Category: Family

Matter of an Application of Judicial Review by the Northern Ireland Human Rights Commission [2015]

Matter of an Application of Judicial Review by the Northern Ireland Human Rights Commission [2015]

Colour photo of person holding a sign with pro-choice, pro-child, pro-family
Pro-Choice Rally in Dublin by William Murphy [CC BY-SA 2.0 (https://creativecommons.org/licenses/by-sa/2.0/)]

The symbolic significance of Horner J’s declaration that denial of a woman’s ability to make choices about her pregnancy can in certain circumstances breach her human rights is huge, while the case’s attentiveness to the lived experience of women seeking abortion, coupled with its vindication of the NIHRC strategy, have surely marked the first tentative steps on the road to securing more accessible abortion services in Northern Ireland.

Marie Fox and Sheelagh McGuiness

In 2015, the Northern Ireland Human Rights Commission (NIHRC) took a ground-breaking judicial review seeking a declaration that the law in Northern Ireland breached the human rights of women seeking abortion care. Sitting in the High Court in Belfast, Horner J ruled that the law was not human rights compliant (under article 8 of the European Convention on Human Rights (ECHR)) in denying terminations to women who were carrying a foetus with a fatal abnormality or who had become pregnant as a result of rape or incest. While the exceptions carved out in Horner J’s ruling were very limited, his ruling nevertheless represented a significant legal advance. Northern Ireland has one of the most restrictive abortion regimes in Europe, which has been facilitated by women travelling to access abortion care or accessing abortion pills online. The action taken by the NIHRC and Horner J’s ruling acknowledges the importance of abortion as a human rights issue and carries the potential to contest the criminalisation of the actions of significant numbers of Northern Irish women.

The full version of this landmark is written by Marie Fox and Sheelagh McGuiness.

Learn More

Marie Fox and Sheelagh McGuinness ‘The highs and lows of one hectic day in Northern Ireland’s abortion struggle’ The Conversation, 2 July 2017 https://theconversation.com/the-highs-and-lows-of-one-hectic-day-in-northern-irelands-abortion-struggle-80238

Ruth Fletcher, Marie Fox, and Sheelagh McGuinness ‘Trial and Error in Northern Irish Abortion Law’ (London Irish Abortion Rights Campaign, 7 July 2017) https://londonirisharc.com/repeal-london/2017/7/7/trial-and-error-in-northern-irish-abortion-law

Protection of Life During Pregnancy Act 2013

Protection of Life During Pregnancy Act 2013

The PLDPA is unsatisfactory, insufficient, and ineffective. But it is still a landmark for women. It was the first time that the Irish parliament gave effect to the (very limited) constitutional right to access abortion. The fact that this right had lain effectively unusable for more than 30 years had not only made it more or less illusory but also hidden in plain sight the true scale of its restrictiveness.

Fiona de Londras

Ireland, one of the world’s most restrictive abortion law regimes, permits abortion only where there is a “real and substantial risk” to the pregnant woman’s life and recognises “the right to life of the unborn” in Article 40.3.3 of the Constitution (the 8th Amendment). The combination of the Constitution, very conservative medical and legal professions, case law that resulted in an extremely restrictive interpretation of the 8th Amendment, and a political establishment seemingly unwilling to acknowledge or tackle the harms done by a lack of access to abortion care means that pregnant people who do not wish to continue with their pregnancies in Ireland have very few options.

The Protection of Life During Pregnancy Act 2013 provides for abortion where medical practitioners certify “in good faith” that there is a real and substantial risk to the pregnant woman’s life, and that it is their reasonable opinion that this can only be averted by terminating the pregnancy. “Reasonable opinion” is defined as “an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable” (s.s. 7(1)(a)(ii), 8(1)(b), 9(1)(a)(ii)). If the risk to the pregnant woman’s life emanates from a physical illness two medical practitioners must certify to this, if it emanates from a risk of suicide three practitioners must so certify. In an emergency a single medical practitioner must certify that is it is her reasonable opinion that an abortion is “immediately necessary in order to save the life of the woman” (s. 8(1)(b)).

Should a woman wish to challenge a refusal to provide her with abortion care: she can apply for the decision to be reviewed either by two doctors (where she claims there is a risk to life from physical illness), or by three (where the risk is said to be one of suicide), and that panel should decide within ten days of the review request having been made.

The full version of this landmark is written by Fiona de Londras.

Learn More

BBC News, ‘Irish Abortion Bill Becomes Law’ http://www.bbc.co.uk/news/world-europe-23507923

Caoilfhionn Gallagher QC, ‘Ireland’s Little Christmas Starts A Year of Big Change For Women’s Rights’ (Huffington Post UK, 7 January 2018) http://www.huffingtonpost.co.uk/entry/irelands-little-christmas-starts-a-year-of-big-change-for-womens-rights_uk_5a50853de4b0ee59d41c0add

Fiona de Londras, ‘This is Why Repeal Matters’ https://fionadelondras.com/2017/10/20/this-is-why-repeal-matters/

The Guardian News and Media Ltd., ‘Pregnant Women Face Abortion Ban in Ireland Even if They’re a Suicide Risk’ https://www.theguardian.com/world/2014/aug/07/pregnant-women-ireland-abortion-ban-suicide?view=classic

Jem Collins, ‘ ‘A Flagrant Violation of Women’s Human Rights’: Thousands of Women March to Decriminalise Abortion’ (Human Rights News, Views and Info, 9 March 2017) https://rightsinfo.org/thousands-irish-women-march-decriminlise-abortion/

Repeal Eight: Coalition to Repeal the Eighth Amendment https://www.repealeight.ie

Forced Marriage (Civil Protection) Act 2007

Forced Marriage (Civil Protection) Act 2007

Colour photo of the Foreign and Commonwealth Office on the Right to Choose campaign from the Forced Marriage Unit
Forced Marriage Unit Videos from Foreign and Commonwealth Office [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0/)]
The introduction of the Forced Marriage (Civil Protection) Act 2007 marked a ground-breaking moment in the history of black and minority ethnic (BME) women’s struggles in the UK, against violence against women and for equality. It represented the culmination of BME women’s struggles against the powerful multicultural precept that legal and other state responses to the needs of BME women should be guided by cultural relativism rather than by secular, universal human rights norms and standards on gender equality. And, it signalled a human rights-based approach to all forms of gender-based violence against BME women who otherwise remained invisible in the social contract that had been forged between the British state and its minorities.

The full version of this landmark is written by Pragna Patel.

Learn More

BBC News, ‘Laws in the UK: Forced Marriage Act’ http://www.bbc.co.uk/ethics/forcedmarriage/crime_1.shtml

Emma Franck-Gwinnell, ‘Forced Marriage: Is It A Human Rights Question?’ (Human Rights News, Views and Info, 1 September 2016) https://rightsinfo.org/forced-marriage/

Southall Black Sisters, ‘The Forced Marriage Campaign’ http://www.southallblacksisters.org.uk/campaigns/forced-marriage-campaign

White v White [2000]

White v White [2000]

Colour photo of identical town houses painted different colours, yellow and greyPrior to the Married Women’s Property Acts of 1870 and 1882, on marriage a woman’s property passed in common law to her husband. Since then married women have been able to own their own property, but English law has never adopted a system of community of property, as is normal in many American states and continental jurisdictions, according to which property is equally shared between the spouses. As a result, in English law, during marriage each spouse owns the property they brought into the marriage and the property they earned during it. Historically, this worked to the disadvantage of women and meant that until the 1973 Matrimonial Causes Act the husband could on divorce walk away with all or a large proportion of assets.

The real significance of this case is that it is one of the few areas of law in which care work is valued and recognised, and even said to be valued as equal to money-making… [However] if the law is serious about the claim in White v White that we should value equally caregiving and money making we need vast changes in the law and societal structures. The achievement in White v White hardly deserves being called a scratch on the surface of that aim.

Jonathan Herring

The decision of White v White is one of the most striking acknowledgements of the value of carework in the law, and provides a powerful statement of equality between husbands and wives.

The full version of this landmark is written by Jonathan Herring.

 

Learn More

BBC News, ‘Divorce Money Battles Hot Up’ http://news.bbc.co.uk/1/hi/business/1500573.stm

The Guardian News and Media Ltd., ‘How London Earned its Status as Divorce Capital of the World’ https://www.theguardian.com/money/2013/mar/03/london-status-divorce-capital

Jonathan Herring, ‘All’s Fair in Love and…’ (2013) New Law Journal https://www.newlawjournal.co.uk/content/all’s-fair-love-and…

Fifteenth Amendment of the Constitution Act 1995

Fifteenth Amendment of the Constitution Act 1995

Black and white scan of information on the divorce referendum
Grounds for divorce information on divorce referendum creator and copyright belongs to the Houses of the Oireachtas [CC 4.0 International License (http://www.oireachtas.ie/parliament/about/copyrightandre-use/)] disclaimer by the Houses of the Oireachtas applied
The Fifteenth Amendment of the Constitution Act 1995 removed the ban on divorce from the Irish Constitution. It was the second attempt at removing the ban; the first in 1986, ended with a substantive victory for the no-divorce campaigners.

By the 1980s, most other Western countries had not only introduced divorce, but had altered divorce laws to include no-fault based divorce and provided for equality in the distribution of property following divorce. Ireland therefore stood apart. When the first referendum to remove the ban was proposed, it followed many years of vigorous campaigning on women’s rights in other Western countries and in Ireland, various women’s organisations had been established including the Council for the Status of Women (an umbrella organisation for women’s groups. Now called the National Women’s Council of Ireland). One would imagine therefore that women would have argued forcefully in favour of divorce in Ireland. However, this was not the case. In fact, the majority of women voted against removing the ban in 1986.

The successful divorce referendum is often pointed to as one of the major turning points in modern Irish society. Around this time, Ireland began to shed many of its traditional, conservative societal notions. Attitudes towards women were also slowly changing… The divorce campaign was one part of this change and it followed earlier turning points such as the election of Mary Robinson as President and the Supreme Court decision in ‘the X case’, which allowed a 14 year old rape victim to travel abroad for an abortion.

Laura Cahillane

By the time of the second proposal in 1995, societal attitudes towards women were changing and while the proposal passed only by the narrowest of margins in the end, the victory demonstrates, in a microcosmic sense, that the position and status of women in modern Ireland had changed forever.

The full version of this landmark is written by Laura Cahillane.

 

Learn More

A.J. Christopher, ‘This Changing World: The Irish Divorce Referndum of 1995’ (1997) 82 Geographical Association http://www.jstor.org/stable/40572868

The Irish Times, ‘ ‘Hello Divorce, Goodbye Daddy’: 20 Years After the Irish said Yes’ https://www.irishtimes.com/news/social-affairs/hello-divorce-goodbye-daddy-20-years-after-irish-said-yes-1.2441128

Mairead Enright, ‘On This Day: First for Irish Divorce’ (Human Rights in Ireland, 17 January 2010) http://humanrights.ie/constitution-of-ireland/on-this-day-first-for-irish-divorce/

The New York Times, ‘Irish Vote to End the Divorce Ban By a Tiny Margin’ http://www.nytimes.com/1995/11/26/world/irish-vote-to-end-the-divorce-ban-by-a-tiny-margin.html

RTÉ Archives, ‘No Recognition for Overseas Divorce in Ireland 1985’ http://www.rte.ie/archives/2015/0929/731073-divorce-in-ireland/

RTÉ Archives, ‘Hello Divorce, Goodbye De Valera 1995’ http://www.rte.ie/archives/2015/1123/748645-divorce-referendum/

Warnock Report (1984)

Warnock Report (1984)

Coupled with numerous significant cultural changes since its publication, what makes the Warnock Report so significant is its foresightedness. It led to two pieces of legislation and its findings continue to form the basis of future discussions on the way these areas should be regulated.

Kirsty Horsey

 

Colour photo of a pregnant woman in a red dressIn 1984, after two years of consultations and deliberation, the Committee of Inquiry on Human Reproduction and Embryology published its report. Dubbed the ‘Warnock Report’, after the Committee’s chairwoman, philosopher Mary Warnock (now Lady Warnock), the report was influential in the UK and beyond in the way it facilitated permissive regulation of fertility treatments related science. Its recommendations enabled scientific and medical advancement, and allowed the UK to remain at the forefront of the development and delivery of new treatments, and in innovation in the field. In so doing, the report has allowed numerous women to have children biologically related to themselves (and/or their partner) when this once would have been impossible. The report also recognised the value of allowing the use of donated gametes. In this, and other respects, it foretold changing social and legal understandings of family and parenthood.

The regulatory framework around surrogacy – which also stems from the report’s recommendations and another way by which women may have biologically-related children, even when unable to carry them – has lasted over 30 years.

The full version of this landmark is written by Kirsty Horsey.

 

Learn More

The Guardian News and Media Ltd., ‘The Practical Philosopher’ https://www.theguardian.com/books/2003/jul/19/society1 

Kirsty Horsey, ‘Surrogacy Law Reform Project’ (University of Kent) https://www.kent.ac.uk/law/research/projects/current/surrogacy/index.html

Kirsty Horsey, Natalie Smith, Sarah Norcross, Louise Ghevaert, and Sarah Jones ‘Surrogacy in the UK: Myth Busting and Reform Report of the Surrogacy UK Working Group on Surrogacy Law Reform’ (University of Kent November 2015) https://www.kent.ac.uk/law/research/projects/current/surrogacy/Surrogacy%20in%20the%20UK%20Report%20FINAL.pdf

Surrogacy Arrangements Act 1985 http://www.legislation.gov.uk/ukpga/1985/49

Health (Family Planning) Act 1979

Health (Family Planning) Act 1979

The 1979 Act was hardly progressive. However, it was a watershed precisely because it marked the point at which formal legislation could no longer claim a complete hold over Irish women’s reproductive agency, at least as far as contraception was concerned. It marks a new confidence in the reproductive rights movement – today very visible in abortion rights campaigning – around the possibility of one day establishing women as sole decision-makers in matters of their own health.

Máiréad Enright

Before the Health (Family Planning) Act 1979, selling contraceptives and importing them for sale were criminal offences in Ireland. Importing contraceptives for personal use was also prohibited. This Act legalised those activities in certain circumstances, allowing married couples, and people with relevant medical needs, to access condoms and other contraceptives on a doctor’s prescription. The Act began a slow de-coupling of Irish law from absolutist interpretations of Catholic social teaching, and marked an important legal acknowledgement of the public health costs of restricting access to contraception. It also provided a legal avenue of access to contraceptives, confirming growing public support for the principle that women should be able to determine the number and spacing of their children.

The full version of this landmark is written by Máiréad Enright.

Mothers of Modern Ireland, ‘Contraception, Sylvia from Dublin’ https://mothersofmodernireland.com/clips/51112c35373a6346a100003e

RTÉ Archives, ‘Dublin Condom Shop 1978’ http://www.rte.ie/archives/2013/1127/489465-contraception-unlimited-1978/

Davis v Johnson [1978]

Davis v Johnson [1978]

Image of the Domestic Violence and Matrimonial Proceedings Act 1976 with the Royal Coat of Arms
Domestic Violence and Matrimonial Proceedings Act 1976 contains public sector information licensed under the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/)

Davis v Johnson resolved once and for all the correct interpretation of the Domestic Violence and Matrimonial Proceedings Act (DVMPA) 1976. The House of Lords held that the proprietorial right of a husband to occupy the matrimonial home in the event of his physical abuse of a wife or partner could be suspended, thereby excluding the husband or male partner from the property or part of it. All five judges were unanimous that the DVMPA provided a wife or partner with a remedy for protection, which allowed for interference with a husband or male partner’s proprietorial right in cases where her life was in serious or grave danger. For the first time the law provided protection for wives and cohabitants living in the same household.

The full version of this landmark is written by Susan Edwards.

 

Learn More

Sisterhood and After Research Team, ‘Campaigns and Protests of the Women’s Liberation Movement’ (British Library, 8 March 2013) https://www.bl.uk/sisterhood/articles/campaigns-and-protests-of-the-womens-liberation-movement

The opening of the first Refuge (1971)

The opening of the first Refuge (1971)

The opening of the Chiswick Women’s Aid refuge happened almost by chance. Yet the sheer weight of the need that was revealed when its existence became known, and the events that followed, make it very significant. The refuge uncovered not only the pressing need for safe places for victims but also the wider issues detrimentally affecting women, such as financial dependence.

Felicity Kaganas

Red Pamphlet from 1977 titled Battered Women Need Refuges
National Women’s Aid Federation Pamphlet 1977 from the LSE Library Women’s Library Collection (https://www.flickr.com/commons/usage/)

In 1971, members of the Chiswick women’s liberation group formed a new group, Women’s Aid, to offer help to women. They began with a protest against food prices and then about the withdrawal by the Goverment of free milk from schools. Five hundred mothers, children, and some fathers, marched down the High Road led by a cow. The so-called ‘Milk March’ drew more women to join the group. After meeting for some time in one another’s houses, they decided they needed a community house and acquired from the council, at a peppercorn rent, a derelict house.

It was during the group’s meetings that it emerged that some of the women were suffering violence at the hands of their male partners. The group gave them shelter. Word spread and the house, with four bedrooms and an outside toilet, was soon ‘inundated’ with women and children. It was this at this community meeting place that the first refuge for abused women in Britain and the world opened its doors.

It was here that ‘violence against women began to be defined as a problem of epic proportions … Here that the inspiration for a social movement began’.  (R Emerson Dobash and Russell P Dobash, Women, Violence and Social Change (Routledge 1992) 26)

The full version of this landmark is written by Felicity Kaganas.

 

Learn More

The Guardian News and Media Ltd., ‘Domestic Violence: How the First Women’s Refuge Saved My Life’
https://www.theguardian.com/lifeandstyle/2014/apr/28/domestic-violence-first-womens-refuge-saved-my-life

Sisterhood and After Research Team, ‘Marriage and Civil Partnership’ (British Library, 8 March 2013) https://www.bl.uk/sisterhood/articles/marriage-and-civil-partnership

Women’s Aid, ‘Our History’ https://www.womensaid.org.uk/about-us/history/

Find out more about the Women’s Legal Landmarks Project

Project leaders, Rosemary Auchmuty and Erika Rackley, talk to Elizabeth Woodcraft about the aims, methodology and ambitions for the Project for PodAcademy

Get involved

The landmarks that appear on this website were chosen by participants in the Women’s Legal Landmarks Project.

If you think a key positive legal landmark for women is missing and you’d like to write about it – then get in touch.

Search the Landmarks

Follow us on Twitter