The Malta Marriage Equality Bill: a further comment

This blog post is by Justin Borg-Barthet.

My earlier comment on the Maltese Marriage Equality Bill has prompted some discussion, including in an article in Sunday’s Times of Malta. In that article, Silvan Agius – a Maltese champion of LGBTIQ rights – responded on behalf of the Government of Malta.

Let me begin by identifying the common ground between that response and my own legal assessment. Mr Agius and I agree that a dynamic reading of fundamental rights law requires the elimination of all forms of discrimination on grounds of sexual orientation. This includes the right to marriage.

Equally, we agree that same-sex relationships should not, at law, be treated as asexual relations any more than should different sex relationships.

Contrary to his reading of my own argument, we also agree that foreign models should not be adopted blindly. Comparative law requires a critical approach to both/all relevant legal systems.

Our disagreement concerns the methods employed to achieve equality. This is a border skirmish between friends (literally and ideologically), not a fundamental dispute concerning the dignity and liberty of individuals.

‘Government could not blindly reproduce [Scots] law’

I have no brief to defend or promote Scots law. Indeed, Maltese law is, in some respects, more progressive. By way of example, civil unions are gender neutral in Malta, whereas civil partnerships are open only to same-sex couples in Scotland.

Mr Agius was setting up a straw man when he stated that Malta could not ‘blindly reproduce’ Scots law’. Nowhere was this suggested. Maltese and Scots law are substantively different and require different solutions. Legal transposition should not, in principle, constitute ‘blind reproduction’.

Furthermore, the stated reasons for rejecting the Scots law model are far from persuasive. Mr Agius’ explanation rests on two limbs, both of which are unsound.

The first limb of his argument is that ‘in Scotland, England and Wales, gay marriage was regulated by distinct laws.’ This is neither here nor there, and indeed is not entirely accurate. The Marriage and Civil Partnership (Scotland) Act 2014 amends the Marriage (Scotland) Act 1977 with a view to opening the earlier Act up to same-sex couples. The appearance of a lack of consolidation is simply a function of different legal traditions.

Furthermore, nowhere do I argue that “non-consummation should not be a ground to annul a same sex marriage”. If I had, I would indeed have been arguing “that same sex marriages are not on par with heterosexual marriages”. Mine was a criticism concerning a lack of definition. Indeed, the position in Scotland – contrary to Mr Agius’ contention – is that the notion of consummation simply is not addressed in its own right for couples of either gender-mix. The problem does not arise in the same manner.

Again, I do not suggest that this should be the position in Malta. I am simply arguing that the Maltese position is unsound. Consummation has a specific meaning which should either be changed for all couples or adapted for same-sex couples.

I was also somewhat surprised to read the Maltese government’s claim that ‘Scots law was consulted extensively’. Extensive consultation should include deep engagement with reports and consultations conducted abroad, not mere skimming of the surface. Had the Maltese government indeed consulted Scots law extensively, they would have been aware that sex was not ignored at all when marriage equality was adopted.

Far from homosexual sex being taboo, the subject was debated in some depth with a view to identifying adequate solutions. It was agreed that superimposing established opposite-sex norms concerning impotency simply could not work. This required careful consideration of sexual interactions, as opposed to sweeping this fundamental dimension of married life under the carpet, as has been done in Malta.

The decision was made to defer discussion concerning impotency for different sex couples, but to adopt a more liberal approach for same-sex couples. This was not because the legislator shied away from the reality of homosexual relationships, but because the legal ramifications had been carefully considered.

Now, Mr Agius is right to note that this has been subject to some criticism in Scotland, but it does not follow that the Maltese solution is adequate. Indeed, by retaining impotence as a ground of nullity unchanged for same-sex couples, Malta is simply choosing discrimination in practice for the sake of political sloganeering.

Abdication of Parliamentary responsibility: “The law courts will have to take into account the new realities and adapt the law to them”

The Maltese Government claims that the decision not to distinguish between the organic interactions of same-sex and different sex couples stems from a desire to preserve the unity of marriage. Yet the government response to my earlier comment contradicts this claim.

Mr Agius states that the courts will determine the meaning of impotence and consummation, in the same manner as they have done for different sex couples. If the intention is for marriage to be the same, then how will the courts reconcile the meaning of established terms with different organic realities of different sex couples? This is either a backdoor change to established definitions for different sex couples – which does not appear to be the intention of Parliament – or, it is an admission that different and same-sex couples simply cannot be regulated in the same manner.

Secondly, Mr Agius’ argument is a quite extraordinary admission that Parliament intends to leave a lacuna in the law which it expects the courts to address. To put it mildly, this is a somewhat idiosyncratic approach to the separation of powers. It is for Parliament, not the courts, to deal with the finer detail of family law policy.

But Mr Agius’ suggestion also misses a fundamental point about judicial legal development.   To the extent that courts did in fact elaborate the meaning of impotence and consummation for opposite sex couples, they had a wealth of comparable international experience on which to rely. Marriage law in Malta is, after all, derived from ecclesiastical sources. In contrast, same-sex relationships will not benefit from much international experience.

Furthermore, where there is international precedent, this is not necessarily relevant because regulation of same-sex relationships, novel as it is, differs from one jurisdiction to another. Indeed, Malta’s major parent legal systems, namely English common law, French civil law and Italian law, now regulate marriage quite differently to the contemporary Maltese approach. International precedent is simply unavailable, and Maltese same-sex couples will therefore have to rely on courts which lack the critical mass to develop solutions as predictably as one might expect.

Concluding remarks

Effectively, then my earlier suggestion that same-sex couples will be subjected to a lack of legal certainty, and in some cases to costly (both financially and emotionally) litigation remains sound. Indeed, it is implicitly confirmed by the Maltese Government that this transfer of the burden of regulation is intended by the legislator.

I remain of the view, therefore, that the Maltese legislator should engage more carefully with ongoing legal developments and consult in a greater spirit of openness. This will enable the better fulfilment of the declared aims of the legislation. It may also enable the legislator to address other unintended consequences, such as the discriminatory treatment of conversion of civil unions and marriages (while civil unions may become marriages, existing marriages cannot be converted to civil unions – a somewhat regressive approach – but more on that later…).

Malta Sunday Times

When non-discrimination is discriminatory: A Comment on the Maltese Marriage Equality Bill

This blog post is by Justin Borg-Barthet. It was originally posted on ‘Manuel Delia’s notes’, a Maltese political blog. It is re-posted here (with minor amendments) with kind permission.

Through the Marriage Equality Bill, Malta joins a small group of European nations which have both met and exceeded the requirements of the European Convention on Human Rights in respect of the elimination of discrimination on grounds of sexual orientation. It is particularly noteworthy that this development has met with the approval of all parties in the Maltese Parliament. This has not always been the case in other jurisdictions.

Malta also differs from its peers, however, in that it appears that political expediency has resulted in laws which have not been as carefully crafted as one might have hoped. Scots law on marriage equality, for example, developed following extensive public debate, with the benefit of significant academic input, and through careful legal drafting. The law is therefore clear, and same-sex couples are as aware of their rights and obligations as their different sex counterparts.

While Maltese law is driven by a dynamic, narrow human rights agenda, this appears to have occurred to the detriment of careful consideration of family law matters. Like the Civil Unions Act 2014 before it, the Marriage Equality Bill superimposes a heterosexual model on same-sex relationships. This is intended to achieve equality of rights, but in some cases results in a poor fit, to the detriment of same-sex couples. I will highlight two examples below, namely impotence and consummation.

Impotence

The lack of consideration for differences between heterosexual and same-sex models is most evident in relation to matters pertaining to sexual relations. In particular, the Maltese Marriage Act 1975 provides that a marriage shall be void ‘if either of the parties is impotent, whether such impotence is absolute or relative’. There is no distinction in the Maltese Bill between same-sex couples and couples of different genders.

This is to be contrasted with Scots Law, as well as the law of England and Wales. The Marriage and Civil Partnership (Scotland) Act 2014, for example, provides as follows:

For the avoidance of doubt, the rule of law which provides for a marriage to be voidable by reason of impotence has effect only in relation to a marriage between persons of different sexes.

The exclusion of impotence as a ground for nullity in same-sex relations in Scotland is motivated by the different realities of same-sex and different sex couples. The relevance of the stipulation that impotence is a ground for nullity is plain for spouses of different genders. After all, the provision was designed with them in mind.

For same-sex partners, however, it is not necessarily the case that impotence as traditionally understood is relevant to both, or indeed either, partner. Suffice it to note that intercourse between two women differs from that between a man and a woman. Similarly, intercourse between two men does not necessarily require both men’s bodies to function identically. Maltese law does not account for this.

Consummation

Equally problematic for same-sex couples is the regulation of consummation of marriage in Malta. This too differs from Scots law. In Malta, the absence of consummation within three months may result in annulment. Article 19A(1) of the Maltese Marriage Act 1975 provides as follows:

A valid marriage may be annulled at the request of one of the spouses on the grounds that the other party has refused to consummate the same.

It is especially unclear what constitutes consummation between two women, or indeed whether it is possible in the sense the law intended. Nor is it entirely clear what is meant by consummation for male couples. One might assume that penetration by one spouse of the other should constitute consummation. But it is equally arguable that one spouse could seek to annul the marriage where penetration occurred by one party but was ‘refused’ by the other.

All that is certain is that same-sex couples cannot be certain of the validity of their marriages.

Concluding remarks

The likely legal fallout could have been avoided given the successful foreign legislative models and external expertise available to the Maltese legislator. It is regrettable that it is precisely those whose rights were to be furthered who will suffer from a lack of foresight.

The resulting legal uncertainty will, of course, have no effect whatsoever on different sex couples. The law is clear in their regard. Contrary to arguments raised in the Maltese Parliament, to distinguish between different and same-sex couples is the very antithesis of discrimination. Maltese law discriminates by failing to account for differences. Same-sex couples in Malta are rendered vulnerable to a lack of foreseeability as to the meaning of the law.

It is the same-sex couples purportedly protected by identical treatment who are in fact vulnerable to a lack of certainty. It is same-sex couples who are vulnerable to spousal abuse arising from a lack of clarity in a marital contract in which the parties’ rights and duties are undefined. And it is same-sex couples who will have to suffer the emotional and financial burden of litigating points of law which the legislator appears not to have considered.

Tales of the Unexpected

This blog post by Jayne Hollidaydiscusses findings from the recently completed research project on the ‘Conflicts of EU Courts on Child Abduction’ conducted by the Centre for Private International Law in collaboration with the University of Sussex and funded by the Nuffield Foundation.

‘Children should be seen and not heard’ is not the most enlightened proverb and is one that really ought not to be prevalent in modern judicial proceedings within the European Union in cases that affect children. Yet ‘children not being heard’ is precisely what is happening at the moment in intra-EU parental child abduction cases.

What do I mean by parental child abduction cases? When people hear the phrase child abduction they often confuse it with trafficking or kidnapping but in these cases it is where a parent takes their child to another country to live without the permission of the other parent who also has custody rights. Many parents are unaware that to travel out of the country with their child they need the (usually written) consent of the other parent.

Child abduction of this type is by no means a small problem. In 2014, Reunite, a charity that provides support for people involved in these cases, stated that there were over 500 cases involving the UK alone, with the most frequent destinations being France, India, Ireland, Poland, Pakistan, Spain and the USA.

So what can a parent do if their child is abducted in this way? When a parent believes that their child has been abducted by the other parent to another country to live they are able to apply to the court to ask for the child to be returned under the 1980 Hague Child Abduction Convention. Under the Convention, the parents can also expect help with the process of solving the child abduction from the Central Authorities in the relevant countries.

So far 94 countries or Contracting States have signed up to this Convention and as it only operates between these Contracting States it is necessary to check to see if the relevant countries are party to the Convention and whether it applies between them. For further information click here.

If the 1980 Hague Convention applies (as it does in all cases between EU Member States) and the application for the return of the child is successful then the courts in the country where the child has been abducted to will decide whether or not to return the child. The process is supposed to happen quickly. Usually this works fairly well. The child and parent come back to the child’s habitual residence before the abduction and issues surrounding custody are dealt with there, working on the principle that those courts are best placed to deal with it.

Sometimes the courts in the country where the child has been abducted to decide not to return the child under Article 13 of the 1980 Hague Child Abduction Convention. Article 13 contains the exceptions to returning the child: the left behind parent consented or acquiesced to it, the child would be at grave risk of harm or otherwise placed in an intolerable situation if they were made to return or the child themselves objects to being returned and is old and mature enough for those views to prevail.

In the EU where a court in a Member State has said no to returning the child under Article 13 of the 1980 Hague Child Abduction Convention, the left behind parent uniquely has one more chance to ask for the return of the child. The Brussels IIa Regulation, which deals with parental responsibility and matrimonial matters, contains what on paper looks like a trump card.

Article 11(8) of that Regulation allows the courts in the country of the habitual residence of the child before the abduction to consider what is in the child’s best interests and if they disagree with the non-return order they themselves can issue an order to return the child. For that return order to be enforceable it needs to be accompanied by an Article 42 Brussels IIa Regulation certificate. This is to certify that the child has been given an opportunity to be heard in order to see whether they object to being returned, that both parents have been given an opportunity to be heard, that the court has taken account of the reasons for the non-return, and where applicable, measures to ensure the protection of the child on their return have been put in place.

Professor Paul Beaumont and I (from the Centre for Private International Law at the University of Aberdeen) and Dr Lara Walker (from the University of Sussex), as part of a research project, gathered case law from every Member State within the EU where a left behind parent had initiated these Article 11(6)-(8) Brussels IIa Regulation proceedings. The aim of our research was to assess whether the courts were following the requirements needed to issue the Article 42 Brussels IIa certificate; one of those factors being whether the child had been given an opportunity to be heard, with their views being given due weight in accordance to their age and maturity.

This proved to be easier said than done, as many of these cases are unreported. After eighteen months of research – working with Central Authorities and volunteer researchers in every Member State, NGOs, judges and practitioners – a total of 66 intra-EU cases were collected and then analysed. All of these cases involved Article 11(8) Brussels IIa proceedings but not all the proceedings led to the decision to order the child’s return. However, out of these 66 cases, involving a total of 70 children, it turned out that only 14 children were heard by the courts usually through the Taking of Evidence Regulation.  

The question we then considered was why were these children not being heard? Could it be that the age of the children was a justifying reason?

The data proved to be concerning. We found that children as old as 15 had not been heard by the court even where the reason for not returning the child in the first place under the Hague proceedings had been due to their objection to being returned. Also, children under 12 were routinely not being heard in certain Member States. The national laws of some Member States require that all children are to be given the opportunity to be heard from the age of 12 even when it is commonly understood that children as young as 6 are routinely heard in some Member States in Hague cases, or even from 3 years of age as is the case in Germany. The original reason for the child being 12 years of age is that certain Member States held the view that they needed to protect the child from conflict and they could do this by keeping them away from the courts. However, this approach does not fit easily with the right of the child to be heard. The right of the child to be heard during civil proceedings that affect them is a requirement under international law within Article 12(2) of the United Nations Convention on the Rights of the Child and at EU level within Article 24(1) of the Charter of Fundamental Rights of the European Union, and is theoretically protected within these cases by it being a requirement of the Article 42 certificate before a return order can be enforced. But with only 20% of the children in these cases being heard, it is clear that the courts are failing to protect this right .

Additional reasons for the courts not hearing these children were also identified. In addition to the abducting parent in some cases obstructing the child’s opportunity to be heard, a lack of technology was put forward as a reason in many Member States. Not every Member State has arranged for video conferencing facilities to be available to the courts or if they have there is inadequate access. In an age where everyone with a mobile phone is used to having the ability to communicate easily and inexpensively with someone in another country it seems incredible that Member States have not yet put the infrastructure or the manpower in place to support the Taking of Evidence Regulation. But as with all things in life it comes down to a lack of money or in some cases a lack of prioritising the protection of the most vulnerable parties.

Not everything turned out to be doom and gloom. The sheer number of children not heard in these cases was indeed unexpected but it was also encouraging to see that some Member States were working hard to implement change. Judges told us that they now receive training on how to hear the child, and/or they are able to bring experts in. Rooms are being set aside in court buildings that are considered to be a less imposing environment than the court room for a child to be heard in. It is clear that some Member States in the European Union are slowly making the changes needed to protect the rights of the child.

With the revision of the Brussels IIa Regulation imminent we were able to send our interim findings and recommendations to the EU Commission. We await the outcome of the review with interest.

A brief summary of our findings and all the EU country reports can be found on the Centre for Private International Law’s webpage.

For those of you who are interested in finding out more, our overall findings from the research will be published in “Conflicts of EU courts on child abduction: the reality of Article 11(6)-(8) Brussels IIa proceedings across the EU” (2016) 12 Journal of Private International Law (forthcoming).