Wednesday, 25 June 2014
Child Protection: Motion
I welcome the Minister of State, Deputy Fergus O’Dowd, to the House in place of the Minister for Justice and Equality, Deputy Frances Fitzgerald. I thank her, as well as the Minister for Social Protection, for indicating the Government will accept this Labour Party motion. I am also delighted Senator van Turnhout will second it as it is a genuine cross-House effort between Labour and the Independents.
That Seanad Éireann: - notes the need to ensure adequate protection of children and of children’s rights in our laws, and in particular to ensure that children are not coerced or forced into 'arranged' marriages;
- notes that sections 31 and 33 of the Family Law Act 1995 allow exemptions from the normal rule that parties to a legal marriage must be over 18; and that the possibility of seeking this exemption by way of court order was retained in section 2(2) of the Civil Registration Act 2004;
- notes further that this exemption was criticised by the High Court in a judgment in June 2013 in a case concerning an 'arranged' marriage; and
- proposes that the Government would consider whether to remove or amend the statutory provision allowing minors to marry on the basis of a court exemption.
This motion addresses an issue which has not been of enormous public concern to date in Ireland but has become an increasingly serious issue in other countries. I am grateful to the Labour Women group, and Mary Flynn in particular, for bringing this issue to my attention some months ago on foot of a motion that Labour Women put to a Labour Party conference some years ago. This motion concerns the legal minimum age at which persons may get married and the different, but overlapping, practice of child marriage and forced marriage. Child marriage is where one or both parties to a marriage are legally a child, namely under 18 years of age. A forced marriage is a marriage in which one or both parties are married against their consent or free will. This can occur where one or both parties are over 18 years of age.
Clearly, it is much more likely that a person's will could be overborne when they are not regarded as an adult in law. This is where we do have an overlap. A child is much more susceptible to influence and has fewer legal rights to assert. For these reasons, international conventions acknowledge the need both to ensure protection against forced marriage and protection of children within any law of marriage. The right to marry in the UN Universal Declaration of Human Rights in Article 16 is reserved to men and women in full age. Article 16(2) states: "Marriage shall be entered into only with the free and full consent."
The 1962 UN Convention on Consent to Marriage, Minimum Age for Marriage provides, in Article 2, that State parties:
The CEDAW, Convention on the Elimination of All Forms of Discrimination against Women, prohibits child marriage in Article 16.2. In addition, a UNFPA report says that since 1994 more than 158 countries have passed legislation raising the minimum age of marriage to the age of adulthood, that is 18 years, albeit that many do allow exemptions on court application. Therefore, we have near universal commitment to tackle both the practice of forces marriage and to end child marriage. Nonetheless we see very high levels of under age marriage - of child marriage - particularly in developing countries. The issue has also been highlighted in many developed countries.
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.
Senator van Turnhout will speak more on the international context, particularly on the child protection context internationally. However, I want to mention certain recent legal developments in Britain before I turn to examine Irish law in more detail.
In Britain the prevalence of forced marriages and public concern about same has become a real issue. In 2013, the UK Government's forced marriage unit dealt with 1,302 cases in which 82% of victims were female, 15% were under the age of 15 years and the cases involved communities from 74 different countries. In response to the problem two recent legislative changes in Britain have been made. First, the Forced Marriage (Civil Protection) Act 2007 allowed the courts to issue forced marriage protection orders in order to protect individuals who were being coerced into marriage. Second, we had the passage of the Anti-social Behaviour, Crime and Policing Act 2014. Among its provisions is one which makes it a crime, in England and Wales, to force someone to marry with a maximum penalty of five years imprisonment. A very well known charity called Freedom Charity, set up by Aneeta Prem to educate young people in Britain about forced marriage, has pushed for the legislation and been very approving of this law.
In Ireland there has been no real public debate on the issue of either child marriage or forced marriage. To my knowledge, this is the first debate on the issue in either House of the Oireachtas and I am delighted that the Seanad had led on this matter. Senator van Turnhout raised the matter previously in a debate here and I have previously raised it with the Minister but I think this is the first full debate on the matter.
We have not passed any specific law concerning forced marriages and we still allow marriage to take place where one or both parties are under 18 years, on a court application for an exemption. There is no provision in Irish law for any sort of child protection order to be made, or indeed any contact with child welfare agencies, where such an application for an exemption is made. Of course we do have laws prohibiting coercion, at common law, and a marriage can be annulled if one or both parties have been forced or coerced.
The relevant legislation to which the motion refers is the Family Law Act 1995 and the Civil Registration Act 2004. Section 31 of the Family Law Act 1995 provides that the minimum legal age at which people can get married in Ireland is 18 years. However, section 33 allows an application to be made to the court for an exemption from this rule where one or both are aged under 18. Section 2(2) of the Civil Registration Act 2004 has maintained the facility in section 33 to apply for the exemption. Therefore, a relatively recent law still maintains this facility.
Senator van Turnhout and the Labour Party group are concerned that keeping the exemption in place may facilitate the practice of forced marriages. It may lead to young girls, in particular, but also boys being coerced into entering marriages. We put forward the motion in the context of a desire to protect the welfare of children and to ensure, in particular, that women and girls are protected. Thus we argue that the State should consider whether to remove or amend the statutory provision thereby ensuring robust enforcement and adherence to the minimum marriage age of 18.
Our concern is that the exemption facility, provided in section 33, offers no protection to minors. Let us look at the practicality aspect. Applications for exemptions are made to the Circuit Court in private, there is no public record of them, and there are no guidelines on the criteria for granting the exemption. In addition, there is no provision for the minors to be legally represented at the hearing or for the HSE and child protection authorities to be notified.
The Oireachtas Library & Research Service has produced a very helpful note which tells us that in 2012, according to CSO data, there were 28 marriages registered in Ireland where either the groom, bride or both were under 18 years. In 21 of the marriages registered the bride was 16 or 17 years and the groom was 18 yeas or over. The Minister of State's note told us that between 2004 and 2013 almost 400 parties to a marriage were under the age of 19. Clearly, this is an issue in Ireland because section 33 is being used. One of the unknowns when we commenced the investigation was whether this was an issue but clearly it is. We do not know the circumstances of the 28 cases but we do know that children are getting married in accordance with the exemption in Ireland. We know very little more about the matter.
We have a High Court judgment which unfortunately is unpublished but was reported on by RTE on 18 June 2013. It referred to the fact that Mr. Justice MacMenamin, in the High Court, was dealing with an application for what he described as an arranged marriage. He annulled the marriage which had been contracted between a 16-year old girl and a 29-year old man. He said, as reported by RTE, that in certain circumstances the provision for marriage exemptions may give rise to significant child welfare issues. He commented that legislation may be needed to assist young people who are placed in arranged or forced marriages, and that the system for seeking exemptions from the legal age limit for marriage requires review, as it raises child welfare questions in certain cases. In particular, he said that a question arose as to whether the Circuit Court, when asked to hear an application under section 33 - and we know that there were 28 such applications in 2012, or there must have been, giving rise to thee 28 marriages - at the very least should be obliged to give notice to the HSE to inquire into the protection and welfare circumstances of the child in respect of whom an exemption from the marriage age is being sought.
I must say that in the particular case at issue there were very serious child protection concerns and the child concerned had been, I think, in care. The judge also commented that the State agencies had behaved appropriately at all times. However, he was critical - indirectly I suppose - of the Legislature for failing to ensure that there were protection measures put in place where applications of this sort are made.
It is in light of that case, and the concerns that have been raised with me by Labour Party women, and with Senator van Turnhout on the chid protection side, that we wanted to bring this issue to the fore. We seek to pre-empt any abuse of the rights of children that may occur in Ireland in the future and we have seen occur in our neighbouring jurisdiction, and certainly in other developed and developing countries worldwide.
Clearly, this is a difficult area because even if we amend or abolish the facility to apply for an exemption, found in section 33 of the 1995 Act, we still have an issue to deal with, the problem of coerced or forced marriage for those who are over 18 years. We should then consider legislating to ensure that it is a crime to force anyone, even someone over 18, into marriage. In other words, we should follow the British model.
I anticipate that the Minister will establish an interdepartmental group, on foot of this motion, to consider the issue. The group will need to consider age limits generally. That may seem somewhat inconsistent when the Constitutional Convention has recommended lowering the voting age to 16 and recently the Oireachtas committee on education and social protection recommended an age limit of 16 for young people who wish to register a change of gender. I think it is entirely consistent with child protection to say that we can consider lowering the voting age, and we can consider allowing people to register a change of gender at a slightly younger age. Under the Non-Fatal Offences Against the Person Act 1997, a child, at 16 years, can consent to medical treatment. That is entirely consistent because those are decisions that affect that child. They are decisions we can allow a child to make and recognise his or her own autonomy. However, marriage is different because it is a legal contract between two parties. Therefore, it involves particular issues and concerns around coercion which do not arise when a minor makes a decision, for example, on how to vote. I think it is appropriate, in the context of concerns about forced marriage worldwide, and in the context of the international conventions that I referred to and internationally in general, that we would look to keep a line under the legal minimum for marriage at 18.
Many years ago in Ireland it was the norm for people to get married much younger. Now the average age for marriage has moved well above the legal minimum of 18. We seek to preserve and protect childhood. I know that many people have fought very hard to ensure that 18 would be the age up to which young people would receive protections, for example, within the criminal justice system and so on. Therefore, it is appropriate that we would regard 18 as the legal minimum age at which a person may enter a legal contract of marriage.
I welcome the Minister of State to the House. I would like to thank Senator Bacik, who like me has worked on this issue, for initiating the motion before us. I am very happy to second the motion and thank her for her co-operation.
I raised this issue back in May during the Seanad debate on the abducted schoolgirls in Nigeria that Boko Haram had threatened to sell into forced marriage. Like many people, I felt helpless looking on at the situation and it made me wonder if there was anything we could do. For me, this is one area that we can do something about. We can send the clear message that the age for marriage is 18. That is something that we must take responsibility for doing. During the debate I made the worrying correlation between Nigeria and Ireland because, in certain court ordered special circumstances, exemptions to the ordinary legal age for marriage of 18 years can be made. That means Ireland does not currently prohibit all child marriages.
It is important to note that Ireland is bound by a number of international human rights laws and standards, the provisions of which are profoundly 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.
In September 2013, Ireland, with its fellow EU member states, supported the United Nations Human Rights Council resolution, Strengthening Efforts to Prevent and Eliminate Child, Early and Forced Marriage: challenges, achievements, best practice, and implementation gaps. The European Union as a negotiating block at the international fora condemns the prevalence of child marriages yet makes provision for it in a number of its own jurisdictions, for example, in Germany and Italy. In Germany, if one of the parties to be wed is at least 16 years old, but not yet 18 years old, the German age of emancipation, that party needs to seek approval from the family court in order to be wed. Consent of the concerned party's parents is not sufficient. In Italy, a sworn statement of consent to the marriage is required by the parents or legal guardian if the child is under the age of 18.
Exploitation of young girls through violence and abuse, including forced and arranged marriages, is a global problem. According to Girls not Brides, every year, approximately 14 million girls are married before they turn 18 across countries, cultures and religions. They are robbed of their childhood and denied their rights to health, education and security. According to UNFPA, by 2030, the number of child brides marrying each year will have grown from 14.2 million in 2010 to 15.1 million, a 14% rise if the current trend continue.
In March 2014, the Iraqi Justice Minister tabled a Bill to allow girls as young as nine years old to marry. While reports have indicated that it is unlikely that the law will pass, it represents a worrying trend toward religious tendencies usurping girls' human rights. In response to the Bill, prominent Iraqi human rights activist Hana Adwar said: "The law represents a crime against humanity and childhood. Married underage girls are subjected to physical and psychological suffering." This contention is known to be true. The more than 60 million girls married under the age of 18 worldwide have a higher risk of death and injury during childbirth, fewer marketable skills, lower lifetime income, a higher rate of HIV, exposure to domestic violence, and illness for themselves and their families than their unwed peers.
It is inappropriate and, frankly, contradictory 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 for exemptions to the normal marriage age, and fails to specify a minimum age for such exemptions. As outlined by Senator Ivana Bacik in 2012, some 28 marriages were registered under the exemption. As stated by the Senator, the exemption threshold is very broad and it uses standard language giving the court wide discretion. This means that decisions pertaining to allowing children to marry are made behind closed doors, often subject to the in camerarule since the parties to the application are children. Yet, from the moment they are married, they become adults and are outside all the child protection laws. We never hear about those decisions and those vulnerable children. In this regard, the Family Law Reporting Project has come across many of these cases, and may be able to shine a light on the prevalence and general circumstances in which they occur.
There is no written judgment in the High Court case referenced in this motion. The case concerns the annulment of a 16 year old girl's marriage to a 29 year old man on the basis of the girl's lack of capacity to give true consent. How can a 16 year old girl give consent to a marriage to a 29 year old man? I am not speaking of a case in Iraq but in Ireland. This happened in Ireland. However, Mr. Justice MacMenamin felt the case raised concerns of such a magnitude that it warranted his making a general comment about the danger of the legal loophole to children. We are faced with a choice. As the Legislature, we must provide guidance for the courts to implement the statutory provisions as intended or, and this would be my preference, we can lead by example and remove or amend the statutory provision currently allowing minors to marry. I believe Ireland should send a clear signal to children here that we protect childhood and that the age for marriage is 18 years. We have had excellent debates here on protecting childhood. We are talking about consent, the age for which should be set at 18 years. That would mean that Ireland, as part of the European Union as a negotiating block, is not saying that it can understand cultural differences and our courts can adjudicate, but we do not trust the courts in other countries. We need to send out a message that we are setting the age at 18 years without exemption.
I welcome the Minister. As spokesperson for children I welcome the motion, for which I thank Senator Ivana Bacik and Senator Jillian van Turnhout. It goes without saying that all children in the State should have adequate protection of their rights. The Family Law Act 1995 provides that the minimum legal age at which people can get married in Ireland is 18. However, section 33 allows a couple to apply to the court for an exemption from this rule where one or both are aged 18 or under. I hate to admit it but I was unaware that this happened. As a mother of a 17 year old girl I would be horrified at the thought that she would be able to marry. I would be equally horrified if my son was legally able to marry at 16 years of age.
Anybody who deals with teenagers knows they change from day to day. They go from being big fans of One Direction to suddenly being big fans of The Script and vehemently deny they ever liked One Direction because it is for children. They change. They are maturing and exploring life and all it has to offer. They change from week to week. Marriage is a lifelong commitment. At 16 years of age our children are vastly different from what they will be at 18 years of age. Frankly, I find the data from the Central Statistics Office very worrying. In 2012, some 28 marriages were registered where either the bride or groom or both were under the age of 18. In the majority, 21 cases, the bride was 16 or 17 years of age and the groom was 18 years or over.
International human rights bodies have agreed that 18 is the appropriate minimum age for marriage. A UN report shows that since 1994 more than 158 countries have passed legislation raising the minimum age of marriage to 18 years. I am mindful that Irish society has an increased cultural and religious diversity. This is a good thing because for too long we were influenced by one all powerful church. However, some religions have a culture of arranged marriages. That is fine - each to their own. However, when it comes to a child under the age of 18, I wonder if he or she has enough maturity to make a decision that potentially ties him or her to someone for the rest of his or her life. If a girl or a boy is getting married at 16 or 17 years of age, it is highly unlikely that they are financially independent of their parents and, therefore, are vulnerable to parental coersion. There is no legislation in place in Ireland which addresses the issue of forced marriages or marriages where there is no real consent.
We are here as legislators and many of us are parents. I am aware that a High Court judge recently expressed concern at exemptions to marriage age restrictions following a court annulment of an arranged marriage, as Senator Jillian van Turnhout said, of a 16 year old girl to a 29 year old man. The judge further said that the system for seeking exemptions from the legal age limit for marriage needs review. The judge is right and I agree with him. I welcome the motion.
I welcome the Minister. I thank Senator Ivana Bacik and Senator Jillian van Turnhout for tabling the motion. It is important to have this debate. I am saddened and quite shocked that there are no men in the room, apart from the Minister. Those in the Visitors Gallery, one of whom is a man, are welcome. I am puzzled at the lack of men because this is an issue that affects all of us. It is, as several of my colleagues-----
I am sorry. I was treating the Cathaoirleach in the neutral aspect that chairs ought to be in. Of course, the Cathaoirleach knows what I mean. However, I acknowledge the Chair.
If, as Senator van Turnhout has said, we are here to set example, to take a lead in the world and to be able to make any statement at all about our own care for our young people, then we have to do that by example. Fine words never cut it, and certainly not in this case. It seems the Senator has raised an important matter that can probably be dealt with relatively straightforwardly. I hope that is the case.
Most of the reasons that might have existed prior to this or the past century for young girls being forced into marriage for social reasons, for political reasons, to avoid poverty or for religious reasons have collapsed in the modern world and we accept that the risks posed to young women by being married too young, and, potentially, being mothers far too young, certainly endanger their life in a straightforward fashion. In addition, they almost certainly endanger their psychological and mental health with regard to their loss of childhood and all that goes with that. The research is not to be questioned as there is so much of it.
We will have listened over many years to all those who visited countries where there is less advanced thinking in this matter and brought back the stories of those young girls, many of them children aged five, six and seven, being forced to marry, and we can still be shocked by that. We should be shocked by ourselves here, that, in 2012, the last year for which figures are available, 28 young persons, or slightly more than one every fortnight, were married having got consent from the courts. That is quite a lot. Let us not be pointing figures at others. The evidence is clear that such loss of childhood and forced arrangement is anti-woman. Let us face it now. That is what it boils down to. I, for one, certainly would like to see that changed.
I believe in the equality of men and women, and where we can change laws and improve them to improve how we treat women, particularly young women in how they will grow up, it falls to us to do so. Therefore, this motion is important in its own right, but it is more important in a wider picture in regard to our own views of women to which I alluded earlier in my observation about the state of the Chamber today.
I thank the Minister of State. I hope and trust that we can make speedy progress. I am not one generally for rushing matters merely for the sake of rushing them, but this is something for which there should be clear consent. We now can set about fixing it so that we become one of those countries that states the minimum age must be 18 years and there will be no exceptions to that.
I, too, welcome the Minister of State to the House. I also welcome this motion and fully support it. What we are discussing here is the protection of children. This motion is premised on the judgment of Mr. Justice John MacMenamin in the High Court last year. The judge has subsequently been appointed to the Supreme Court.
Mr. Justice MacMenamin has vast experience in the area of child protection prior to and since his appointment to the bench, and was to the fore, prior to any Government action, in ensuring that the best interests of the child were the paramount consideration in any case that came before him. Members should note that the judge was in charge of the minors' list in the High Court for three years and delivered some important decisions on the rights of children. In other words, the views of this judge need to be taken seriously.
Whilst I recognise that there are many different cultural practices and wishes in Ireland, particularly due to our increased ethnic and religious diversity, any wish not to offend a minority cannot take the place of the common good and society's need to protect children. In this regard there are several issues highlighted by the judge that we need to address at a minimum. These include the fact that an application to the courts to exempt a minor from the age restriction can be made without any notice to authorities, including child protection; the lack of legislation directly addressing forced marriages; and the need for a designated person or agency to provide support in such circumstances. Of course, none of the insufficiencies in the system noted by the judge prevents the Oireachtas legislating to remove the exemption fully, should it wish to do so.
Members should note that in England and Wales, parents of children forced into marriage now face up to seven years in prison and the practice has been outlawed in Scotland for some time. I would voice one note of caution. There is a distinction to be made, as in the new English legislation, between a forced marriage where one or both of the parties does not consent and an arranged marriage where the parties consent but can refuse to marry if they so wish. We should keep that in mind and not confuse the two.
I thank Senator Bacik for putting forward this motion. I refer, in closing, to the comment from our colleague, Senator Van Turnhout, that 14 million girls marry before the age of 18 annually throughout the world. We cannot criticise this practice internationally and yet have insufficient protections domestically to stop it happening here.
Lest we confuse the issue before us, I come from an Ireland where my grandparents, I am fully convinced, were the victims of an arranged marriage. My grandmother told me in one of those confidential moments one can only have with one's grandmother, not with one's parents, that her marriage to my grandfather had been sorted. I am fully convinced that many of us sitting here in this room today are the progeny of arranged marriages sorted by somebody in the local village who knew the families well and made the arrangements that, perhaps, shy retiring men could not make for themselves, etc. We all have read the John B. Keane Letters of a Love-Hungry Farmer, and the particularly gruesome end to that trial comes when the person concerned finds himself in an unfortunate rural situation where no arranged marriage was prepared for him and he ended up, in his 50s, living in a rural area with no arranged marriage. I raise this, not to be whimsical but purely to say that the fact we live in a society where arranged marriages were the norm a number of decades ago does not take away from the situation we are dealing with today and the reason we are debating this motion. It is important to distinguish between the experience in Ireland all of those decades ago and the situation today because arranged marriages are now firmly a thing of the past. While I would love to be the one who suggests to my daughter that I would arrange her marriage for her, we have to be cognisant of the fact that this is a serious motion and it is one that we must take very seriously.
Forced marriage, as the UN statistics show, is a real issue in the world today. We, in Ireland, in all of those years gone by, were not dealing with immigrant cultures living in our community. We were not dealing with the idea of child marriage. We were not dealing with the idea of somebody effectively being sold into slavery at a very young age without having any say over her own future. All of that having been said, we have our own murky past to deal with. There is the fact that many Irish women who did not accept what their families said found themselves living in mental institutions and county homes for the rest of their lives and we cannot simply place this in the remote distances of the past.
We have to acknowledge that this is a multicultural society and children are the victims of forced marriage. Internationally, we cannot remove ourselves from that picture. We have to acknowledge that it is a practice, as has been acknowledged already, similar to slavery and it was made illegal in international law nearly 60 years ago. It is easy to say this is something that happens, in remote Pakistan or remote India or, indeed, in looking at the way society is developing in countries such as Iraq, and the practices of ISIS today, that there are 63 additional women and children who have been kidnapped in the very recent past.
This is a live issue, for which a law is needed that is reflective of the practices in the world as it currently stands.
I had intended to raise the MacMenamin judgment that my colleague, Senator Naughton, has already mentioned. It is an important judgment and may be one of the few available relating to this issue of age restriction. However, it gives pause for thought and must be taken seriously. As such, the question being posed to the Government by this motion is whether consideration must be given to the current position in Ireland with regard to allowing marriages below the age of 18. There is enough international knowledge and practice extant to state it must. As to whether there is a need to get more complicated about the issue, I am unsure whether there is. We do not have a great deal of legal precedent but have a lot of United Nations documentation relating to the issue of forced marriages. In a similar example, I was proud to attend an interparliamentary assembly at which I could cite Ireland as one of the few jurisdictions with female genital mutilation legislation that goes beyond its own jurisdiction in which we penalise people who remove children from this jurisdiction to engage in this practice in other countries. The important point is that our laws must be fit for purpose and must reflect a multiethnic country. Moreover, our laws cannot hanker back to an Ireland in which we had arranged marriages as that all is in the past. It might all have been grand, to take an example from the books of Peig Sayers, when she rowed over on the currach and met her future husband and they basically winked at each other across an open fire. We must acknowledge those days are long over and a legal system is needed that reflects this.
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.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:
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
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.
I apologise for being late and would not want anybody to interpret it as an expression of disinterest. It was as a result of a complete mix-up on our side as to whether I was to be here or somebody else. I apologise to the Cathaoirleach, as well as to Senator Bacik and the Labour Group, and the House generally.
Fianna Fáil fully supports this motion and I congratulate Senator Bacik for having tabled it. I welcome the Minister's intention to establish a cross-departmental team to progress the matter in a broader context. Notwithstanding people's traditions, the only arranged marriage that should be considered is one that the couple arrange themselves, rather than anybody else. Clearly, however, it is an issue. It is barbaric if it is forced in the way that has been suggested. There seem to be quite a few instances of that happening worldwide, which are linked to human trafficking. It is clearly a breach of human rights. There are traditions that have arranged marriages whereby people are introduced by design and they ultimately agree to the arrangement. I myself got married following a blind date, which I thought I might put on the record for fun. It was not a Cilla Black-style one, so we did not have to line up behind a curtain, but it certainly was not intended the way it turned out.
The Minister of State should provide the cross-departmental team with some deadline, rather than establishing a group that will meet once ever six months. We should not consider that the issue has been dealt with finally. If the question arises again, we do not want to be told that the cross-departmental group is examining the matter and we will have news soon. To that end, we should put an adequate six-month deadline after which the group can come back with tangible changes. These changes can be the specific ones suggested by Senator Bacik, which will certainly form part of it, as well as additional ones such as finishing secondary school studies, as the Minister of State mentioned.
I do not wish to delay the work of the House. I apologise again that the debate got under way without one of our representatives being present. I was supposed to be here but I did not realise that because I thought somebody else was coming. There are many reasons for failure but there are no excuses, so I am sorry.
Fianna Fáil fully supports the motion and I congratulate Senator Bacik and the Labour Group for having tabled it. I look forward to the Minister reporting on it in due course.
I welcome the Minister of State, Deputy O'Dowd, back to the House. I also wish to commend Senator Bacik for proposing this motion and Senator van Turnhout for seconding it. It is a good day for the Seanad when we can have cross-party support for important issues such as this one.
It is disappointing that in 2014, young girls of all nationalities and backgrounds are being coerced into marriage in various parts of the world. Our current legislation provides that the minimum legal age for marriage is 18, but there is a possibility for an exemption when one or both individuals seeking to marry are under 18. It has been agreed by a number of reputable and highly-regarded bodies that 18 years is the appropriate minimum age for marriage. This has also been agreed internationally in 158 countries where legislation has been passed to raise the minimum age to 18.
While the practice of under-18 marriages in Ireland is not as prevalent as it once was, many people in communities across Ireland are still aware of individual cases where a girl under 18 has entered into marriage. I am personally aware of this occurring in my role as a teacher. I remember having one pupil who belonged to a family where, as they reached the age of 16, the girls went into arranged marriages. Not only were they being married as children, but they were often moved out of the town as well.
I remember one child to whom I taught music. She had never played an instrument before but was very bright and took to music very well. She came with me - it was her first time on a bus or an aeroplane - to play at an international competition. When I resumed teaching in September that year, I was shocked to discover that this little one was married. The following year I met her when she travelled from Dublin to Dundalk for the day with twins in tow. This child was barely 17, yet she was married and had two children. That was a few years ago, but it certainly brought home the situation to me, although she was quite happy. However, I think of the opportunities we are losing due to the cultural differences involved. I feel that we ought to let our children be children until they are at least 18.
If the minimum age for marriage was raised to 18, without exemption, we would be able to provide these safeguards and the possibilities of further opportunities for such girls. When a child is forced into marriage they are stripped of their precious childhood years. They are forced to grow up immediately and are exposed to adult realities. As everybody else here agrees, that is completely unacceptable and wholly unfair. These girls are given very little respect for their own abilities and worth.
I have already referred to a particular girl whom I had the good fortune to teach, but she was not unhappy.
She was quite happy but she was 17 years of age and had two small babies. I hope she had the opportunity to go back to education and be the person I know she could be.
It is estimated that 400 young women are trafficked into the country for the purpose of forced marriage, something of which I was not aware. I recall a number of years ago hearing reports of migrant children as young as 12 years of age being forced into marriage. The exemption currently provided under the law does not provide for an appropriate protection for minors involved. It is surprising that there are no guidelines or criteria for the granting of an exemption and no provision for minors to be represented at these hearings. What further worries me is that child protection authorities do not have to be notified in the case of an exemption. That is very serious and a change is needed.
The Minister of State noted that the incidence of forced marriage is very rare in Ireland but I put it to him that we may be unaware of many cases. Even one incidence is one too many. It is positive that an inter-departmental group will be formed to consider this issue and I put it to the House that we follow up on this matter immediately when we come back in the autumn and include it in the legislative programme.
We have had numerous motions in the House concerning child welfare. I thank Senator Bacik and my Labour Party colleagues and Senator van Turnhout for seconding the motion. I join with them in asking the Government to consider removing or amending the provision allowing minors to marry on the basis of a court exemption.
I thank all my colleagues for their support and the Minister of State for taking the motion and responding so positively to it. As I said earlier, it is an historic debate. It is the first time either House of the Oireachtas has debated the issue of forced marriage or child marriage. I thank all those who contributed. Senator van Turnhout really eloquently placed this motion in the international context, in particular referring to the horrific abduction of the school girls in Nigeria by Boko Haram. As Senator Hayden pointed out, sadly, we see even more abductions taking place today. These abductions are for what has been referred to as forced marriage but it is really not marriage at all but slavery. The Minister of State and others made the point that where people are coerced or forced into marriage, it is not marriage and it is not a contract entered into freely.
Child marriage is not necessarily the same as forced marriage but Senator van Turnhout pointed out to me that child marriage may well be regarded as socially licensed sexual abuse and exploitation of a child. If we look at the international figures, it is a persistent form of sanctioned sexual abuse of girls and young women. Some of the international figures we have seen are really very startling. A UNFPA report from 2012 states that one in nine girls will be married before their 15th birthday in a developing country and one in three before they are 18. It is a very widespread practice and clearly not in the best interest of the girls, their families or their children.
The Minister of State pointed out that an arranged marriage may not be either a child marriage or a forced marriage and he is right that we need to be careful about language. However, a child marriage and a forced marriage will often be an arranged marriage too. Clearly, there are issues about how we deal with this.
Senator Henry spoke about her own experiences as the mother of a 17 year old daughter. As the mother of an eight year old daughter and a six year old daughter, I can only say that they change from being One Direction fans much younger than in the teenage years. Senator Henry was right to point out the rapid change of children and the need to preserve and protect childhood. Senator O'Keeffe referred to issues around poverty and gender discrimination which clearly are at issue here in the broader context.
Senator Naughten reminded us that Mr. Justice MacMenamin is now on the Supreme Court and has a very proud record of expertise in child law and child protection issues. I go back to his words because he pointed out in his judgment in 2013, to which I referred, that bearing in mind the increased cultural and religious diversity in Irish society and the significance afforded by the Constitution to equality, the status and rights of children and the institution of marriage, legislation may be necessary to address and support the position of very young people in situations where a marriage appears to be arranged in some way and where a child is involved.
Senator Hayden referred to forced marriage as slavery and I think that is the correct expression to use. Senator MacSharry referred to the link between forced marriage and trafficking because clearly that is a real issue too. I thank Senator MacSharry for expressing the support of his party for the motion.
Senator Moran referred to the need for cross-party support and her direct experience of seeing a child entering marriage. That brings home to all us, as do the CSO figures, that this is a reality in Ireland and that children enter marriages in Ireland. The Minister of State referred to other figures from 2013 which showed 28 marriages where one or both parties were under 18. We need to be clear that this is not just something that happens in other countries.
What can we do about this? This motion has really put it up to Government to consider whether to remove or amend section 33. I remind colleagues that section 33 allows the Circuit Court, by order, to exempt a marriage from the rule that both parties must be 18 or over. The only provisions relating to the application are that it may be made informally, which really offers very little protection to a child, it may be heard and determined otherwise than in public - we heard that, in practice, these applications are made in private - no court fee is charged and that it shall not be granted unless the applicant shows that its grant is justified by serious reasons and is in the interests of the parties to the intended marriage, which is taken from the UN convention. As I said, no other guidance is offered to a judge in dealing with the application, nor is there any provision for a judge to seek the views of the HSE where there is HSE involvement or to refer the matter to the HSE or to a child protection agency even where the judge may be concerned.
While other jurisdictions, including Britain, continue to allow exemptions on court application, what we tend to see is a much greater raft of protective measures for the child who is seeking the exemption. As I explained, there is specific criminal law criminalising forced marriage in Britain but I do not think our legislation on coercion, false imprisonment and so on, helpful though it is, is specifically aimed at criminalising the practice of forcing someone into marriage nor does it apply extra-territorially, and Senator Hayden referred to that. Our female genital mutilation Bill, which I initiated in this House, has an extra-territorial effect. The British law on forced marriage makes it an offence to force someone to marry abroad as well as in Britain. We need to look at our package of legislation providing for protections for children if we are to keep a facility for an exemption. Frankly, I would prefer if we did not maintain the facility for exemption. Other countries in Europe may do so but, as I said, they have other protections in place. We should be world leaders in child protection.
I welcome the fact that a small inter-departmental group will be set up to examine all options for reform and amendment, including the option of abolition of the facility for exemption. I would like to see a firm time line. We will hold the Minister of State to it and between the Labour Party Senators and Senator van Turnhout's group, we will certainly return to this issue in Private Members' time if we do not see movement on it at Government level. We are clear that some legislation is needed to reform section 33 and I hope it will be initiated in the Seanad given that we have initiated this debate. I thank all colleagues for their support for this important motion and the Minister of State for his commitment to take up this issue and, I hope, ensuring we become world leaders in child protection.