommended by the IHRC – which would place unmarried couples on firmer ground at the basic level of Irish law. Insofar as it represents a move towards recognition of the non-marital family, the Bill has attracted criticism from the Catholic Church, which sees it as establishing parity between unmarried and married  heterosexual couples.

Tobin on Same-Sex Couples and the Law in UK & Ireland

Brian Tobin, of Trinity College Dublin, has just published “Same-sex Couples and the Law: Recent Developments in the British Isles” in the International Journal of Law, Policy and the Family. Here’s the abstract:

This article chronicles the treatment of same-sex couples in England and the Republic of Ireland in recent years in order to ascertain (i) the impact that incorporation of the European Convention into the domestic law of each State has had on the rights of same-sex couples, (ii) what the introduction of civil partnership legislation might mean for the future of the same-sex marriage debate, (iii) the position of prospective same-sex adoptive parents in each jurisdiction, and (iv) what the law is proposing for those couples who do not formalise their relationship, whether same-sex or opposite-sex. Through a comparative analysis of the many recent developments that have taken place in each jurisdiction, the article concludes (i) that when interpreted correctly by the national courts the European Convention has been of little benefit to same-sex couples since its incorporation, (ii) that civil partnership may sound the death knell for same-sex marriage, (iii) that the Irish stance on adoption by same-sex couples may be illogical in light of a recent decision handed down in Strasbourg, and (iv) that significant progress has been made as regards those opposite-sex and same-sex couples who do not marry or register their partnership, with a redress scheme for such couples at the legislative stage in the Republic of Ireland.

Still Missing the Point on Children’s Rights and the Non-Marital Family

The Irish Times reports on a recent conference at the Law Society at which serious criticism was directed at the provisions of the Civil Partnership Bill 2009.  In particular, speakers noted that the Bill was problematic from the perspective of children’s rights. Geoffrey Shannon argued that:

Children had been airbrushed out of the proposed legislation… Although a person could acquire rights as a cohabitee after two years by having a child, no further provision for the child was made in the legislation.

Muriel Walls also criticised the marginal position afforded to children in the Bill

Giving as an example a lesbian couple where one of them had a child from a brief previous relationship and where most of the care duties were performed by the other partner because of the mother’s work commitments, she pointed out that if the relationship broke up this woman would have no right to seek any contact with the child.

If the roles were reversed and the earning partner was not the biological parent, the child would have no right to maintenance under the Bill.

However, they would have some relief under the 1964 Guardianship of Infants Act, she pointed out, as it allowed for any person who had acted in loco parentis to a child to apply to the court for an order giving access to the child. The court had first to give leave for the making of such an application, so the process was cumbersome.

New from the LRC: On the Legal Aspects of Family Relationships

Following on from Aoife’s recent post about the state of children’s rights in Ireland, I wanted to draw readers’ attention to the Law Reform Commission‘s recent Consultation Paper on the Legal Aspects of Family Relationships. The principal researcher on the paper was Claire Murray, who is – amongst other things – a PhD candidate at the Centre for Criminal Justice and Human Rights at UCC and a future star of Irish feminist legal theory.

By ‘family relationships’ the paper means the relationships between children and adults. Its particular focus is on the rights of the child’s extended family and the rights of unmarried fathers. It proposes important reforms in an area of law where antiquated notions of guardianship, custody and access presently hold sway. The Irish Times reported on the paper here and a summary of the key proposals is here.  My aim here is to note one of the more important themes in the paper’s approach (in very broad brush-strokes). Perhaps substantive discussion on the technical elements of the proposals will ensue in the comments. And for those of you with strong views on the matter, the Commission invites your submissions on its proposals.