Diversity in Family Life: Developments in the Case Law of the European Court of Human Rights

UCDThe 2015 John M. Kelly Memorial Lecture will be delivered by Ms. Ann Power Forde, SC, former Irish judge of the European Court of Human Rights, on Thursday, 16 April 2015 in UCD Sutherland School of Law (maps and directions). Attendance is free, but registration is required here.

Abstract

Debate about the meaning of family and its interconnected network of relationships, rights and responsibilities is current. Cultural and societal changes have had repercussions for the protective scope of the right to respect for family life under Article 8 of the European Convention on Human Rights.

The definition of family under a State’s domestic law does not bind the European Court of Human Rights when determining what effective respect for family life requires. As ‘family life’ becomes increasingly diverse across Europe, the Strasbourg Court has developed a consolidated body of jurisprudence on the subject.  This paper will consider some of the Court’s case law on what constitutes family life, including, marriage based family life, the de facto family life of cohabiting and same-sex couples, plus adoptive, blended and extended forms of family life.  It will also include an examination of some recent judicial developments concerning genetic and surrogate parenthood and family life. Continue reading “Diversity in Family Life: Developments in the Case Law of the European Court of Human Rights”

Diversity in Family Life: Developments in the Case Law of the European Court of Human Rights

Families Against Forced Divorce

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”

Families Against Forced Divorce

Regulation is Vital in Safeguarding Against Abuse of Persons in Their Own Homes

Prime Time last night broadcast footage shot during a four-month investigation of professional carers who provide services in private residential settings.  What was clear from last night’s report was that the professional care provided to persons in their own homes was anything but professional.  The report highlighted the lack of training of carers, abuse of vulnerable persons in their homes and a complete lack of oversight from the Health Services Executive.  It is clear from the Report last night that the law must be changed to ensure that a base of standards are put in place regulating professional carers.  In particular, there is a need to regulate the provision of care to vulnerable persons in their homes.  The Law Reform Commission in their Consultation Paper on Legal Aspects of Carers last year identified the need to regulate this area.  The Commission recommended that the Health Act 2007 be amended to extend the authority of the Health Information and Quality Authority (HIQA) to regulate and monitor the provision of professional care in the home.  The Commission also provisionally recommended Continue reading “Regulation is Vital in Safeguarding Against Abuse of Persons in Their Own Homes”

Regulation is Vital in Safeguarding Against Abuse of Persons in Their Own Homes

CPCROCA 2010: Naurice on Family Protection and 'Pink' Adoption

We are delighted to welcome this contribution from Andrew Naurice, on behalf of Irish Pink Adoptions, to the carnival on the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. Written in narrative style, the post is preceded by an explanatory note from the author.

Explanatory note: Irish Pink Adoptions is a support group for Irish “pink” households. Because we cannot expose the identity of our members let’s gather, from their shared experience and testimonials, what it would be like to be a pink household adopting in Ireland today. In this post we hear from a fictional individual—Tighe—about how he feels about the Civil Partnership, and how it impacts the constitutional rights of his adoptive daughter.

We are family… why not?

My boyfriend and I are happily married. We are not legally married, but we live a happy couple life, and we are treated by our families as spouses. My husband is my parent’s favorite son-in-“law”. My sister looks up at our relationship as an example of harmony, and my nephews admire my husband as a role model. My mother-in-“law”’s priest thinks that her god will not be offended by our love as long as we are faithful to one another and that we raise our child to be a good person. The government used to look down at us, treat us as second class citizens: our relationship was not recognized. The HSE confirmed what our family knew: we are family; we are family to our adoptive child. And we can be as good parents as any other parents. It is the HSE saying it, not some communist church-bashing gay lobby. They accept that our pink household can be in the best interest of our child.

Because we were not allowed to marry, the HSE could only allow one of us to adopt: but they assessed us as a couple, as one single household, not caring for a second that we are a same-gender household. They are not bigots. They knew children are not raised in isolation, and that we had family relations and friends who would bring diversity and gender balance to our child. They never took into consideration the baseless arguments of some people who mimic religion without understanding love, and who cannot be trusted with the best interest of children. They could not allow us to adopt jointly… because they cannot allow any unmarried couple to adopt jointly. The marriage laws denied the HSE the possibility to offer what they knew was in our daughter’s best interest: the married us.

Why? Continue reading “CPCROCA 2010: Naurice on Family Protection and 'Pink' Adoption”

CPCROCA 2010: Naurice on Family Protection and 'Pink' Adoption

Living arrangements and family breakdown

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.

Living arrangements and family breakdown

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.

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

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

Reminder: Fathers and the Law Seminar at DCU

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. Continue reading “Ryan on Family Law and the Children's Rights Amendment”

Ryan on Family Law and the Children's Rights Amendment

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 herehere 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.

Civil Partnership Bill Second Stage This Evening

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

unhappy%20coupleWe 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. Continue reading “Guest Contribution: Hayward on Cohabitation in England Wales-Learning from Ireland?”

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