International Women’s Day 8th March saw a major conference entitled “Conflict Resolution: Peace, Practice and Perspectives – celebrating Women as ARD Leaders”. It was a collaboration between CI Arb, which is the authority for the regulation, training, promotion of arbitration, mediation and dispute resolution in Ireland, Arbitral Women, a network of women from diverse backgrounds and legal cultures active in international dispute resolution, The Irish Women Lawyers Association and the Law Society. It was Sponsored by the Edward M Kennedy Institute for conflict intervention at NUI Maynooth. There were many delegates from many countries and Muriel Walls made a presentation entitled “Empowering couples to resolve their own family disputes” and the paper is attached.
Newsletter Winter 2016
Genetic mother wins surrogacy case
The genetic mother of twins born to a surrogate mother has won a landmark case at the High Court to be declared the legal mother of the twins.
Mr Justice Henry Abbott ruled that the genetic mother was the legal mother and was entitled to have a declaration from the court stating that.
He also said the twins were entitled to have the genetic mother named as their mother on their birth certificates.
The State had refused to allow the genetic mother to be listed as the mother on the twins’ birth certificates.
The surrogate mother was the sister of the genetic mother, and had not objected to the couple’s application.
Mr Justice Abbott said the input of the birth mother was to be respected and treated with “care and prudence”. But the old maxim mater semper certa est, motherhood is always certain, which the State argued meant the birth mother was always the legal mother, did not survive the enactment of the Constitution, “as it applies to the situation of in-vitro fertilisation”.
“To achieve fairness and constitutional and natural justice for both the paternal and maternal genetic parents, the feasible inquiry in relation to maternity ought to be made on a genetic basis and on being proven, the genetic mother should be registered as the mother,” the Judge said.
He also ruled that the word “mother” in Article 40.3.3 of the Constitution had a meaning “specific to the article itself”. This was related to the existence of the unborn only when the foetus was in the womb and not otherwise, he said.
The state had argued the Article, often referred to as the right-to-life amendment, had defined motherhood as the birth mother only.
Mr Justice Abbott also noted that in Ireland positive legislation on surrogacy was “totally absent” and so the contract entered into by the couple and the surrogate mother was “not illegal”. But he said its performance in the Irish legislative context “would not be enforceable by any court”.
Responding to the ruling, Solicitor Marion Campbell, on behalf of the family, said they were delighted with the outcome.
“It has been a very long, hard and emotional time for them and they would like to express their thanks for the support shown to them by their family, friends and legal representatives,” she said.
“It is to be hoped now that much needed legislation in relation to this whole difficult area of surrogacy will be brought in and that children born by way of surrogacy arrangements will have their rights enshrined in such legislation.
By Fiona Gartland – Irish Times | Tue, Mar 05, 2013 | Link to Irish Times Article
Required birth registration will not boost fathers’ rights
THE LAW on guardianship of children dates from 1964 and is in urgent need of reform.
Unfortunately, the Government’s current reform proposal is limited in scope and fails to address some of the substantive shortcomings in the current framework of family law.
The introduction, in isolation, of compulsory joint registration of births is not in keeping with the undertaking in the Programme for Government to reform and modernise family law in line with recommendations of the Law Reform Commission.
The commission’s report, Legal Aspects of Family Relationships, proposed extending automatic guardianship rights to all parents, regardless of marital status.
Compulsory joint registration of births was only one aspect of a much broader scheme of reform. The Government is focusing on the low-hanging fruit instead of engaging in the root-and-branch reform that is necessary.
Compulsory joint registration of births means the name of both the mother and father would appear on the birth certificate of every child. It is relatively uncontroversial to suggest a child should have information about, or at the very least the name of, both parents.
However, Irish law does not at present require the name of both parents on the birth certificate of a child. Where parents are married, both names are usually entered on the birth certificate. Where a non-marital mother registers a birth alone she will not be asked about the father.
There are myriad reasons why the father’s name may not be included on the birth certificate of a child born to non-married parents. One reason is the urgency associated with getting the birth registered, as registration triggers the payment of child benefit.
The process for registering a non-marital father on the birth certificate is logistically complex. In many cases, therefore, the intention may be to re-register the birth to include the father’s name at a later stage, once social welfare payments are activated, but this is often not done.
In some cases the father’s name may be omitted in the mistaken belief this will ensure he does not become a guardian. In fact, under the current law, the inclusion of the father’s name on the birth certificate gives rise to no legal rights or responsibilities.
Alternatively, the mother may genuinely not know who the father is or she may know but not wish to enter the name on the birth certificate for a variety of reasons including, for example, rape, incest or fear of violence.
From a children’s rights perspective it is possible to view compulsory joint registration as a positive development, as it is a means to vindicate the right of the child to know the identity of his or her parents.
There are also medical and social reasons why it is important for an individual to know his or her genetic background, one example being to avoid unknowingly entering into a relationship with a relative.
However, the push to introduce compulsory joint registration in isolation is concerning. Requiring the names of all parents to be registered, while benefiting the child, will also provide the State with information on the family status of a greater proportion of the population.
During a period when the State’s finances are strained, and over €1 billion was spent on the One-Parent Family Payment in 2010, it is not unreasonable to suggest this information may be used in the future to pursue parents to recoup some of that expenditure.
In principle there is no objection to requiring a parent to contribute to the cost of raising his or her child. However, with responsibilities should come rights, and the difficulty is that the current law on guardianship grants very limited rights to non-marital fathers.
At present, unless the mother agrees to extend guardianship rights to the non-marital father, he can only obtain guardianship by court order. To address this inequality, the commission recommended the introduction of automatic guardianship rights for non-marital fathers. It suggested a trigger mechanism for activating guardianship and considered that being named on the birth certificate would be appropriate.
This was to ensure that all parties concerned would have a record of who was a parental guardian of a child. To guarantee that practically all non-marital fathers would be registered on the birth certificate, and therefore entitled to guardianship, the commission recommended compulsory joint registration.
It accepted such a system would be subject to limited exceptions, for example where the mother genuinely does not know the identity of the father or where there is a risk to the health or wellbeing of mother or child.
However, by introducing only one aspect of this reform proposal, compulsory joint registration of births, the Government is increasing responsibilities without creating concomitant rights. In so doing it is undermining the spirit of the Law Reform Commission’s recommendations.
Dr Claire Murray is a lecturer in the Faculty of Law, University College Cork and was the principal legal researcher on the Law Reform Commission’s Legal Aspects of Family Relationships report
By CLAIRE MURRAY – Irish Times | Wed, Jun 06, 2012 | Link to Irish Times Article
Solicitor fails in attempt to have ‘commitment gifts’ returned
A DUBLIN solicitor has told the Circuit Civil Court that he bought expensive jewellery and an oil painting as “commitment gifts” to his former partner but expected to get them back.
His former girlfriend, a legal assistant, won a court order to hold on to them and was awarded legal costs against her former lover.
Conor Bowman told Judge Jacqueline Linnane that Matthew Wales had bought Stella Conlon a diamond ring worth €12,000, a Rolex watch worth €5,000 and a Norman Teeling painting worth €5,500.
Mr Wales, Roebuck Castle, Clonskeagh, Dublin, told Mr Bowman, for Ms Conlon, that he had bought the ring in the company of Ms Conlon and had told her it was a commitment gift given as “a token of an exclusive relationship”.
Judge Linnane heard that the Rolex watch had been given as a Christmas gift. Mr Wales said other items he had bought had less value and he was not interested in getting them back.
Ms Conlon, Temple Hall, Mount Saint Anne’s, Milltown, Dublin, said she had become aware that Mr Wales wanted the three items returned two years after their relationship ended in 2009.
She told the court that she and Mr Wales had been in a mutual relationship from 2006 and she never expected she would have to give the gifts back.
She said she understood the ring had been given as “a sign of love”.
She said Mr Wales was a generous man and she would not have accepted the gifts if she had expected the relationship would eventually end.
The court heard they had been together when Mr Wales bought the Molly Malone painting by Teeling. Ms Conlon denied that she had known that he had hung it in her apartment temporarily. She said her friends were aware it was a gift from him.
Mr Bowman said that when the relationship ended, Mr Wales had returned to Ms Conlon’s apartment in her absence, using a key he had, to collect his belongings. He said Mr Wales did not take the painting, which was on the wall.
Judge Linnane, dismissing Mr Wales’s claim, said Ms Conlon was entitled to retain the gifts as they had been given to her unconditionally.
Irish Times | Fri, May 04, 2012 | Link to Irish Times Article
Bill proposes full legal status for humanist weddings
THE GOVERNMENT is expected to agree today to back legislation giving humanists the same status as organised religions and civil registrars in conducting marriage ceremonies.
Minister for Social Protection Joan Burton is due to ask her ministerial colleagues to support the Civil Registration (Amendment) Bill at this morning’s Cabinet meeting.
The legislation was introduced in the Seanad as a Private Members’ Bill by Trinity College Senator Ivana Bacik and is due to pass final stages in the Upper House tomorrow.
The Bill proposes to amend the Civil Registration Act 2004, which regulates the registration of civil marriages.
The 2004 Act stipulates that, apart from Health Service Executive registrars, only a member of a “religious body” may celebrate legal marriages.
This is defined as “an organised group of people, members of which meet regularly for common religious worship”.
This includes organisations such as the Pagan Federation Ireland and the Spiritualist Union of Ireland, which have obtained registration under the Act.
But the definition excludes members of the Humanist Association of Ireland, who currently conduct humanist wedding ceremonies even though these are not legally recognised.
The Bill proposes to extend the right to conduct civil marriages to nonreligious groups such as the HAI. A group of this nature must be a “philosophical and nonconfessional body”, have been performing marriage ceremonies for at least five years, and at least 20 couples must have participated in the ceremony.
Once the Bill has passed through the Seanad tomorrow, it will proceed to the Dáil, where it is expected to be introduced by Ms Burton.
Brian Whiteside of the HAI said that, in the past, it had been “left out in the cold” but persisted in its efforts to obtain the right to solemnise marriages and have “parity of esteem” with religious bodies.
There had been “no real progress” until the change of government last year, when Ms Bacik agreed to take up their cause.
“As the law stands presently a couple cannot have a legally binding, nonreligious marriage ceremony on a Saturday, as the State registrars work only Monday to Friday,” he added.
The proportion of couples choosing a non-religious, civil wedding ceremony in Ireland has increased from 6 per cent in 1996 to more than 23 per cent in 2006, according to the Central Statistics Office.
Humanism is defined as “an ethical philosophy of life, based on a concern for humanity, which combines reason with compassion”.
The HAI has nine accredited celebrants who conducted 153 marriage ceremonies last year.
By Deaglan De Breadun – Irish Times | Tue, May 01, 2012 | Link to Irish Times Article