Criminal Law (Sexual Offences) Bill 2015: Report and Final Stages

I move amendment No. 2:

In page 6, line 14, to delete “child pornography” and substitute “child sexual abuse material“.

These amendments were also tabled on Committee Stage. As I have already articulated my views on this issue on Committee and Second Stage, I do not intend to be repetitive today. I appreciate that the amendments as drafted technically do not address everything that needs to be addressed, but I am strongly of the view that use of the phrase “child pornography” is abhorrent, and we need to be using it for the term that it is. The word “pornography” in some way implies that there is some consent. In the English dictionary in the mid-nineteenth century, the word was associated with terms such as “taboo” and “secretive,” but it has now become common parlance. For me, the words “child” and “pornography” should never be used together. We are clearly talking about child sexual abuse material relating to children who cannot and would not consent; they are victims of a crime. The child abuse images are documented evidence of a crime in progress, a child being sexually abused.

Similar to the amendments I tabled to the Criminal Law (Rape) (Amendment) Act 1990 in relation to assault, these amendments seek to positively change this legislation. Similar amendments have been accepted. Also, I note that the UK, through an amendment to its Serious Crime Act 2015, has amended its Sexual Offences Act 2003. The term used in the UK for both child prostitution and child pornography is “sexual exploitation of a child.” I want us to name this material for what it is. What I am seeking from the Minister today is a commitment that her Department will seek to rectify this balance.

As I said, I do not propose to reiterate the arguments I put forward on Committee and Second Stages. I believe that in Ireland we should have a system to filter all child abuse material, as happens in the UK and on our mobile phones, as mobile phone providers have signed up to an EU agreement in that regard. We should be automatically doing this work. I commend the work of the Internet Watch Foundation in the UK and hope we could have something similar here. The purpose of these amendments is to name this material for what it is, namely, child sexual abuse material. Interpol and Europol have asked us to call it what it is. They have asked us not to use the term “child pornography,” because it in some way diminishes the act. I ask that the Minister consider my proposals.

I move amendment No. 39:
In page 26, to delete lines 12 to 14 and substitute the following:
“(17)(a) This section and section 19B do not apply where a complainant or witness has expressly waived his or her right to non-disclosure of a relevant record without leave of the court.

(b) No complainant or witness shall be deemed to have expressly waived his or her right to non-disclosure unless he or she has been offered a reasonable opportunity to obtain independent legal advice on the issue of disclosure rights before he or she is asked to sign any document purporting to waive his or her right to non-disclosure of a relevant record without leave of the court.

(18) In addition to the provisions of this section, section 19B shall apply to a relevant record relating to a child.
19B.(1) In this section and in section 19A(18) ‘relevant record relating to a child’ means a relevant record (or part of such record) relating to a sexual offence or sexual offences alleged to have been committed in respect of a person who was, at the time of the offence, under the age of 18.
(2) Without prejudice to the generality of section 19A, the content of a relevant record relating to a child shall not be disclosed to the accused and shall not be admissible as evidence in criminal proceedings save by order of the court and in compliance with the provisions of this section and section 19A.

(3) In determining an application for disclosure of a relevant record relating to a child, subject to the rules of the relevant court and in addition to the criteria set out in section 19A(9), the court shall take the following factors, in particular, into account:
(a) the extent to which the evidence contained in the relevant record relating to a child has substantial probative value;

(b) whether there is other evidence available to the accused that renders it substantially unnecessary to have regard to the relevant record relating to a child; and

(c) whether the public interest in disclosure or the constitutional and other rights of the accused person or both together outweigh the potential harm to the complainant.”.”.

I wish to raise an issue on third-party disclosures and I want to be clear from the outset that I welcome section 34. In June 2013, I tabled amendments to the Courts and Civil Law (Miscellaneous Provisions) Bill concerning the disclosure of third-party records, namely, the counselling and therapy notes of child complainants in sexual offence trials. At that time, I expressed my deep concern regarding the issue of the court ordered disclosure of complainants’ confidential records by medical, psychiatric or therapeutic personnel, be the complainant an adult or a child, in the absence of any legislative guidelines. I am delighted to see the issue being addressed in the Bill and I support the approach taken to provide standards and guidance to the courts in determining whether to grant an order for the disclosure of a record in dispute.

I agree that an adequate balance has been struck between an adult complainant’s right to privacy and the right of the accused person to procedural fairness. However, upon further reflection in this regard, I have tabled an additional amendment – amendment No. 40 – which includes the same changes to sections 34(17)(a) and (b) as proposed in amendment No. 39, whereby the provisions of a new section 19A of the Act of 1992 would not apply where complainants or witnesses expressly waive their right to disclosure of a relevant record without leave of the court. I am sure the Minister fully acknowledges and sympathises with the vulnerability of a complainant or a witness during this time. My concern is that the right of a complainant or witness to advice or representation by the Legal Aid Board only kicks in where a decision has been made to prosecute. However, the point at which a complainant or witness is invited to waive his or her rights concerning disclosure often arises at a Garda station when a formal witness statement has been given. I suspect this happens without any real understanding of the implications should the matter proceed to trial. The amendment provides that any express waiver be made subject to independent legal advice or the offer of such advice. I know that the board, with its ample experience on the ground, is very supportive of the safeguard.
The purpose of the new section 19B is to act as an additional layer of protection for child complainants or witnesses in sexual offence trials who are uniquely vulnerable by virtue of their age and the heinousness of the abuse perpetrated against them. To understand the difficulty thrown up by an increasing number of blanket requests from the Office of the Director of Public Prosecutions for disclosure of details of children’s private and confidential counselling sessions, it is important to understand that the therapeutic process happens in two distinct phases. The first phase is the compilation of an assessment report which records the baseline account – the who, what, where and when – of the abuse the child is alleging. It is clearly material evidence relevant to a criminal investigation in a trial and is rightly subject to disclosure.

The second phase is the therapy. The therapy notes are concerned with documenting the child’s feelings, thoughts, hopes, fears and dreams. If any information arises in the course of the therapy phase which substantively alters the account given in the assessment report, the practitioner will update the assessment report accordingly and make it available to the relevant parties. In effect, any information or material evidence relevant to a criminal investigation or trial for child sexual abuse is often disclosed as a matter of course. The remaining information contained in counselling records and therapeutic notes has no material relevance but it reflects the heart and soul of a damaged child and should not be subject to disclosure. There is a strongly held view on the part of many practitioners who specialise in assessment and therapy services for children who have been sexually abused that therapy notes should be privileged outright on the basis they are neither material evidence nor information relevant to legal proceedings. When one examines the purpose of therapy for children who have been sexually abused, what the therapy involves and, moreover, the arrangements the services have in place to manage the process, the rationale for affording such privilege is very strong. Therapy as a whole is not concerned with making judgments or assessing the veracity of what is shared in sessions. Rather, it is simply a particular type of human engagement where the exploration of a child’s thoughts and feelings at a particular point in time are facilitated. Therapy notes, in turn, are context specific. They derive out of a therapeutic encounter and as such are concerned with documenting feelings, thoughts, hopes, fears and dreams. They are not absolute facts. They are not material evidence.

Ultimately, the aim of therapy is to assist a child in getting back to a life that is not dominated by the sexual abuse he or she experienced and to equip the child to build trusting relationships. In doing so, the therapist will address patterns of behaviour or responses which have become unhelpful, burdensome or troubling in the child’s living experience. Therapy can also draw attention to healthy responses and coping strategies shown by the child in and out of sessions. This can involve the use of fantasy and therapeutic play scenarios, especially for younger children where the child can try out different roles in order to make sense of the abuse experienced. However helpful the process may be to the child, therapists are becoming increasingly concerned about how notes describing such a scene might be interpreted in a legal arena and taken out of context.

Trust in the therapeutic relationship and the creation of a safe space are paramount to the effectiveness and success of the therapeutic process. It is difficult to envisage how this can be achieved if the privacy and confidentiality of these therapy sessions are not sacrosanct. I argue that the effectiveness and success of the therapeutic process is an important part of the public interest consideration in restoring the child’s well-being and ability to function in society. The amendment is an added layer of protection to reflect the unique vulnerability of the child and the nature and type of information which comes through in the therapy process, as distinct from the material facts. Any additional relevant information is added as a matter of course to the assessment report.

I am acutely aware of the need to strike the proper and appropriate balance between the right of the accused to procedural fairness in a child sexual abuse case, the right of a child witness to privacy, as well as the right not to be revictimised or unduly traumatised by the criminal justice system, and the public interest. The amendment is wholly compatible with Irish constitutional law, Ireland’s obligations under the European Convention on Human Rights and the best interests of the child in the context of providing in law that the disclosure of sexual assault counselling communications of children will only be granted by a trial court where the evidence sought has substantive probative value, where there is no other evidence which could prove the disputed facts and where the public interest in disclosure outweighs the potential harm to the child.As I stated, I would prefer to make these notes privileged and sacrosanct, but what I have done in the amendment in strive to strike the balance that needs to be there in law. I hope the Minister would look favourably on these amendments.

Full debate https://www.kildarestreet.com/sendebates/?id=2016-01-21a.178&s=jillian+van+turnhout#g190

Motion: Direct Provision

The Minister of State is welcome to the House. I avail of the opportunity to welcome to the Visitors Gallery Dr. Bryan McMahon, chairman of the working group which is to report to the Government on improvements to the protection process, including direct provision accommodation and support for asylum seekers.

I am pleased that the last motion to be debated during Private Members’ business in the 24th Seanad looks at the living conditions of children and young people in the direct provision system. Our group has used its time to consider this issue and I have spoken about it at every available opportunity, including in numerous Adjournment debates and debates on legislation, in an effort to bring the plight of children to the fore. This is the critical issue of our time. In fact, Dietrich Bonhoeffer has said the test of the morality of a society is what it does for its children. I fear our failures and the treatment of children in the direct provision system will be the subject of a Ryan report in the future, but we have an opportunity to make changes now. All too often we look back in shock at what happened in the past and say how desperate it was, but what we do now with that knowledge is on what we should be judged.

My entry point to the issue of direct provision is from a children’s rights perspective. My perspective has been informed by my previous work in the Children’s Rights Alliance, the recommendations of the Government appointed special rapporteur on child protection, Professor Geoffrey Shannon, the concerns raised consistently by advocacy groups, my visits to two direct provision asylum centres as an independent Member of the Seanad and the recommendations of the working group. It has taken me a long time to wade through the mire that is the political discourse on the direct provision system. I have struggled to understand the distinction drawn – I still do not agree with it – between children cared for by the State, as children in the direct provision system are described, and children in the care of the State as those in foster care and other care systems are described. I have argued strenuously that children are children, irrespective of their status, and that it is stretching credulity to claim that children in the direct provision system are in the care of their parents in circumstances where their autonomy to make even basic decisions about their children’s care, for example, on what and when to eat, is so limited as to render it absent.

The direct provision system is detrimental to the welfare and development of asylum seekers and, in particular, the 1,225 children residing in direct provision accommodation throughout Ireland. There is a plethora of difficulties, including the dubious legality of the direct provision system, the lack of an independent complaints mechanism for residents, the absence of independent inspection of centres in which children reside, the decision by Ireland to opt out of the EU directive to allow asylum seekers to enter the workforce if their applications have not been processed after one year and the fact that there are no prospects post-secondary education for young asylum seekers. It is like hitting the pause button for an uncertain and, doubtless, lengthy period.

I appreciate that we have made some moves, but for most of the children, there is this cliff, the fettering and erosion of normal family dynamics and functioning, the lack of autonomous decision-making and the negative impact on the mental health of adults and children in the direct provision system. The ultimate failure lies in the length of time people remain in the system waiting to have their claims processed. I note the efforts the Government has made to reduce the length of time involved through the International Protection Act 2015 by introducing a single procedure to deal with international protection applications, but the reality is that the average length of stay is four years. However, a significant number have remained within the system for five to ten years. Some 55% have been on the waiting list for more than five years. I ask the Minister of State to think of all the things we have achieved in the past five years when he is on the election trail. There are people who have been in the direct provision system for that period of time. What a substantial loss of time it has been for the individuals, families and, particularly, children who have spent their entire childhood in direct provision centres. They are waiting for their lives to resume.

I was saddened to read in the final report on the child care law reporting project by Dr. Carol Coulter and her team, presented in November 2015, that children born in 2007 were still in the direct provision system. The only time they spent outside it was when they were placed in foster care while their mother received treatment for a mental illness.

There are more than 17 recommendations in the report of the working group which are specific to children and young people. I take the opportunity to thank the Children’s Rights Alliance and its member organisations for ensuring the unique vulnerability of children in the direct provision system was not lost in the process. I will cover briefly the first of those recommendations that we have cited in the motion. My colleague, Senator Fiach Mac Conghail, will speak to the others.

There is a need for child-friendly materials containing relevant legal information. The reality for all of us in full health is that the system is very legalistic; as it can be intimidating, people need support, particularly children who are unaccompanied and seeking guidance on how to pass through the system and for what they need to apply. We need to ensure the material is in a language they can understand in order that they can appreciate the ramifications of the decisions they will take.

The remit of the Office of the Ombudsman for Children should be extended to include complaints about services provided, transfer decisions and so on. Ireland ratified the third optional protocol to the UN Convention on the Rights of the Child which involves a communication procedure. It allows individual children, groups of children and their representatives, including those in the direct provision system, to submit a complaint to the UN Committee on the Rights of the Child about specific violations of their rights under the UN Convention on the Rights of the Child. I had the privilege of attending the hearing on Ireland before the UN Committee on the Rights of the Child. The question was rightly asked how Ireland had in place a system that allowed children in the direct provision system to make a complaint to the UN Committee on the Rights of the Child but yet they had no right to make it to the Ombudsman for Children. How can this be the case? Technically, the recommendation that the remit of the Ombudsman for Children be extended is supported in the Child and Family Agency Act 2013 which in section 69 includes a provision on the referral of complaints to the Office of the Ombudsman for Children. Technically, it requires nothing more than a ministerial order or a statutory instrument similar to the one made in 2012 when the decision was made to extend the remit of the Ombudsman for Children to receive complaints from children in prison. It is a question of political will. It is absurd that one can report to a UN body based in Geneva but not to the Ombudsman for Children. I know that the Ombudsman for Children is ready and willing to receive these complaints and wants to be there for all children in Ireland.

The lack of an independent complaints mechanism is completely out of step with the jurisdiction conferred on the office of ombudsman across the Continent. In November 2014, in CA and TA – a minor – v.the Minister for Justice and Equality, the Minister for Social Protection, the Attorney General and Ireland, Mr. Justice Colm Mac Eochaigh found that the RIA’s complaint procedure was deficient, not sufficiently independent, owing to the fact that it was the final arbiter in the process and that some elements of its house rules were unlawful. I do not care what anybody says, I trust the system, yet I would not be comfortable in making a complaint to those who I perceive as being part of the asylum system. We need to develop a welfare strategy and ensure all children have a named social worker based within the Child and Family Agency, not within the system in which a decision will be made on an application. I have argued for the application of the HIQA national standard for the protection and welfare of children, for the involvement of the Health Service Executive’s child and family services, particularly where a referral is made by the child and family services unit in the RIA to the HSE of a child. It is shocking that there is still no independent inspection regime or national standards for direct provision centres, given that we know that there is a significantly higher referral rate for child protection and welfare cases from direct provision centre than among the general population. In one in four cases at least one parent is from an ethnic minority or an asylum seeker or Traveller. I implore the Minister of State to be cognisant of the consistent findings in child care law reporting projects that social exclusion, poverty, isolation, mental health issues and disability are common features of mothers and fathers facing court proceedings and the acknowledgement that minority groups, including asylum seekers, are particularly vulnerable.

My colleague, Senator Fiach Mac Conghail, will speak in greater detail about the issues related to the weekly allowance. There is also the issue of those seeking jobs.Ireland and Lithuania are the only two EU member states that apply a blanket prohibition on asylum seekers entering employment or setting up a business in the state. In conclusion, I wish to quote the words of Bill Frelick, the refugee programme director at Human Rights Watch. He said: “Ireland should recognise work not only as a source of dignity, but as providing a livelihood that is integral to sustaining asylum seekers in the pursuit of their right to seek asylum.”

………………..

I thank, in particular, Senator Fiach Mac Conghail who worked with me on this issue, on which we have been at one. I also thank Senators Brian Ó Domhnaill, Martin Conway, David Norris, Marie Moloney, Trevor Ó Clochartaigh and Ivana Bacik. It is great that the House is united on the issue.
Senator Trevor Ó Clochartaigh is correct to ask what we have achieved. For me, what is most depressing is that we can unite on an issue, but the question is whether we can really bring things forward. Senator Fiach Mac Conghail is correct – as we have the working group’s report, we do not need to have long discussions; we need to move to its implementation. I would like to see the progress reports of high level groups published in order that the process is transparent.
I have listened to the debate on the importance of cooking facilities for families. There is the issue of costs because people need materials in order to be able to cook. We can have that debate, but I will go home tonight and decide the time at which I want to eat and what I will eat. I do not have to depend on a service that provides for me to eat at a specific time. How many of us eat at the same time every day? That alone is institutionalisation. Friends have told me how difficult they find it when they are in hospital for one week. I cannot imagine what it is like to be in a direct provision system.
On the issue of tenders, why are we allowing people to profit from the misery of others? I have a fundamental problem with this. Why is the State not providing the service? Why do we not ask an NGO to do it? There are some really excellent NGOs working in this area. I am thinking of Crosscare, but I am sure there are others. I have seen first-hand the work they do.
On the remit of the Ombudsman for Children, I believe it could be done by statutory instrument or ministerial order. It is, therefore, an issue of political will. If one goes back to the debate in the Houses of the Oireachtas on the Ombudsman for Children Act 2002, this issue was raised. Would we leave an especially vulnerable group of children and young people outside the scope of the Ombudsman for Children’s investigatory remit? In response the former Minister Mary Hanafin said, “The children of asylum seekers and refugees will have access to the Ombudsman for Children in the same way as every other child in Ireland.” That is what the Houses were told. The only thing excluded is the administration of the law, that is, the procedures for defining and determining whether a person is entitled to a particular status. She also explained:
If, however, there are problems in relation to delays, the provision of accommodation, nutrition, housing, etc, those issues are covered. This provision is only to ensure there is not a duplication of the actual process of the administration of the law.
Why does the Ombudsman for Children not have a remit to look at the application? We live on an island, but we really are an island as far as the rest of Europe is concerned because children in other countries can go to their ombudsman for children. It is enshrined in the Constitution that all children are equal, yet now we say we will interpret it slightly differently and that children in direct provision centres do not have the same rights. The Ombudsman for Children and Mr. Peter Tyndall made a joint submission to the working group which clearly explained the benefits, from their involvement in the direct provision system, that their experience could bring and the ease with which they could move into that space if allowed to do so.
The Minister of State has talked about the additional resources that would be needed. It makes me more fearful because it means that he believes there would be lots of complaints and resources needed. What is happening if we know that we will need all of these additional resources? We would need some resources. He goes on to say it is also important to recall that the working group looked specifically at the possibility of setting up a separate complaints procedure but rejected the idea in favour of extending the remit in order that the established offices could take on this role. It is welcome that the Minister for Justice and Equality will meet the Ombudsman for Children next Wednesday. I hope we will move on this issue because it is about giving people hope.
I explain that my job is about nudging. When one is in a direct provision system, it is difficult to understand the nuances in things moving forward and progressing. People need hope and we need to see some big changes. We need to see an increase in the amount of money given to those in direct provision centres in line with the working group’s report. Although a figure of 60% makes for a good news day, it has not risen in 15 years. The people concerned cannot afford to do the normal things children do. I want to be happy that we are moving forward and have a great report, but we are not doing enough. I hope that when the House comes back, Senators will again unite and push firmly for change.
I thank the cross-party group and all Senators who have united on this issue. In particular, I thank the working group’s members, the secretariat, the different Departments that have come together on the issue and, in particular, Dr. Bryan McMahon. We now need to stop the discussion and begin implementation. We need to ensure hope for all citizens and that children are children first and foremost.

Children First, Committee Stage: Emotional Abuse

Children First Committee Stage with the Minister for Children and Youth Affairs, James Reilly TD, Wednesday 23 September 2015

In page 5, between lines 27 and 28, insert the following –
 ““Emotional abuse” means behaviour (including an omission to behave in a particular manner) that significantly and seriously deprives a child of his or her developmental need for affection, approval, consistency and security and, without prejudice to the generality of the foregoing, includes –
(i) the imposition of negative attributes on a child, expressed by persistent criticism, sarcasm, hostility or blaming;
(ii) conditional parenting in which the level of care shown to a child is made contingent on his or her behaviours or actions;
(iii) emotional unavailability of the child’s parent or carer;
(iv) unresponsiveness of the parent or carer or inconsistent or inappropriate expectations of the child;
(v) premature imposition of responsibility on the child;
(vi) unrealistic or inappropriate expectations of the child’s capacity to understand something or to behave and control himself or herself in a certain way;
(vii) under- or over-protection of the child;
(viii) failure to show interest in, or provide age-appropriate opportunities for, the child’s cognitive and emotional development;
(ix) use of unreasonable or over-harsh disciplinary measures;
(x) exposure to domestic violence; and
(xi) exposure to inappropriate or abusive material through new technology,
provided that such behaviour or omission to behave in a particular manner results in or is likely to result in significant and serious injury to the emotional, social or psychological welfare of the child.”

In page 6, delete lines 12 and 13 and replace with the following –
 “neglect” means, in relation to a child,
(i) to deprive the child of adequate food, warmth, clothing, hygiene, supervision, safety or medical care; or
(ii) to deprive the child of appropriate emotional and psychological support or to subject the child (or allow or cause the child to be subjected)
to emotional abuse to the extent that the child’s physical, social, intellectual, psychological or emotional development is significantly and seriously affected.”

Minister, I move Amendment 1

It is extremely important that we identify and name ‘emotional abuse’ as a stand-alone form of abuse which, where sustained and ongoing, has a devastating effect on children’s lives and through into adulthood.

Emotional abuse is often the first abuse to occur and then escalates into other forms of abuse. We talk at length about the importance of early intervention and should not underestimate the message we are sending by excluding emotional abuse. What message are we giving? Emotional abuse is about control and power.

Barring and Protection Order – cannot use abusive language – we are able to define this in law.  Why is an adult different to a child?

Case – parent telling child every day that they are “born angry” and then wonder why the child at 12 presents with an anger problem.

In the Bill, ‘harm’ includes ‘neglect’. This amendment (amendments 1 and 2 read together), alters the definition of neglect to include emotional abuse, though only where the emotional abuse significantly and seriously injures the emotional, social or psychological welfare of the child.

The definition of ‘emotional abuse’ is largely drawn from its definition in the Children First Guidance, subject to the caveat that behaviour or omission to behave will not be treated as emotional abuse for the purpose of this Act unless it has a significant and serious impact on the child.

This is a relatively high threshold, which is designed to ensure that minor infractions or subjective differences in relation to best practice in parenting do not become subject of investigation.

The amendment is clearly framed so that only behaviour or omissions to behave that have a significant and serious effect on the emotional, social or psychological welfare of the child are deemed to constitute emotional abuse.

The examples given at 1 through 11 of Amendment 1 are not exhaustive. They are without prejudice to the generality of the substantive definition and are drawn directly from Children First.

It is important to note that a single or isolated instance of any of these examples may not be enough in itself to constitute emotional abuse in the sense in which it is defined in the amendment.

These examples may nonetheless be useful in helping to identify emotional abuse though, again, they are subject to the caveat that the effects of the behaviour or omission to behave must be serious.

 

Children and Family Relationships Bill 2015: Second Stage

I welcome the Minister and her officials to the House. I thank her for the consultation in advance of the debate and the opportunity for pre-legislative hearings on the general scheme of the Bill in committee. My colleague, Senator Katherine Zappone, was very active in the committee on that issue.

As a person who has advocated for children’s rights for many years and has the privilege of being a voice in the legislative process, this feels like a really important day, and I believe it is. The Children and Family Relationships Bill will bring about essential and long overdue reform, modernisation and legal clarity to many aspects of family law, particularly to diverse parenting situations and diverse family forms. When I say overdue, that is not a criticism of the Government. I commend the Minister, Deputy Frances Fitzgerald, her predecessor, Deputy Alan Shatter, and the officials in the Department of Justice and Equality on their courage and expertise in drafting the Bill and bringing it before the Houses. It is an indictment rather of many previous Governments that it has taken us all until now in 2015 to introduce what will be the greatest reform of child and family law for a generation and finally to put children at the heart of family law. It is the first major reform of guardianship laws since the 1960s. I read an article by Colette Browne in the Irish Independentin February in which she noted that 3% of births in the 1960s were to an unmarried mother. I looked at figures in preparation for today’s debate solely in regard to these areas as married families can break down and issues can happen. Figures which I received from the Children’s Rights Alliance show that 308,000 children are living with 186,000 lone parents, 104,000 children are living with 60,000 unmarried cohabiting couples, 43,000 children are living with 29,000 lone fathers, and there are 230 same-sex couples with children. I want us all to have a perspective on the figures and to understand that these are many of the children we are talking about in debating the legislation.

As indicated by the figures, an increasing number of children live in diverse parenting situations and diverse family forms other than the traditional model of a household headed by married parents. I could use all my time to outline the areas I think will significantly contribute to children’s lives and their positive outcomes. For me the Bill is very much based on children’s rights. It is based on the best interests of the child being the paramount consideration and ensures issues such as continuity of care, right to identity, and the voice of the child are all becoming normalised and part of the legislative process. That is welcome.

I will use my time to indicate the areas where I think we could go further. For example, the Bill does not include definitions of guardianship, custody and access which would be essential to reduce the level of family conflict that may take place when relationships break down and to avoid the existing confusion among the public, professionals and the Judiciary. I understand the options about guardianships and the different levels of guardianship, but will it be difficult for the public to understand which levels of guardianship one person has vis-à-vis another? In future Bills, perhaps we should be look at the Law Reform Commission report of 2010 which examined the legal aspects of family relationships. It suggested new terms such as parental responsibility, day-to-day care and contact rather than the word “access”. These are much more child-friendly terms and state the roles the adult would play in the child’s life. However, I recognise and support the Bill as a monumental step in the right direction and the foundation from which child and family law can continue to be developed and bolstered to meet the needs of our ever-evolving society.

Given the breadth of the Bill, it is disappointing that the debate around it has been limited to a few narrow strands, albeit challenging and emotive issues by nouveauchildren’s rights proponents, whose premise I do not always agree is children’s rights centred. I am especially saddened by the talk of a hierarchy of family structures or some sort of Olympics of family structures meeting gold a medal standard where we now have silver and bronze who do not even get to compete. I am conscious that there are children who will listen to parts of the debate. I am not suggesting that they would be tuning in to the Seanad, although they come and visit us regularly, but I am concerned that in some way we are putting affirmation on one sort of family form or another. There are many different reasons for different family forms. We do not need to look too far beyond our families to understand the different types and diverse types of families in which children are living.
On Committee Stage I will be looking at section 63 which deals with the best interests of the child, particularly in relation to the Guardianship of Infants Act 1964. It provides a new and detailed definition in Irish law of the best interests of the child. The factors and circumstances enumerated thereunder are not exhaustive, and therefore the court will be capable of looking beyond them in making a determination concerning the child. The Bill will allow the courts to consider the physical, emotional, psychological, educational and social needs of the child, including his or her need for stability, having regard to age and stage of development. That is welcome.

As has been mentioned, Dr. Geoffrey Shannon, special rapporteur on child protection, suggests that in tandem with this welcome legislative development, structural reform also needs to take place, namely, we need to establish a distinct and separate system of family courts. I am aware that is a commitment in the programme for Government to provide a fair and effective forum to vindicate the rights of children and families.

The Child Care Act 1991 is silent on the qualifications, roles and duties of guardians ad litem. A properly funded guardian ad litemagency in Ireland is long overdue. We have a blueprint for this in the Children Acts Advisory Board report of 2009 which gives a voice to children’s wishes, feelings and interests. I hope that as we progress the Bill, we can ensure the voice of the child is certain and guaranteed.

An issue that has been raised with me by Barnardos is the court welfare service. This service would provide a crucial link between the family and the Judiciary, offering services such as mediation, undertaking assessments of the child’s welfare and best interests, ascertaining their view through a child view expert, guardians ad litemand conducting family risk assessments. It would ensure judges received up-to-date holistic information on each case to help them in making their decision. The service would also provide, where appropriate, support such as child contact centres to assist the children in highly contentious and acrimonious splits.Perhaps we should look at other systems in operation, such as the Children and Family Court Advisory and Support Service in the UK.

I will move on to the issue of the right to identity, which my colleague Senator Power has raised. When I see all our colleagues raising the issue of right to identity, I wish many of them had been here when we were debating the Adoption (Information and Tracing) Bill, but we will wait and see. I am concerned that people are misrepresenting and misconstruing the principle underlying a child’s right to identity to fit their own agenda. They are talking about the child’s right to identity from the mother’s and father’s perspectives, rather than from the child’s perspective. This Bill approaches the issue from the child’s perspective, based on children’s rights. We had a good debate in the Seanad on the Civil Registration (Amendment) Bill, during which I tabled an amendment on the child’s right to identity. Hopefully, as we evolve in our thinking, we can assert this right to identity more and more. The focus of these groups is often selective, to further an ideological end, rather than a genuine concern for the vindication of the child’s right to his or her identity. This is the crux of our continuous failure on the issue of a child’s right to identity. Historically and culturally, we have constructed a hierarchy of rights, a veil of secrecy, to deny children the right to their identity. What the Minister is putting forward in this Bill and in the Bill on assisted human reproduction is to be welcomed. There are groups that wish we would go further or that we would allow for anonymous donation. The Minister has struck the right balance. I have sympathy with the position of Senator Power in that I would like to see the right to identity here. We have a history of not acknowledging it, but this is a welcome start. The transition period the Minister has proposed is fair and pragmatic. I would prefer that a child have a right to his or her identity, but I am willing to accept what the Minister is putting forward as a strong change, with a focus on children’s rights and ensuring they have their right to identity.

I also want to raise the issue of unmarried fathers. I am worried that we still have a long way to go on this issue. We often feed into the negative stereotypes of unmarried fathers as feckless, irresponsible flakes. It is all too easy for us to do this. Worse still, the justification for not granting automatic guardianship rights to fathers appears to have been conflated with concerns about domestic and sexual violence. These heinous crimes can happen in any type of family, not just unmarried ones. It is wrong, prejudicial and discriminatory to link it exclusively to unmarried parents. The law should presume that the majority of unmarried parents are responsible and reasonable. Where they are not, this should be addressed through relevant legislation. The solution is not to penalise the majority. Colette Browne, in her article on the Children and Family Relationships Bill, says that it compounds our unfair treatment of unmarried parents. She says that currently unmarried fathers have zero legal rights over their children, which means that:
[…] if your partner is away and your child falls ill, you cannot authorise medical treatment. It means that if your relationship breaks up and your partner decides to move abroad with your child, you are powerless to stop her. It also means that you have no automatic right to custody or access to your child. By law, the mother is entitled to sole custody of the child if the father has not been made a guardian. Imagine a worst-case scenario in which your partner dies and you are left alone to care for your child.
How can we make it more natural and how can we ensure that guardianship rights are there?

I have much more to say, but one of the issues I want to raise relates to statutory declarations. All of us have lost precious documents. For example, I lost my driving licence years ago. We are talking about a piece of paper. If one loses it, it is gone and one’s rights are extinguished. I welcome the Minister’s suggestion of piloting a repository. I wonder if we need to do more than that. I acknowledge what she is saying – that she does not want to make it compulsory and add another hurdle – but we have to find a way in which those statutory declarations can be lodged.

I want to be absolutely clear, so that there is no misunderstanding, in saying that I wholeheartedly welcome this Bill. I support it and I will do everything I can do ensure it is brought into law. Its potential is manifold, but at its heart it is about children’s rights. I thank the Minister for bringing the Bill to the House.

Statements on Direct Provision 22 January 2015

I hope the Minister of State has a little bit of latitude given the lack of Members in the House. We are approaching the 15th anniversary of the system of direct provision, a system that places asylum seekers apart and away from the community in conditions described by some as warehousing and others, who have made their way out, as open prisons. Therefore, it is not an anniversary that any of us here are celebrating. I welcome the Minister of State’s willingness to come to the House and debate the issue and his statements on the issue.

 

The significant length of time that asylum seekers and their children may have to stay in direct provision centres is something that I have raised consistently in this House along with many of my colleagues, most recently in the context of the Immigration (Reform) (Regularisation of Residency Status) Bill, initiated by my colleague, Senator David Norris, and I in October 2014. While we were not successful in our endeavour since our efforts on that date, I note that the Irish Refugee Council and Doras Luimní have published a joint proposal for a one-off scheme to clear the existing and significant asylum backlog, and I am happy to support that initiative.

 

There have been some welcome developments in recent months such as the assurances from the Minister for Justice and Equality that the International Protection Bill will be published by the end of January. I am sure the Minister of State is confident of the input and expertise he can expect from this House in shaping the most robust, fair, accountable and transparent system for protection status determination as possible.

 

I also very much welcome the appointment of the working group to examine improvements in the protection process and direct provision system, and it is on its work that I will focus. I noted with concern when reading the terms of the working group that the first proviso for the recommendations for improvements to be brought forward by the group states that “in light of the budgetary realities, the overall cost of the protection system to the taxpayer is reduced or the remains within or close to current levels”. The current system of direct provision is rampant with human rights breaches. While I do not need to remind the Minister of State, I would remind the Government of the position maintained by the international human rights fora that a state’s obligation towards the promotion and protection of human rights is not diminished by economic and financial crisis.

 

Like many, I eagerly await the recommendations of each of the three thematic groups, but I would be particularly interested to see the outcome from the theme two Group, which will deal with improved supports. There are a number of issues which I have raised repeatedly. One is access to education opportunities. I have long decried the fact that with no current prospects for post-secondary education, we are effectively hitting the pause button on young asylum seekers’ lives. I meet them all too often and see that the light has gone out because there is no hope for them within that system. Another issue is access to the labour market. Ireland is the only country in Europe not to have signed up to the Recast Receptions Conditions Directive. I have yet to be presented with convincing evidence of the pull factor so desperately feared with respect to allowing asylum seekers access the labour market, but I have spoken to enough individuals trapped in the asylum system who have spoken of the devastating impact of enforced and prolonged idleness on their family dynamics, self-esteem and mental health to know that the human price paid is far higher than the cost of this so-called pull factor. There is scope to increase the weekly allowance paid to residents and children, which has not increased in 15 years, and with no entitlement to discretionary social protection supports, in effect we see many living in poverty and not being able to have the same, or even near the same, opportunities as other children. We hear it from teachers in primary schools that are accommodating children from the direct provision system.

 

A feature of the issues that will be dealt with by the theme one group, and I still cannot understand why we cannot do something about this within a matter of days or weeks, is the putting in place of a complaints process available to residents. I am baffled and utterly disappointed there is still no independent complaints mechanism in place. The Minister of State mentioned the judgment from Mr Justice Colm Mac Eochaidh where he found that the Reception and Integration Agency’s complaints procedure was not sufficiently independent due to the fact that the RIA is the final arbitrator in the process. I have tried to put myself in their position, and I trust the system, but bearing in mind that there is nobody independent in place, I would find it very difficult if I was put in their position to trust that system without the willingness to have an independent complaints mechanism. For example, the Child and Family Agency Act 2013, includes a provision in section 69 for referral of complaints to the Ombudsman for Children’s office. We all trust in the State but Child and Family Agency still has an independent complaints mechanism. In 2012, the Minister for Justice and Equality was able, by way of ministerial order or statutory instrument, to give effect to a decision to extend the remit of complaints for children in prisons. That was done literally overnight. I know there was a lot of preparation work beforehand, but it was able to be done to ensure that the Ombudsman for Children could take complaints from children in St. Patrick’s Institution. Since then, complaints have been made, but it is nowhere near opening the floodgates, which was the argument used. It has not happened in the case of St. Patrick’s. It is the final arbiter, so I ask why it is not in place. I find it unacceptable that the RIA says it will be the final arbiter of its own work.

 

Another matter under theme one about which I have a concern is catering facilities in direct provision centres. In so far as I understand, direct provision centres were originally self-catering – or at least, self-catering step-down facilities were provided in order to prepare successful asylum seekers for independent living. These facilities have effectively been closed over the years. Is self-catering regarded as a pull factor? Is it a deliberate policy of the RIA to close these self-catering units? The official line from RIA is that the policy is supported by the value-for-money report carried out in 2010 and that it was done purely based on economic considerations. I do not accept this, because the value-for-money report did not consider the health and social inclusion costs for asylum seekers – their physical, mental and psychological health. I refer to Dr. Bernard Ruane, who spoke to colleagues at the Irish Medical Organisation conference in 2008. Dr. Ruane said there was a 90% rate of depression among asylum seekers who have been here for six months. He identified their cramped living conditions and the prohibition on working as factors contributing to their depression. We must be mindful of this point.

 

The Minister of State will know that I could say so much more on this topic. With regard to child protection concerns, I implore the Minister of State to be cognisant of the findings of Dr. Carol Coulter and team’s second interim report on the child care law reporting project. She found that social exclusion, poverty, isolation and disability were common features among the mothers and fathers facing court proceedings, and there is an acknowledgement that minority groups, including asylum seekers, are thus particularly vulnerable. This concern is supported because in one in four cases she examined at least one parent was either a member of an ethnic minority, an asylum seeker or a member of the Traveller community. This prevalence is evident. I ask the Minister of State why we are not seeing more action from the National Action Plan Against Racism. It seems as though the plan has been shelved.

I would like to say a lot more, but those are my points for now. I ask why we cannot do something now about the complaints mechanism.

Newsletter November 2014

I hope you had a wonderful Halloween. I bring you this Newsletter as a mid-term round-up of my work over the last few months:

 

Adoption (Information and Identity) Bill 2014

Civil Registration (Amendment) Bill 2014

Budget 2015

Valuation (Amendment) (No 2) Bill 2012

Immigration (Reform) (Regularisation of Residency Status) Bill 2014

Ireland’s Biggest Coffee Morning

Oireachtas Childline Coffee Morning

2014 EESC Civil Society Prize Ceremony, Brussels

 

I hope there is something that will spark your interest and as ever I encourage you to get in touch if you would like to discuss or contribute to any of my work.

 

This week I will have the pleasure to meet a great range of volunteers, firstly I am speaking at the Volunteering Ireland Conference in Dublin Castle and then on Saturday and Sunday respectively I will be speaking the ISPCC Volunteer Conference in Athlone and the Scouting Ireland Conference in Dublin.  Volunteers do such outstanding work both locally and nationally and I always find their commitment so energising and motivating.  A huge thank you to all who volunteer.

Best wishes,

 

Jillian


 

Adoption (Information and Identity) Bill 2014:

On Monday 3 November, myself, Senator Averil Power and Senator Fidelma Healy Eames launched our new Adoption (Information and Identity) Bill 2014. The purpose of the Bill is to allow adopted people over the age of 18 years to access information relating to their birth and adoption, and in particular to obtain their original birth certificate. The natural parent of an adopted person is also permitted to request certain information. The overall aim of the Bill is to vindicate the adopted person’s right to know his or her identity. Due weight is given to the privacy rights of all relevant persons. The Bill is also designed to make it easier for adopted people and their natural parents to make contact with each other.

 

We need to fundamentally reconsider how we approach adoption in Ireland. Our current system of closed adoptions means there are more than 50,000 adopted people who have no automatic legal right to their birth certificate or early care records, no legal right to relevant medial information, or any legal right to trace information about their identity and genealogy. The impact of this State supported vacuum can only truly be known by the adopted people affected and we cannot ignore their voices or their needs any longer. Surely there is nothing more basic, more necessary, than the right to know who you are?

 

This right is afforded to all persons from the outset, for example the United Nations Convention on the Rights of the Child, which Ireland has both signed (1990) and ratified (1992) expressly recognises the right of the child to preserve (Article 8.1) and know (Article 8.2) his or her identity.

 

We believe the Bill strikes a careful balance between the child’s right to their identity and their birth mother’s right to privacy

 

We look forward to wide consultation on the Bill to make it as robust and supportive to adopted people in Ireland.

 


Bill Photo

Caption Senator Fidelma Healy Eames, Senator Averil Power and Senator Jillian van Turnhout.

 

 

Civil Registration (Amendment) Bill 2014:

The Civil Registration Bill recently completed its passage through the Seanad. It will make it compulsory to register the name of the father on all birth certificates. In an attempt to reverse a change made in the Adoption Act 2010, I requested an amendment to the Adoption Act to ensure that the document used by adopted people as a birth certificate must refer to the fact that they are adopted. I was not successful but will continue to pursue this issue.

 

Budget 2015:

Senators were only afforded a short few minutes to respond to Budget 2015, on 14 October, and so my statement was brief to say the least. I do intend to raise some of my concerns when the Social Welfare Bill is debated in December. The main issue I raised in October was the failure to invest in services, such as childcare along the lines of the Scandinavian model we have been promised. You can read my statement here.

 

 

Valuation (Amendment) (No 2) Bill 2012:

In the Seanad I raised how the Rates can vary greatly for providers of Early Child Care and Education around Ireland. I am working with Minister Simon Harris TD to see if we can find a workable solution to support this essential service. Check out what I said here

 

Immigration (Reform) (Regularisation of Residency Status) Bill 2014:

Thank you to all who supported Senator David Norris and I in our Bill that hoped to provide a pathway to residency for asylum seekers who have been awaiting a decision on their protection application for 4 years or more. This Bill was not drafted in the belief that it was a panacea for all the shortcomings of the current status determination system and we had hoped to strengthen it further along the legislative journey. Sadly we did not get the support of Sinn Fein or the Government – the Minister was “opposed to the Bill even at a conceptual level”. And so we just missed out on getting the Bill to next stage. I am very disappointed, particularly at the lost opportunity to keep the asylum system and Direct Provision on the legislative agenda of the Seanad, but I will keep fighting for a radically reformed and fair system. See press release from NASC Ireland showing their support.

 


 

Ireland’s Biggest Coffee Morning:

It was such a pleasure to attend The Irish Hospice Foundation’s Ireland’s Biggest Coffee Morning, the main annual fundraising event to provide much needed support for local hospice services, which was held in Bewley’s on Grafton Street on 18 September.

 

Insert Photo

Caption Senator Jillian van Turnhout, Deputy Olivia Mitchell and Miriam Donohoe, Head of Communications with the Irish Hospice Foundation

 

Oireachtas ISPCC Childline Coffee Morning:

I was delighted to co-host with Deputy Jerry Buttimer the second annual Oireachtas coffee morning in support of ISPCC Childline on 9 October. Childline has issued an emergency appeal for funds to help save its night-time call service. Thanks to a great turnout and generous contributions from Members and staff we raised an impressive €860, which will go toward Childline answering more calls and messages from vulnerable children and young people day and night. I want to say a massive thank you to all involved: those who donated raffle prizes; the Oireachtas Restaurant for sponsoring the teas and coffees; my assistant Amy for organising the event; and the ISPCC and Childline Volunteers who attended on the morning. I want to specially thank Childline Volunteer Monica Rowe whose short presentation to attendees gave a unique and moving insight into the importance of Childline’s work. I was particularly moved by her description of the three typical calls Volunteers in Childline receive:

 

  1. The silent Call – We don’t know what’s up, but whatever it is, these children stay on the line as we reassure them, telling them that whatever’s bothering them we will not judge them, and they are safe to talk about it or not – the decision is theirs – and that we are always there.

 

  1. The Crying Call – This is where the child on the end of the line cannot talk, they simply cry and cry, and often, after a length of time, simply hang up. These calls are upsetting, they would be for anybody – but we can be reassured that when a child is at their lowest and feeling like there is no other shoulder in the world. We can tell them that whenever they are ready to talk we are there for them 24/7.

 

  1. The engaging call – this is where the child engages with the volunteer – may be for the first time, and many may even be children who have been in one of the other categories and have finally plucked up the courage to disclose what has been happening. Engaging calls can vary from the little 4 year old rang because his babysitter was on the phone and he was packed off to bed his mum had given him the Childline number in case he had no one to talk to. This little fella wasn’t in trouble, but if he or a friend ever is he will know that we are safe to ring and that we are there all the time – The little lassie under the bed, in the middle of the night distraught and shaking – whispering in case her abuser comes back and hears her on the phone. These kids know that whenever they need us we are there for them.

 

2014 EESC Civil Society Prize Ceremony, Brussels:

On 16 October, as a member of the assessment panel, I had the honour of attending the EESC (European Economic and Social Committee) 2014 Civil Society Prize Ceremony in Brussels. This year’s prize was aimed at organisations or individuals who have undertaken outstanding projects to improve the economic and social inclusion of Roma people and communities. ETP Slovakia-Centre for Sustainable Development received first prize for their project A bridge of hope in Slovakia, through which they teach Roma communities in Slovakia how to construct their own houses. In accepting their prize, ETP director Slávka Mačáková said, “We hope that our self-empowering initiative will be a role model for European policy-makers”. IQ Roma servis from the Czech Republic and Reverend Archimandrite Athinagoras Loukataris from Greece shared the 2nd prize.

Adoption (Identity and Information) Bill 2014: Second Stage 19 November 2014

Welcome Minister.

Welcome visitors to the gallery.

I wish to thank Senator Averil Power for her tremendous work initiating the Bill and to Senator Fidelma Healy Eames for joining with us in bringing it forward.

A special thanks to Dr Fergus Ryan, law lecturer who drafted the Bill.

Thank you to so many of my colleagues who have spoken with me over the past two weeks and shared their stories and why they support this Bill.

I feel very strongly about the Bill and it is a real honour to second it in the House today.

There are a number of salient parts to the Bill, which my colleague Senator Power has already outlined and you will also hear shortly from Senator Healy Eames, who brings to the process her experience as an adoptive parent.

My intervention will focus on a critical component which is all too readily brushed aside diminished or dismissed… this is the right to identity.

In 1976, Alex Haley, author of Roots, articulated what so many adopted people in Ireland have described to me over the years, when he said “In all of us, there is a hunger, marrow-deep, to know our heritage, to know who we are and where we have come from.  Without this enriching knowledge, there is a hollow yearning . . . and the most disquieting loneliness.”

The right to know who you are is so fundamental, so necessary and so basic. Its absence can be a source of considerable pain and anguish. Its absence, where the necessary information exists but is being withheld, can leave people with a feeling of deep injury and injustice.

By focusing on the right to identity I in no way wish to undermine or diminish the identity that an adopted person has developed in their life with their adopted parents and families.

There are many adopted people who have no desire whatsoever to access their birth information.

However, there are many for whom the information is a burning need.

I have spoken in this House on several occasions about forced and illegal adoption.  All too often we have cloaked adoption in secrecy and as a society we have been complicit in supressing women, their children and their respective rights.

A startling figure by Claire McGettrick of the Adoptions Rights Alliance that in 1967, a staggering 96.95% of all children born outside marriage were adopted, typifies this.

We cannot allow our shameful past or fear that further shames may be exposed justify the perpetuation of a shameful practice against at least 50,000 people in Ireland. And yet we do?

This is why the Bill is so necessary, so important and indeed so overdue.

We need to fundamentally reconsider how we approach adoption in Ireland. Our current system of closed adoptions, which automatically extinguishes a child’s and then adult’s right to their identity, will ideally be changed to an open system where biological and adoptive families have access to varying degrees of each other’s personal information and have an option of contact from the outset.

In the meantime, this Bill will ensure, however retrospectively, the adopted person’s right to identity.

We are here on the eve of the 25th Anniversary of the UN Convention on the Rights of the Child.  How fitting it will be if we can give life to the Convention’s express recognition of a child’s right to know and preserve his or her identity

This has been the law in Scotland since 1930 and in England and Wales since the mid-70s with no dire consequences or legal wrangling over rights to privacy.

According to the Supreme Court in I’OT v B, an adoptee’s right to their identity is not absolute and is subject, in particular, to the right to privacy of the natural parent. However, it also pointed out that the right to privacy does not automatically trump the right to identity. The court stated that the two rights must be balanced against each other. It is clear from Supreme Court decisions such as Tuohy v Courtney [1994] 3 IR 1 that the precise balance to be struck is a matter for the Oireachtas to determine. This bill achieves that balance in a way that is sensitive to the needs of all parties.

We must let in the light; we must start now in a new era of openness and understanding.  We should not stand in judgement and I believe that this Bill strikes the balance, mooted by the Supreme Court, as longed for by many adopted people, their families and their friends.

Let’s do this. Let’s do this now.

Protecting Childhood: Motion on the Marriage Age

Wednesday, 25th June 2014

“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.”

Senator Jillian van Turnhout:

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 camera rule 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.

Link to full debate here.

Address to Seanad Éireann by Ms Catherine McGuinness on Children’s Rights in Ireland

Thursday, 19th June 2014

“I welcome Judge Catherine McGuinness. It was a joy to listen to her, but her words have provided us with a stark reminder and challenged us in this House for work ahead. I note her work on the Children’s Rights Alliance Report Card, and she rightly pointed to the work of Tanya Ward, Maria Corbett and all the team at the Children’s Rights Alliance. She also pointed to work of the member organisations of the Children’s Rights Alliance which come together to provide evidence and put together the Report Card. I am delighted to welcome representatives of many of them to the Gallery. In fact, we could not fit them all in, so there are people in the wings waiting and listening. I could use up all my time listing every organisation, but I want to focus on some current issues. I want also to note the work being done by the Special Rapporteur on Child Protection, Geoffrey Shannon, and his annual report. His report and that of the Children’s Rights Alliance provide an invaluable tool for me as a legislator and policymaker. It is good to see that the state supports these initiatives.

The programme for Government 2011 to 2016 set out an ambitious reform agenda for children and family services. Senator Bacik has listed many of the things that have been accomplished since then. Equally, there are areas of concern that impact on the daily lives of children and we need to shine a light on those. As I am sure Ms McGuinness and my colleagues in this House will know, I am strongly committed to pursuing the gamut of children’s rights through my “senatorship”. We have had in this Senate excellent debates on children’s rights, most recently on beauty pageants and protecting childhood. In the autumn, we had a interesting debate on direct provision and valuing youth work. They were really good, informative debates and I pay tribute to my colleagues.

Other speakers have mentioned survivors. When I have met survivors over the years – we were campaigning before the children’s rights referendum became a reality – many said to me that the real testament would be to see children’s rights articulated in the Constitution of Ireland. Chief among the advancements that we have made was the passage of the children’s rights referendum on 10 November 2012. Unfortunately, the enactment of the amendment Bill, the will of Irish people, has been subject to lengthy postponement pending finalisation of the second part of a legal challenge by Mr. Justice McDermott in the High Court before a full appeal can proceed to the Supreme Court. The delay in the legal process is a source of frustration when I think of the body of legislation that has been passed since November 2011 that could have benefited from a constitutionally recognised best interests of the child principle. I also feel sadness when I think of the number of children of married parents, many of whom have spent the vast majority of their childhoods in the care system, who have now turned 18 since we voted as the people of Ireland and are eligible for adoption. Their rights have been expunged. It is my sincere hope that priority is given to the delivery of the judgment in the High Court, that the challenge will be given priority listing in the Supreme Court and that it is ruled upon as expediently as possible.

While Ms McGuinness is before us, I want to address two specific issues that are facing children today and seek her guidance. Chapter 5.4 of the Children’s Rights Alliance Report Card looks at children in detention. It states that, according to a communication that the alliance received from the Department of Children and Youth Affairs, 103 young people were detained on remand in 2013 for 138 different periods ranging from one day to several months. We have to bear in mind that a young person may be remanded more than once pending the outcome of proceedings. The number of children detained on remand, particularly the significant percentage of them who do not go on to receive a custodial sentence, raises serious concerns about Ireland’s compliance with the international and domestic principles of detention as a last resort for children, which incorporate a presumption against detention of children accused of criminal offences. I want to ask Judge McGuinness’s opinion on the practice of the Children Court of remanding children for assessment despite section 88(13) of the Children’s Act clearly stipulating that the court should not remand a child in detention on the basis solely of care or protection concerns. I want to ask her how the absence of a formal system of bail support and services in Ireland impacts on a child’s ability to meet their bail conditions, with the consequent risk of their receiving a custodial remand for failure to comply.

The second issue that I want to raise is that of direct provision, which Ms McGuinness mentioned. Chapter 6 of the Report Card opens with a piece by Dr. Liam Thornton entitled, “Closing Our Eyes: Irish Society and Direct Provision”. Dr. Thornton has done some excellent work, as have many NGOs such as the Irish Refugee Council and Doras Luimní. I put forward a motion on direct provision in this House last October. We were all at one on this issue. Unfortunately, the Minister then was not at one with us, but we will keep pursuing it and we have a very good Seanad cross-party group working on the issue. We know the high number of children who are in the 34 direct provision accommodation centres. Can Ms McGuinness give us advice on what immediate action could provide greater protection to children who are caught in the direct provision system? What could we do in the immediate future? All Senators in this House have agreed that such centres are not places for a child to be accommodated, especially beyond three-month or six-month period. I thank Ms McGuinness again for her address. She has given us many challenges.”

Full debate transcript available here

Mother and Baby Homes: Statements

Wednesday, 11th June 2014

I warmly welcome the Minister to the House. Everyone in the Chamber will agree that the recent revelations are yet another deplorable stain on our collective conscience. In preparing for my statement, my personal shame as a member of the collective that turned a blind eye to the abuse and suffering of women and children, out of fear and deference to the powerful, is as acute as ever before. It is the same shame I felt reading each of the reports – Ferns, Ryan, Murphy and Cloyne – into the systematic abuse and exploitation of vulnerable children in State and church institutions in Ireland. It is the same shame I felt reading the harrowing testimony from survivors of the Magdalen laundries and symphysiotomy procedures performed by medical professionals in Irish hospitals.

I share the overwhelming sense of shame and compunction over the unthinkable fate suffered by our sisters, cousins, friends and daughters labelled “fallen women” by church and community for becoming pregnant out of marriage and sent to these homes for their sins and rehabilitation. The isolation, hardship and suffering to which these young women were subjected in the name of honour and respectability is almost unthinkable in contemporary Ireland. How many of these young women fell pregnant against their will, by way of rape, incest and familial abuse, and found themselves arbitrarily and extra-judicially detained in these homes? It is the worst injustice imaginable when the victim is punished. It reminds me of punishment by stoning for adultery under Sharia law for women who have been raped.

Due to the time limit, I will limit my main observations to the issue of adoption, including the legality of adoptions prior to the Adoption Act 1952. Although the national adoption contact preference register contains data on only a small number of adoptions, the 2011 Adoption Authority of Ireland audit of the records found 50 cases of illegal adoptions. Given that the vast majority of adoption records are held by the Health Service Executive, HSE, and Child and Family Agency, CFA, we have seen only the tip of the iceberg of illegal adoptions. The area of adoption legality is extremely complex and technical and the commission will need an expert on adoption law to deal with what is likely to be a huge body of work. The Mahon tribunal had two to three experts working together.

So many of the issues thrown up by the mother and baby homes are not just legacies of the past but prevailing issues today, from which an examination of the past can yield lessons for legislation and policy today. Earlier today, I met several survivor groups, and we must ensure any inquiry, and the process to establish it, will hear their voices and involve them. The latest revelations have once again brought to the fore the trauma and suffering of many of the survivors. We must ensure we care for the living. I welcome, so early in the Minister’s new term of office, his speedy and committed response to establish a statutory commission of investigation. We are all waiting to find out the scope of the inquiry and which homes and what period will be included. Will the State take responsibility for collating all the records or will it do the same as in the report into the Magdalen laundries, namely, receive the records and then return them to the church-run institutions?

The inquiry must deal with many inter-related matters. The prevailing issues are adoption, the right to identity, lone parents, the role of women, poverty, social strata, and the rights of unmarried fathers, whose names are still not necessarily recorded on birth certificates. Will the investigation have the resources it needs and the appropriate expertise to deal with the myriad issues I have outlined? We must find a way to prioritise the truths from which there can be learning. We have recently seen the role social historians and archivists have played and can continue to play in investigative teams. Can we learn from the Murphy report experience? Should the inquiry find a way to do its work by sampling to find the appropriate balance between truth, expediency, bearing witness, and establishing and identifying causal and contributing factors, thereby maximising the scope to learn lessons?

Lest we forget, each and every one of these children had a name, and to ensure they get the memorial they deserve, their names must be listed in their honour. They are the children we promised, at the formation of the State, to cherish equally.

The Lancet

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