Families Against Forced Divorce: To protect the privacy of our children and our spouses, we feel we are unable to publicly put our names to this article.
In a country where divorce was illegal twenty years ago, is it about to be made compulsory for some? Imagine being told that the State will not legally recognise your identity unless you first divorce your husband or wife. This is not some nightmare scenario from the Nazi 1930s. It’s all too real and about to be inflicted on transgender families in Ireland today.
Ireland remains the last of the 27 EU Nations which still does not allow Gender Recognition for transgender people. This lack of legal recognition of our true gender has many important implications for our lives. First and foremost is the lack of being respected and protected in Irish law in our true gender which impacts on every corner of our lives.
Without such protection, difficulties can arise in our jobs, pensions, insurance, foreign travel and even our ability to engage in most sporting activities to the point that we simply cannot participate at all. For example, to play ladies golf you must be recognised by the State as a woman. Or, what do you think your chances of getting a job would be if you are “outed” as a transgender person in the process? Only with full Gender Recognition can we hope to move on with our lives.
Marriages where one spouse is transgender are lucky to survive. Let us look at one example: Sandra and Michelle. Sandra suffered from Gender Identity Disorder and always felt female despite the fact that she had a functioning male body.
At the time Sandra married Michelle in 1990, she was endeavouring to be the “man” that society expected her to be. Their marriage is fully valid Continue reading “Families Against Forced Divorce”
On the 26th and 27th of May 2011, Deauville in northern France will host a G8 summit. Among many other items for discussion the March earthquake in Japan, a long-standing member of the G8 (and the original G6), and the nuclear crisis which the quake precipitated are likely to be central. Prime Minister Naoto Kan is also planning, it seems, to make an announcement at the summit in relation to quite a different issue: accession to the Hague Convention on the Civil Aspects of International Child Abduction. This Convention, which was concluded in October 1980 and entered into force between signatory states in December 1983, essentially provides a mechanism whereby a child (under 16 years of age) abducted across international borders may be promptly returned to the country of his/her habitual residence. It provides no substantive rights, but insists that a court in which a Convention action is initiated should not enquire into the merits of any custody argument relating to the relevant child, but determine only in what jurisdiction such issues should be heard. The Convention requires the return of any child who was an habitual resident of a signatory state immediately before the abduction. It applies to both parental abduction (i.e. one parent removing the child from the jurisdiction without the consent of the other) and abduction by others. Continue reading “Japan and the Hague Convention on Civil Aspects of Child Abduction”
Governor Arnold Schwarzenegger last month signed a new law (SB 1188), which will come into force in January. The law aims to combat discrimination faced by parents with disabilities in child custody proceedings. Parents with disabilities often face claims that they are unable to care for their children on the basis of their disability. The disability rights bodies in California (who lobbied for this reform) believe that parents with disabilities are marginalised in family court proceedings and that their disability is used as a way to contest custody and visitation rights. The new law requires that decisions on custody and Continue reading “California Introduces New Law to Combat Discrimination Against Parents with Disabilities”
This month the Guardian ran two opinion pieces on the presence of ‘sharia’ in the United Kingdom. Specifically, the pieces discussed some British Muslims’ use in the context of marriage breakdown of informal dispute resolution mechanisms grounded in particular interpretations of sharia principles. Sharia councils or so-called sharia arbitration tribunals provide local fora within which individuals may seek advice on marital problems, attempt mediation and reconciliation, obtain and test the validity of religious divorces, and obtain rulings on the financial and familial consequences of divorce. In ‘What Isn’t the Problem With Sharia?’, Maryam Namazie of ‘One Law for All’ presents some of the findings of a 26 page report produced by her organisation which points to a number of serious rights violations associated with Muslim divorce practices in Britain. Neil Addison replied to her article some days later insisting that ‘Sharia is not the problem here‘.
Continue reading “Beyond the Ban: Regulating Sharia Councils”
The debate over the notion of the “de facto family” under Irish law has again emerged following yesterday’s rejection of an unmarried father’s challenge regarding the legality of his former partner’s move to England after the relationship had broken down by the High Court and subsequent appeal by the Labour Party for a review of the law regarding guardianship. The case was brought by a man against his former partner of ten years who had moved to England with their three children in July last year arguing that the removal of the children breached his rights as parent. Though the case was described as “reprehensible” by Mr. Justice John MacMenamin, the court maintained that there was no legal basis for the father’s challenge under Irish law as he had not been married to his former partner or applied for guardianship of the children before the relationship ended. As he had not exercised his right to apply for custody, guardianship and right of access at the District Court, Justice MacMenamin stated, there was no legal basis for the challenge under Irish law, Article 5 of the Hague Convention on Child Abduction) or Article 8 of the Brussels Regulation.
However, in addition to the question of the family rights of unmarried couples and the existence of the “de facto family” this case also raises significant questions regarding the importance of parental access after family breakdown and the need for the living arrangements of families post-breakdown to receive further consideration. At the heart of this case was the problem of access and a challenge to the legality of a change in the living arrangements of children when parents have separated.
The fundamental basis of the father’s complaint is that by moving to England his former partner had prohibited him from accessing his children and that this impinged on his rights as parent. What is important here is that the father was not requesting that he be awarded sole custody but that the courts compel his former partner to return to Ireland. As well as the question of the rights of unmarried fathers, this case raises a second issue that has not been discussed – what constitutes acceptable living arrangements for children after family breakdown has occurred. This is particularly worrying, not only in light of this case, but also given the fact that changes in living arrangements post-family breakdown is the biggest cause of stress for children (see this report on family breakdown and outcomes for children). Poor housing, restricted access to parents and unstable living arrangements after household dissolution can have significant, long-term repercussions for the health and well-being of children and can augment the problems associated with parental separation.
As it stands, despite recognising the need to ensure that the transition to stability after household dissolution in the Report of the Commission on the Family, family policy in Ireland has made no reference to what this will involve and, as this case highlights, this is an area that needs significant consideration.
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.
Continue reading “Walsh on Child Abduction and Forced Marriage”