Children’s Rights and Marriage Equality

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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.

Children’s Rights and Marriage Equality

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

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

CCJHR Conference 28 March 2014: Marriage Equality, Relationship Recognition and Non-Discrimination: Securing Equality and Rights?

CCJHRThe Centre for Criminal Justice and Human Rights is hosting a conference: Marriage Equality, Relationship Recognition and Non-Discrimination: Securing Equality and Rights? on Friday, March 28th 2014 from 11am to 5pm. Venue: Brookfield Health Sciences, BHSC Room GO1 , Brookfield Health Sciences Complex (BHSC) is located on the western side of the main UCC campus (see here for map).  Full booking information below.

Securing marriage equality has been described as the ‘civil rights issue of our generation’. The proposed constitutional reform follows on from significant legislative reforms in Ireland on civil partnerships, and further pending legislative reform on children’s rights and family relationships. Across Europe and internationally, constitutional and legislative reforms are taking place addressing rights to same sex marriage, sexual orientation and gender identity discrimination in areas such as adoption, guardianship and custody of children and more broadly in the field of relationship recognition. International human rights bodies, including the European and Inter-American Courts of Human Rights, and constitutional courts, are developing a significant body of jurisprudence on the scope and limits of anti-discrimination norms, and on the positive obligations arising for states to provide for marriage equality and relationship recognition.  This conference brings together leading human rights advocates, lawyers and academics to address the many pressing questions that now face Ireland and other jurisdictions engaging in comprehensive reforms of family, constitutional, equality and human rights law.

Speakers include:

  • Professor Robert Wintemute, School of Law, King’s College London (Keynote address)
  • Prof Fiona de Londras, School of Law, Durham University
  • Karon Monaghan QC, Matrix Chambers, London
  • Boris Dittrich, Advocacy Director, LGBT program, Human Rights Watch
  • Nicholas Bamforth, School of Law, Oxford University
  • Kieran Rose, Gay Lesbian Equality Network (GLEN) and Member Designate of the Irish Human Rights and Equality Commission
  • Dr Louise Crowley, Faculty of Law, UCC
  • Dr Conor O’Mahony, Faculty of Law UCC
  • Dr Tanya ni Mhuirthile, TENI and Griffith College Dublin
  • Prof Siobhán Mullally, Faculty of Law, UCC

Venue: Brookfield Health Sciences, BHSC Room GO1 , Brookfield Health Sciences Complex (BHSC) is located on the western side of the main UCC campus. http://conferencing.ucc.ie/MapUCC.htm

6 CPD Group points available

Registration Fee: €60  (full rate)

Reduced rate: €30 – the reduced fee is available to NGOs, barristers in their first five years in practice, trainee solicitors and solicitors with up to three years post qualification experience).

Student registration (available to full-time students with valid ID) – €20

Advanced registration is essential. Online booking available here.

Conference convenor: Prof Siobhán Mullally, Director, Centre for Criminal Justice and Human Rights, UCC, email s.mullally@ucc.ie and Dr Claire Murray, CCJHR, c.murray@ucc.ie

CCJHR Conference 28 March 2014: Marriage Equality, Relationship Recognition and Non-Discrimination: Securing Equality and Rights?

Protecting Transgender Rights in Hong Kong: Equal Marriage Rights

Hong KongThis morning Hong Kong took a giant leap forward in protecting transgender rights in a judgment of the Court of Final Appeal  which will allow a trans* woman to marry her partner. In a judgment that some Irish politicians could do well to take note of the Court concluded that in multicultural jurisdiction such as Hong Kong, the nature of marriage as a social institution had undergone many alterations in that the importance of procreation as an essential constituent “has much diminished”. In a 4-1 running, the Court held that it is “contrary to principle to focus merely on biological features fixed at the time of birth and regarded as immutable” and held in favour of the Appellant.

The appellant, W, is a post-operative transsexual woman who wishes to marry her male partner. However the Registrar of Marriages (Registrar) declined to confirm that the appellant was permitted to marry her partner. The appellant commenced judicial review proceedings against the Registrar on the ground that the Registrar misinterpreted ss 21 and 40 of the Marriage Ordinance (Cap 181). This raised the issue of construction of whether a post-operative male-to-female transsexual was a woman or female for the purposes of the Marriage Ordinance. The same issue also arose in respect of s 20(1)(d) of the Matrimonial Causes Ordinance (Cap 179). The appellant sought an order quashing the Registrar’s decision and a declaration that the decision was unlawful on the basis that the Registrar misdirected himself in law by misinterpreting ss 21 and 40 of the Marriage Ordinance. The appellant’s alternative case, in the event it was held that the Registrar had not misinterpreted the statutory provisions in question, was that ss 21 and 40 of the Marriage Ordinance, in failing to recognise her as a woman or female, were unconstitutional Continue reading “Protecting Transgender Rights in Hong Kong: Equal Marriage Rights”

Protecting Transgender Rights in Hong Kong: Equal Marriage Rights

LGBT Rights in Ireland: Recent Legislative Proposals for Employment and Marriage Equality

http://caffeinatedthoughts.com/wp-content/uploads/2013/02/rainbow-flag.jpgThe last week or so has been significant from the perspective of LGBT rights in Ireland in respect of employment equality and marriage equality. In both areas legislative change to remove clear inequalities has been proposed over the past week and, in the case of marriage equality, the attention of the Constitutional Convention has been directed towards the matter. In this short post I want to outline the proposed legislative changes in both of these areas that have appeared over the past ten days or so. I also want to reflect on the prospects of success in both cases, which I consider to be rather low in the case of the marriage equality proposal but much higher as regards employment equality. Continue reading “LGBT Rights in Ireland: Recent Legislative Proposals for Employment and Marriage Equality”

LGBT Rights in Ireland: Recent Legislative Proposals for Employment and Marriage Equality

The Constitutional Convention and Marriage Equality

Human Rights in Ireland is pleased to welcome this guest post from Dawn Quinn, Marriage Equality as part of Human Rights Week.

What is it?

The Constitutional Convention is a year-long process which will bring together members of the public (66) and the Oireachtas (33) to examine 8 key issues which may or may not need Constitutional reform.  It will be chaired by Tom Arnold, former CEO of Concern.

The Convention will have on hand a volunteer panel of 50 legal and academic experts to help inform them on the issues being looked at, as well as answering questions and providing clarity around key issues.

The Convention will also be accepting submissions, in various formats, from members of the public and organisations working on the issues, to both give them the opportunity to participate in the process and help inform the proceedings.

(You can find out more about the Constitutional Convention here: www.constitution.ie).

Why is the Convention important for the Marriage Equality Campaign?

One of the 8 issues the Convention will look at is ‘the provision for same-sex marriage’.  Once the issue of marriage equality has been explored and voted upon, the Convention, as per its Terms of Reference, will submit its recommendation to Government within two months on whether it should be provided for in the Constitution. Government has then promised to publish its decision on what it proposes to do with the recommendation within 4 months, so at this point they could decide on whether or not they will  hold a referendum on the issue.  All in all the work of the Convention will take 12 months.

When will the Constitutional Convention look at the issue of marriage equality?

There isn’t an exact date for this yet.  The Convention had its first meeting on Continue reading “The Constitutional Convention and Marriage Equality”

The Constitutional Convention and Marriage Equality

Marriage Equality: What a Difference a Week Makes?

Edit @ 11 am: It has been pointed out to me that the Constitutional Convention ought to be completed its work before the Zappone case is completed, which puts a different spin on one of my points below and does raise serious questions about why this issue has not been prioritised in the workplan for the Convention.

Since the Tánaiste declared his support for marriage equality last week, there has been significant development in the discourse around marriage equality in Ireland from at least some quarters. Two further ministers–Alan Shatter and Leo Varadkar–declared their support in principle for marriage equality. The Minister for Education Ruairi Quinn also declared his support, albeit in the context of a claim that constitutional change would be required. I am like a broken record on this, as are others, but in fact we only think that constitutional change would be required; we do not know. Contrary to popular opinion the Constitution does not define marriage, but marriage has been defined in the context of constitutional cases as being between a man and a woman. However, whether it is exclusively between a man and a woman as a constitutional matter is not definitively known and will not be until we get the Supreme Court judgment in Zappone & Gilligan v Revenue Commissioners. It might, therefore, be wise for members of government to stop speaking as if the Constitution were (a) clear about the meaning of marriage, (b) static in its meaning (McGee case, anyone?), and (c) uncontested. Yesterday the Taoiseach got in on the Act, as did the Fianna Fáil leader Michéal Martin. Continue reading “Marriage Equality: What a Difference a Week Makes?”

Marriage Equality: What a Difference a Week Makes?

CPCROCA 2010: Marriage Equality on Inequality

We are delighted to welcome this contribution from Marriage Equality to our blog carnival on the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. More information on Marriage Equality is available here. This article has been adapted from the Legal Opinion of Brian Barrington BL furnished to Marriage Equality in 2009 in relation to the Civil Partnership Bill, 2009 (as it was then).

Whilst civil partnership may grant LGBT couples some rights heretofore withheld, what it will also do is further stigmatise same sex families as something different and not equal to heterosexual married families. It sends a message to the public that same sex relationships are less deserving of protection and support than heterosexual relationships. Marriage Equality is currently working on a marriage audit, listing all the legislative differences between civil marriage and civil partnership and at last count there are about 300 of them. However we will have to wait and see what happens with the tax and social welfare legislation before we can have a full picture.

Apart from the obvious equality concerns, however most worryingly is the situation for same sex couples who have children – and, above all, it is the children of those civil partners who will suffer as a result.  The legislation cuts and pastes some provisions of Irish family law to apply to civil partners. However there is a critical difference.  Rights and protections for children in Irish family law are taken out in this process.  This does not, of course, make the current situation for our children worse.  After all, the rights of the non-biological or social child of a same sex family are not recognised in Ireland at present anyway.  But it does show clearly how a conscious decision has been taken not to extend rights and protections to such children.  That, in turn, calls fundamentally into doubt the State’s commitment to the rights of the child.  Indeed, according to Brian Barrington BL, who examined the Bill in detail last year, and gave us his opinion, the failure to make proper provision to protect children in same sex families may run contrary to Articles 8 and 14 of the European Convention on Human Rights. Continue reading “CPCROCA 2010: Marriage Equality on Inequality”

CPCROCA 2010: Marriage Equality on Inequality