Child Protection: Motion (25th June 2014)

Posted on June 25, 2014

Child Protection: Motion (Transcript)

Senator Ivana Bacik:  I move:

    That Seanad Éireann:
      - notes the need to ensure adequate protection of children and of children’s rights in our laws, and in particular to ensure that children are not coerced or forced into 'arranged' marriages; - notes that sections 31 and 33 of the Family Law Act 1995 allow exemptions from the normal rule that parties to a legal marriage must be over 18; and that the possibility of seeking this exemption by way of court order was retained in section 2(2) of the Civil Registration Act 2004; - notes further that this exemption was criticised by the High Court in a judgment in June 2013 in a case concerning an 'arranged' marriage; and - proposes that the Government would consider whether to remove or amend the statutory provision allowing minors to marry on the basis of a court exemption.

I welcome the Minister of State, Deputy Fergus O’Dowd, to the House in place of the Minister for Justice and Equality, Deputy Frances Fitzgerald. I thank her, as well as the Minister for Social Protection, for indicating the Government will accept this Labour Party motion. I am also delighted Senator van Turnhout will second it as it is a genuine cross-House effort between Labour and the Independents. This motion addresses an issue which has not been of enormous public concern to date in Ireland but has become an increasingly serious issue in other countries. I am grateful to the Labour Women group, and Mary Flynn in particular, for bringing this issue to my attention some months ago on foot of a motion that Labour Women put to a Labour Party conference some years ago. This motion concerns the legal minimum age at which persons may get married and the different, but overlapping, practice of child marriage and forced marriage. Child marriage is where one or both parties to a marriage are legally a child, namely under 18 years of age. A forced marriage is a marriage in which one or both parties are married against their consent or free will. This can occur where one or both parties are over 18 years of age. Clearly, it is much more likely that a person's will could be overborne when they are not regarded as an adult in law. This is where we do have an overlap. A child is much more susceptible to influence and has fewer legal rights to assert. For these reasons, international conventions acknowledge the need both to ensure protection against forced marriage and protection of children within any law of marriage. The right to marry in the UN Universal Declaration of Human Rights in Article 16 is reserved to men and women in full age. Article 16(2) states: "Marriage shall be entered into only with the free and full consent."

 

The 1962 UN Convention on Consent to Marriage, Minimum Age for Marriage provides, in Article 2, that State parties:

    shall take legislative action to specify a minimum age for marriage. No marriage shall be legally entered into by any person under this age, except where a competent authority has granted a dispensation as to age, for serious reasons, in the interest of the intending spouses.

The CEDAW, Convention on the Elimination of All Forms of Discrimination against Women, prohibits child marriage in Article 16.2. In addition, a UNFPA report says that since 1994 more than 158 countries have passed legislation raising the minimum age of marriage to the age of adulthood, that is 18 years, albeit that many do allow exemptions on court application. Therefore, we have near universal commitment to tackle both the practice of forces marriage and to end child marriage. Nonetheless we see very high levels of under age marriage - of child marriage - particularly in developing countries. The issue has also been highlighted in many developed countries. Senator van Turnhout will speak more on the international context, particularly on the child protection context internationally.

However, I want to mention certain recent legal developments in Britain before I turn to examine Irish law in more detail. In Britain the prevalence of forced marriages and public concern about same has become a real issue. In 2013, the UK Government's forced marriage unit dealt with 1,302 cases in which 82% of victims were female, 15% were under the age of 15 years and the cases involved communities from 74 different countries. In response to the problem two recent legislative changes in Britain have been made. First, the Forced Marriage (Civil Protection) Act 2007 allowed the courts to issue forced marriage protection orders in order to protect individuals who were being coerced into marriage. Second, we had the passage of the Anti-social Behaviour, Crime and Policing Act 2014. Among its provisions is one which makes it a crime, in England and Wales, to force someone to marry with a maximum penalty of five years imprisonment. A very well known charity called Freedom Charity, set up by Aneeta Prem to educate young people in Britain about forced marriage, has pushed for the legislation and been very approving of this law. In Ireland there has been no real public debate on the issue of either child marriage or forced marriage. To my knowledge, this is the first debate on the issue in either House of the Oireachtas and I am delighted that the Seanad had led on this matter. Senator van Turnhout raised the matter previously in a debate here and I have previously raised it with the Minister but I think this is the first full debate on the matter. We have not passed any specific law concerning forced marriages and we still allow marriage to take place where one or both parties are under 18 years, on a court application for an exemption. There is no provision in Irish law for any sort of child protection order to be made, or indeed any contact with child welfare agencies, where such an application for an exemption is made. Of course we do have laws prohibiting coercion, at common law, and a marriage can be annulled if one or both parties have been forced or coerced. The relevant legislation to which the motion refers is the Family Law Act 1995 and the Civil Registration Act 2004. Section 31 of the Family Law Act 1995 provides that the minimum legal age at which people can get married in Ireland is 18 years. However, section 33 allows an application to be made to the court for an exemption from this rule where one or both are aged under 18. Section 2(2) of the Civil Registration Act 2004 has maintained the facility in section 33 to apply for the exemption. Therefore, a relatively recent law still maintains this facility. Senator van Turnhout and the Labour Party group are concerned that keeping the exemption in place may facilitate the practice of forced marriages. It may lead to young girls, in particular, but also boys being coerced into entering marriages. We put forward the motion in the context of a desire to protect the welfare of children and to ensure, in particular, that women and girls are protected. Thus we argue that the State should consider whether to remove or amend the statutory provision thereby ensuring robust enforcement and adherence to the minimum marriage age of 18. Our concern is that the exemption facility, provided in section 33, offers no protection to minors. Let us look at the practicality aspect.

Applications for exemptions are made to the Circuit Court in private, there is no public record of them, and there are no guidelines on the criteria for granting the exemption. In addition, there is no provision for the minors to be legally represented at the hearing or for the HSE and child protection authorities to be notified. The Oireachtas Library & Research Service has produced a very helpful note which tells us that in 2012, according to CSO data, there were 28 marriages registered in Ireland where either the groom, bride or both were under 18 years. In 21 of the marriages registered the bride was 16 or 17 years and the groom was 18 yeas or over. The Minister of State's note told us that between 2004 and 2013 almost 400 parties to a marriage were under the age of 19. Clearly, this is an issue in Ireland because section 33 is being used. One of the unknowns when we commenced the investigation was whether this was an issue but clearly it is. We do not know the circumstances of the 28 cases but we do know that children are getting married in accordance with the exemption in Ireland. We know very little more about the matter. We have a High Court judgment which unfortunately is unpublished but was reported on by RTE on 18 June 2013. It referred to the fact that Mr. Justice MacMenamin, in the High Court, was dealing with an application for what he described as an arranged marriage. He annulled the marriage which had been contracted between a 16-year old girl and a 29-year old man. He said, as reported by RTE, that in certain circumstances the provision for marriage exemptions may give rise to significant child welfare issues. He commented that legislation may be needed to assist young people who are placed in arranged or forced marriages, and that the system for seeking exemptions from the legal age limit for marriage requires review, as it raises child welfare questions in certain cases. In particular, he said that a question arose as to whether the Circuit Court, when asked to hear an application under section 33 - and we know that there were 28 such applications in 2012, or there must have been, giving rise to thee 28 marriages - at the very least should be obliged to give notice to the HSE to inquire into the protection and welfare circumstances of the child in respect of whom an exemption from the marriage age is being sought. I must say that in the particular case at issue there were very serious child protection concerns and the child concerned had been, I think, in care. The judge also commented that the State agencies had behaved appropriately at all times. However, he was critical - indirectly I suppose - of the Legislature for failing to ensure that there were protection measures put in place where applications of this sort are made. It is in light of that case, and the concerns that have been raised with me by Labour Party women, and with Senator van Turnhout on the chid protection side, that we wanted to bring this issue to the fore. We seek to pre-empt any abuse of the rights of children that may occur in Ireland in the future and we have seen occur in our neighbouring jurisdiction, and certainly in other developed and developing countries worldwide. Clearly, this is a difficult area because even if we amend or abolish the facility to apply for an exemption, found in section 33 of the 1995 Act, we still have an issue to deal with, the problem of coerced or forced marriage for those who are over 18 years. We should then consider legislating to ensure that it is a crime to force anyone, even someone over 18, into marriage. In other words, we should follow the British model. I anticipate that the Minister will establish an interdepartmental group, on foot of this motion, to consider the issue. The group will need to consider age limits generally. That may seem somewhat inconsistent when the Constitutional Convention has recommended lowering the voting age to 16 and recently the Oireachtas committee on education and social protection recommended an age limit of 16 for young people who wish to register a change of gender. I think it is entirely consistent with child protection to say that we can consider lowering the voting age, and we can consider allowing people to register a change of gender at a slightly younger age. Under the Non-Fatal Offences Against the Person Act 1997, a child, at 16 years, can consent to medical treatment. That is entirely consistent because those are decisions that affect that child. They are decisions we can allow a child to make and recognise his or her own autonomy. However, marriage is different because it is a legal contract between two parties. Therefore, it involves particular issues and concerns around coercion which do not arise when a minor makes a decision, for example, on how to vote. I think it is appropriate, in the context of concerns about forced marriage worldwide, and in the context of the international conventions that I referred to and internationally in general, that we would look to keep a line under the legal minimum for marriage at 18. Many years ago in Ireland it was the norm for people to get married much younger. Now the average age for marriage has moved well above the legal minimum of 18. We seek to preserve and protect childhood.

I know that many people have fought very hard to ensure that 18 would be the age up to which young people would receive protections, for example, within the criminal justice system and so on. Therefore, it is appropriate that we would regard 18 as the legal minimum age at which a person may enter a legal contract of marriage.

 

Posted in: ChildrenEqualityEurope/InternationalHuman RightsJusticeSocial PolicyWomen's Rights