Merry Christmas & Happy New Year

Surrogacy

Human beings have basic emotional needs some of which are to be accepted, respected, valued, needed and useful. All these needs can be called into question if a person or couple finds that they are unable to conceive a child for any reason. Infertility, and the resulting childlessness, can often, though not invariably, lead to profound feelings of inadequacy, emptiness and uselessness. This in turn can seriously impact on a person’s relationship with their life partner. The problem of infertility is as old as time. In our modern age, however, we have reproductive technology. This technology combined with global travel and the increasing commercialization of all areas of life provides us with fertile ground (pardon the pun) for debate.
To many of us, surrogacy can seem like something from Brave New World. However, surrogacy is not new, indeed, it is mentioned in the Bible. Sarah, Abraham’s wife had her servant Hagar carry and deliver her first baby, Esau. What makes surrogacy in modern times seem like something straight out of a science fiction novel is the extraordinary range of reproductive technologies that we have evolved in a relatively very short period of time, since the late 1970s in fact. The commercialisation of surrogacy gives rise to profound legal and ethical implications for all of us. We must now ask the most basic questions such as – Just because science can do it, should it? Another – even if money can buy it, should it? But these only seem like new questions. In fact they are or versions of them are the basic questions arising in practically all moral issues in our modern world. As in all moral questions your answers will determine where you stand.
Many opponents of reproductive technologies argue from the basis of the natural order of things. If you don’t have children, then maybe you were not meant to have them and/or it is against nature to tamper with such Godlike matters as birth and death. However, we tamper with birth and death in all sorts of ways and have done for a very long time. Many of us practice birth control or family planning for example. We also manage pain and suffering due to advances in medical science. We are constantly researching and sometimes successfully discover cures for various previously fatal illnesses and diseases. There will be those who oppose even such practices and such opponents have the merit of consistency. Few of us, however, now feel that we should experience profound physical suffering if it can be prevented by modern medicine. However, the hospices which seem such a byword for compassion and humanity have not always been widely accepted and were controversial in their time. We argue the standpoint of “natural” from the yardstick of our culture, time, location, experience, class background, education, religion, politics and morality. Ancient practices, and not so ancient but different practices, can seem barbaric to us. Plato and Aristotle, founding fathers of much of our western thought processes, educational standards and cultural standpoints ,both saw infanticide from the perspective of their culture as necessary and permitted. Indeed, infanticide was widely practised in ancient societies including Europe as a means of family planning, poverty control or primitive eugenics. We would not consider making the argument of “natural” now in this context but from the perspective of that time, it would have been a viewpoint. “Natural” can be used to justify apartheid as much as it can be used to argue against reproductive technology.
Legal experience has shown that when science gallops ahead and politics and society drags its heels, necessary debates are overtaken by developments and events. This frequently leads to poor law passed in haste in response to emergencies rather than carefully balanced and considered. Reproductive Technology has been forging ahead since the late 1970s and it is time for us to grasp the nettle. We have a tendency to react as if ignoring something will make it go away. We are an island nation but we are no longer isolated. We are part of the international community and developments in one part of that community will affect us here and there is no way of avoiding this. If surrogacy is allowed in other parts of the world and is accessible to Irish people then Irish people will avail of it with the implications that has for the rest of us. In Ireland we took the initiative some time ago and commissioned a report on this matter. This was filed in 2005 entitled “Report of The Commission on Assisted Human Reproduction”. Then, as with so many things, we left it and rested! This report is superb. It is comprehensive, explains much that needs explanation about various reproductive technologies, terms in common use, issues and developments. It names and deals with the legal and ethical issues as they arise and makes recommendations for legislation based on findings. In short it makes a very complex area readily understandable to those without a scientific background and that is quite an achievement. From a global standpoint, if the recommendations of the Commission were to be adopted into Irish legislation, Ireland would stand at the cutting edge. Perhaps not everyone wants this for us but to have no legislation at all, which is our current position, is the worst of all worlds.
Now it is scientifically possible for a baby to be created in a petri dish from the sperm of a man and the egg of a woman and the resulting embryo can be transferred into a second woman to gestate. Reproductive scientists are able to accurately tell if a created embryo might carry a specific disease. The use of embryos, the by-product of such technology, for research is in itself highly controversial. For some time now it has been possible to tell the gender of a child in the womb however, now it is possible to tell the gender prior to implantation in the womb. Soon we may have the technology to determine hair, eye colour etc. All these developments give rise to issues and indeed when combined with politics and culture, can have very unintended results. Such power is breathtaking. It can offer wonderful promise and hope too many people, infertile couples as well as the treatment of many diseases. However, such power comes at a price and not just monetary, the price of responsibility. How do we control and regulate these developments?
Prior to the development of reproductive technology in its current form, it occurred to many people that controlling who can breed was desirable. People believed that they could eradicate poverty, for example by such methods. Their motives were not always bad, many were well motivated. However, these ideas in the hands of, for example, Hitler, led to the mass extermination of “undesirables” and to breeding programs to create an Aryan race. Many fear that the same potential exists with this technology except that now we have a very real possibility of being actually successful. In present day China and India our ability to tell gender is being used to abort female children. Historically, and even in modern day China, it would be an understatement to say that females were and are undervalued. It was commonplace to commit infanticide on unwanted female children. China then introduced the one child policy to curb its population. Put those three things together and it was hardly surprising that the new technology enabling gender recognition would be used to abort female children since if you could only have one child, you would certainly want a boy! Now we have a situation where on a very conservative estimate China will have 30 million more men than women by 2020. There are enormous social implications to this which deserve another article. India is also using reproductive technology to abort female children. Like China such children are not valued. In India, the average birth rate is 927 females to every 1000 males. In some places the number of females is as low as 800. Average out that difference over say 50 years and you have a problem similar to China. Recognition of the problem in China led to relaxation of the one child policy but not its abolition. In addition, the government is now offering incentives to couples to raise girls.
Many people when confronted with the problem of infertility will argue that such couples should adopt. Adoption is also controversial and particularly international adoption. There are those who consider it a form of child exploitation. Regulating adoption, particularly International Adoption, has proved and continues to prove very difficult. Without considering any of these difficulties which are the material of articles in and of themselves, we need only mention that to adopt, a couple has to go through enormous hoops and it is a very long process. Adoption regularly takes 4/5 years to complete. It seems to me too, that adoption should be something you want to do as and for itself, and not something you simply do because you have no other option. Indeed, in my world this would be one of the tests of suitability to adopt but that is another discussion. For single parents, cohabiting couples, homosexual couples (people who are controversial particularly in the area of parenting in and of themselves) can find adoption very difficult if not impossible. Surrogacy often proves a better option for a whole range of people than adoption.
A surrogate is a woman who for financial and/or compassionate reasons agrees to bear a child for another woman who is incapable or less often unwilling to do so herself. The least controversial type of surrogacy is what is often called “altruistic surrogacy” and also referred to as compassionate surrogacy. Many of you may remember that in the TV series “Friends” one of the girls acted as a surrogate for her brother and his wife. Altruistic surrogacy generally occurs where people are related or close friends. Such acts seem noble and therefore, above reproach. This seems to make them morally justifiable. In some parts of the world, like most of the Australian territories with the exception of the Northern Territory, altruistic surrogacy is legal but not commercial surrogacy. When we bring strangers and money into the equation, the issues seem different. But ,of course, if we examine either of these positions in any depth, they do not hold up. The road to hell is paved with good intentions and to do something to help a friend does not make it the right thing to do from a societal point of view though it may be morally justifiable if you look at morality from a purely personal perspective. Should law be concerned with the personal perspective or the societal good? Taking money does not make an act intrinsically immoral or wrong. Compassion and money are not mutually exclusive and many commercial surrogates will still derive enormous satisfaction out of the feeling of having assisted a couple in difficulties. Many surrogate mothers will be and are motivated to offer this service not just for monetary gain. I am conscious too of how the use of certain words can act as a palliative to our sensibilities like “expenses” instead of “fees or payment”. All too often these words are used as a thin veneer for what are in fact commercial payments. In Ireland, for example, because of moral sensibilities around contraception we engaged in the duplicity of donating to family planning clinics rather than buying contraceptives for years. It was simply a ruse to get around the law and nothing more. Whether we called it a donation or not, we were in fact engaged in a commercial transaction, we were buying contraceptives. I think we need to take an honest look at this whole area.
It is fair to say that the waters become even murkier when we consider a comparatively wealthy western educated couple and a socially deprived developing world woman. The inequality of bargaining in such relationships gives us much pause for thought and worry. There is no doubt that the situation is ripe for exploitation, not only it has to be said by desperate Westerners, but also by corrupt forces within those countries themselves particularly countries where women are second class citizens as in India. To commission in India costs about one third of what it costs in the US. In my opinion the answer lies in regulation and International Agreements which won’t completely prevent corruption, they never do, but will go a goodly distance.
The question arises as to whether or not the use of international surrogates is a form of human trafficking? Why confine that question to “International” surrogates ? “International” in this context seems to be a euphemism for “poor”. However, asked in a general way the question has validity and there is no pat way to answer it. Many have answered that the price paid to the Indian surrogacy agency of around €15K of which the woman may receive €8K or so is relatively good compared to the standard of living in India. I have no doubt that this is true but is it an answer? In the recognised agencies in India the women surrogates receive excellent medical care during their pregnancies , ironically enormously better than the care they would receive in a normal standard pregnancy. Does the care given make it ok? I don’t think either of these facts goes to the root of the question. They simply appease but they do not satisfy. Are we saying that if we pay an Indian woman the same money as the US woman that would make it ok? If that is what we are saying then I think it is reasonable to argue that in the market place it is fair to pay what the market dictates. Overheads, standards of living, wages etc are all hugely cheaper in India. What the Indian woman can buy for €8K is equivalent to what the US woman can buy for €50K. On the other hand, if we are saying that the process is wrong and that it is inherently repugnant regardless of what we pay then that holds true for all surrogacy whether compassionate, for expenses only or for commercial reasons whether in India or anywhere else. When we talk about surrogacy as human trafficking I think we are equating it with prostitution. Is it an acceptable argument in relation to prostitution that if it is financed properly and the women are looked after medically and well paid, it is then ok? Many would say yes. There are others who will say that prostitution dehumanizes and alienates and is never justifiable. However, those are characteristic features of many transactions where physical labour is involved. We know prostitution exists regardless of legal bans. We know that outlawing it can often make it more dangerous and even more exploitative for the women on the streets. If we legalise it then where do we draw the line, would we ask prostitutes to pay taxes in other words make it a legitimate job? These are uncomfortable things to think about but we have to think about them. Such research as I am aware of in the UK conducted with surrogate mothers indicates that overwhelmingly surrogate mothers were happy with the experience of surrogacy and few of them experienced any deep or lasting sadness and regret about handing over the baby once the pregnancy concluded. I doubt that the same result would occur if we surveyed women who gave up their babies for adoption for example. There is nothing simple about this. At the end of the day, I think that if a woman wants to offer herself as a surrogate and if she is guaranteed proper medical care in reputable certified agencies, if the manner of how her surrogacy is conducted is exactly and precisely the same as in any Western country allowing this practice i.e., she is not subject to unacceptable health risks and if she is protected under contract and by the law of her country, then it seems to me that she has every right to choose this way of making money for herself and her family. However, such safeguards and guarantees would make surrogacy more expensive in the developing countries and would also only come about if the whole area is properly regulated by law. Surrogacy is now an International phenomenon. We have no law governing this area in Ireland. Developments in reproductive technology and the passing of enabling legislation in other countries, impacts of us whether we like it or not. Desperate Irish couples will commission surrogates abroad just like their counterparts in other countries and take their chances here with the law as it stands. Is this irresponsible, perhaps but it is nonetheless happening. We need to step into the breach and regulate.
The whole topic of reproductive technology could be used as a philosophical starting point for an ethics class. I have only touched on some of the ethical issues, there are many more not least what happens to the spare embryos, the by product of surrogacy? This one gets right down to the whole thorny issue of when life begins. From a legal standpoint in Ireland our controversial Article 40:3:3 which protects the life of the unborn is unclear as we now know as to whether protection applies from fertilization or from some subsequent point in the process. Lack of clarity in this area has implications for the provision of AHR services in Ireland. These and other issues are for another article. There are property rights in question around some of these products, issues of storage, questions as to who should and should not qualify as commissioning parent/s as well as issues of health, class and exploitation. I have only scratched the surface of some of these questions and not looked at others at all. I intend to revisit this whole area. Another fascinating question is the whole question of extremes – how far is too far? Do we allow people to commission designer babies if and when that technology becomes available which it will and if not, how do we stop them? Cloning? Dolly the sheep was one thing, but human beings? Finally, for now, to what extent are our imperfections as human being, our little design flaws or not so little design flaws, part of a necessary humanizing process for both ourselves and others? All this and I have not touched on the law yet but I will – later!

Apply – Don’t Fly. An Examination of the Hague Convention on the Civil Aspects of International Child Abduction.

The Hague Convention on the Civil Aspects of International Child Abduction is an international human rights treaty to which 86 countries have now signed up. The Convention is a legal mechanism to recover children abducted to another country. It is designed to bring uniformity to the manner in which the courts of the signatory countries deal with child abduction and to dissuade people from “forum shopping” when it comes to matters of custody and access. While the object is uniformity between countries in their response to kidnapping, in reality compliance between the signatory countries is not always what it should be. Therefore, while The Hague Convention offers much needed protection, prevention is still the best measure when dealing with kidnapping.

Parental kidnapping is the most common form of kidnapping and it occurs when a child is wrongfully removed, i.e. without the permission express or implied, from the person lawfully exercising custodial rights at that time. The Hague Convention covers those situations in which the child is taken from his place of residence (known as his “habitual residence”) to another country. Habitual residence does not have any legal definition as such but it generally means where the child has been resident for most of his or her life prior to the kidnapping. Obviously with older children this is easier to establish whereas with very young children who have been moving around for one reason or another, it can be a much more difficult exercise. However, whether children are older or younger, it can often be quite a difficult exercise since quite often parents from one country will live in another for economic reasons only. They may have an agreement or claim that there was an agreement to return to the country of origin as soon as practical. This sort of thing can lead to a dispute as to where parties were in fact resident as in such situations it is common for one party generally the mother to be spending periods of time in her home country while the husband is away working and joining her husband occasionally. Also an agreement or alleged agreement to return to a home country can lead to a presumption of consent when it comes to taking the child from one location to another.

Speed is of the essence in responding to a parental kidnapping. The signatory countries are charged to deal with these cases expeditiously ie they must process the case quickly through their system and give it priority listing. If the left behind parent (LBP) does not take action quickly a court may view this as acquiescence or consent to a relocation of a child or children rather than a kidnapping per se. Time is also crucial in that if a good deal of time passes (generally anything longer than 12 months) a court may feel that the child has now established a new habitual residence and may not order the child returned to his or her former habitual residence. The court has a discretion in this regard. It is important to note that the court does not look at any behavioural issues surrounding the case except that those issues impact on how they must decide the case under the domestic legislation bringing the Treaty into force. Since the case is about children, the court will only look at abusive or bad behaviour in so far as it affects the welfare of the children. Therefore, even though a parent wrongfully removed a child to another jurisdiction, it is possible under the Hague Convention for that taking parent (TP) to succeed even under the Convention if too much time passed before the matter was pursued through the courts. The passage of time can be construed as acquiescence i.e the LBP was seen to have consented to the removal. This can be a shady area as sometimes a parent will have given permission for a visit but not to a permanent stay and sometimes a parent will give permission to a permanent stay and will then change their mind or the permission or otherwise is sufficiently vague for no one to be sure either way. In addition to consent impled or express or to acquiesance occasionally, the TP is able to establish that the children will be abused or harmed if they are returned to their habitual place of residence or a child who is old enough to be heard by the courts expresses a strong view that they do not wish to return to their former residence. Accordingly, while the Hague Convention is a wonderful and much needed Treaty, it does not in an of itself guarantee return since the compliance of some of the signatory countries can vary widely from location to location and it is not a catch all, in that there are defences allowed and while these are limited, it is as well to be aware that they are there.

Looking at the compliance records of various countries under the Hague Convention as far this is documented, it is as well to remember that the resources of many of the countries, who do not comply in the way that one would hope, are often severely limited. Lack of resources can result in overcrowded courts systems, under-resourced offices and administration resulting in delays which in themselves will essentially defeat the Convention. However, while under-resourcing can be a problem, there are many countries who have resources whose compliance records are not all they should be.

The US examines compliance each year and publishes its findings in glossy reports under the auspices of the Department of State, however, it does not examine its own compliance and one has to ask why not? Is there an assumption that the US is somehow above that and that they are 100% compliant and if so, those are dangerous assumptions as there are many reasons to suspect that compliance in the US is not all it should be. Because of its economic clout, it is crucial to the success of the Hague Convention that the US becomes exemplary in its compliance. The US is in a prime position to bring economic pressure on other non compliant countries or indeed to influence non signatory countries to sign up.

With the advent of increased immigration, increased travel and globalization, taking a child or children to live in another country is now far more likely than it would have been thirty years ago. Marriage and partnerships with persons from other countries are quite common and such relationships when they break down can give rise both to the reality of parental kidnap or just to the ever present fear of kidnapping. In addition, parents who feel short changed in this country by our legal system can be seduced into thinking that they should flee or take their chances in another country before another court. Sometimes people leave because they are angry, sometimes because they are fearful or panicked and sometimes just to get even. Many others are simply, unbearably lonely in a country which is, to them, foreign, when their marriage comes to an end and they yearn for their own personal families and culture. Most parental kidnappings or threats of parental kidnapping are driven by emotions. Those emotions can range from fear, desperation and loneliness to vengeance. There are occasions, but research would indicate that they are rare, when a parental kidnapping is reasoned by the parent leaving to be the only way out because they have genuine experience that the other parent is an abuser and will harm them or the children if they stay. The Convention allows for such exceptions but the standard of proof is quite high. No matter what the motive, however, whether it is fear driven or calculated, threats of and parental kidnapping causes serious harm to relationships, to trust and can cause lasting damage to the children involved and therefore, kidnapping must be viewed as a very serious matter. Panicked and upset parents do not make for good parents and where the kidnapping is conducted by an abusive parent , a parent who has had little involvement with his/her children before the kidnapping and certainly not at such an intense level, there is grave cause for concern.

Most of us have a very difficult time imagining why a parent would kidnap a child, which can only cause harm to the child, and still claim to be guided by love for that child. Frequently, parents who commit this crime will justify what they have done by denigrating the parenting skills of the other parent or will claim that their relationship with the child or children is closer than that of the other parent. Desperate people resort to desperate measures. Most people who kidnap are genuinely convinced that this is the best thing to do at the time that they do it. Even allowing for that, it is rarely a considered action in any kind of rational way and because of that it is important to leave the door open for discussions enabling a voluntary return of the children. For parents who succeed in kidnapping their children, even for a short time, I would imagine that it is only a matter of time before they realise the sheer insanity of what they have just done. Frequently such parents return the children to the LBP after a short period of time. That is why leaving the door open for some dialogue is always the right thing to do but that door cannot stay open so long that it will then defeat the necessity for speed in dealing with this matter as emphasised above.

When parental kidnapping does happen it causes enormous suffering to the parent left behind and it causes a great deal of harm to the children as well. Frequently authorities can make the assumption that because the children are with one of their parents, albeit a wrongdoing parent, the children will be ok. That is not the case. Children who are kidnapped frequently lose their identity in order to protect them from detection as well as losing their home, extended family not to mention the other parent which causes the greatest damage of all. Without good cause, it is very hard to justify such an action in the cold light of day.

Notwithstanding the shortcomings of The Hague Convention in its operation for those parents whose children have been kidnapped to a non-signatory country, the situation is nothing short of a nightmare. They are reliant on treaties being in existence between their home country and that country and that will vary widely from country to county. As I mentioned, eighty six countries has signed up to the Hague Convention to date. Some of these countries have a sizeable Muslim population and in the case of Turkey and one or two others, are primarily Muslim. However, it still remains the case that effectively the Islamic world and Asia are not signatories and are unlikely to become signatories . Probably some of the most heavily published parental kidnappings have occurred between parents, one of whom lives in the West and the other in one of the Islamic countries. Islam’s code of private family law known as Sharia specifies that all children born of a Muslim parent must be raised as Muslim regardless of whether or not the other parent is Muslim. For Muslims there is little or no distinction between religion and law. A parent failing to raise his or her children as Muslim children would be failing as a Muslim. As far as a Muslim country goes it is always in the best interests of a child to be raised as a Muslim and as long as that thinking is fundamental to thinking in that part of the world then it is very difficult to see how the Hague Convention would ever find acceptance since it goes completely against the tenor of the law and identity. Added to that are the very different legal standing afforded to men and women in Islamic cultures and their very different legal and cultural approaches to the care and custody of children. Married women in most Islamic countries will have to ask permission from their husbands to leave the country if they wish and sometimes even to travel within the country. Children over a certain age are totally within the control of their Father or their male relatives. The age when this happens varies from place to place and there is a difference between the age this happens to girls and to boys. Usually girls are left with their mother’s a little longer. All of the above will impact severely on any custody or visitation that can be exercised within the Islamic country assuming one even got that opportunity. If a woman remains married to the Muslim man her standing is very limited by Western standards and brings risks to her in re-entering that country if she has left but if she is divorced she probably has no standing at all. It is worth mentioning that a woman who has divorced and remarried whether Muslim or not, will loose all rights to her children. Dual citizenship is not recognised in Islamic countries. Accordingly, when children are wrongfully removed from a parent in the West and brought to an Islamic country, they will almost certainly not be sent back by the authorities in the Islamic country to the West. Quite often in this situation the best that can be achieved are visitation rights in the Islamic country but even if the law permits these, a Father can still decide under the code, regardless of the court order, that he will not allow such visits to take place. Many women have found themselves unable to get their children back from such countries. Sometimes, such women have had to resort to extremely desperate measures even involving the use of retired marines to assist in kidnapping the child or children back. The re-abducter, and all those involved, is then guilty of a criminal offence and if caught will face the full sanctions of the law notwithstanding that the original perpetrator got away free. It is hard to imagine the effect on the children of this sort of thing. In a post 9/11 world it is very easy to characterise this as a West v Islam problem. However such characterization will not serve us well as the tendency for the West to demonise Islam is one which vested interests in the Islamic world, not friendly to the West, tend to welcome. At the end of the day economics, education and cultural ties are more likely to resolve these difficulties than any other and that is where we should be looking. It is however, worth noting that while there is much lip service paid to Children’s Rights and indeed to Human Rights, they rarely get in the way of trade and indeed other politically vested interests and that is true of the West as much as of Islam. Accordingly, pressure needs to be applied in our backyards rather than pointing the finger overseas.

Apart from the Islamic world however, there are a number of black holes when it comes to parental kidnapping that are worth noting. Japan has an atrocious record in this area and is very much a safe haven for abductors. Given trade with Japan and the number of Japanese companies overseas, it should be possible with the right pressure to get Japan to sign the Hague Convention. That would be a big step forward but ensuring compliance is the other key step. Otherwise parents will find themselves in the same position as those children abducted to Mexico ie all the legal paperwork and processes in place but no substantive relief to be had, only an expensive road to nowhere. Mexico, while a signatory to the Convention, has a very poor record as does Brazil, Bulgaria, Bermuda, Honduras, Bahamas and St Kitts. However, this is all from the point of view of the US and the experience of European countries one with the other is not documented. There are strong feelings, however, that national interests are too often a priority and cooperation between certain countries virtually non existent as appears to be the case between Germany and Poland for example. It would seem obvious to me that in the case of many of those countries mentioned by the US in its most up to date report, under funding is probably at the heart of most of the problems but there may be other national factors also. There are other countries giving cause for concern but the main difficulties identified in most of the countries with a poor track record who are signatories are delays at all stages being the Central Authority stage, the judicial stage and the law enforcement stage.

Many countries do not recognize international abduction and retention of children as a criminal offense. The recognition of this would allow for extradition treaties in some cases. It is worth noting in passing that while it is a crime to abduct a child from the US, it is not a crime to abduct a child into the US and that would be mirrored widely on the international stage. In addition, making it feasible in all countries signing, for parents whose children have been abducted to process their claim with the assistance of free legal aid in any of the signatory countries, would ensure considerably less hardship for LBPs to take action and would test the mettle of the signatory countries as to how seriously they really take this issue. All the signatory countries need to do compliance reports each year for a true picture to be gained of the extent of the problem and how it is being experience and dealt with on the ground.

In Ireland more children are abducted into Ireland then removed and this in and of itself gives cause for concern. If Ireland is an attractive place for children to be abducted into, that suggests we are abduction friendly to some extent and we need to examine that. In Ireland, legal services for those whose children have been abducted are arranged through the Irish Central Authority with the Legal Aid Board Solicitors exclusively. That means that LBPs whose children have been abducted into Ireland do not have to face horrendous legal bills at any rate. There are undoubtedly substantial other expenses involved such are air travel, accommodation and so forth. TPs can apply for legal aid in Ireland but must qualify under the means test for same and if they do not, will have to be privately represented. The role of private solicitors in abduction cases tends to be limited to those parents who decide they wish to be privately represented or a parent who removed the child and is not eligible for legal aid or a non-Irish lawyer seeks legal opinion in relation to Irish Law. For example, a removal or retention is wrongful under Article 3 if it is in breach of custody rights that were actually exercised or would have been but for the removal or retention. “Rights of custody” are defined according to the law of the country in which the child was habitually resident immediately before the removal or retention. In addition, applications under Article 21 of the Convention which relate to access rights are not legally aided. A parent whose child has been abducted to Ireland or a parent whose child has been abducted from Ireland should immediately contact the Dept of Justice Equality and Law Reform at Bishop Square, Redmond Hill, Dublin 2 and pursue the matter from there.

It is worth remembering that while international abduction is a very serious problem and is on the increase, the number of overall kidnappings is still quite small. There are a number of indicators that would allow a person to estimate the risk in each situation. These indicators have been compiled by profiling over a number of years based on various case studies. As I have said prevention is probably the best strategy to adopt. I intend to write another article on these two points very soon.

She, He or It

In 1997, Dr Lydia Foy an Irish dentist, at that time unemployed, registered as male on her birth certificate, applied to the courts in Ireland represented by FLAC (Free Legal Aid Centres) for the right to alter her birth certificate to reflect her gender of choice. She had been married with two children. She had separated in 1991 and in 1992 she underwent gender reassignment surgery in England, such surgery not being available in Ireland. My understanding is that this surgery is still not available in Ireland but interestingly the Eastern Health Board (as it was at the time) contributed money to the surgery. At the time of her application, Dr Foy had changed her name legally and her passport, driving license, medical and polling card all reflected her new name but not her birth certificate. After her marital separation Lydia was granted conditional access to her children at first, however, in 1994 the Irish Circuit Court prohibited all access. I have no idea why the Circuit Court arrived at that decision but I can make an educated guess. One can only imagine the suffering, confusion and embarrassment all this must have caused on every side of the equation. Recently, I listened to a transgendered woman being interviewed on the radio as I drove into work and she said that she was pleased that her ex wife at the time that she was undergoing gender reassignment surgery kept their daughter away from her because it meant that her daughter did not have to deal with all that stuff at that period and equally, she did not have to cope with her daughter’s confusion and possible pain when she had so much on her plate at that time. Much later she made contact with her daughter through a happy accident and discovered a wonderfully broad minded girl with whom she now has a great connection. I do not know how things worked out for Lydia Foy in that regard but I can hope. I know that at the time of her application to the court, the barrister representing her wife and children who contested the application when it came on for hearing in 2000, was a chum of mine, and from what I heard the children were very angry and confused about the whole business. After reserving judgement for nearly 2 years which must have greatly added to the suffering, the High Court eventually handed down a decision rejecting Dr Foy’s challenge. Then by a twist of fate, 2 days after the decision, The European Court of Human Rights (ECHR) handed down a decision in the matter of Christine Goodwin v UK, who was a British transsexual, that her rights were violated under articles 8 and 12 of the Convention. In 1970 in the High Court in London after 7 years of marriage, Arthur Corbett, a member of the British aristocracy, filed to have his marriage to April Ashley declared invalid on the grounds of Ashley’s sex. She was a male to female transsexual, a society hostess and a model for Vogue. Corbett was well aware of Ashley’s background and had been at the time of the marriage. She had been “outed” as a transsexual by either, The News of the World or the Sunday People (the morals of those particular rags are consistent at any rate) depending on which report you read, in 1961. The Judge ruled that the key criteria for deciding sex were chromosomes and internal or external sex organs. He ignored psychological factors or the effects of gender reassignment surgery and stated the essential role of the female in marriage was to have children. He went on to declare the marriage void. This decision guided Britain until 2004 when after the Christine Goodwin case in the European Court, the Gender Recognition Act 2004 in the UK was passed. Ironically, April Ashley applied in 2005 and was finally given a Birth Certificate showing her female name and gender. The Goodwin decision opened the door for the Foy case to be reviewed by the Irish courts. In 2005 it was back before the High Court who ruled in favour of Dr Foy finding that the Irish State was in breach of its obligations under the European Convention on Human Rights in its failure to provide recognition of the acquired gender of transgendered persons. Initially the State appealed the decision but subsequently withdrew the appeal and the way was then open for the State to deal with this matter in a proper manner. For Lydia Foy this had been a 13 year battle through the courts but an ongoing battle in that legislation has yet to be enacted and while progress has been made there is still a way to go.
After the High Court ruling in Dr Foy’s favour and the withdrawal of the appeal, the Government appointed a committee entitled the Gender Recognition Advisory Group (GRAG) in 2010 to enquire into, advice and report to them on this matter so that they could draft appropriate legislation. The makeup of GRAG was the subject of some criticism at the time and continues to be, in that no member of the transgender community was, officially at any rate, on the committee and the committee was made up of civil servants. The terms of reference of the committee were also somewhat limited in that it did not allow for any investigation into the situation of intersex persons. In any event, GRAG has recently filed its report.
The report proposes establishing a scheme to enable a person whose birth is registered in Ireland, who is 18, who has a clear and settled intention to live in a preferred gender permanently and has so lived for at least two years, to apply to have their birth certificate altered to reflect their acquired gender. This individual will also need to supply evidence of a diagnosis of gender identification disorder or evidence of having undergone gender reassignment surgery or evidence of legal recognition of their preferred gender identification by another jurisdiction. Furthermore, persons with an existing valid marriage or civil partnership are excluded from the scheme. Interestingly, this report is coming under much criticism from the Transgender Community and most particularly the Transgender Equality Network of Ireland (TENI) who were unrepresented on GRAG. Their criticisms are levelled most strongly at the provision that married persons and/or registered civil partners must divorce or dissolve their union before applying. Those who defend the recommendations argue that not to have this restriction would raise clear constitutional issues and equally those who criticise this recommendation argue that it raises clear constitutional questions. Clearly, we are headed for a constitutional challenge whichever way the legislation is drafted. Those arguing against the recommendation say that too effectively mandate that a couple divorce, prior to granting recognition, is a direct interference with the special constitutional position of the family based on marriage. Those arguing in favour of the recommendation say that if there wasn’t a restriction against married couples applying, the legislation would have the potential effect of introducing same sex marriage and would be open to a constitutional challenge. Of the two positions, both of which undoubtedly give rise to legal complications, I would take my chances on those arguing against the recommendation mainly because I see nothing wrong with same sex marriage and would rather open the debate that way. So why are civil partnerships required to dissolve? The justification offered was that the effect of no restriction would be to allow opposite sex civil partners to come into being in circumstances where the civil partnership relationship does not benefit from the full protection afforded to marriage! To put it mildly, I am perplexed by this one! If we have a problem with civil partnerships that do not have the full legal protection afforded to marriage then don’t make a distinction and simply allow same sex marriage. They also in fairness go on to say that if marriages only were mandated by the proposed legislation and civil partnerships were not, there would be constitutional challenge. Essentially, if we are going to be unfair to one lot then we have to be unfair to the other lot as well – equality of unfairness!! Yet GRAG states that it should be a guiding principle of the Scheme that the terms and conditions of the scheme to be set up would not deter potential applicants. Certainly this is a worthy sentiment but for those transgendered persons who are in civil partnerships or married, the proposed restriction is a potentially very strong deterrent. How is a person supposed to choose between their identity and their family? There are many couples who have married or entered into civil partnerships fully aware of transgender issues for one of the partners and who will not wish to separate or divorce. In addition, TENI criticises the requirement for a medical diagnosis or gender reassignment surgery in order to qualify to apply. This seems to be a choice between mental health treatment or surgery? Do we have the experts here to make this type of diagnosis? Many countries in Europe have had legislation on these matters since the late 70s and early 80s and now genuinely have the benefit of hindsight. Many of them are moving away from the requirements to have undergone surgery or some other form of medical intervention prior to recognition. It is worth noting that EU member states that have most recently updated their legislation have dispensed with these requirements. It would be good if Ireland would not only legislate on this long overdue matter but would also learn from the experience of others who have been here before us but it seems a tad unlikely.
Intersex persons are excluded from the recommendations in GRAG as the terms of reference of the committee did not allow for them to investigate in this area. Intersex is a term applying to a person born between sexes having partially or fully developed pairs of female and male sex organs. Intersex is not a sexual preference or an option. It is a physical or gender issue. However, most intersexed people do not consider themselves to be both sexes and tend to identify with one or other for various and complicated reasons. The issues surrounding intersex, not least the issue of sexual assignment surgery in infancy, the variations possible in chromosomes and how these variations should be regarded, are hotly debated and very controversial. They are worthy in and of themselves to separate consideration. It is vital that we try and include intersex persons in any proposed legislation. At present, intersex applicants are excluded from applying the UK as the definition of gender identification disorder specifically excludes them. To their credit, GRAG has flagged this issue and has recommended the need for proper consideration, research and medical expertise into the area of intersex.
(The use of gender specific language to write about intersex persons and transgender is often challenging and if I have unintentionally offended, I apologise.)

Billy Connolly

“I Do……provided always ….on certain terms and conditions…” Prenuptial Agreements

To prenup or not to prenup, that is the question! Most people think that a prenuptial agreement is far too cutting edge for the “likes of them” however, I saw as I researched this topic that no less a radical body than the Irish Farmers Association were calling for legal backing for prenuptial agreements. I suspect that many people feel guilt, if they even think about getting a prenup. Recently, one of my acquaintances sidled up to me and mentioned it in hushed tones “I need to talk with you about a prenup”. I told her to come and see me and then for weeks after that she would say when she met me “ I haven’t forgotten” as if it had been all my idea in the first place and I would warn that she needed to consult with me about this in good time and still no show. I began to feel like the spectre at the feast whenever I met her. In the end, she didn’t come and see me, but not for good or sufficient reasons, I suspect, more because she simply did not like the look or feel of herself as someone who had even thought about prenup before the big day. This woman had her own business which she had built up herself and so a prenup was something to which she should have given active consideration. But beyond hushed, hurried exchanges, this hard nosed business woman could not even bring herself to sit down with me and give the matter rational consideration. Why is this?

In historical terms, marriage had to do with family ties and consolidation of wealth. The contract element of marriage was to the fore. These elements are still there with more or less emphasis in different parts of the world. However, now, in the West we tend to forget that marriage is first and foremost a contract and one which is ring-fenced with laws as old as time and we focus on love. For many centuries husbands owned their wives as property as they did their children. A married woman could not possess property in her own right until comparatively recently in legal terms so that whatever she had was her husbands. Of course, she also did not have the vote or the right to divorce and so she was rightly ….”packaged” as they say. These laws have, of course, been updated, not without some bloodshed, but marriage is still a contract. Some of us only seem to reflect on the property aspects of marriage when we are separating or getting a divorce and only then with a huge tinge of bitterness. 50% of all first marriages in the US end in divorce and the number rises significantly for 2nd and 3rd marriages. Even though our marriage breakdown rate is relatively low by comparison to the US or even that of our nearest neighbour, we would not want to get smug. We have the leisure in Ireland of the “benefit of hindsight”. Because we were so late in coming to divorce, we can learn from the mistakes of practically everyone else in the Western hemisphere. We should not miss the opportunity.

At present, our legal position is that prenuptial agreements are not illegal nor do they have legal backing. The possibility of such agreements is envisaged in our family law legislation with the proviso that the court can vary them if it wishes and has a wide discretion. Should we leave well enough alone? There are very good arguments in favour of prenuptial agreements or pre-marriage contracts and I believe that we should take a fresh look at them and allow them to have legal backing on certain well defined terms and conditions.

We all agree that couples should be as honest as possible with each other before they marry. We all agree that couples need to discuss the hard questions with each other before they marry and share a common set of life goals, for example, how important are careers and money to us, do we want children, how would we like to raise them, will we both work once we have a family, how will we share finances, how will we interact with each other’s relations, family and friends, how important is time apart for each of us and so forth. There are many very important things that couples need to discuss from the standpoint of their educational and cultural backgrounds. We encourage couples to do pre-marriage courses precisely because we know how important it is that these questions get discussed and resolved or not, as the case may be, before the marriage. Yet in very many cases, they do not get discussed as is obvious to me in my job and worse than that, many people think it is unromantic to discuss things like money and property before a marriage. Yet we know that people have money personalities. Some like to spend, some like to gamble, some like to save, some exercise judicial spending and some like to budget and so on and on. Can any of us put our hands on our hearts and say that couples do not fight over money? Can any of us say that many couples do not profoundly disagree on how money is to be spent in their marriage and can any of us say that many a marriage has floundered when money shortages occurred? So we know that money is important and that for a marriage to work people need to have an understanding about money. A prenuptial agreement can help a couple begin their marriage preparation with an honest disclosure of their respective financial positions making each fully aware of each other’s circumstances. Such discussions will also lead to a crucial understanding of their respective attitudes to money.

Who should consider a prenuptial agreement? Those who are going into a second marriage should certainly consider a prenup since quite often they are bringing property into the marriage that was acquired previously or there are children from a previous marriage. People who are marrying for the first time but have children from a previous relationship, people who are marrying for the first time but one or both of whom has property or business interests and people of inherited wealth or property or those likely to inherit significant wealth. In the case of the aforementioned farmers many of them would have inherited family farms which had passed down through their families for generations only to see them being broken up as a result of a separation or divorce. As a result many farmers are not passing on the farms to their young sons for fear that the son’s marriage may not stand the test of time. This is not in anyone’s interests since we need fresh thinking in all areas of life. A prenuptial agreement is a contract signed by a couple before the wedding detailing what their property rights and expectations are upon divorce or death. Since marriage is a contract in and of itself there is nothing inherently anti- romantic in entering into a premarriage contract and since we all agree that discussions about money and property are a necessary part of foreplay so to speak, then what can be wrong with detailing those items and out expectations. As we tend to marry later in life than previous generations more of us have businesses and property entering into the marriage, and as our divorce jurisdiction gets older more of us are marrying for 2nd and 3rd times, so basically quite a few of us need to give the idea of a prenup serious consideration.

Recently, Prince William decided against a prenuptial agreement before his marriage to Kate Middleton. How much consideration he gave to it, I don’t know but a lot of headlines praised him for putting romance and love first which is quite simply wrong headed in my view. When Crown Princess Victoria of Sweden married Dan Westling, a fitness instructor, agreements were drawn up to define how wealth should be divided should they separate. Lawyers acting for the Princess ensured that all property, inheritance and gifts belonging to the royal household remained in her name. And does anyone really think it should be otherwise? I doubt it. Still we tend to associate prenups with the rich and famous and I suppose the examples I am using here are not helping but those are the prenups we hear about in the papers. Prenuptial Agreements have been popular in Hollywood for many years and in the US somewhat less so but they have not tended to be part of British law and still less of Irish law. That changed last October when Katrin Redmacher, a German heiress, succeeded in changing the face of marriage law in England when her prenuptial agreement protecting her inheritance was upheld by the court. And what is in England today tends to be in Ireland tomorrow. In the EU, Ireland and Britain are the only countries without legislation on prenuptial agreements. In Ireland, we have, in fact, already moved towards private ordering in Irish family law by the introduction of co-habitation agreements. Such private agreements will be enforceable subject to certain formalities and as things currently stand there are no comparable provisions for married couples. However, it must be obvious that it is only a matter of time.

There is no doubt that prenups have an uneasy place in society. Robert Brown, a British Airways pilot killed his wealthy wife because he thought he had been stitched up in the prenup. He quite literally hit her over the head with a mallet. So what needs to happen to ensure that brides who want a prenup are not courting death at a later stage and that the agreement will be enforced? Well in Ireland we should enact legislation for starters and such legislation should provide that couples should each have their own lawyer and there should be a full disclosure of assets on both sides. In addition, both parties need to have plenty of time to consider the terms before signing. If an agreement is signed too proximate to the wedding it could lend itself to a claim of coercion later.

Prenuptial agreements can be extremely detailed. We tend to think of them only in terms of property coming into the marriage which was acquired before the marriage but they can also make provision for money being set aside for college education in respect of either of the spouses or children and this might prove very important if, for example, one spouse had helped financially to put the other through college in the early days of the marriage. An agreement could also make provision to set up trusts for minor children.

The Irish Farmers Association has outlined a draft prenup which seeks to protect the family farm and prevent it being broken up into unviable smaller holdings. I think our Government has a vested interest in this as well both historically and in modern economic terms. They suggest that any new assets acquired during the marriage or improvements and/or additions to the farm would be divided. This is grand in theory but as a family lawyer, I can assure you that many a great battle was fought over whether something was or was not an improvement. Anyway, something has to be left to the lawyers, you can’t have people agreeing everything themselves, where would we be?

Void or Voidable – Nullity of Marriage

Sometime ago I wrote a short piece for my website on nullity of marriage. It intrigues me that, out of all proportion to its usefulness in practice, this area tends to fascinate. Why this should be so, I am not entirely sure. Perhaps it is the very archaic nature of this area of law that draws people in. Nullity is concerned with circumstances in which a marriage is deemed invalid. Some marriages are void ab initio meaning void from the “get go” and others are voidable. A marriage which is voidable is not void until one or other party applies to court for an annulment and the court finds in favour whereas a marriage which is void is void whether a party applies or not. There is no doubt that many still associate divorce with failure and may find it easier to embrace the idea of a marriage which, legally speaking, never took place or to put it another way was legally invalid, then to see themselves as having failed. For some it may be the possibility of avoiding long term financial commitments to persons with whom they had a relationship. In the current climate some of those enquiring about annulment are interested in because of its finality ie you go to court once, and assuming you are successful, that is the end of the marriage and there is no come back whereas under our separation and divorce law there is always a comeback and furthermore, our divorce law does not allow for a clean break scenario. In addition, under our divorce legislation, a person has to wait 4 years from the date of separation before applying for a divorce and for very short duration marriages, this can seem like an inordinate amount of time. If there is a possible annulment case to be made then you can apply at any time. Whatever the reason, it is an area that continues to draw considerable attention.
It is also, more than any other area of law, ripe for misunderstanding. Many are confused between Church Annulment and Civil Annulment to a point where some believe they are one and the same. When the Church of Ireland was disestablished in Ireland in 1869, the jurisdiction of the Ecclesiastical Courts of the Church of Ireland was transferred to the High Court under the Matrimonial Causes and Marriage Law(Annulment) (Ireland) Act 1870. So while the originating jurisdiction for annulment of marriage is Church based ie Church of Ireland, there is no ongoing relationship between any Church law and Civil Annulment law in Ireland. Therefore, if you obtain a Roman Catholic Church annulment it does not entitle you to remarry in the eyes of the State and has no bearing on whether or not you will be entitled to obtain a civil annulment. Part of the confusion here arises because of the manner in which Roman Catholic marriages are conducted where the civil part of the ceremony takes place in the sacristy in the Church itself. Naturally, people then assume that Catholic Church marriages are State Marriages and so it would probably be better for all concerned if parties marrying had to undergo a separate civil ceremony and then if wished a religious service.
The development of the Law of Nullity in Ireland was affected by our lack of divorce legislation particularly from the 1960s onwards. In common with most of Europe and America, Ireland experienced changes in gender role, social mobilization, sexual standards and behaviour from the 1960s onwards. These changes gave rise to increased tension between social behaviour and the law. This in turn, gave rise to a large increase in the numbers of petitions for nullity being granted by the courts and led to judicial development of the grounds for annulment. When we say “large increase” we are still talking about small numbers in the overall scheme of things. The cost of an application for annulment in the High Court up to the mid- 1990s would have, in and of itself, ruled it out for most people and this in turn led to the common suspicion, particularly among those who opposed this way of proceeding, that it was an attempt by the well-heeled to avoid the financial responsibilities incumbent on the breakup of a marriage. Since 1996 however, it has been possible to obtain an annulment of marriage from the Circuit Court as well as the High Court. This has the effect of making the remedy more accessible for many people and reducing the costs. Even though the courts extended the jurisdiction to deal with annulments to the Circuit Court in 1996 they did not take the opportunity to enact legislation in this area which was and is much needed. Legislation would have provided a much needed opportunity to educate the public on this provision and to engage in debate about the grounds for annulment and how extensive or narrow they should be. Many lawyers had assumed that as divorce is now legally obtainable in Ireland since 1996, that the numbers applying for annulment would drop and while they did initially, they subsequently rose. I don’t have recent figures so I am not clear if this trend has continued.
As a rule, the High Court hands down written judgements whereas the Circuit Court does not. This means that we have no way of knowing whether the Circuit Court is developing the law of annulment or retrenching on it. We don’t know to what extent precedents from previous High Court decisions are followed by the Circuit Court and whether their decisions are more in line with later developments or earlier decisions. Anecdotally it would seem that there is retrenchment but there is no certainty on this. There is also concern that whereas the High Court would have devoted time and detailed consideration to these cases, the Circuit Court does not have the time allocated to family law, particularly outside Dublin, and has enormous pressure on its lists, to properly hear such cases. The public has an interest in knowing what the law says and it also has an interest in knowing in an informed way what a court is likely to do in any given case. It would be extremely difficult for any practitioner to give an informed opinion of what a Judge is likely to do in the Circuit Court since there we have little or no recent written judgements by which we can assess the situation and these cases are not commonplace so an anecdotal body of evidence is unlikely also.
Annulment can be granted on the basis that a marriage is void or voidable. Grounds for a void marriage are:
1. An existing valid marriage.
2. Parties are under age and did not receive a court exemption. At present the age is 18 for both sexes.
3. Substantial failure to observe formalities.
4. Absence of consent.
5. Parties are within the forbidden degrees of relationship
6. Couple are of the same sex.
On the face of it most of these areas are self explanatory and the number of cases where such issues would arise except perhaps for No 4 would be very small however, there does seem to be a public interest in retaining these grounds. The state has an interest in regulating marriage and if that is acknowledged then adherence to the formalities would be desirable. However, there is some debate in relation to 4, 5 and 6. Looking at 5 and 6 first, there are presently 29 types of relationship which are forbidden in respect of marriage. Many of these are now obsolete and the state needs to legislate on this and bring it into line with modern thinking. Marriage has been defined in the law as “The voluntary and permanent union of one man and one woman to the exclusion of all others for life.” This means that the marriage must be entered into freely and without force and it must potentially be for life, it must be monogamous and it must be between parties of a different sex. Maybe this definition needs to be re-examined. As regards couples of the same sex, I have already expressed the view that as far as I am concerned parties of the same sex should be able to marry, nonetheless, even if marriage is reserved for those of different sexes, there are still potential problems for those who have changed the sex with which they were born to the opposite sex which makes the definition, though handy, worthy of some reconsideration and debate. The area in which the court has extended itself most is in the area of lack of consent or No 4. Prior to 1970 the law on this was fairly clear. You could only plead lack of consent in a very narrowly defined set of circumstances eg. Duress, misrepresentation or mistake. To succeed in a plea of duress there had to be a threat of a very substantial nature to life, liberty or limb. However, the judicial approach to this area has greatly broadened over the years. Now the court looks for “ full free and informed consent” as the yardstick by which they measure consent or the lack thereof. It is no longer necessary to establish duress, it is enough to show absence of consent. There is, therefore, a considerable expansion in the range of circumstances that will now potentially qualify as lack of consent. It is now the case that even emotional pressure will be sufficient to undermine consent as in the case of S v O’S 1978 where Judge Finlay found that the petitioner had been in emotional bondage when she married due to the Respondent’s constant claims that without her constant attention he would die. Again, the distress displayed by a Respondent when the Petitioner would try and break off the engagement was considered by the court to exercise a form of duress on her and thus she did not give a full and free consent to the marriage (O’R and B)1995. It is important to note that where previously the fear, threat or duress which a party claimed to have been under would have had to seem reasonable to an ordinary person now the test was subjective which meant that as long as it put that particular person in fear it was sufficient. So a person who was exceedingly shy and reserved was more likely to have succumbed to pressure from her parents than others of her age as found in N (orse K) and K 1986. For misrepresentation to succeed, the Petitioner had to establish that the error was such that there was “the appearance without the reality of consent”. This situation would only arise if there was an error relating to the nature of the ceremony as occurred when an Italian man who spoke practically no English thought he was entering into a ceremony of betrothal. It might also arise if a person was drugged or excessively drunk. Misrepresentation would also occur if a person was unaware of the true identity of the person they were marrying and it is important to stress that identity here does not encompass the characteristics of a spouse. The concept of misrepresentation was also broadened and it is now generally accepted that where a party was deceived as to a fundamental feature of the marriage, the resulting marriage was void for lack of consent. It is important to note that the essential issue here was the consent and whether or not it was lacking and not necessarily the basis of reasoning behind it. However, when Judge Lavan was asked to find that a Petitioner had not consented because he was deceived as to the age of the Respondent, he did not feel that this merited a finding the marriage was void. (PM and TR) 1998. Equally, Judge O’Higgins felt that there was no obligation on the parties to disclose inappropriate behaviour to one another which had occurred before the marriage. It would appear therefore, that the courts have rowed back a little on this one. However, while it is arguable that deception does goes to the heart of such a contract, it is a question of degree and actual deception as opposed to hindsight. As in the case of MO’M and BO’C 1996 it must be matter “of substance” which has been misrepresented or there is failure to disclose.
Marriages can be deemed voidable. Grounds for voidable marriages are:
1. Incurable psycho-sexual impotence
2. Inability to enter into and sustain a normal marital relationship.

By their very nature nullity cases can be excruciating to sit through. A forensic examination of other people’s sex lives can be very hard on the nerves of all concerned. In a straight forward physical sense, for a marriage to be consummated there must be penetration of the female by the male which cannot be partial and which does not require insemination as part of the process. I will leave you to squirm with that one. Sometimes a person may not in fact be impotent but just not able to consummate with a particular person. This is referred to as psycho sexual which is, to put it mildly, difficult to prove one way or the other. There is an exceptionally fine line between wilful refusal and psychological repugnance. And so you have Judges saying things like a man of stronger constitution would have overcome his wife’s reservations which is another way of saying ....? You got it!

The blurring lines get even more blurred when we come to No 2 above. This ground appears to be a judicially developed ground rather than one that previously existed. Initially, it was thought that this ground could only be invoked when the incapacity arose from a recognized psychiatric disease however, as time went on, it became apparent that some personality disorders would qualify and even severe lack of emotional maturity (BD v MC (orse MD) ) 1987. Again, it is a question of degree and it is clear that the immaturity would have to be of a serious order. Given, however, the lack of legislation in this area and the lack of jurisprudence in the Circuit Court particularly, it is very subjective to each particular judge. This makes for a great deal of uncertainty in this area when it comes to advising a client. While it is arguable that the law should never be entirely pinned down and should be adaptable to different people’s circumstances to some extent, it is still the case that some certainty is desirable and expected.

So should we continue to have the remedy of annulment in civil law or should we deal with all marital breakdown in the context of separation and divorce? There are some strong arguments for retaining annulment as a remedy particularly in the area of a void marriage, ie void ab initio. However, it does seem to me that lack of consent needs to be carefully re-examined in the light of new legislation. As regards voidable marriages, I concur with various reformists in that I think these areas are too woolly to make good law and should be left to divorce to sort out. However, I would not be in favour of legislation which confines the grounds for annulment to those grounds which constitute a void marriage when we cannot get a divorce for 4 years and so it would be my view that we need to reduce the requirements to be eligible for a divorce to 2 years rather than four and secondly, we need to have provision in our legislation for a clean break. There are many other legal anomalies which result from annulment and vary depending on whether your marriage is void or voidable and these could be remedied by doing away with voidability once and for all.

Intimate Strangers – the Stepfamily experience.

When we think of family, we usually think of Mum, Dad and 2.5 children. That pretty much describes your typical nuclear family and it is the model or standard by which we tend to judge all other types of families. I always want to add “apple pie” to the Mum and Dad bit, because I think it is very much a North American concept of family. We have adopted this idea and largely have not questioned it. In older societies, the extended family can play just as significant a role as Mum and Dad. Many factors have contributed to the development of the family over the centuries including industrialization, work patterns, unionization, labour law, war, education, travel, health, hygiene, life expectancies, childbirth, contraception, divorce and technology to name but some. Our concept of children and childhood, for example, is completely different to the concept of children in the middle ages. The idea of childhood as a virtually separate state of being is a modern notion. Nowadays there are many varieties of families. We have to try and understand the implications of this for all of us. We need to try and evolve new standards of evaluation, broaden our concept of family, to ensure the health and wellbeing of those who are vulnerable in our communities and most importantly so we can stay up to date with the realities of peoples ‘ lives and design our organisations and systems to reflect that.
In Ireland, where legal separation and divorce are such relatively new jurisdictions, we are only now beginning to focus on the supports needed to transition families through these life changing events. In my lifetime, and I am not vastly ancient, I have seen our society introduce contraception and divorce. I have seen our society go from one in which the Roman Catholic Church dominated not just our religious lives, but our social, family, political and work lives to becoming a marginalised church. I have seen our schools gradually dragged kicking into the world of non- denominational education and the Roman Catholic Church lose its iron control on education in Ireland. I have lived as a young adult without mobile phones, the internet and all the other pieces of technology that our young now take for granted. As a child when we went on holidays, we went to another part of the country, we did not go abroad. Some people ventured to England. As a child I grew up without a television, we got our first when I was about 11. A brave new world indeed! In the last 15 years we have gone from being a white Irish nation to being multicultural almost overnight. I don’t know of any country in Europe, except perhaps those in the Eastern European block, who have experienced the vast level of social change in a very short space of time that we have in Ireland in the last 30-40 years.
All these changes have enormous implications for us and bring with them whole new quandaries and dilemmas for us to explore and research . To some extent that is an underlying theme of many of my articles. One major social change that flows from the introduction of divorce is the issue of step families and the related concept of “blended families”. We all grew up reading fairy stories in which the wicked stepmother was a well known character. It is almost impossible to even say the word stepmother without having an image of snow white. One did not hear so much about step fathers. Perhaps that was because so many women died in childbirth so it was more commonplace for there to be stepmothers. I am not so sure about that as poor widows featured quite a bit in those stories and there were an extraordinary number of orphans, that is children without either parent. Given the lousy press of stepmothers in children’s literature we would have to ask how much that informs any discussion we can meaningfully have on stepfamilies and more importantly how it affects children whose families are moving into that category?
So what kind of problems arise for step parents themselves as opposed to how others mainly biological parents and children feel about them? The biggest problem is undoubtedly in the area of decision making. Step parents often feel that they are powerless in their own homes and that they are not consulted about things that affect them directly. There is no doubt that access arrangements for example made by biological parents to facilitate each other, or by a court order, can directly impact on a step parent’s life as can biological children not subject to their control in any way, coming to stay for holiday breaks or overnights. Equally financial decisions made by biological parents can impact on the step parent. These are difficulties, there is no doubt about that. Some of them simply go with the territory but they can be greatly exacerbated by a biological parent who fails to communicate with his/her spouse, fails to exercise discipline and set limits for his/her children at home and fails to instil respect into them for other people. Many biological parents suffer from a great deal of guilt after a divorce and as a direct result can cut their children far too much slack. This is turn can cause huge problems in the home where the step parent has no disciplinary function but at the same time has to live with uncorrected bad behaviour and outright disrespect. Envisaging these problems before you get married is important and discussing your mutual expectations. Going into the marriage with realistic expectations is probably half the battle. If the biological parents have working agreements when you come into the picture, you are probably going to have to accommodate those rather than actively attempt to change them and this applies to visits and money.
Most of us make ourselves completely miserable by trying to change other people. You will never succeed, you can only change yourself. Recently, I came across a Step Parent Bill of Rights campaign. One of their suggestions is :” People outside the immediate family – including ex-wives/husbands, in laws and adult children cannot make plans that affect my life without my consent.” If this is what you really think, don’t do it, don’t get married to that person with the baggage because your life will be one long misery. In fact, don’t get married at all because this happens in all families. Everyone does things without consulting you all the time and most especially your growing children, their teachers, your relatives, your husband, his relatives and so on and on and on. Ex- wives in particular, will seldom, if ever, consult a step mother and they will do things all the time without consent which affect your life. They will sign their children up for sports, swimming, dance classes and such like without any consultation with you. In that same Bill of Rights there are some useful aims eg: “I will not be solely responsible for housework, chores will be distributed fairly”. That should be true for all families and not just step families. Another one refers to people not violating your private space at home and borrowing or taking your possessions. I heartily concur, this should not happen but even in the best regulated households it happens all the time. Children dress up in your clothes or take your books, sit in your chair, borrow your clothes and so on. However, we don’t want to encourage this behaviour so I think setting this type of ground rule is a good idea.
Role ambiguity is one of the issues that makes step parenting challenging. By definition a step parent is an outsider. All the advice and research indicates that you should proceed slowly and with a great deal of caution. Where possible take time to get to know the children, to formulate realistic expectations, understand the nature of their relationship to the parent you may marrying. In other words, hang back, get to know the situation slowly and insert yourself gently. Researcher Patricia Papernow calls stepparents “Intimate Strangers”. It takes time to forge bonds with people. Don’t expect your stepchildren to fall in love with you overnight and don’t expect to fall in love with them overnight either. Its ok not to feel that you want to lay down your life for your stepchildren. There is no requirement to feel that kind of unconditional love and besides the children in question will probably reject it in any event. It is a myth to think that we will all love one another and feel like family instantly. Remember that biological families are created slowly. You have time to forge those bonds, take it easy. Research now indicates that children will take double their age to settle into the new family arrangements and establish new and healthy bonds. This means that a child of 4 could be 8 before they feel entirely comfortable with their stepparent and the new arrangements. This might seem depressing if you expect to be the new Mum or Dad just like that, but if you are happy to just be a significant adult, there are a wide range of possible roles that you can play, from close Aunt or Uncle, grandparent, teacher to family friend. These roles can be incredibly relevant to children and very important. As the old saying goes “It takes a village to raise a child.”
When we love someone, we want everyone else to love them and guess how often that works out? Too often the biological parent will push the new spouse and children onto a fast track, wanting everything to be ok and pushing for that to happen. Equally sometimes the stepparent will caterpult themselves into the family and set out to prove from day one that he or she is going to be a wonderful addition. Guess how often that works?
It is not at all clear what formal parenting roles, rights, responsibilities and social etiquette should exist between stepparents and their stepchildren. This often causes unexpected conflicts. For the stepchildren, it can be extremely complicated. They may be just adapting to the fact of the divorce when new partner is introduced and then Mum or Dad remarries. The length of time between the divorce and the remarriage will have a big impact on the children and how they react. The amount of time they have been given to get to know the new person before the marriage and to adapt slowly to the idea. The sex of the child also has an impact on how they will react. However, all the research shows that the younger the children are the more likely it is that they will develop a parenting type relationship with the stepparent. Stepparents need to think seriously, however, about role they want in the children’s lives before they get involved. It is not always desirable for either the children or the stepparent that their relationship should be a parental one in the strict definition of that. The children might better benefit from an entirely different type of interaction and in turn the stepparent might feel a lot more fulfilled. The children can feel extremely guilty if they like their new stepparent and conflicted. There can be all sorts of loyalty issues for them. Frequently, one or other spouse will actively or passively dislike the other post separation and divorce. Children can sense this even when nothing is said and it saddens them and causes them conflict. They may then have to spend time with a parent who is actively hurting and experience their pain as well as their own and at the same time see the other parent happily interacting with the new spouse. These are huge issues for young minds to try and sort through.
Depending on the age of the child their reactions to the new arrangements will be very different. Children who are young adults will probably not want a new parent. Teenagers in any family tend to be busy throwing off their biological parents and are unlikely to embrace the idea of another one. Younger children will undoubtedly adapt much better than older children and bond more easily. Surprisingly the age of greatest resistance to the stepparent is 9-15 years but again, that is more the idea of stepparent as parent, than the idea of stepparent as concerned adult. For young girls whose Fathers have remarried it can be very hard to see Dad in love with someone. Young girls flirt with their Dads as part of their socialisation and monopolise them but if Dad is distracted and in love then it can seem like a great loss to them. Dads need to be aware of that. It is important to remember too, that for the children the remarriage can be the loss of a dream, the dream that Mum and Dad will get back together.
The children’s attitude to the stepparent will be directly affected by the quality of the relationship they have with their biological Mum and Dad. The better their relationship and the more secure the child is the less likely they will be to feel guilt and conflict if they relate to the stepparent. We know from the research that has been done on attachment, a subject close to my heart since I have an adopted daughter, that children form their strongest attachments early in life ie the first two years. From those attachments children will feel a pervasive sense of security. The lack of that sense of security can have very serious consequences for children and is called “attachment disorder”. Attachments are somewhat reduced after the pre-school years. Knowing this, we need to look with a more flexible eye on the role of a stepparent both from what is actually possible and what is desirable.
If we compare stepfamilies to nuclear families, they will be found wanting. We need to evaluate from a different base. Susan Gamache, psychologist points out that “While adults in step families often view their experience of the stepfamily in terms of the nuclear model, children will often construct their relationship with their step parent in ways that are beyond the nuclear family model” She argues that the term “psychological parenthood” is a term better adapted to the new family situations in that it is independent of family and biology. Some stepparents function as psychological parents and, as I said previously, that is usually dependent on the age of the child, the degree of involvement of the biological parents, and the length of time over which the relationship has developed and others function as acquaintances, relative strangers. Between those two extremes, there lies a wide range of relationships that includes greater or lesser degrees of parenting. The use of the concept of psychological parenting does allow us a way of assessing the relationships that is more flexible and adaptable, allows for the wide range of the relationships possible without the unfairness inherent in the comparison with nuclear family. We now live in a world where relationships have to be negotiated rather than taken for granted. Husbands can no longer assume that they will be bread winners and their wives will stay at home or that their wives will give up their careers and relocate wherever life takes them. These things have to be negotiated even down to whether we have children or we don’t. Things our parents took for granted about their relationships can no longer be taken for granted and similarly the relationships between parents and children. Children are being raised in a variety of family structures and no one size fits all. If the children are old enough, they need to be part of the discussion about the new family. Children who have spent a long time living with just one parent will often have developed ways of co-existing that will not easily adapt to the arrival of another party. Having family meetings is a great way of exploring these sorts of things and involving the children in the discussion. Relationships with their biological parents need to be supported. Step family life challenges us to learn to communicate with our current and former partner in a way that is extremely challenging. Happily help is at hand. Facilitating such discussion by employing the services of a collaborative team or co-mediators would be a wonderful way to move forward, hopefully, to create a parenting team if that is what the children need or else to establish the parameters of each adult’s role. As in all relationships empathy, respect, a non-judgemental attitude and being open to change will go a very long way.
In some ways the ambiguity of the step parent and child relationship allows for great freedom as it is uninstitutionalized , however, that freedom does come at a price and stepfamilies are “interesting” carrying the same meaning as the old saying “May you live in interesting times”.


At the time of writing the legal rights of stepparents in Ireland and quite limited. The Law Reform Commission has formulated proposals to ensure greater legal rights however, at the time of writing these are not in force. A biological parent can appoint his or her partner/spouse to be a testamentary guardian to act in their stead in the event of their death and in that context, as a guardian such person would have legal standing before the court. Equally one could mount an application under Section 11 of the Guardianship of Infants Act seeking visitation rights in the event of a breakdown in the step family relationship but it is hard to envisage that application being successful unless the relationship was close and of long duration.

Relocation - is it really a good idea ?

Light relief in family court is somewhat unusual. Even by family law standards, however, child relocation cases tend to be particularly glum affairs. While it is fair to say that in most family law cases, no one wins, there is no doubt that this is most poignantly so in relocation cases. Post separation or divorce it is not uncommon for a spouse to decide to move away. In the majority of cases, this tends to be the female custodial parent. While such moves away can simply be a need to get away from a perceived failure they can also be proposed for good reasons. Unfortunately, there are nearly always very good reasons why the move should not be considered. In such situations fathers may perceive themselves as about to lose everything and mothers who have often spent years being the primary parent can often be impatient at having to explain themselves and their reasons for wanting to move. Frequently, a woman will want to move back to her family of origin for moral support, practical assistance or for cultural reasons. Sometimes the marriage was the only reason a woman was living in a particular location and without the marriage this woman can find herself extremely isolated. In other cases a woman may want to move because a move will afford her economic opportunities that she will not otherwise have. In circumstances where the courts seldom make direct spousal maintenance awards and where child support can stop and start, a woman may decide that economic stability begins and ends with her own efforts. Occasionally, and these cases are possibly the most difficult of all, a woman may want to relocate herself and her children because she has remarried or wishes to remarry. Of all the reasons for relocation this one tends to be the most embittering for the non-custodial, non moving parent. For the mothers who mostly have genuine reasons for wanting to move it can be very difficult to understand why they should have to explain themselves to a person who has perhaps hurt them greatly. For the fathers it can seem like they are about to lose everything.
When a marriage breaks down it is not unusual for the fact of the breakdown to serve as a wake up call to Dad. In the US such Dads are called “divorce activated dads” which is rather cruel but makes the point succinctly. Mums can often feel quite bitter about divorce activated dads, particularly when such Dads are asserting their rights. From a child’s point of view , however, it may be an unforeseen bonus to the divorce that suddenly Dad is on the scene. Whatever Dad’s motivation, his involvement with his children is to be devoutly encouraged for their sake. I have said it frequently and often – children’s self esteem will be seriously impaired if their relationship with a parent is compromised as a result of a separation or divorce. Therefore, no matter what the cost, it behoves parents to foster the love and respect of their children for each of them and to do nothing to impair that relationship. When we become parents, that is what we sign up to and it is a sacred trust. The only exception is where one or other parent is actively harming the children in an abusive way. So what happens to the non-custodial parent who slowly and painfully builds up a relationship with their children after separation and divorce? Parents who live together have the society of their children with very little effort. They interact with them seamlessly. Parents who are no longer in the house lose that casualness, that effortlessness and their relationship becomes somewhat forced, artificial. It takes time and effort on the part of that parent to build up those relationships again so as to ensure that they are still Dad and not some visiting Uncle. To do this, they need to establish new traditions with their children, get to know them in very different ways than when they lived with them and exercise understanding and patience in very testing circumstances. Picture then the vulnerability of this parent after all that effort and time who is then faced with the news that the custodial parent is relocating resulting in the inevitablility that their relationship with their children will change yet again and maybe seriously eroded. For Mum who continues to be the parent with primary responsibility and frequently borderline poverty, it can often seem a very lonely and isolating place.
Cases for relocation tend to be highly strategic in their presentation. The person seeking to establish the move as being the best option will present a glossy portfolio of pictures of the intended new residence and schools. Glowing accounts of extra curricula opportunities and brochures from fabulously well endowed schools including letters from perspective headmasters/headmistresses. In addition a strong case will be made to show how the staying parents’ rights will be barely affected because of proposals for block access. In contrast the staying parent will present detailed accounts accompanied by photos establishing the extent of their relationship with the departing children in poignant detail. Reports from the children’s schools will show how well they are doing in those schools. If a child has a special talent or interest which requires nurturing in a certain environment then much will be made of that. Relationships with friends and extended family will be emphasised. And while all this tugs at the heart strings, we need to cast a cold clinical eye on it. On close examination the custodial parent’s reasons for travelling may have little to do with the child/ren and sometimes the non-custodial parent may not have much of a real relationship with the child/children. A non-custodial parent who has not availed of an opportunity to see children when there were opportunities is in a poor position to argue. Equally, if a moving parent establishes a strong economic need to travel and the party arguing against the move has a poor track record of payment and the payments are small, they will have a difficult time of it before the court. As one West Cork Judge colourfully put it in a case of mine “A fellow would have better standing with the court if he was working and contributing financially”. Sometimes the children are of an age where the impact on parental relations is somewhat less because they can manage their own contact and travel. An analysis of the interests of all parties can sometimes allow us to decide with confidence whether or not the custodial parent should relocate or not. Bearing this in mind, it still remains the case, however, that many people have substantial reasons for relocating just as those objecting have substantial interests.
How is a Judge to decide such cases? Should there be legislation setting out the criteria by which the courts would determine these issues? Where should the burden of proof lie? In other words should the moving parent have to establish why the move is a good idea or should it be up to the parent objecting to the move to make their case? Is it desirable or even possible to have a coherent policy on this issue or should it be decided on a case by case basis? It seems fairly clear that except for the few cases where there is absolutely no good reason for moving, it is almost impossible for a Judge to get this one right. The test in Irish law is the best interests of the child/children. However, are a child’s interests served if a parent is forced to reside in a particular jurisdiction or lose custody of the child? How will an unhappy parent impact on a child? In the USA the trend has been to permit relocation based largely on the view that what is good for the parent is good for the child.* This assumption went largely unchallenged until a piece of research undertaken and published in 2003 1*. This research which was by no means conclusive and raised as many questions as it answered. The study, as reported in the media, appeared to establish that children whose parents moved away from the other parent, were significantly disadvantaged by the move.2* This in turn suggested that courts should give greater weight to the child’s separate interests in deciding such cases. But how do you focus in on a child’s interests as a determining factor? There is little guidance on this. Comprehensive research and empirical data is thin on the ground. There is the added complication that a court cannot order a parent to stay in a jurisdiction. And even if it could, would that be desirable? After all, the non custodial parent can relocate at any time with just as potentially devastating consequences. At best all a court can do is threaten to move custody if the parent relocates or in fact move custody if the parent relocates. This is to use the children as pawns in a judicial game, the game of “call the bluff”. In my view such games are not in the children’s best interests, whether it is parents manipulating their children to want to relocate or to want to stay or the court.
It remains a fact that most moves away are undertaken for economic reasons or for reasons of support. The best outcomes for children post separation and divorce are dependent on good working joint custody and access arrangements and being in reasonable financial circumstances.3* Parents who locate reasonably close to one another and who share the care and management of their children offer the best protection to one another against the threat of relocation. The more involved the non custodial parent (being the parent with whom the children are not primarily resident) is with the children the more likely he or she is to contribute to their support and education. To have effective parenting arrangements means little conflict. Parents ought to be aware that high levels of conflict have been associated with poorer physical health in adolescents. 4* In general the courts would be mistaken to assume that children will necessarily benefit from being moved away just as we cannot establish with any degree of conclusiveness that moves cause children substantial harm. So what should we do in this situation? As always we should put our children first and there is no doubt that growing in the society of both of their parents is the best outcome for children. Are such relationships fostered by taking court actions against one another or engaging in trench warfare against one another? Surely the answer must be obvious, that they are not. I can think of little more calculated to really “do for a relationship” or what is left of it than giving evidence against one another or subjecting one another to rigorous cross-examination. When a relationship breaks down there is naturally lack of trust and conflict. We know that conflict impacts seriously on the mental welfare of children and also their physical well being. We know that lack of trust will breed hostility and lack of cooperation. We know that when we are angry, our anger infects ourselves and our children and makes them and us unhappy. We need to take steps to build up the trust and minimise the conflict. A tall order! Yes it is, and it will require sacrifice and effort. It is hard to give up a grievance, just as it is hard to give up cigarettes, even knowing that both are bad for your health. However, there are people who can help. Lawyers who have trained collaboratively and in mediation and who will endeavour to work with you and your spouse towards transition and resolutions, collaborative coaches who will help you with parenting arrangements and work on communication skills and financial specialists who will give you sound non positional , family orientated economic advise. All these people working together offer you the best chance of achieving a new trust and minimizing conflict. This is your best guarantee of a successful outcome for your children and for you.
What if it still happens that even after all that collaboration, a parent still decides to relocate? Well that can happen even with the best will in the world. Families are not static. Is that a reason for running into court? Does it mean that the collaboration was unsuccessful.? Was there a complete breach of trust? Well it depends on the reasons for the relocation. Hearing these in a calm, managed environment, where both of you are held in such a way that you can actually hear one another, still offers the best hope for both of you to work through such a possible relocation and hold firm to the principles of trust and lack of conflict that are so important to the health of you and your family. If a parent is moving with the children and on top of that there is lack of trust and conflict, then the hope for a future productive relationship between the non moving parent and the children is minimal. This in turn has negative impact on the children’s health and wellbeing but also frequently on the family purse. Parents who do not see their children and have a limited relationship with them frequently stop paying towards their children’s education and support. So, maintaining the trust is, as always, key to this and going to court is one sure way to destroy trust.

*1. Fabricius,Braver & Ellman – 2003 Journal of Family Psychology. (Commonly referred to as the Braver study).
2. “Does Moving After Divorce Dmage Kids” Norval Glenn and David Blamkenhorn. Article raises some thought provoking points on the Braver Study.
3. Warshak
4. Mechanic & Hansell, 1989.