Marriage Bill 2015 Amendment re Marriage Age at 18, 21 October 2015

Amendment proposed by Senator Jillian van Turnhout to abolish the possibility of a court ordered exemption to 18 years as the minimum legal age to marry.
22 October 2015

Copy of Amendment proposed below this speech

Speech on 22 October 2015 by Senator Jillian van Turnhout to propose amendment
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 minimum age of 18 years for entry into a contract of marriage is provided through section 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 that the exemption is being applied.  On the afternoon of our Motion the Minister of State 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 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 4 the groom was 16 or 17 and the bride was 18 years or over. And in the remaining 3 marriages both the bride and the groom were 17 years of age. Both children entering into the 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, with potentially life-long implications. 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 instance, unless a person is married, he or she must be 18 or over in order to make a valid will.

Notably, you had to be 18 or over to enter into a civil partnership, and there is no provision made for exceptions.

A person under 18 also has limited capacity to contract. A contract with a person under the age of 18 cannot be enforced unless it is for ‘necessaries’ – items that are needed for the child’s basic sustenance (as opposed to luxury items) – or it is a beneficial contract of service. So a child’s capacity to enter into a simple contract or will is limited; yet we would allow a child under the age of 18 to take the equally if not more profound decision to marry.

International research demonstrates that there is a strong correlation between the age of marriage and the chances of divorce. Of course, lots of people marry young and stay together for life; but the odds are against them.  One study suggests, for instance, that a person who marries aged 25 is half as likely to divorce as a person who married aged 20.

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:

  • International Bill of Rights.
  • Convention on the Rights of the Child.
  • CEDAW (which explicitly prohibits child marriage)
  • Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery.

More recently in September 2013, Ireland, along with its fellow EU Member States, supported the United Nations Human Rights Council Resolution on Strengthening efforts to prevent and eliminate child, early and forced marriage: challenges, achievements, best practice, and implementation gaps.

Minister, it’s 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 statue books still allow for exemptions to the normal marriage age, which worse still fails to specify a minimum age for such an exception.

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 seems totally baffling when we consider our reaction to the horrific incidents of forced child marriages internationally (for example, Boko Haram).

Applications for exemptions are made to the Circuit Court in private. Senator Bacik made an important point about this in the debate of our 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 and child protection authorities to be notified.

Our Motion specifically referenced the criticism levied by 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.

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 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 statutory provisions as they are intended.

Or Minister, 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.

Amendment Proposed

SECTION 7
On page 6, immediately after line 29, insert the following new section:

“Removal of court exemption to impediment on ground of age
(1) In this section “the 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 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.”

Press Statement: Senator van Turnhout welcomes abolition of defence of reasonable chastisement

Press Statement 21 October 2015
Senator van Turnhout welcomes abolition of defence of reasonable chastisement

***FOR IMMEDIATE RELEASE***

The archaic common law defence “reasonable chastisement” of children finally vanquished to the realms of history

“Whether it is slapping or tapping, shoving or pushing, hitting or beating, the invisible line between “reasonable chastisement” and simply physical violence against children has finally been removed.”

“I was appointed to the Seanad by An Taoiseach Enda Kenny back in 2011 on the basis of my children’s rights work. One of the first objectives I set for my tenure was for Ireland to repeal the defence of reasonable chastisement. On 23 September 2015, I tabled an amendment to the Children First Bill to this effect. Following an anxious wait until today, an historic day for children’s rights in Ireland and for me personally, through a joint amendment with Government we have successfully amended the Children First Bill to secure the abolition of the defence of reasonable chastisement.”

“There must never be a defence for violence against children. I am honoured to have championed and secured the effective ban on the physical punishment of children in Ireland.”

-ENDS-

Notes for the Editor:

Children First Bill, Report Stage, 21 October 2015: jillianvanturnhout.ie/childrenfirstreportstage

Children First Bill, Committee Stage, 23 September 2015:  jillianvanturnhout.ie/children-first-bill-corporal-punishment

For More Information, Please Contact:                                                                

Senator Jillian van Turnhout,                                                                                                 Leader of the Independent Group (Taoiseach’s Nominees)                                                   Phone: 01 6183375                                                                                                                   e-mail: jillian.vanturnhout@oireachtas.ie

 

Children First Bill, Report Stage: Corporal Punishment

Children First Report Stage with Minister for Children and Youth Affairs, James Reilly TD, Wednesday 21 October 2015

Speech by Senator Jillian van Turnhout
Video of speech: youtu.be/BxrkLOl16jA
Video of full debate: youtube.com/watch?v=VqixbeSPUEw

Minister, you are always welcome to the Seanad but I have to admit that today you are particularly welcome.

One of the first objectives I set when I became a member of the Seanad in 2011 was for Ireland to repeal the defence of reasonable chastisement. When the Seanad took Committee Stage of the Children First Bill on 23 September I tabled an amendment, with thanks to the expert help of Dr Fergus Ryan, to the same purpose as the amendment before us today.   You said “If I have my way we will have this defence of “reasonable chastisement” removed from the Statute Book.”

And here we are today. Minister, I am extremely aware and thankful for all the work done by you personally, by officials and advisors across Government cooperating and working together to bring about the amendment tabled here before us. I would like to extend my particular thanks to the officials of the Department of Children and Youth Affairs. I would also like to thank my Assistant and Researcher Amy McArdle, for all her work and support. I was also heartened at Committee Stage to receive cross party and independents’ support. Thank you.

On 23 September I cited a number of international and national experts and I don’t intend to repeat myself today but ask that my words at Committee Stage be included in any documenting of how Ireland brought about the abolition of the defence of reasonable chastisement. Over the years there have been notable voices to the fore calling for the Ireland to take this step.

Of special note I must thank:

  • the Children’s Rights Alliance, in particular Tanya Ward and Maria Corbett who have been steadfast in their support and in ensuring the support of a wide range of children and youth organisations;
  • the ISPCC, driven by the experience of children calling into their ChildLine service, have always prioritised ending a culture of violence against children in Ireland.
  • the Special Rapporteur on Child Protection, Professor Geoffrey Shannon who has, through his reports, repeatedly called on us as legislators to repeal the defence of reasonable chastisement.

For the global leadership they have provided at an International level I want to thank :

  • Marta Santos Pais, Special Representative of the Secretary General on Violence against Children;
  • Peter Newell of the Global Initiative to End All Corporal Punishment of Children;
  • and Ireland’s academics who have shone a light on Ireland’s international obligations, in particular Prof Ursula Kilkelly, UCC.

I also must thank Jenny and Michael Hassett, my Mum and Dad. Since 23 September I have had a lot of time to reflect and probe why I am so passionate about this issue. It is of course rooted in my own childhood. My memories brought me back to a particular primary school teacher who would on occasion whack someone in our class across the ears with a ruler. I remember telling my Mum and she said that if I was ever hit I was to stand up calmly, walk out of the class, go to the office of the school secretary and ask for my parents to be called to come and collect me. I was lucky. My parents were ‘ahead of their time’, they respected me as an independent rights holder. Thanks Mum for being here today to share this momentous occasion.

Why do we as a society accept that we even debate if and when it is okay to hit someone? Let alone when that someone is smaller than us and probably doesn’t understand why they are being hit? Very often when we discuss the issue of corporal punishment, violence against children or so called ‘slapping’ you can almost feel an invisible line appear in people’s heads about their tolerance level. They say, “you know I am only talking about a tap not a thump, a slap not a belt, a smack not a whack”. And of course this issue is wrapped up in how we were raised – all too often the knee-jerk reaction “it never did me any harm” is heard. I would add “it never did you any good either”!

This invisible line is extremely subjective and it leaves children vulnerable. When someone hits a child it is not from a rational place. The decision is made in a heightened emotional state, when we are stressed, when we are tired and let’s face it least able to engage sound and reasoned judgement.   The invisible line gets blurred. In extreme cases it gets rubbed out completely.One way or the other, the existence of the invisible line means children are all too often exposed to an escalation of violence.

The excuse “I got a terrible fright when she ran out on the road and so I just hit her to show how wrong it is” is used in relation to children. We all get frights in our life but my first reaction is not to hit someone – so why do we culturally accept that it is okay when it is a child? A caller to the Last Word on TodayFM summed it up by saying “my Grandmother has Alzheimer’s and she is as likely to walk out into traffic or harm herself. Should I use that as a reason to slap her?”

Of course I understand the importance of supporting parents in the vital role they play in their child’s life.   We need to ensure parents have access to supports and resources when they need them. We know that the majority of parents in Ireland already believe that we have a ban on corporal punishment. However, I know that some parents are anxious about this change in the law and I would like to reassure them that we all want the best for their children, for the children of Ireland. To this end, I would like to take this moment to thank Laura Haugh of Mummy pages for their unequivocal support of this amendment.

I would also like to point to an excellent book for any parents who are anxious, developed by a leading advocate in this area, Paul Gilligan. His book “Raising Emotionally Healthy Children” is a great resource that provides lots of advice and support.

By abolishing the defence of reasonable chastisement we are giving life to the Children’s Amendment in our Constitution, Article 42A.1 states: The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights. We know that corporal punishment:

  1. Can cause serious harm to children;
  2. Teaches children that violence is an acceptable way of solving conflicts;
  3. Is ineffective as a means of discipline and there are positive ways to teach, correct or discipline children which are better for the child’s development and health;
  4. Makes it more difficult to protect children from severe abuse if some forms of violence are legitimate.

With this amendment today we are ensuring that all citizens are equal in the eyes of the law.

This ancient defence of “reasonable chastisement” is not an Irish invention; it came to us from English common law. Through its colonial past, England has been responsible for rooting this legal defence in over 70 countries and territories throughout the world. In England, Wales and Northern Ireland the “reasonable punishment” defence still allows parents and some other carers to justify common assault on children; in Scotland there is another variation – the defence of “justifiable assault”.

In this action being taken today, the Government is putting children first and providing leadership that will hopefully give confidence to the Government at Westminster, the devolved UK administrations and other countries across the globe to discard these archaic and disreputable defences and give full respect to children’s dignity.

We will be the 20th EU Member State to effectively ban corporal punishment in our jurisdiction and in doing so I hope the remaining European Governments will follow. Irish law is being brought into step with parents, children’s rights advocates and international best practice.  With this amendment we have a way to unite and agree that all citizens are equal.

There must never be a defence for violence against children. I am honoured to have championed and secured the effective ban on the physical punishment of children in Ireland.

 

Amendment

In page 5, line 12, to delete “and to provide for related matters.” and substitute the following:

“to provide for the abolition of the common law defence of reasonable chastisement and, for that purpose, to amend the Non-Fatal Offences Against the Person Act 1997; and to provide for related matters.”.

—Government & Senator Jillian van Turnhout.

In page 20, after line 21, to insert the following:

“PART 5

MISCELLANEOUS

Abolition of defence of reasonable chastisement

The Non-Fatal Offences Against the Person Act 1997 is amended by the insertion of the following section after section 24:

“24A. (1) The common law defence of reasonable chastisement is abolished.

(2) Subsection (1) shall not apply in respect of proceedings brought against a person for an offence consisting in whole or in part of any act done by the person before the commencement of section 28 of the Children First Act 2015, whether those proceedings were brought before, on or after such commencement.

(3) This section shall not affect the operation of section 24.”.”.

—Government & Senator Jillian van Turnhout.

Questions to Minister for Health: Tax on Sugar Sweetened Drinks

Questions to Minister for Health Leo Varadkar TD, Minister Lynch and HSE in advance of Health and Children Committee meeting 6 October 2015

Letter from Senator van Turnhout to Minister Noonan: Letter to Minister for Finance TaxSSD by Jillian van Turnhout

Senator Jillian Van Turnhout
To ask the Minister for Health if he supports proposals for an additional tax on sugar sweetened drinks in the upcoming Budget and the use of a portion of the funds to promote children’s health initiatives; what actions he has taken to convince the Minister for Finance to implement these proposals; and if he will make a statement on the matter.

Response:
The Minister for Health has recently written to the Minister for Finance recommending the introduction of a 20% levy on sugar sweetened drinks (SSDs) in the proposed Budget for 2016.  The rationale behind this measure is on the grounds of increasing evidence that consumption of SSDs is related to the risk of obesity and that such beverages are a source of high energy yet little or no nutritional value.  The Minister supports the introduction of such a levy as one of a number of public health measures in tackling obesity.  In addition, the Department is currently developing a new Obesity Policy and Action Plan, which will address prevention, treatment and research.

Questions to Minister for Health: Early Supported Discharge programmes for stroke survivors

Questions to Minister for Health Leo Varadkar TD, Minister Lynch and HSE in advance of Health and Children Committee meeting 6 October 2015

Senator Jillian van Turnhout
To ask the Minister for Health if he will ensure that Early Supported Discharge programmes for stroke survivors are expanded by the HSE in 2016; what other actions he intends taking to develop community rehabilitation services for stroke survivors; whether he is concerned that the implementation plan for the National Neuro-Rehabilitation Policy and Strategy 2011-2015 has not yet been finalised with just four months left in its four-year lifespan; and if he will make a statement on these matters.

Response:
Currently there are 3 Early Supported Discharge (ESD) teams in Dublin North, Dublin South West and Galway respectively. These teams though small are functioning well.

The programme plans to increase the ESD teams over the coming years in larger urban areas first and then progress this expansion to less urban areas with a modified team to serve these areas, however resources are currently unavailable for this.

The National Policy & Strategy for Neuro-Rehabilitation 2011-2015 recognises the various possible challenges and the working group proposed an initial 3 year implementation plan.  Since the initial estimate of a 3 year implementation plan, the HSE has seen significant changes with the development of the Hospital Groups and the Community Healthcare Organisation configuration. This has changed the landscape within which services are to be configured to support implementation of this much needed strategy.

Currently, a steering group led by the HSE Social Care Division with representation from the National Clinical Programmes for Rehabilitation Medicine and Neurology, Department of Health, Primary Care, Therapy Professions & Neurological Alliance of Ireland has been assigned the task of developing an implementation framework for the National Strategy & Policy for Neuro-rehabilitation services. This group is working on finalising an implementation framework which will be released for consultation in Q4 2015.

The work of the steering group is overseen by an operational lead and a clinical lead with the group proposing a 2 phased approach to implementation which will begin at CHO level and expand to inpatient specialist rehabilitation services with connectivity across all service delivery sites.

The Model of Care of the National Clinical Programme for Rehabilitation Medicine (NCPRM) will be one of the primary reference points for the implementation of the Neuro-Rehabilitation strategy, given the importance in ensuring consistency and clarity in pathways to and across services.  The model of care of the NCPRM will provide a framework for the design and delivery of specialist rehabilitation services in the context of a strategy that addresses the broad continuum of services and supports required by those with neuro-rehabilitative needs.

The Model of Care for the NCPRM, which is currently being finalised post public consultation, details the role, function & benefits of these care teams, in line with the recommendations contained within the National Strategy & Policy for Neuro-rehabilitation Services in Ireland 2011-2015. This model of care proposes a 3 tiered model of specialist rehabilitation services namely complex specialist tertiary services, specialist in-patient rehabilitation units & community based specialist neuro-rehabilitation teams.

Both the National Clinical Programme for Rehabilitation Medicine and the National Policy & Strategy for Neuro-rehabilitation propose a needs-led service that meets the rehabilitative needs of people at acute, post-acute and community levels of people at all stages of the lifecycle who may benefit from medical, physical, cognitive, psychological and/or social Neuro-Rehabilitation service provision.

In this regard, it is not condition specific. While those who have suffered a stroke will be within the scope of this policy, services will not be exclusively for stroke survivors.

 

Questions to Minister for Health: School leavers with disabilities accessing services in North Dublin

Questions to Minister for Health Leo Varadkar TD, Minister Lynch and HSE in advance of Health and Children Committee meeting 6 October 2015

Senator Jillian Van Turnhout
To ask the Minister for Health if he is aware that 40 recent school leavers with disabilities in North Dublin, many in the highest category of support need, were informed on 30 June 2015, contrary to the HSE’s Social Care Operational Plan, that there was no service available for them moving forward. When will the situation be resolved for these young people whereby they are engaged in a service that meets their individual needs and will family members have a choice in the service that their family member attends.

Response:
Since the establishment of the Social Care Division in the HSE, significant progress has been made in improving on the planning and co-ordination on the annual allocation of places to school leavers and those young people exiting rehabilitative training (RT). This process has worked well and significant improvement has been made over the past number of years.

In line with these new arrangements and as set out in the Social Care Division Operational Plan 2015, the HSE undertook a mapping exercise to identify individuals who require a day service in 2015; the type of service that is required and the extent to which supports can be delivered within existing resources.

The data collected from each CHO Area indicated the following need:-

Client Status – RT / School Leaver
HSE CHO Area RT Leaver School Leaver Total
CHO Area 1 35 83 118
CHO Area 2 32 77 109
CHO Area 3 27 81 108
CHO Area 4 52 203 255
CHO Area 5 61 128 189
CHO Area 6 34 63 97
CHO Area 7 66 108 174
CHO Area 8 41 111 152
CHO Area 9 32 106 138
Total 380 960 1340

In summary:

  • 1,340 adults require a funded placement in 2015.
  • Capacity was identified to meet the needs of 508 of these individuals, from the existing services, resulting in a balance of 832 people that required a newly funded day service from the €12m allocation.

As a comparison, in 2014 1,365 people were identified as requiring services.  Capacity was identified to meet the needs of 734 people from existing services and the balance of 631 required funding from the 2014 allocation. Therefore in 2015, an additional 201 people require a funded day service response over 2014.

The current position is that 1,305 young people have had their place confirmed.  A difficulty arose in respect of 35 young people – 23 of these related to a problem in securing services at Gheel Autism Services in North Dublin, with a further 12 whose placements remain to be finalised principally awaiting capital development of new locations which will be available shortly.

The difficulty which arose in respect of the 23 young people was that they were referred to Gheel Autism Services as their preferred provider.

This provider informed the HSE during the month of August that they were unable to provide the service within the funding allocated and without a significant additional resource to expand their organisational governance structure and staffing.

On receipt of this confirmation the HSE took immediate steps to engage with two other providers of services to people with ASD which have the required competence and expertise to deliver the appropriate specialist services (the two providers are Autism Initiative & Praxis). The HSE communicated with the 23 families and put them in contact with the newly identified providers.

These two providers have undertaken assessments for each individual and have committed to providing an appropriate service for each individual within the allocated resources.

The current position is that 21 of the 23 young people involved have agreed to take up the new services referred to above while 2 people remain to have an agreed service provided.  There is active engagement with the 2 families and the relevant providers and it is expected that a positive solution will be forthcoming very shortly.

It is regrettable that this difficulty has arisen in North Dublin.  However arrangements have now been put in place to resolve these challenges and overall 98% of the 1,340 young people requiring services have had their places confirmed.  The HSE will continue to work actively to ensure that the remaining young people have their places confirmed as soon as possible.


The Lancet

In July 2021, Jillian co-authored an article in the world-renowned medical journal “The Lancet”