Book Launch: International Human Rights: Perspectives from Ireland, 8 December 2015

EganOn December 8th 2015,  UCD School of Law will host the launch of Suzanne Egan’s new edited collection International Human Rights: Perspectives from Ireland. The book will be launched by the Chief Commissioner of the Irish Human Rights and Equality Commission (IHREC), Emily Logan.

Location: Gardiner Atrium, UCD School of Law

Time/Date: 6.30pm on 8th December 2015. 


International Human Rights: Perspectives from Ireland examines Ireland’s engagement with, and influence of, the international human rights regime. International human rights norms are increasingly being taken into account by legislators, courts and public bodies in taking decisions and implementing actions that impact on human rights. Featuring chapters by leading Irish and international academic experts, practitioners and advocates, the book combines theoretical as well as practical analysis and integrates perspectives from a broad range of actors in the human rights field. You can access the full table of contents for this book here.  Egan’s collection explores:

  • The philosophical development and challenges to/of human rights;
  • The international human rights framework (UN human rights council; UN Treaty system; EU and ECHR);
  • Implementing human rights in Ireland (Magdalenes, socio-economic rights, rights of the child; human trafficking; religion; privacy; refugee definition; criminal justice, policing and conflict).
  • Implementing human rights abroad (Irish foreign policy and obligations of Irish organisations).

Bloomsbury are offering all registered students (full and part time) a 40% discount on the book, with the discount code: IHR40%. You should enter this code at checkout

Legal Gender Recognition in Ireland

On 15 July, 2015, Ireland became the final European Union Member State to enact legal gender recognition. As has been noted on this blog many times (e.g. here, here and here), under current Irish law, persons living in this jurisdiction do not have any mechanism – statutory, administrative or judicial – for amending their birth certificate and obtaining state acknowledgment of their preferred gender. More than 20 years after Dr Lydia Foy first requested recognition, 13 years after the European Court of Human Rights declared that recognition was a Convention Right and eight years after the Irish High Court found the State in violation of its international obligations, the Irish Parliament has finally created a legal structure which will acknowledge the existence and dignity of trans persons.

The Gender Recognition Act 2015 has travelled a long way to reach its current format and structure (and, as discussed below, there is still significant progress to be made). When the Gender Recognition Advisory Group – a consultative panel established to advise the Government on legislating for recognition – announced its recommendations, the proposed legislation still retained references to surgical interventions, lived-experience, “gender identity disorder” and gender panels. Delivered in 2011, by an advisory body with no trans members, the “GRAG” report appeared at a time when advocates were increasingly applying human rights standards to legal gender recognition. Its highly medicalised recommendations were not only out of step with international best practice, but also failed to engage, in any meaningful way, with the lived-experience of Ireland’s trans community. Amendments, additions and omissions have characterised the legislative process in the intervening years. Surgery and diagnosis were removed, but medical supervision – in the form of a controversial “physicians statement requirement” – remained frustratingly present until earlier this year. The particular situations of married couples and young people have been a source of intense debate. To differing extents, these issues remain unresolved, as do concerns relating to non-binary recognition, intersex persons, gender-specific crimes and the status of trans parents.

Due credit in passing the Gender Recognition Act 2015 must be offered to the two Government ministers, Tanaiste Joan Burton and Kevin Humphreys, who have had responsibility for legal gender recognition since assuming office. In the space of four years, they have achieved what successive Irish Governments failed to do: acknowledge that Ireland’s trans community exists. Both ministers have also come a long way in their own personal understandings of trans issues, and received a warm welcome at Trans Pride in Dublin earlier in the summer. However, the Gender Recognition Act 2015 is, in truth, a testament to the incredible work of Ireland’s vibrant, engaged trans community and their allies (TDs, political groupings, NGO-based groups, and members of the public). Committed, dedicated and strategic advocacy over the past four years has managed to transform GRAG’s recommendations into the progressive legislation enacted on 15 July. While often subject to lurid, highly offensive commentary, the Irish trans community has retained a focused, dignified drive in working to achieve recognition of its membership. This drive has been epitomised by the legal fights waged by Dr Foy. Her courage and resilience has inspired advocates for reform, and rightly won her the European Citizen’s Prize 2015.

As noted, from a comparative prospective, the Gender Recognition Act 2015 is highly progressive. Transgender Equality Network Ireland (TENI) observes that Ireland is only the fourth country in the world (after Argentina, Denmark and Malta) to pass legislation which allows trans persons to obtain recognition on the basis of “self-determination.” Once the new legislation comes into force, trans people will be able to apply for legal recognition based solely on their “settled and solemn intention of living in the preferred gender for the rest” of their lives. Instead of having to show that they have undergone surgery, sterilisation, have a diagnosis or are supported by doctors, applicants for recognition need only confirm that they understand “the consequences of the application” and are seeking state acknowledgement of their own “free will.”

The movement away from the physician’s statement model – announced by the Government after the marriage equality referendum – is extremely important both in practical and symbolic terms. From a practical point of view, it means that trans people, in order to obtain recognition, do not have to rely upon the notoriously difficult healthcare pathways in Ireland. Anecdotal evidence regarding access to gender confirmation treatments in Ireland means that, with a requirement to obtain support from a “primary medical practitioner”, applicants for recognition would likely have faced a waiting period of months, possibly years. In addition, as recognised in numerous EU-wide reports, a significant section of the trans community cannot access even basic healthcare services. Thus, medicalising legal gender recognition – even through medical supervision clauses – would have had the effect of removing enjoyment of recognition from a significant proportion of Ireland’s trans population. However, perhaps more fundamental, a self-determination model respects the autonomy and dignity of applicants for recognition. It acknowledges that trans persons should be the arbiters of their own identity. Living and experiencing their gender, applicants for recognition are best placed to identify their true self. They should not be subject to arbitrary or discriminatory medical assessments.

The scheme (not the current text) of the Gender Recognition Act 2015 is notable for its removal of forced divorce. Under the initial, pre-referendum proposals, trans persons were required to be single or divorced in order to obtain recognition. The stated aim was to avoid unconstitutional marriages. While many people have challenged this historical view of Ireland’s constitution, the Government’s actions were supported by legal advice and thus remained in place. However, following the marriage equality referendum, the forced divorce requirement is no longer an imperative and thus the aim was to remove those conditions completely. However, as the referendum is now subject to legal challenge, the forced divorce requirement has been initially retained. The Government has committed to removing the requirement as part of the enacting legislation for marriage equality. This move has huge significance. It means that trans persons, who remain in a marriage that they do not want to dissolve, are able to maintain and protect the integrity of their legal family.

Of course, the Gender Recognition Act 2014 is certainly not without critique. A major omission is young trans individuals. As noted previously (here and here), trans children and adolescents are not adequately provided for in the new legislation. People under 16 years are completely excluded. Their lives and identities are erased from Irish law. Individuals aged 16 and 17 years are nominally included. However, the legal process for seeking recognition is so onerous – two doctors, parental consent and a court order – that few, if any, applicants will obtain recognition before the age of majority. The negative consequences of excluding children from recognition – mental health concerns, denial of services, peer bullying and violence – are clear and well-known. Yet, so far, the Government has shown little willingness to move.

One light of hope is a promised review in two years time. This will be an opportunity to illustrate the need for increased recognition. It is unclear, however, what the Government believes that it will learn in 24 months time that it cannot already now discover. Numerous young people have spoken openly about their experiences in a legal environment which has no obligation to recognise their true identity. By 2017, an increasing number of States – Norway, Sweden etc – will have allowed children to access recognition. Yet, these countries have already announced their intention to do so and, in some cases, have already published the specific legislation to be enacted. Yesterday, the same day that the Government enshrined the second class status of trans children, the first Trans Youth Forum took place in Dublin. It was an incredible example of the vibrancy and resilience among trans youth in Ireland. Yet, the stories told also reinforced understandings about the real difficulties which trans young people face, and the links which exist between discrimination and the absence of recognition in this country.

The Gender Recognition Act 2015 also fails intersex persons and individuals who do not fall within traditional gender binaries. Although the legislation is intended to cover intersex people (and hopefully will be interpreted as such) the lack of express reference to intersex and the specific mechanisms of the Act may place legal acknowledgement out of reach for many intersex applicants. In addition, an increasing number of Ireland’s trans community identify outside male or female legal classifications. The current recognition model offers no solution or recognition to the problems which these persons encounter. Other jurisdictions have looked at providing third gender options for non-binary persons on identity documents, such as passports. While a third gender or “X” gender option will not address the needs of all non-binary persons, it would be a first, good faith effort on behalf of the Irish state.

The passage of the Gender Recognition Act 2015 is a momentous event. It is another step towards promoting the equality, dignity and full citizenship of all persons. The legislation is certainly not perfect and, in many aspects, remains deeply flawed. However, the movements towards self-determination and away from forced divorce will significantly ease the application process for countless individuals. Self-declaration is a powerful statement of the autonomy and dignity of trans persons. After a long struggle, this is a moment to savour. Moving forward, the fight for full and equal rights will continue.

The Direct Provision Report: A Missed Opportunity

DP ReportYou can find my preliminary analysis, including a full summary of the core recommendations from the McMahon Report on the Protection Process and Direct Provision System here. 

You can access the McMahon Report here.

From an initial reading and examination of this report, in my view, this is a report of two halves. One half of the report (Chapter 3 in particular) on the protection process and recommendations on the five-year grant of a form of residency status are clear and coherent. Clear recommendations are made as regards status determination and a substantial analysis of the rights of the child (along with other areas). That is not to say that the narrative of the McMahon Report in Chapter 3 is not without its issues (but I will leave this for another day). Throughout Chapter 4 and Chapter 5, highly qualified language and significant caveats infects the totality of recommendations on direct provision accommodation and ancillary supports.

Human Rights Obligations and Direct Provision Accommodation and Supports

From my initial reading of the report, there appears to be two unequivocal recommendations that may impact on those currently in direct provision, who are not resident in the centres for five years: an increase in direct provision allowance and the provision of a locker for each individual adult in direct provision accommodation centres. All other recommendations are subject to significant caveats as regards contractual obligations and implementation restricted in so far as reasonably practicable. For over 15 years, report after report has emphasised the significant violations of human rights that occur on a daily basis for those subject to direct provision accommodation and supports. The McMahon Report, while recommending an increase in direct provision allowance, does not recommend the payment of child benefit to those seeking protection in Ireland.

In my preliminary analysis (available here, pp. 19-26), I argue that the Working Group should have taken into account Ireland’s international obligations, in particular the UN Convention on the Rights of the Child. By not doing so, the McMahon Report entrenches the notion that asylum and protection seekers are less than human, deserving of only the most highly qualified rights in highly institutionalised settings.

Embedding Institutional Living in Direct Provision (see further, pp. 26-31, here)

The recommendations on living conditions and ancillary supports leave much to be desired. The solution to greater protection of protection seekers lies in neither in law nor in strategic litigation. While these are important in achieving broader aims and seeking to use law to promote human rights; only a fundamental re-evaluation of society’s approach to protection seekers in Ireland will result in the recognition of, what Arendt terms, “the right to have rights.” To date law and administration, and now the McMahon Report, will be used to justify exclusion, separation and distancing of protection seekers from Irish society and placing people in the direct provision system. Until there is more fundamental societal introspection, on “the rights of others”, institutionalised and impoverished living for protection seekers will continue. The significant controls over living conditions, eating arrangements’, near total supervision of the parental role, are relatively unchallenged by the McMahon Report. While there are some soft recommendations “in so far as practicable, and subject to any contractual obligations” as regards family living quarters, allocation of rooms to single applicants, possibility for individual or communal cooking, no other societal group has such enforced supervision of intimate aspects of daily lives. Public support for political action in limiting social rights of protection seekers have seen the most restrictive and punitive forms of control utilised within social welfare provision in the modern era.

The Direct Provision Report: Recommendations on Improving the Quality of Life for Protection Seekers

DP ReportYou can find my preliminary analysis of the McMahon Report on the Protection Process and Direct Provision System here.

You can access the McMahon Report here.

The Working Group have made a number of recommendations as regards improving the quality of life of those in the protection process. These recommendations include, improved financial supports, education and training, health care, further assistance to vulnerable protection seekers and supports to enable person’s transition out of direct provision accommodation.[1]

  1. Unqualified recommendations

Increase rate of direct provision allowance: The working group has recommended an increase in direct provision allowance (DPA) for adults and children. It is recommended that the adult rate to increase to €38.74 and child rate to €29.80 (qualifying child allowance under Supplementary Welfare Allowance).[2] There is an additional recommendation for the Department of Social Protection to reinstate Community Welfare Service officials in direct provision centres[3] and strive for consistency in administration of Emergency Needs Payments.[4]


  1. Qualified Recommendations

The Right to Work: Once the single procedure is “operating efficiently”,[5] provision for access to the labour market for a protection applicant, if the first instance protection decision is not provided within 9 months, and the applicant has been cooperating with status determination bodies.[6] The right to work should continue until the end of the protection determination process.[7] Where an applicant does succeed in entering employment, she should make a contribution to her accommodation and food within direct provision, if the right to work is provided and exercised.[8]

Access to Education: For school-going children, access to a homework club (on school grounds or in the direct provision centre) is necessary.[9] There are 60 students aged 15-18 who are currently in direct provision and will sit their leaving cert in 3-4 years time.[10] 100 young people obtained their leaving certificate in the last 5 years and live in DP centres.[11] 21 students sat the Leaving Certificate in 2014. 22 students were scheduled to sit their leaving cert in 2015.[12] For adults (new arrivals, the McMahon Report recommends access to English language education within one month.[13] For those 6 months + in the direct provision system, information on other potential courses open to them should be made available.[14] Universities and colleges should consider applying EU/EEA rates to those in the protection process or leave to remain stage for five years or more.[15] In courses above NFQ Level 4, those in the system for two years or more should be eligible to apply but subject to same conditions as others (i.e. if there is a requirement to be unemployed, and on the “live register”, this would apply to protection seekers).[16] The McMahon Report recognised that this does not impact in any way on those currently in the system.[17] No rationale is provided for the reason as to why it will not apply to current applicants.


Healthcare supports: The McMahon Report welcomed the HSE initiative to waive prescription charges, and calls for it to be implemented as soon as possible.[18] A number of health promotion initiatives and information leaflets on health services should be made available to protection seekers.[19]


Support for Vulnerable Protection Seekers, including LGBT Protection Seekers: Organisations providing services to protection applicants “should consider training staff in LGBT issues”.[20] The McMahon Report also recommends that representatives of Department of Social Protection should exercise discretion in administering Emergency Needs Payments to “support LGBT people in the system to access appropriate supports and services”.[21] The McMahon Report also recommends that information leaflets to highlight LGBT issues “displayed prominently”, along with RIA Safety Statement highlighting LGBT issues. [22]


Supports for Separated Children: All separated children over 16 should have an aftercare plan.[23] Currently, the HSE provide aftercare support to 82 separated children who have reached 18 years.[24] “As far as practicable and subject to their wishes”, separated children moving into direct provision should be accommodated in a direct provision centre near to residential placement or previous foster carers.[25] Training and other supports should be provided to foster carers to assist a young person’s transition to direct provision.[26] The McMahon Report also recommends that the Department of Children and Youth Affairs “should convene” a “stakeholder group” to consider “optimum supports” for separated children, including integration into Irish society.[27]

Linkages with Local Communities: The Government to “give consideration” to including protection applicants in integration strategy and to make funding available for local integration strategies. Consideration to be given to set up “Friends of the Centre” groups[28] and building community linkages. This also includes a suggestion to open up direct provision centres for an “Open Day”.[29]

  Continue reading

The Direct Provision Report: Summary of Recommendations on Accommodation Standards

DP ReportYou can find my preliminary analysis of the McMahon Report on the Protection Process and Direct Provision System here.

You can access the McMahon Report here.

The Working Group has made a number of unqualified recommendations, qualified recommendations and requests for further reviews of different aspects of direct provision accommodation.

  1. The Unqualified Recommendations

These recommendations relate to a number of core areas, including:

  1. Multi-Disciplinary Assessment:[1] Multi-disciplinary assessment of needs of protection applicants within 30 days, and for this to be taken into account in the protection determination process, with follow up on an “on-going and regular basis”. Communication between different statutory agencies and others (RIA, legal advisors, health care providers etc.). Steps should be taken to encourage protection applicants avail of this assessment.
  2. Accommodation Provision:[2] All single residents sharing rooms and all family units should be provided with an individual locker for storage of personal items. This should be acted on without delay. All requests for tenders should specify adequate indoor and outdoor recreational space for children and young people, and consultations with resident children and young people “should be built into the specifications.”[3] All requests for tenders for centres for single people should specify the requirement for communal kitchens.[4] There should be consultation with residents on 28-day menu cycles.[5]
  3. Standards and Oversight: Extending the remit of Ombudsman and OCO to cover complaints relating to services provided to persons in direct provision and transfer decisions. Residents can contact either (or both) offices after internal mechanisms are exhausted (including an independent appeal).[6] RIA must appoint an officer to ensure complaints are dealt with. Complaint mechanisms must be open to all residents, including children and young people.[7] RIA must build confidence and trust in these complaints systems and that residents will not be adversely affected by making a complaint and “ensure centre management buy into the importance of ensuring an open culture that is conducive to residents making complaints.”[8] Contracts with providers should ensure managers have experience of working with refugees and protection applicants.[9] Centre Managers should have knowledge of basic mental health issues and health services, social welfare system, medical issues, a compassionate and empathetic style.[10]
  4. Transfers:[11] RIA should continue to provide detailed reasons for involuntary transfer. Recording of statistics in relation to voluntary and involuntary transfers.
  5. Child Protection: Access to cultural diversity training for social workers, with the identification of a named social worker by the Child and Family Agency and the Health Service Executive to contact in each direct provision centre.[12] RIA is to continue to have consideration of child safety when assigning residents to direct provision centres.[13
  6. Community Outreach: By the end of 2015, all direct provision centres should enter into partnership agreements with local leisure and sports clubs.[14]


  1. The Qualified Recommendations

These recommendations all relate to accommodation provision. All recommendations as regards greater respect for private and family life are significantly qualified. RIA informed the Working Group that it was not clear that all centres would be “structurally in a position to effect the proposed changes…”[15] It could take “upwards of” two years, from issue of tender to get new accommodation on stream that would meet the recommendations of the McMahon Report.[16] In any event, given the “market for self-contained units”,[17] some of the recommendations below may not be possible to implement.

Two core phrases come up time and again in the McMahon Report’s recommendations on direct provision accommodation: “in so far as practicable” and “subject to any contractual obligations”. All direct provision accommodation facilities are to be in line with a proposed “Standard Setting Committee” that will “reflect government policy across all areas of service in Direct Provision”.[18] The highly qualified recommendations include: Continue reading

The Direct Provision Report: The People Impacted

DP ReportYou can find my preliminary analysis of the McMahon Report on the Protection Process and Direct Provision System here.

You can access the McMahon Report here.

The McMahon Report is one of the first attempts by the State to systematically explore the total numbers of persons who are in the protection process and leave to remain process, including those who have unsuccessfully sought protection and leave to remain and who are now subject to a subsisting deportation order. Such figures had not been available as a matter of course, meant that there were significant unknowns as regards numbers within the protection process (and related migration areas such as leave to remain and those subject to deportation orders).

Some of the headline statistics emerging from the McMahon Report include:

  • As of February 2015, the McMahon Report identified 7,937 persons who are in the protection process (49%), the leave to remain process (42%) and persons whose claim for protection and leave to remain was not granted, and who are subject to a deportation order (9%).
  • There are 3,876 persons within the protection process. 1,189 persons have been in the protection determination system for 5 years or more.
  • There are 3,343 in the leave to remain process; 2,530 persons have been in the leave to remain process for 5 years or more.
  • There are 718 persons subject to a deportation order. 628 persons have an outstanding deportation order for 5 years or more.


Of this 7,937 persons in the system, 3,607 (46%) live in direct provision accommodation. 4, 330 (54%) of persons live outside direct provision. As the McMahon Report notes: Continue reading

The Direct Provision Report: An Overview and Introduction

DP ReportYou can find my preliminary analysis of the McMahon Report on the Protection Process and Direct Provision System here.

You can access the McMahon Report here.

The Working Group Report on the Protection System and Direct Provision (McMahon Report) report was released on June 30 2015. The McMahon Report provides a significant number of recommendations on the protection process in Ireland and the system of direct provision.[1] That changes would be occurring to the protection process and the system of direct provision were hinted at in July 2014. The Statement of Government Priorities 2014-2016 outlined the need to

“address the current system of direct provision…to make it more respectful of the applicant and less costly to the tax-payer”.[2]

There was also a commitment to establish a single procedure for asylum applicants. The publication of the Heads of the International Protection Bill in March 2015 (before the Working Group reported) has indicated Government willingness to move the single procedure forward. However, the Working Group seems overly ambitious in estimating that the single procedure will be in place and operational by 01 January 2016.[3]

After consultation with Non Governmental Organisations (NGOs) in September 2014,[4] the terms of reference and membership of the Working Group was announced on 13 October 2014.[5] The terms of reference of the Working Group were:


“Having regard to the rights accorded to refugees under the 1951 Geneva Convention Relating to the Status of Refugees and bearing in mind the Government’s commitment to legislate to reduce the waiting period for protection applicants through the introduction of a single application procedure,

to recommend to the Government what improvements should be made to the State’s existing Direct Provision and protection process and to the various supports provided for protection applicants; and specifically to indicate what actions could be taken in the short and longer term which are directed towards:

(i) improving existing arrangements in the processing of protection applications;

(ii) showing greater respect for the dignity of persons in the system and improving their quality of life by enhancing the support and services currently available;

ensuring at the same time that, in light of recognised budgetary realities, the overall cost of the protection system to the taxpayer is reduced or remains within or close to current levels and that the existing border controls and immigration procedures are not compromised.”


The Working Group commenced work on its report on 10 November 2014.[6] The McMahon Report emerged over eight plenary meetings, with the sub-groups identified below meeting on 38 separate occasions.[7] The limitations on the terms of reference were accepted by NGO representatives at the first meeting. The McMahon Report notes that:

“organisations advocating an end to direct provision, and who may be disappointed in this limitation, had accepted their appointment on the basis of the terms of reference”.[8]

The core issue identified by the Working Group was “length of time” in the protection process and length of time protection applicants were subject to the system of direct provision.[9] An Agreed Work Programme was set out, with members decided which sub-group they would be part of (and could be part of all sub-groups if they so wished):[10]

  • Theme 1: Improvements within direct provision;
  • Theme 2: Improvements to ancillary supports for those in direct provision
  • Theme 3: Improvements in the determination process for protection applicants.

Overall, the Report contains a mix of significant recommendations on the protection process and processing of asylum claims.[11] However, I argue, there are significant concerns with the recommendations that have emerged as regards direct provision accommodation and supports for asylum applicants.[12]

Pic Credit: Merrion Street

[1] For a glossary of core terms that will be used as regards immigration status in this analysis, see Thornton, L. Glossary of Terms: Irish Asylum Law (UCD, 2013).

[2] Department of An Taoiseach, Statement of Government Priorities 2014-2016 (July 2014), p. 9.

[3] Working Group report to Government on Improvements to the Protection Process, including Direct Provision and Supports to Asylum Seekers (hereinafter the McMahon Report), paras 66, 6.17, 6.31, 6.39 and 6.46.

[4] 18 September 2014: Consultation with NGOs as regards terms of reference for the Working Group and other aspects of the protection process.

[5] Department of Justice and Equality, Terms of Reference and membership of the Working Group (October 2013).

[6] Working Group report to Government on Improvements to the Protection Process, including Direct Provision and Supports to Asylum Seekers (hereinafter the McMahon Report), para. 6.

[7] McMahon Report, para. 20.

[8] McMahon Report, para. 8.

[9] McMahon Report, para. 3 and Appendix 6.

[10] McMahon Report, para. 4 and Appendix 1.

[11] See generally, Chapter 3 of the McMahon Report.

[12] See generally, Chapter 4 and Chapter 5 of the McMahon Report.

Children’s Rights and Marriage Equality


Human Rights in Ireland welcomes this guest post on the marriage equality referendum and children’s rights from Prof. Ursula Kilkelly. Ursula is Dean of UCC School of Law and an international expert in rights of the child.

Debate on the proposed constitutional amendment introducing marriage equality into Irish law has been dominated by its potential impact on children. Claims have been made that children have a right to a mother and a father which will be violated by granting same sex couples the right to marry. It has been argued that the extension of marriage to same sex couples will redefine the family under the Constitution with consequences for children’s interests and rights, especially in the creation of families through surrogacy, donor assisted human reproduction (DAHR) and adoption. This post responds to these assertions while arguing that in fact the adoption of marriage equality will strengthen children’s rights in Ireland.

Marriage grants no right to have children, regardless of gender or sexual orientation, and confers no entitlement to create a family through adoption, surrogacy or DAHR. Indeed, family law matters concerning children are determined by what is in the best interests of the child and this will not change with marriage equality. Adoption law requires that the welfare of the child is the paramount consideration and Irish law was recently strengthened so that the child’s best interests are paramount in guardianship, custody and access matters. In addition, the Children and Family Relationships Act 2015 requires the courts to have regard to a range of factors or circumstances relevant to the child and his/her family when making decisions in this area, in a measure that will mean an even greater focus on the child’s interests in such decision-making. Although the 2015 Act includes some measures designed to protect information as to the child’s identity when born through DAHR, comprehensive legislation governing surrogacy and assisted reproduction is long overdue. This is clearly necessary to protect the rights of all children born in this way, whether their parents are married or unmarried, heterosexual or same sex couples. Despite its importance, the need for a comprehensive regulatory and legislative regime for surrogacy and D/AHR exists independently of any constitutional proposal for marriage equality.

International human rights law recognises the importance of parents to children and their development. However, no right to a mother and a father has been recognised either by International or by Irish law. Rather, what international law protects is a child’s right to respect for family life and family relationships. This is particularly evident from the case-law of the European Court of Human Rights given effect in Irish law in the European Convention on Human Rights Act 2003. This makes clear that family life – the existence of close personal ties which can be based on biological and/or social relationships – is worthy of legal protection under Article 8 of the European Convention on Human Rights.

The Convention on the Rights of the Child (CRC)– adopted by Ireland and 192 other states – reflects the importance of the family to children noting in its Preamble that a child ‘should grow up in a family environment, in an atmosphere of happiness, love and understanding’. The CRC refers interchangeably to ‘parents’ and ‘legal guardians’ and makes no reference to ‘marriage’ or ‘married parents’; it does not mention ‘fathers’ at all and refers to ‘mothers’ only in the context of pre and postnatal care. Importantly, the terms ‘family’ and ‘family environment’ are repeatedly mentioned throughout the Convention and, in provisions like Article 5, the CRC adopts an inclusive approach to the family, incorporating a range of family forms including the extended family community. The CRC acknowledges that some children cannot be cared for by their birth or biological parents for a multitude of legitimate reasons (which have nothing to do with the children themselves) and it is implicit in the Convention that no one particular family type can fulfil children’s needs.

The CRC recognises the right of the child as far as possible to know and be cared for by his/her parents, while also providing for the right of the child to maintain contact with them. However, the CRC cannot be used to assert that every child has an absolute right to be raised by his/her birth, biological or genetic parents. Again, the emphasis here is on providing protection for the child’s family relationships, rather than entitling the child to be reared only by his/her biological mother and father. The child’s right to identity (of which genetic identity is just one part) although important, is distinct and separate from the question of who provides the child with family care. What is important to children’s well-being – and frequently to children themselves – is not simply who their biological or birth parents are, but the quality of the care, support and security that they receive in their families in the here and now. Research increasingly shows that the quality of children’s relationships with their carers is what affects children’s lives and life chances.

We know that for various reasons marriage often (although clearly not always) provides the stability that children need to develop and grow with confidence. Its legal protections set it apart from other forms of relationship recognition and registration, including civil partnership which in Ireland ignores children altogether. Civil marriage is an important commitment, undertaken by those who desire formal, public endorsement of their relationship and it confers important legal protections to the parties. While it has been deemed legitimate in certain circumstances to treat a married couple different from an unmarried couple, it is not permissible to discriminate against children on the basis of their parents’ marital status. Although the unjust concept of ‘illegitimacy’ has been abolished, children in non-marital families – including but not limited to children whose parents are a same sex couple – continue to experience inferior treatment under the law. Although the Children and Family Relationships Act 2015 makes it easier for guardians to be appointed to children in such situations, it remains the case that their relationship with their parents does not attract the same legal protection as children born to married parents. It follows therefore that rather than undermine children’s interests and rights, the adoption of marriage equality would represent further progress to equalise the position of all children. In particular, it would offer children the benefit of the legal protections that marriage affords regardless of whether it preceded or succeeded their arrival into the relationship. For children, none of these things matter.

Despite the changing nature of the Irish family, we continue to idolise marriage as if it were the only family form in existence and the only way to provide children with the love and security that they need. The irony is that notwithstanding the pledge of the Irish Constitution, Ireland has never fulfilled its promise to protect the family and our dismal record in the protection of the rights of children is known worldwide. If Ireland were a truly child-friendly state we would ensure by law that all children are entitled without discrimination to respect for their family relationships. We would put in place a legal regime that respects and protects children equally regardless of their different circumstances and the diversity of their families and that protects children’s rights regardless of how they were conceived and to whom. And we would permit those who wish to do so to marry and separately, set the bar high for everyone – regardless of gender or sexual orientation – with the legal responsibility to support, protect and nurture children.

What Makes a Legal Marriage? A Response to the Catholic Church

201411031133092Dr Maebh Harding is an Assistant Professor, School of Law, University of Warwick.

The recent threat by Ireland’s Catholic bishops to refuse to perform the civil aspects of a wedding if the marriage equality referendum is ratified will have no effect on the legal validity of Catholic marriages in Ireland. Parties to a marriage are married to each other when both of them make a declaration in the presence of each other, a registered solemniser and the two witnesses that they accept each other as husband and wife. Refusal by the solemniser to complete paperwork may create unnecessary hassle for the couple and the civil registration service but does undermine the legal validity of a marriage.


If the amendment is carried, the Irish Catholic Bishops will continue to carry out religious marriages but are considering refusing to sign the Marriage Registration Form: a civil form that is returned to the civil registration service as proof of the ceremony. Such a refusal will make it more difficult for couples to obtain civil proof of their marriage but does not affect the marriage’s legal validity. Where the couple has given requisite legal notice and are married by a Catholic priest who is a registered solemniser following the traditional Catholic rites, they are legally married, with or without the completion of a marriage registration form.

Irish marriage law works on the premise that all marriages are legally valid unless certain substantive requirements, the lack of which is declared in legislation to annul a marriage, are not fulfilled. The power to decide whether or not a marriage is legally valid lies in the High Court not the Civil Registration Service. Minor mistakes in protocol such as typographical mistakes on legal paperwork and stuttering over vows have no effect on the legal validity of marriages. Continue reading

From the Mediterranean to the Emerald Isle: Ireland’s Role in Upholding the Rights of Refugees and Asylum Seekers

MedNancy Roe is a Social Work and Masters Graduate from Trinity College Dublin (TCD). Graduating with a BSS in Social Work, she went on to complete a Masters in Race Ethnicity and Conflict (TCD) in 2014. She has since worked as a Social Worker and as an Intern with the Irish Refugee Council. This short reflection was written during this Internship.

Every day, refugees flee war, poverty and persecution and make long dangerous voyages over sea, often on make-shift boats, smuggled below deck, in the hope of reaching safety in Europe.

The recent refugee humanitarian crisis in the Mediterranean has received much media coverage. The exposure of the atrocities in the Mediterranean (20 April 2015), where 800 refugees died, men, women and children, including Syrians, Eritreans and Somalia’s, has generated a platform for discussion, whereby Europe’s borders, policies and humanitarian responses are under scrutiny on the international stage. UNHCR spokesperson Adrian Edwards noted that approximately 1,300 migrants have drowned in the Mediterranean in the month of April alone (the total figure this year is approximately 1,776).

Political leaders and representatives in Europe, and elsewhere around the world are being forced to publicly address the issue. Irish President, Michael D Higgins condemned the European response to the crisis. He suggested that we can have a generous Europe based on human values, or one that has within its borders, racism, xenophobia and exclusion.

Two days after this atrocity, Mr Higgins visited Turkey and Lebanon, attending the 100th anniversary commemorations of Gallipoli. Reflecting upon the deaths and victims of World War I, Mr Higgins described “the enormous tragedy of war” as being “linked to “the outrageous aspirations of empire”. He also stated that the eastern Mediterranean and Middle East were still trapped by the “detritus of empire”. A hundred year after Gallipoli, clear parallels can be drawn with regards to the value and respect placed on human life across borders.

Shane O’ Curry, Director of ENAR Ireland advises that the crisis did not begin with the deaths in the Mediterranean, rather “that this crisis is borne out of years of instability in sub-Saharan Africa, north Africa and the Middle East, instability for which some EU countries bear significant responsibility”. O’ Curry urges the Taoiseach in his discussions with other European leaders to show leadership, offer concrete responses, and (quoting Amnesty International) to put people before borders. Continue reading