Exception to the age of marriage in TnT

Posted on: May 03, 2017

Coalition against Child Marriage

Submission to the Office of the Attorney General and Ministry of Legal Affairs

At the Working Group on: Marriage Acts and Issues Related to Children

Held on April 27, 2017 at

Government Campus Plaza, Port of Spain

 

Age of Marriage Exception

The Coalition against Child Marriage has consistently called for the standardization of the age of marriage to 18 regardless of sex or religion. This standardization eliminates sex discrimination and better secures the protection of children and adolescents from violence as well as predatory and exploitative sexual and social relations with adults.

In this regard, the Coalition acknowledges the commitment of the Attorney-General and the government to better protect children and in particular girls, from sexual violence and exploitation which is a real likelihood in child marriage. This need for active protection was made abundantly clear given the evidence provided by the Attorney-General of significant age disparities between girls who have been married and their spouses over the last 10 years.

The passage of the Bill in the Senate, therefore, was a significant step forward in guaranteeing child protection and gender equality.

Whilst the Bill was under consideration, the Coalition shared its call with the senators for one exception to this minimum age of marriage.  This exception would allow marriage of persons who are between 16 and under 18 provided that the other intended spouse is no more than 3 years older.

The call for the exception is accompanied by a number of conditions which are based on the inter-connected principles of best interest of the child and evolving capacities of the child. These conditions are:

  1. Both parties intending to marry must receive professional counselling from the appropriate social services professional who will also prepare a report of an assessment of competencies of the child 
  2. The free and informed consent of the  minor child must be assured
  3. An inquiry by a judge of the Family Court before the issuance of a license for the marriage of such minor in which a determination must be made that the marriage is in the best interest of the child. This judicial determination must be informed by a report from the appropriate social services professional as well as the views of the parents or legal guardians of the minor.

These conditions of pre-marital counselling and judicial inquiry, both special protection measures, are intended to ensure that marriages of minors between 16 and 18 will take place only where the court is satisfied that the minor fully understands and is emotionally and psychologically prepared for the implications of a marriage.

It is to be noted that the conditions advanced by the Coalition to permit marriages of minors between 16 and 18 are materially different from that advanced by the Opposition in the Senate. The Opposition called for parental consent with the child’s perspectives being taken into consideration by the court. The Coalition is recommending that the child’s consent be mandatory with parental views being taken into account by the court.

The justifications for this exception are threefold:

  1. Harmonisation with the Children’s Act:

This Act decriminalizes uncoerced, consensual, heterosexual, penetrative sexual relations by persons who are between 16 and under 21 years with those who are no more than three years younger. This provision of the Children’s Act (known as the Romeo provision) is premised on an understanding of sexuality development of older adolescents. The provision also protects children from predatory behavior of adults and guards against the undue influence which power imbalances based on age and experience differentials can produce.

 

  1. Recognising the evolving capacities of the child:

The Convention on the Rights of the Child introduces the concept of the ‘evolving capacities’ of the child. Article 5 of the Convention:

States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.. 

The Committee on Rights of the Child has defined  “evolving capacities” as an enabling principle that addresses the process of maturation and learning through which children progressively acquire competencies, understanding and increasing levels of agency to take responsibility and exercise their rights.”[1] Article 5 has been interpreted by the CRC as entitling children to be able to progressively exercise their rights under the Convention according to their evolving capacities and always with access to special protection measures. So while parents and state officials have a continuing obligation to direct and guide, it is with the proviso that children have rights to voice and agency as is consistent with increasing levels of cognitive development and social and emotional competencies. These social and emotional competencies include self-esteem, self-confidence, self-efficacy, self-regulation/self-control, personal agency, conflict resolution, communication skills, empathy and morality - learning a sense of right and wrong.

The notion of evolving capacities provides the balance advanced by the Convention on the Rights of the Child between:

  1. The affirmation of children as agents in their own lives who have a right to be listened to (voice of the child), respected and granted increasing autonomy in the exercise of rights; and
  2. The need to ensure protection from participation in or exposure to activities likely to cause harm, although the levels of protection required will diminish in accordance with their evolving capacities

The legal requirements of a) mandatory consent of the minor to the marriage; b) counselling; and c) judicial inquiry and consent as pre-conditions for the granting of a license for the marriage of a minor (between 16 and under 18) will ensure that children are visible as a subject of rights, that their voices are heard, and that they have the considered protection of parents/guardians and the court in the making of the decision to get married under 18.

The judicial inquiry guarantees that the state can intervene, when necessary, to protect the rights of the child, including the right to agency having regard to evolving capacities.

  1. 3.      Increased Options for older adolescents

The data available shows that sexual expression, teenage pregnancy and teenage parenting are features of the lives of many adolescents in Trinidad and Tobago. This expression and its consequences are also shaped by limited access to sexual and reproductive health information and services. The Coalition has therefore in the past called for a legal and social policy approach based on a sound understanding of adolescent sexuality development so that young people are best prepared to make decisions, with the support of families, schools, health services and communities, which prepare them for secure, meaningful, productive and happy lives.

In addition to this call for a comprehensive and integrated adolescent sexual and reproductive health and rights policy, the Coalition is advocating for this exception to increase the ‘considered’ options open to young people who have strong cultural and/or religious points of view on the relationship between sexuality, reproduction and marriage. This would be consistent with a human rights based approach which seeks to ensure the agency of those sufficiently cognitively and emotionally mature. The judicial inquiry would allow an opportunity for the courts to consider the factors which are being taken into account by those minors proposing to be married between 16-18 years, including religious and culture considerations. 

Concerns over the Exception

The Attorney-General at the reading of the Bill in the Senate acknowledged that the Government had considered an exception to the minimum age of 18 allowing for the marriage of a minor with the consent of the child, parent and perhaps judicial consent. The Attorney General outlined that this option of the exception was rejected for the following reasons:

  1. It opens the legislation to possible challenge as in Tanzania where there was an exception below the age of majority for girls. This exception was struck down as unconstitutional as it demonstrated inequality of treatment for women.

Coalition response: The Tanzanian law struck down for unconstitutionality is distinguishable from the exception being advocated in Trinidad and Tobago which would apply for boys and girls in the same way.

  1. Such cases requiring judicial consent would over-burden the court system leading not only to increased costs for the state but also the likelihood, in any event, of delays in the hearing of matters. 

Coalition response: There would be costs associated with judicial inquiries. However  the available data on issuance of licenses since 1996 shows that marriages where the parties were both over 16 have been very few. Therefore it is not expected that the court and/or social services burden would be significantly increased or become onerous. Indeed, one may also expect that the requirement for judicial consent may also act as a moment for a constructive pause allowing minors to carefully consider the implications of early marriage.

  1. The exception would be inconsistent with age of majority and contractual ability; contract for a mortgage, or a car loan etc.

Coalition response: While this is the case, the Coalition is seeking this exception to bring some consistency with the Children’s Act which decriminalizes consensual, heterosexual penetrative sexual relations by persons who are between 16 and under 21 years with those who are no more than three years younger.

It is to be noted as well that marriage has an emancipatory effect, allowing married minors to enter into contractual relations.

Beyond these responses to the Attorney-General’s reservations, the Coalition is seeking consideration of this specific exception to the minimum age of marriage in recognition of the population diversity of Trinidad and Tobago as well as based on the data on sexual behaviour and reproductive experiences of minors.

The Coalition seeks to increase the options for young people who may have strong cultural or religious points of view on the relationship between sex, reproduction and marriage.

Finally there are many jurisdictions which provide for marriage by minor boys and girls alike at the age of 16 pursuant to judicial inquiry similar to what is being recommended by the Coalition. 

  • Caribbean Association for Feminist Research and Action (CAFRA)
  • CAISO
  • Coalition Against Domestic Violence (CADV)
  • Domestic Violence Survivors Reaching Out (DVSRO)
  • Down Syndrome Family Network
  • Family Planning Association of Trinidad and Tobago (FPATT)
  • Fire Circle!
  • Hindu Women’s Organisation (HWO)
  • Institute of Law and Academic Studies (ILAS)
  • Maloney Senior Activity Centre
  • Maloney Women’s Group
  • Mamatoto Resource and Birth Centre
  • Network of NGOs of Trinidad and Tobago for the Advancement of Women (Network)
  • Pink Diamond Society for Ladies Inc
  • Rape Crisis Society
  • Silver Lining Foundation
  • WOMANTRA
  • Women’s Caucus
  • Women’s Institute for Alternative Development (WINAD)
  • Women Working for Social Progress (Workingwomen)

May 1, 2017



[1] UN Committee on the Rights of the Child (CRC), General comment No. 20 (2016) on the implementation of the rights of the child during adolescence, 6 December 2016, CRC/C/GC/20

 

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