Jillian van Turnhout (Independent) | Oireachtas source

I move amendment No. 1:

In page 6, after line 29, to insert the following:

"Removal of court exemption to impediment on ground of age

7.(1) In this section "Act of 1995" means the Family Law Act 1995.

(2) The Act of 1995 is amended by-

(a) the deletion of section 31(1)(b), and

(b) the deletion of section 33.

(3) Section 2 of the Civil Registration Act 2004 is amended by the substitution of the following paragraph for paragraph (c) of subsection (2)-

"(c) one or both of the parties to the intended marriage will be under the age of 18 years on the date of solemnisation of the intended marriage,".

(4) This section shall not apply to a marriage in respect of which, prior to the enactment of this section, a court has made an order under section 33 of the Act of 1995.".

My amendment seeks to abolish the possibility of a court ordered exemption to 18 years as the minimum legal age to marriage. As I emphasised on Second Stage on Tuesday last, my amendment stems from my concern about the exemption that can and is being granted by the Circuit Court in Ireland to allow children under the age of 18 enter into marriage. The Minister will be familiar with my concerns since they were the subject of a motion tabled by Senator Ivana Bacik and the Labour Party, and which I seconded, in June 2014.

The exemption to the ordinary legal age of 18 years for entry into a contract of marriage is provided through sections 31 and 33 of the Family Law Act 1995 and was more recently retained in section 2(2) of the Civil Registration Act 2004. We know the exemption is being applied. On the afternoon of our motion, the former Minister of State, Deputy Fergus O'Dowd, had advised the House that between 2004 and 2013, almost 400 parties to marriages in Ireland were under the age of 19. More specifically, according to CSO data, kindly compiled by the Oireachtas Library and Research Service in advance of our debate, 28 marriages registered in Ireland in 2012 involved a bride or groom, or both, who were under the age of 18 years. In 21 of these marriages, the bride was 16 or 17 years of age and the groom was 18 years or over. In four of these marriages, the groom was 16 or 17 years and the bride was 18 years or over. In the remaining three, both the bride and groom were 17 years, both children, entering into a legal contract of marriage. I find this quite remarkable and entirely undesirable in the context of the State's duty to protect childhood.

Deciding to marry is a very serious matter. The obligations and responsibilities that arise from marriage are onerous. It is ironic and seems inappropriate that we would trust children to make this decision when we prevent underage people from making other decisions, for example, unless a person is married, he or she must be 18 years or over in order to make a valid will. One cannot enter into a civil partnership unless one is 18 years and there is no provision for any exceptions.

A person under the age of 18 also has limited capacity to a contract. A contract with a person under the age of 18 cannot be enforced unless it is for necessary items that are needed for the child's basic sustenance as opposed to luxury items or is the beneficial contract of service. Therefore, a child's capacity to enter into a simple contract or valid will is limited but yet we will allow a child under the age of 18 to take the equally, if not more, profound decision to marry.

Ireland is bound by a number of international human rights laws and standards, the provisions of which are completely incompatible with child marriage, for example, the International Bill of Human Rights, the UN Convention on the Rights of the Child, CEDAW, the Supplementary Convention on the Abolition of Slavery, the slave trade, and institutions and practices similar to slavery. More recently, in September 2013, Ireland with its fellow EU member states supported the UN Human Rights Council resolution on strengthening efforts to prevent and eliminate child, early and forced marriages, challenges, achievements, best practice and implementation gaps. It is such a glaring contradiction that we in Ireland speak out against child marriage in countries such as India, Nigeria, Malawi, Iraq, Nepal, Ethiopia and Bangladesh while our Statute Book still allows exemptions to the normal marriage age which, worse still, fails to specify a minimum age for such an exemption.

This is not just a question of child marriage. The exemption also raises concerns around the scope for coercion and forced marriages of children here in Ireland, which again appears baffling when we consider our reaction to the horrific incidence of forced marriages internationally - we just need to think of Boko Haram.

Applications for exemptions are made to the Circuit Court in private. Senator Bacik made an important point about this in the debate on her motion. There is no public record of the application or the arguments put forward in support of the application. There are no guidelines on the criteria for granting the exemption. Rather, the standard language of section 33 gives the court wide discretion and, worryingly, there is no provision for minors to be legally represented at the hearing or for the HSE or the Child and Family Agency and child protection authorities to be notified.

Our motion specifically referenced the criticism levied by Mr. Justice McMenamin in the High Court in a judgment in June 2013 in a case concerning an arranged marriage. The case concerned the annulment of a marriage between a 16 year old girl and a 29 year old man on the basis that the girl lacked capacity to give true consent in the first instance. Mr. Justice McMenamin felt the case raised concerns of such magnitude that it warranted a general comment about the danger of the legal loophole for children. He noted that in certain circumstances such marriage exemptions may give rise to significant child welfare issues and he queried whether the HSE should be put on notice of such applications in order to inquire into the protection and welfare circumstances of the child concerned. As the Legislature we must provide guidance for the courts to implement the statutory provisions as they are intended or we can lead by example and remove the statutory provision currently allowing minors to marry.

When our motion was debated in June 2014 we were told that a small interdepartmental group would be established. I have not heard anything about it since. I appreciate the importance of today and the historic occasion that it is. As we are in the last few months here, I have tabled this amendment because it is an issue that is close to my heart. As I have said, I will not press the amendment but I wanted the issue to be raised and I wanted the Minister's officials to hear the reasons we must address this gap for children. There is no lower age for this exemption, it is all done in the Circuit Court in private. We must protect children. Without representation, a decision can be made about their lives, a decision that we all take extremely seriously is what makes today so important.