A Housing Crisis – Ireland’s families in turmoil – Donal Hynes

Due to the housing crisis the rental market has faced major hikes in costs, with rents in Dublin rising 8.8 percent in the year to March 2016, and by 16 percent in the last twelve months in Cork. This has led on the one hand to a reduction in people’s disposable income which can only be deemed a negative factor in the national economy and more significantly, to an increase in homelessness. FLAC’s (Free Legal Advice Centre) recently published findings reveal that 300 families with 600 children have become homeless in the first three months of this year.

How has the law sought to assist those in financial turmoil?

The Irish legal system has sought to utilise the law to better support those living in poverty. It is evident that the government are not adequately dealing with the crisis as the ESRI has stated that 25,000 houses will need to be built per year, yet currently we are only set to deliver 12,000 in 2016.

The concept of modular housing has been discussed but has inevitably given rise to many questions. Costs in respect of the building of each proposed modular house are reported to have reached €243,000 instead of the €100,000 proposed which is hardly value for money considering they are regarded to be a short term solution? The Personal Insolvency Act 2012 has been enacted to alleviate the predicament of those facing bankruptcy with wider options now available including three new debt resolution measures. These include a debt relief notice (a debt write off), a debt settlement arrangement and a personal Insolvency arrangement. Additionally, MABS (the Money Advice and Budgeting Service) has been instrumental in ensuring those facing mortgage arrears and financial difficulties generally can access advice regarding engagement with financial institutions and relevant support in instances of property repossessions. Strikingly, the number of cases taken on by MABS in 2013 was 24,377 which represents a significant increase in the number of cases relating to mortgage arears in comparison to previous years.

In the rental market legislative change in the form of the Residential Tenancies Act 2015 put a cap on rent increases for 24 months rather than the previous listed twelve. The Act also introduced a 90 day notice period required for any changes to the rental agreement – including value of the rent. Despite these measures, the lack of supply is still a critical issue and without a solution to this problem the housing crisis will not be resolved.

What can be done?

Under Article 43 of the Irish Constitution a right to own private property exists however the right to a home is not provided for. FLAC and the Simon Charity have questioned whether this should be altered to allow the right to social housing for every Irish citizen under a certain income. The creation and recognition of this right would require a referendum of the people to insert a right to housing in the Constitution. In the United Kingdom the policy on social housing provides for the unemployed and also for the more vulnerable sections of society through special schemes like  The concept of a right to housing already exists in South Africa and certain European countries such as France and Scotland where it is enshrined in legislation. It is also stated under the United Nations, Universal Declaration of Human Rights, that the right to housing is an essential right in creating an acceptable standard of living. However Ireland has not signed this declaration and as such is not legally bound by it. Perhaps it is time we follow our neighbouring countries by signing it in order to force the government to deal with the issue, as it would legally be the responsibility of the state to provide social housing for those who require it. This could result in a large-scale building project rather than the mere 12,500 houses promised by 2020 from the local authorities which are clearly inadequate for the needs of the country as currently over 90,000 households are already on waiting lists.

Unfortunately the financial cost to the state makes this an unlikely development, as the estimated 10,000 new builds a year could cost in the region of two billion per annum. Such an obligation would be incredibly financially demanding on Ireland’s tax base due to the debt burden we have already absorbed from the financial institutions. The ESRI has outlined the idea of a land tax on property developers who continue to sit on urban property without tenants or building projects occurring for long periods of time. This proposed tax would deter developers from sitting on these projects and help advance house building at a more rapid pace.

The rising rental sector and the reduction in rental properties is having a domino effect on disposable income along with more serious issues such as health and education amongst families. A substantial shift in direction is required to deal with this issue to avoid a society where poverty and homelessness become common place. The main parties in the Dail have stated that a new form of politics has begun in Ireland, however it remains to be seen if this government has either the stamina or the stomach to address this alarming problem which continues to deepen on a daily basis. Simon Coveney TD has been appointed as Minister for Housing and the Irish government has promised within one hundred days that a new model of affordable rent and an action plan on housing will be delivered to the Irish public. As with the stigma of Irish politics in recent years, we await to see if these will be just more broken promises.

 

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Cohabitation in Ireland: Happily Never After?

Cohabitation in Ireland: Happily Never After?

Deirdre Kelleher

As the country becomes accustomed to life after the successful Marriage Equality referendum it is worth pausing to consider the lived reality of thousands of Irish couples for whom equality remains elusive.

According to Census 2011, 12% of families in Ireland are made up of cohabiting couples.  That translates to 143,600 couples who are living together but are not married or in a civil partnership.  This is not an insignificant proportion of the population yet whilst these couples may consider themselves a family, the reality in law is significantly different.  In matters such as inheritance, shared property and maintenance couples who choose not to marry are at a significant disadvantage.

Thankfully much has been done over the years to equalise the position of children irrespective of whether they are born to married or unmarried parents.  The Status of Children Act 1987 removed the awful concept of ‘illegitimacy’ – the antiquated term used for children born outside marriage.  It is now well established that, regardless of the marital status of parents, all children can inherit or make claims against a parent’s estate in accordance with the Succession Act 1965.  The 1987 legislation also amended the Family Law (Maintenance of Spouses and Children) Act 1976 to extend the right to maintenance to children “whose parents are not married to each other”.

Thus whilst it is entirely correct that children ought not  suffer discrimination due to the marital status, or lack thereof, of their parents, it would appear that legislators are less inclined to address the discrimination suffered by those adult parents.

In 2010 the Civil Partnership and Certain Rights and Obligations of Cohabitants Act was enacted, introducing a significant level of  protection and rights for same-sex couples previously only available to their married opposite-sex counterparts.  In particular the rights of civil partners in the area of succession were vastly improved, essentially bringing them into line with the entitlements of married couples.  For example civil partners are entitled to a legal right share in their partner’s estate on death and, in the event of intestacy, civil partners are treated the same as married spouses as regards the proportion of the estate that vests in them (depending on the presence or otherwise of children).  For taxation purposes there is no inheritance tax payable either by spouses or civil partners irrespective of the value of the estate they have inherited.

For cohabitants however, the position is much different.  Firstly, there is no automatic entitlement to any share of their partner’s estate, irrespective of the length of the relationship.  A qualified cohabitant i.e. someone who lives with someone else “as a couple in an intimate and committed relationship” for 2 years if they have children, or for 5 years if they don’t, may apply for an order for provision from the net estate with no guarantee that such an application will be successful.  Of course, there is nothing to prevent a qualified cohabitant from leaving a gift or legacy to their partner in their will, but what may give them pause for thought however is that any gift, legacy or benefit valued at greater than €15,075 is subject to tax at 33%.  In this context, the Revenue Commissioners in Ireland equate the position of cohabitants with that of strangers.

Given that in most circumstances, the most valuable asset in any estate is a house, it is also worth noting that cohabiting couples are not protected in law to the same extent as married couples or civil partners.  The Family Home Protection Act 1976 prevents a spouse from selling or otherwise transferring title of the family home to another without the knowledge and consent of the other spouse, irrespective of who owns the house and civil partners now receive the same protection.  Cohabitants who do not jointly own a property however do not have legal protection if the person who legally owns the house decides to sell it, irrespective of the consequences of that decision.

Buying a house together is not a decision to be embarked on lightly but cohabitants must ensure that they are aware of their legal vulnerabilities.  Particular difficulties can arise upon the death of an owning cohabitant; whilst the surviving joint tenant takes full ownership, other forms of ownership can require each person to express their intentions through their last will and testament. Otherwise if they die intestate, their interest will be distributed according to the rules of intestacy in which instance a cohabiting partner has no legal entitlement. Additionally they should be aware of the taxation consequences of bequeathing a share of the property to a cohabitant as this will most likely exceed the maximum tax free threshold.

Finally, married couples and civil partners are legally obliged to maintain each other, both in the course of their relationship and in the event of its breakdown.  Cohabitants however do not enjoy the same protection.  The 2010 Act does introduce a redress scheme that allows qualified cohabitants to apply to the Court for maintenance and other orders if it can be shown that the applicant was financially dependent on their former cohabitant.  It is only possible for such an application to be made within two years of the end of the relationship, whereas former spouses and civil partners can apply at the time of dissolution or at any time thereafter.

It is surely time for Ireland to look to jurisdictions such as New Zealand where the same rules apply to all relationships – marriages, civil unions (same-sex and opposite –sex) and de facto relationships.  In New Zealand, a couple will qualify as a de facto couple if they live together and are over the age of 18.  The length of time required for a cohabitation to be recognised as a de facto relationship is not strictly defined.  For the purposes of the Property (Relationships) Act 1976 for example it is set at 3 years.  Once a couple has reached this point they are entitled to be treated in exactly the same way as married couples or those in civil unions where the relationship ends either by separation or by death and there is relationship property to be distributed.

This approach to modern family formations makes sense and is inherently fairer.  It recognises that people everywhere make different choices, choices that are right for them in their circumstances.  The law in Ireland urgently needs updating to reflect a legal respect for those choices.  As Anthea McTiernan states simply “isn’t it time for everyone to be able to choose not to get married?

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The position of the perpetrator in Irish Domestic Violence law

The position of the perpetrator in Irish Domestic Violence law

 By Aislinn Collins

Women’s Aid has defined domestic violence as “one person trying to control and assert power over their partner in an intimate relationship”. It can manifest as physical abuse, emotional abuse, sexual abuse or financial abuse. Domestic violence is something that is experienced universally, every day of the week, in every town and country all over the world and is experienced by both women and men. There is an emerging awareness of the prevalence of domestic violence in Ireland but there remains an absence of a clear understanding as to what behavior constitutes this malaise. The general consensus is that domestic violence manifests itself in three forms: physical, sexual and psychological. Seeking an effective and sustainable solution to the problem of violence between intimate partners involves comprehensively recognizing the issue and addressing it is a problem. It is clear that this cannot be successfully undertaken without including concerted efforts to engage violent people. Seeking a solution must address the source of the problem which is violence, and to eliminate the consequences of such acts of violence, i.e. the harm caused to others in the relationship such as a partner or children.

 

Safe Ireland is a very valuable support service for women experiencing domestic violence in Ireland and provides information in respect of the 40+ domestic violence services in Ireland. Of these, 21 provide 24hour emergency accommodation. Domestic Violence Support Services have a wide range of skills and experience to respond to a range of (mostly) women and children’s needs, including supporting women with ways to protect themselves from their partner/ex partner; child related needs such as managing custody and access of children as well as understanding the impact of the violence on children; practical needs such as legal protection and emotional support relating to violence, and ongoing decision making. While these support services are hugely beneficial, budget cuts to victim support services are making it increasingly difficult to support victims of domestic violence. Over the past 7 years, government funding to Women’s Aid has fallen by 31%, notwithstanding that demand for the Women’s Aid Dublin-based one to one service has increased by a shocking 40% since the beginning of the recession. It is imperative that victims can access all the support they need but it is becoming increasingly difficult in light of these funding cuts.

 

Given the ongoing inadequate levels of funding for victim support services, it is hardly surprising that direct work with perpetrators of domestic violence is a relatively unexplored intervention. Traditionally attempts to intervene in domestic violence have understandably focused on the provision of support for abused women and their children. In recent years, however, there has been a shift to include a call for a limited focus on the person who has perpetrated the abuse, to include more than mere punishment. A shift of perspective in thinking has begun around both the cause of domestic abuse and the benefits of intervention. At its most basic, real safety for partners and children needs to include the violent person being made responsible for their violence, accountable for change and to engage them in the kinds of work that might serve to limit and ultimately stop them from violating their current partner or indeed those in future relationships.  In Ireland, there are two main programmes providing services to perpetrators. Men Ending Domestic Abuse (MEND) was set up as a regional initiative under the auspices of the South East Regional Planning Committee on Violence Against Women in response to the Report of the Task Force on Violence against Women which was published in April 1997. Men Overcoming Violence (MOVE) is a structured group work programme that is part funded by COSC, the National Office for the Prevention of Domestic, Sexual and Gender-based Violence, for men who are, or have been violent in an intimate relationship. Both programmes are designed to help the participants to take responsibility for their violent behavior and to learn to behave differently in the future.

 

The Domestic Violence Bill 2015 was introduced last year. It is hugely important as for the first time, Irish law recognises the need for intervention with the perpetrator. The Bill is currently at the Heads of Bill stage therefore it is still very much in draft form and thus subject to change. Intervention for perpetrators is included in Head 19 which seeks to introduce a culture whereby courts can refer perpetrators of domestic violence to dedicated perpetrator programmes. This provides that on the granting of a safety or barring order the court may direct the perpetrator to engage with services to address the issues which may have contributed to the perpetrators behaviour. Unfortunately whilst this is worthwhile, there is no indication as to why or when a judge may decide to direct a perpetrator to engage with the services that may be available. Additionally, the Bill provides that the court may consider the engagement of the perpetrator with any services and the outcome of such engagement when hearing any appeal. It is unclear if the fact of attendance will be regarded as enough or if information on the level and nature of participation of the perpetrator is needed. This may cause a conflict especially due to the confidential nature of such an engagement.

 

It is important to note the significance of the recent 2015 Bill and its attempt to better support victims of domestic violence, whilst also recognizing the need for intervention with the perpetrators and requiring them to address their abusive behavior. It is imperative that more funding is given to support services for women but programmes for perpetrators would be a valuable resource in attempts to diminish the scourge of domestic violence.

 

 

 

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Would you let a stranger decide what’s best for your Family – Consider Mediation?

Would you let a stranger decide what’s best for your Family – Consider Mediation?

by Linda O’Mahony

When faced with determining the resolution of a relationship breakdown dispute, it is surprising that so many people choose to leave it to the courts to decide the outcome. Perhaps a more useful, involved and certainly less contentious approach  is family mediation.

Family mediation is a means of reaching agreement on the important decisions arising on family relationship breakdown and most importantly on deciding by agreement, the day to day arrangements for the parenting of children. It is a confidential service that seeks to facilitate  all those involved, by working with the conflicting parties to reach a satisfactory outcome for all, whilst giving them greater control of the outcome.  Despite a common misperception, family mediation is a dispute resolution mechanism and is not simply a form of counselling. Both privately and publicly funded mediation services can be availed of, the Family Mediation Service is the state funded operation.

Mediation offers a less formal approach to negotiation, no courtroom setting, no Judges, no cross examination and no one side winning.  Rather it involves both parties working together with a qualified mediator in order to reach a middle ground on the important issues arising on break up. It can be regarded as an opportunity to take back control of what may seem to be a spiralling situation. Even though it is not counselling, it does give each party a voice and an opportunity to be heard which may not always be possible in a courtroom environment.

Effective communication is essential to achieve the best outcome in mediation. Mediation provides a level playing field, by creating an environment where neither party can dominate the meetings; thereby striving to ensure that both parties can participate equally. The process encourages parties to reach a mutually acceptable arrangement regarding parenting and children, financial support, family home and property, pensions and other issues related to the separation or divorce. In situations involving children, mediation keeps the parties’ focus on what are the best possible arrangements to make regarding the child or children involved. Mediation is normally faster than the legal route, avoiding (where relevant) the Legal Aid Board  waiting lists and the typically lengthy time periods to await a court hearing.  The mediator does not judge nor act as a judge; the mediator’s role is to create and maintain an atmosphere of co-operation to help the parties to work out any issues that may be preventing them from reaching an agreement. The agreements made through mediation are binding once signed by the parties, but it is common practice to either execute a formal separation agreement incorporating the agreed terms or to have the terms of the agreement made an order of Court.

Family mediation helps people to take positive steps towards a much better outcome, and future. It operates to lessen/avoid any legal court battles or hostility, through the negotiation of an agreed set of arrangements.

Mediation is voluntary, not obligatory and therefore is dependent on both parties agreeing to attend and participate in the mediation process.  Both parties must agree to try mediation in order for it to be successful. Parties may have both separate and joint appointments to discuss their issues.

Mediation meetings vary depending on each case, it can take 6 or indeed more meetings to finalise an agreement. The main aim is to  formulate a mediated agreement and if needed over time both parties can return to mediation if further arrangements need to be made.  The trained mediator is there to assist both parties to work out their own solutions in relation to what best suits them and their family.

 

Mediation is not suitable for cases where one party refuses to engage; where there is recurrent domestic abuse; where one party has an effective incapacity and where one or both parties lack intellectual capacity.

 

A cultural shift is required for people to more readily acknowledge that court is not the only way to resolve family disputes and is certainly not always the best way forward. The decisions imposed by an independent third party regarding family matters are not always fitting to the parties’ circumstances and sometimes not even realistic or attainable. Who better to decide the future of a family breakdown than the parties directly affected? Take the step, seek the information and decide which route is most effective resulting in as little stress and upset as possible. Mediation may not work for all cases but it should certainly be considered as an option.  Having a legally binding mediated agreement where both parties can take ownership following their opportunity to negotiate the best possible outcome in their circumstances is surely worth thinking about, rather than letting the courts decide.

For further information please contact Family mediation service or LoCall 1890 615 200.

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What happened to ‘Grace’? (Children in State Care)

The world will not be destroyed by those who do evil, but by those who watch them without doing anything”Albert Einstein

What happened to ‘Grace’?

by Linda Gibbons

Described ‘as the most savage rape, physical abuse and neglect ever to emerge, the case of Grace and the foster care scandal has deeply shocked the nation. The reports by the Irish Examiner over the past few weeks, have given an insight into the appalling abuse endured by this young girl who was largely forgotten by the State.

Grace who is “unable to speak and with a profound intellectual disability,” was an exceptionally vulnerable child when referred to the State for care at 11 years of age. However, it was not Grace’s inability to speak that really silenced her, but rather the inaction by the State that muted her for 20 years. Inexcusably despite the State being alerted to the abuse allegations in 1989, and indirectly acknowledging them in 1995 by ceasing to send any more children to the home, it took another 14 years before Grace was removed.

Equally for the 47 children previously placed there and for those who remained there, the State continued to ignore their vulnerability, with a child reportedly still in their care as recently as 2013.

Why didn’t the HSE intervene as per their statutory duties?

The Irish Independent has reported that the HSE tried to remove Grace in 1995 but once appealed by the foster family, the need for intervention appears to have been disregarded until the actions of several whistle-blowers ensured Grace’s removal in 2009.

What stopped the HSE disregarding their appeal and removing Grace immediately has not been clarified. However, the Director of the HSE, Tony O’Brien’s recent response that “it is not clear if the HSE has a legal capacity to take such action,” illustrates the failures that have surrounded this case.

Such a response fails to instil confidence in the State’s ability to act as the nation’s parent. It also raises several legal questions that demand urgent clarification.

  • Firstly, does the law impose different legal standards for the State as a parent than for the natural parent?
  • Does the legislation that protects the child from enduring such abuse in the family home not protect the child in the same way if the abuse happens in a State funded home?
  • Does the Child Care Act, 1991  not obligate the State to intervene and remove children when they are satisfied that the child “has been or is being assaulted, ill-treated, neglected or sexually abused” when the child is already under the responsibility of the State?
  • Does the Constitution under article 42A obligate the State to act as the “common guardian of good and to protect children” above all else?

This also raises doubts as to the effectiveness of existing legislation such as the recent Children’s First Act 2015  if those in power don’t know what to do when given reports of abuse outside the family home. As Fergus Finlay accurately states, such legislation is “insulting and meaningless” if it doesn’t serve to protect our most vulnerable citizens.

What has been the HSE’s response – another apology and inquiry?

Since Grace was removed, the efforts by the State to make restitution have included an apology and the promise of yet another inquiry. The initial claim by the Director of the HSE, Tony O’Brien that Grace’s family had already received an apology has been rebutted, forcing him to admit that his original information was “misleading.” While the Minister for Health, Leo Varadkar has advised that a statutory inquiry will be conducted to ensure that the State learns from these failings, this does not instil much confidence given the experience of previous inquiries such as the Ryan Report; which have served to demonstrate that unless it is accompanied by measurable action, an inquiry in itself will not offer increased protection for children in State care.

Where is the justice for Grace-criminally or disciplinary?

Indefensibly for Grace, those who perpetrated the abuse will never be brought to justice as her disability rendered her “not a good witness.”  Currently the Criminal Evidence Act 1992  will only allow those with intellectual disabilities who are deemed “capable of giving an intelligible account of the events…” act as witnesses in court.

Further adding to this dysfunction is the report by the Irish Independent that the professionals who allowed this abuse to remain un-investigated, have never been sanctioned for their failures and some are now “working for the State’s child protection agency.” If this is correct it is simply unacceptable and raises serious doubts as to the integrity of those people still tasked with child protection.

What needs to be done to maximise the safeguarding of children in State care?

With a new government to be elected into power, this must be seen as a chance to make real, tangible reforms to our child protection system and processes.

These changes should include the introduction of legislation governing state funded care homes to incorporate stronger accountability on the State as the national parent. This should ensure that the same legal duty of the state to intervene in the family home is also in place in state funded homes.

Perhaps it is also now time for the State to review the  Criminal Evidence Act 1992  with a view to considering the option of permitting a third party to present evidence for those with severe intellectual disabilities in such cases of alleged abuse.

Furthermore, a review of the Children’s First Act 2015 should be considered with a view to enacting a system similar to that found in Newfoundland and Labrador in Canada which have enacted both civil and criminal penalties for failure to report child abuse.  Although those working with children have a legal obligation to report abuse, there are currently no sanctions for failure to comply. This has led to criticism from leading children’s groups including Barnardo’s and the Children’s Rights Alliance.

It is also high time that the State invests appropriately in the provision of more qualified social workers to care for the needs of children  in the care of the State;  recent statistics state that “6,411 cases of suspected child neglect or abuse are awaiting allocation of a social worker, of whom 1,351 are ‘high priority” – this is unacceptable and if not tackled will likely result in more tragic cases.

As a nation it is time to demand that our watch keepers protect the country’s most vulnerable children, in the name of Grace and every other child let down by the State.

 

 

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Surrogacy: a legal vacuum

 

Surrogacy: a legal vacuum by Ciara Herlihy

While the Children and Family Relationships Act 2015 introduces significant changes to Irish law in the areas of guardianship, custody, access and adoption, and regulates the area of donor assisted human reproduction for the first time, surrogacy remains unregulated, resulting in a legal vacuum which continues to cause difficulties and uncertainty for commissioning parents and children born via surrogacy arrangements.

In 2005, the Commission on Assisted Human Reproduction published a report recommending that surrogacy arrangements be permitted. They also recommended the introduction of legislation to govern these arrangements, and the establishment of a body to regulate assisted human reproduction generally.

Surrogacy was included in the original draft of the Children and Family Relationships Bill, incorporating extensive governing provisions including a ban on commercial surrogacy. However, these proposals were removed, with Minister for Justice Frances Fitzgerald noting that there were “critical issues needing to be resolved”. This removal of the proposals was strongly criticised by many, including former Minister for Justice Alan Shatter.

Surrogacy remains a controversial issue, hitting the headlines particularly during the marriage referendum in 2015. Countries across Europe have taken widely different approaches; for example, France and Italy have banned all surrogacy arrangements while the United Kingdom has banned commercial surrogacy.

Despite the lack of regulation in Ireland, there is evidence that Irish couples have children born via surrogacy arrangements both domestically and abroad, partly perhaps given that domestic adoption is almost non-existent and the numbers of inter-country adoptions have decreased over the past number of years. The Irish Independent has reported that at least 57 children have been born via surrogacy between 2008 and early 2015. This figure is based on the number of emergency travel certificates granted to commissioning parents who must apply for these before they are able to bring the child into Ireland. The requirement to apply for emergency travel certificates depends on the country in which the child is born, meaning that the number of children is likely to be much higher.

In order to support these parents and in acknowledging the fact of surrogacy, the Department of Justice issued a guidance document in 2012 in relation to overseas surrogacy arrangements called “Citizenship, Parentage, Guardianship and Travel Document Issues in Relation to Children Born as a Result of Surrogacy Arrangements Entered into Outside the State”.

MR v. An tArd- Chláraitheoir 

A high profile case involving a domestic surrogacy arrangement was widely reported in 2013 and serves to reflect the current vacuous legal position on surrogacy in Ireland until legislation is introduced.

This case involved a woman who acted as a surrogate for her sister and gave birth to twins, she being known as the gestational mother. Counsel for the parents described this as a “gesture of love” for her sister who was unable to give birth. They had collectively agreed that the children would be raised and cared for by her sister, the genetic mother, who had provided the ovum, and her husband, who was also the genetic father of the twins, having provided the sperm in the fertilisation process.

There was no dispute between the parties as to who ought to be recognised as the legal parents of the twins. However, difficulties arose when the genetic parents sought to register the birth of the children, in particular to register the genetic mother as the legally recognised mother of the twins.

In the High Court, Justice Abbott observed that the surrogacy arrangement was not in fact illegal as surrogacy was not banned in Ireland. The central issue before the court was who should be registered as the mother of the twins under the Civil Registration Act 2004: the genetic mother, or the woman who had given birth to the child, the gestational mother.

The state argued that the gestational mother is the sole person capable of being recognised as the legal mother. Conversely, counsel for the parents argued that the definition of “mother” should be based on the genetic link with the child.

Ultimately the High Court made a declaration that the genetic mother should be registered as the legal mother of the twins.

The state successfully appealed this decision which was overturned by the Supreme Court in November 2014, meaning that the genetic mother could not be registered as the legal mother of the twins.

The judgment recognised that “any law on surrogacy affects the status and rights of persons, especially children: it creates complex relationships and has a deep social content” and was very critical of the government’s continued failure to legislate in the area. Chief Justice Denham urged for the gap in the law to be addressed, noting that surrogacy was “quintessentially a matter for the Oireachtas”, and not a matter for the courts in the absence of legislation.

The Supreme Court decision means that the genetic parents would only have the option to jointly adopt the twins, being the only way to allow the genetic mother to be recognised as their legal mother.

The current law would also allow the genetic mother to apply to become the legal guardian of the children along with her husband under the Children and Family Relationships Act, after she shares responsibility with him for the day-to-day care of the twins for at least two years. It is now also possible for children to have multiple guardians, meaning that the gestational mother would remain as the legally recognised mother and guardian along with her sister and her husband.

Towards the legal regulation of surrogacy arrangements

The government has committed to putting legislation in place to govern surrogacy arrangements, to include the setting up of a Regulator to maintain records of all surrogacy arrangements and assisted reproduction activities. It is envisaged that these proposals will include a ban on commercial surrogacy but will allow surrogate mothers to be reimbursed for “reasonable expenses”. Legislation may also require intending parents and surrogate mothers to attend counselling before consenting to the surrogacy arrangement. Last December, Minister for Health Leo Varadkar said that new laws on surrogacy were in the process of being drafted but were unlikely to be published until later this year.

Ireland’s Special Rapporteur on Child Protection Geoffrey Shannon has emphasised that children “should not be left in a legal limbo. A child born through surrogacy could potentially have five individuals involved: the surrogate mother, the commissioning mother, the egg donor, the commissioning father and the sperm donor”, and pointed to the issue of children born via overseas surrogacy arrangements being stateless.

Children and families will remain in legal limbo until much-needed clarity is provided in the form of a clear legislative framework to regulate surrogacy arrangements. It is essential that the rights and interests of children are at the centre of any regulatory framework.

 

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Religious dominance in School Admissions in Ireland – Not Catholic, No School?

Religious dominance in School Admissions in Ireland – Not Catholic, No School?

By Sarah Berkery

Rule 68 of the Rules for National Schools states that: “Of all the parts of a school curriculum Religious Instruction is by far the most important, as its subject-matter, God’s honour and service, includes the proper use of all man’s faculties, and affords the most powerful inducements to their proper use”, is suggestive such a possibility.  This Rule was deleted in December by the Minister for Education, Jan O’Sullivan who stated that it was a “symbol of the past, and not our future.” The deletion of this Rule suggests that the dominance of the Catholic Church in education could be the master of its own downfall in terms of religious education.

The issue of religious dominance in the educational context is fast gathering pace both nationally and internationally with many online petitions calling for an end to the preference of allocating primary school places to Catholic children.

With almost 97% of Irish primary schools having a Catholic ethos protected in law, it must be queried how children of a different denomination or no denomination at all are to effectively vindicate their Constitutional right to free primary education?  The story of a young boy from a “nonreligion” family being refused from nine schools, forcing his parents to postpone his commencement of education for a year is just one of many such stories in Ireland’s multi-cultural society. Reuben’s experience has however usefully served to highlight the not uncommon practice of parents baptizing their children simply to get them into a primary school. Recently Archbishop Martin said that he does “…not believe that presenting baptismal certificates is an appropriate way to judge access to schools.” This view has been welcomed by many as an important contribution to the debate surrounding the need for reform in the area of  access to schools in Ireland.

The results of a recent Behaviour and Attitudes poll found that 84% of those surveyed were of the view that no child should be excluded from a school because of their religion or lack of religion; and 87% felt that the State is responsible for ensuring that children do not experience religious discrimination in the school curriculum.  Undoubtedly the State’s responsibility to ensure that children do not experience religious discrimination extends further than merely the curriculum in schools but to their ability to actually gain admission to these schools in the first instance.

More broadly there seems to be a fundamental disconnect between the prohibition on discrimination on grounds of religion, and the religious exemption provision which encourages discrimination on the same grounds in the context of school admission. The reality of this exemption is that if a school wants to protect a particular ethos it can refuse a child admission to the school on the basis that the child is not of that religion. The exemption acts as an ethos-based defence to any claim of what would otherwise be regarded as blatant discrimination.

Patronage the Problem?

Despite recommendations by the Government in 2011 that Catholic schools be dissolved/divested of their patronage, Catholic schools do not appear to want to give up their ownership of schools and in reality they cannot be forced to.  To date, only 8 schools have been handed over by the Catholic church as part of this divestment process. Another complicating factor is the fact that the Catholic Church owns many of the buildings that the schools are based in. Of the 8 schools already handed over only 2 of these schools are being run from buildings vacated by the Catholic Church while the remaining 6 schools have no buildings. Surely, this is evidence that this approach cannot operate?  While this approach bears all the hallmarks of being able to reduce religious dominance in schools by in effect taking the Catholic Church out of the equation, in reality the current approach and associated processes are effectively unworkable.

The need for more community-based schools and non-denominational schools is more important now than ever. Although pluralism in education might take time, as warned by Archbishop Diarmuid Martin, unless people of other faiths and indeed of no faith are given more freedom to attend nonreligious schools, catholic education would actually be diluted rather than strengthened.

The United Nations Committee on the Rights of the Child recently called on the Government to take urgent action to end the freedom that allows Irish schools to discriminate against children on religious grounds. In it’s Report the Committee recommended that the Government “expeditiously undertake concrete measures to significantly increase the availability of non-denominational or multidenominational schools and to amend the existing legislative framework to eliminate discrimination in school admissions, including the Equal Status Act.” Ireland has yet to respond to this Report but it will be interesting to see if the Government will respond by way of a further meaningless commitment to change the system in Ireland or will actually amend the law that allows for blatant discrimination on grounds of religion for access to schools.

Despite using this serious issue of religious discrimination and school admissions as a political football it appears that the only way to ensure, fairness equality and transparency is to consider removing religion from schools altogether and to campaign for a full divestment of religion from schools , or at the very least remove it as an entry requirement/test. To achieve this basic level of fairness,, the Government also needs to consider amending the Equal Status Acts 1998-2000 to remove the provision that allows schools to lawfully refuse a child admission to a school on grounds of religion where that school wants to protect its ethos After all, religion is arguably a private matter for families and individuals and should not be interlinked with education.  The time for change is ripe with the upcoming election and the strong, clear recommendations from the United Nations that this discrimination has to stop.

 

 

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Guardianship rights for unmarried fathers

Written by Vanessa Crowley

Landmark reforms to family law are to allow unmarried fathers’ automatic guardianship rights

As widely reported over the last number of weeks, many sections of the Children and Family Relationships Act 2015 were commenced on 18th January 2016.

Approximately 36% of children are born outside of marriage each year in Ireland and prior to the commencement of this Act only the mother of those children had guaranteed guardianship status.

The 2015 Act has heralded a new era for family law as it addresses the long ignored position of the unmarried father and finally allows for automatic guardianship where the cohabitation requirement is met.

As a guardian of a child the unmarried father will have a say in where that child will live, go to school and in what religion, if any, the child will be raised. His permission will also be required for medical treatment and to secure a passport for the child.

Automatic guardianship will only be granted to unmarried fathers who have lived with the mother of the child for a minimum of 12 months, which must include at least three months after the birth of the child.

However, the change is not retrospective; a father currently cohabiting with the mother of his child will not have guardianship rights until 12 months from the date of commencement, 18 January 2016.

Barnardos has said that the new provision “recognises and values the commitment of fathers to their children, and by applying a cohabitation clause, ensures that fathers who do not wish or intend to be involved in their child’s life are not automatic guardians”.

However, this does not reflect reality, as in many cases it is simply not possible for an unmarried father to meet the cohabitation requirement as it not always appropriate or possible depending on the circumstances. Where it will further fail fathers is where the relationship with the mother breaks down preventing the father from “earning” their rights to the child.

Up to this point the only ways in which an unmarried father could secure guardianship was by both parents signing a Statutory Declaration reflecting their agreement; or by applying to court to seek an order to make him a guardian where this is in the best interests of the child.

This piece of legislation recognises the international standard that every child “as far as possible” has “the right to know and be cared for by his or her parents”, as is underlined in the United Nations Convention on the Rights of the Child.

Although a major step forward, there is nothing in the Act to provide for unmarried fathers who do not live with the mother of their child but may nonetheless have a strong relationship with the child. It is regrettable that the legislation does not go far enough to benefit these fathers and that such fathers still have to seek court intervention or the permission of the mother to establish a legal relationship with their child. Treoir believes that unmarried fathers, like married fathers, should be the automatic guardians of their children. In 2011 the Law Reform Commission recommended that a non-marital father should automatically be a joint guardian of the child with the child’s mother. There are a number of countries where unmarried fathers are the automatic guardians of their children, including Northern Ireland, Britain, Australia and many European countries. In these countries, where an unmarried father jointly registers the birth of the child with the mother, he will have an automatic right to guardianship of that child; the Republic of Ireland has denied unmarried fathers this right.

This new approach correctly recognises and values the need to address gender-based discrimination, giving fathers a much stronger legal status. It also gives legal recognition and clarity to non-traditional family units and is a welcome modernisation of Irish law. It is hoped that further progress will be made in which Ireland will attain the international standard for unmarried fathers and whether these different options now available will provide clarity or cause confusion awaits to be seen.

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