Seanad debates

Wednesday, 25 June 2014

2:50 pm

Photo of Fergus O'DowdFergus O'Dowd (Louth, Fine Gael) | Oireachtas source

I thank Senators for placing this important debate before the Seanad today and the Labour Party Members who have done so. The Minister unfortunately is unable to attend due to pressing business although this is an important topic for everybody about which the Minister is particularly concerned.
This motion serves to draw the Government's attention to the important issues of child protection, coercion into marriage and the minimum age of marriage. I am pleased, on behalf of the Minister, to support fully the motion. It focuses on the issue of forced marriage of minors, which is an area of particular concern given the added vulnerability of children to coercion and threats. Children are uniquely vulnerable in the context of forced marriage because of their dependence on the protection of their families. They are especially vulnerable if those who are supposed be their protectors exert coercive force on them to enter marriages they have not freely chosen. It is imperative to ensure that children are protected from any coercion in respect of a proposed marriage. Parents may well be well-intentioned in arranging a marriage for a child. However, it is our collective responsibility to ensure that no child should be put in the invidious position of being pressured into a marriage that he or she does not want. After all, the UN Convention on the Rights of the Child explicitly requires us to protect a child from all forms of exploitation prejudicial to the child's welfare.
Before turning to the response to the motion, it may be of some benefit to set out the international and national legal context with regard to marriage and the legal position on forced marriage in particular. Article 16 of the Universal Declaration of Human Rights establishes that:

(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
Thus, in accordance with the universal declaration, only men and women of full age have the right to marry. Only a marriage entered into with the free and full consent of both spouses is valid. The UN Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages expressly provides in Article 2 that:
States Parties to the present Convention shall take legislative action to specify a minimum age for marriage. No marriage shall be legally entered into by any person under this age, except where a competent authority has granted a dispensation as to age, for serious reasons, in the interest of the intending spouses.
I should add that while the UN convention provides for the possibility of an exemption to the minimum age of marriage, it does not require that such exemptions be available. Nonetheless, it states that minors can be allowed to marry, in certain circumstances, where the national law so provides.
Irish law is compliant with the universal declaration and with the UN convention. National requirements concerning marriage are set out in the Civil Registration Act 2004, which is under the aegis of my colleague, the Minister for Social Protection, Deputy Burton. Section 2(2) of that Act sets out who may not marry. This includes a general prohibition on marriage by people under 18. A marriage which is in breach of section 2(2) is void ab initio, meaning it is not entitled to any legal recognition. However, section 2 also allows an exemption to the general prohibition on marriage of minors. It allows minors under 18 to marry where the minor obtains a court-ordered exemption as provided for in section 33 of the Family Law Act 1995. The Circuit Family Court is the competent authority which may grant such an exemption enabling someone under 18 to marry. The conditions relating to the court exemption are that an application may be made informally, otherwise than in public, and that no fee shall be charged in respect of it. The legislation stipulates the court may not grant an exemption unless it is satisfied that "its grant is justified by serious reasons and is in the interests of the parties to the [proposed] marriage". There are no additional provisions mandating any particular factors for the court to consider in arriving at its determination that the marriage is in the interests of the parties. This is the legal context against which any issue of forced marriage of minors must be considered.
This motion deals with the situation where a minor is coerced or forced into an arranged marriage. I should be very clear that what is at stake here is not the issue of arranged marriage more broadly. In most cases, arranged marriages are marriages to which both intending spouses give their full and free consent. What is unique about a forced marriage is that while it may be arranged, whether through families of the parties or otherwise, it constitutes a marriage to which at least one of the parties does not give free and full consent. In this, it is clearly distinguishable from arranged marriage more generally. This is an exceptionally complex area. There is no clear agreement at international level as to what is understood by the term forced marriage and neither is it a term that is defined in Irish law. The question indeed arises as to whether a forced marriage, involving the absence of free and informed consent, can be termed a marriage at all since marriage requires such free and informed consent. It might be stated that forced marriage is a contradiction in terms. Nonetheless, where it occurs, it constitutes a serious problem in view of the potentially devastating impact on the lives of those forced into this situation. Forced marriage is often the product of or the catalyst for a number of possible criminal behaviours, including human trafficking. Situations in which individuals are forced to marry without their free and informed consent may effectively amount to human trafficking in certain circumstances. However, it is important to note that the marriage in and of itself may be unlikely to be a significant factor in determining whether the offence of human trafficking has occurred.
There are a number of options under criminal law to tackle the issue of forced marriage. False imprisonment, which essentially consists of restricting the personal liberty of a person, is an offence under section 15 of the Non-Fatal Offences Against the Person Act 1997 and carries a life sentence. Unlawfully intimidating a person with a view to compelling him or her to do something which he or she has a right not to do, for example, participate in a marriage ceremony, amounts to coercion. This is an offence under section 9 of the 1997 Act punishable by a fine and up to five years' imprisonment. The seriousness of the offence of false imprisonment is also reflected in the additional provisions of the Criminal Justice Act 2007. The 2007 Act allows for a person suspected of false imprisonment to be detained by the Garda for investigative purposes for up to seven days, subject to judicial authorisation. It also provides for the courts to make monitoring orders for persons convicted of false imprisonment.

Courts may also make Protection of Persons Orders prohibiting offenders from engaging in any behaviour that would cause the victim of the offence fear, distress, alarm or intimidation. The same Act provides mandatory minimum sentences for repeat offenders.
Forced marriage, of minors or otherwise, is fortunately extremely rare in Ireland. There is one known case in recent years where a minor was coerced into going through a ceremony of marriage against her wishes, after an exemption had been granted by the Circuit Court. The minor concerned was subsequently granted a declaration that the marriage was void ab initioby reason of her lack of consent to the marriage. I would imagine that the details of that case were a factor in contributing to the decision of the Labour Party Senators to bring forward this important and valuable motion.
In response to their initiative, my colleague the Minister for Justice and Equality now intends to set up a small interdepartmental group involving officials from the Department of Social Protection, the Department of Children and Youth Affairs, the Department of Education and Skills, the Office of the Attorney General and the Department of Justice and Equality. The group will consider the legal provisions allowing an exemption from the age of marriage and what additional protections may be necessary to protect minors, up to and including totally abolishing the possibility of an exemption from the minimum age.
A small but consistent number of marriages take place annually in Ireland where one or occasionally both parties are under the age of 18. Some 29 of the 21,770 marriages registered in 2013 involved parties under 18. Approximately 300 such marriages were registered over the last decade. However, there is no suggestion that any of them were forced ones. Most such marriages are entered into voluntarily. In the case to which I referred earlier, the General Register Office properly did not register the marriage once doubts over the consent of the young girl involved were brought to its attention.
As such, it may be disproportionate to abolish entirely the possibility of obtaining an exemption in order to protect minors from the risks of forced marriage. What may be needed is to tighten current procedures. There may, however, be other sound policy reasons - such as that of encouraging completion of secondary education - to consider removing the exemption. In this context, I propose to task the interdepartmental group with examining the broader aspects of this issue as well.
The motion calls on the Government to consider the issue of forced marriage of minors and its potential link with the current statutory exemption allowing minors to marry. It has provided a catalyst for the Government to examine the issue of under-age marriage more broadly.
As Senators are aware, the Minister for Justice and Equality is deeply committed to the cause of child welfare. Her concern, and that of Government, is to ensure that children get the opportunity to fulfil their potential. Taking on the responsibilities of marriage at too young an age may limit a child's life chances. While a child may desire to get married as a minor this, paradoxically, may not be in the child's best interests. The Government welcomes the opportunity that this motion has provided to consider both the specific issue of forced marriage of minors and the broader question of whether under-age marriage serves a child's best interests.
The motion sets us on a journey to ascertain the most appropriate means to protect a child's life choices and life chances. I welcome the debate on this issue. On behalf of the Minister for Justice and Equality, and on my own behalf, I thank the Labour Party Senators for tabling the motion.


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