This chapter, which focuses on English law, considers preference for adoption in some circumstances from a comparative law perspective, before comparing the treatment of adoption to that of other forms of care: parental care, kinship care, foster care, and institutional care. It argues that although adoption is the most satisfactory outcome for some children, it should not be considered a panacea. While a range of options is available for children in England whose parents encounter difficulties in looking after them, the government has a stronger preference for adoption than is the case in many other jurisdictions. I view this preference with a critical eye, given that it is likely to be “easier” than investing properly in foster care services and other forms of lesser intervention.
John R. Bowen
The anthropology of Islamic law is concerned centrally with observing and analyzing practices governed by explicit norms that are given Islamic justification, from commercial transactions to marriage and divorce to rituals of worship. This article traces the work of anthropologists in courtrooms and in informal social settings, and the process of developing collaborative relationships with text-based scholars. It highlights two recurrent tensions: one between “law” and the Islamic categories of shari‘a/fiqh/hukm, the other between emphasizing cultural distinctiveness and emphasizing cross-societal processes of interpreting and applying Islamic texts and tradition. Included in the treatment are shari‘a councils, fatwa bodies, mahr and marriage contracts, medical ethics, and realms of ‘ibadat.
The world of reproductive technology, including donor gametes and surrogacy, brings new challenges to identifying parents and respecting children’s rights. An intending parent—married or unmarried—is not necessarily the genetic contributor to the resulting child. And children have interests in knowing the identity of their genetic progenitors. This chapter focuses on whom the law recognizes as parents when a child has been created through assisted reproductive technology. While the chapter traces how intent has emerged as the critical factor in determining parentage, it also shows how intentional parenthood might sometimes be in tension with functional parenthood. The chapter provides a brief history of the technologies and their implications for parentage law and children’s rights to know their genetic origins. It also considers how the law might better adjust to changing technologies and family structures to produce outcomes that respect the child, rather than abstract concepts of equality—or even the parents’ interests.
Richard J. Gelles
This chapter examines the child protective system in the United States by first examining the scaffolding created by federal legislation and federal funding. Next, it reviews three significant Supreme Court decisions that bear on the operation of child protective service systems. Lastly, it examines the common process and flow of individual cases of child abuse and neglect from initial reporting, through investigation, service response, possible out-of-home placement, and finally decisions regarding when and why to close the case. The conclusion discusses the three core goals of the child protective service system: safety and wellbeing of children; permanency of caregiving; and family preservation.
Despite comprehensive international standards, children’s rights continue to be breached in juvenile justice systems around the world. This chapter suggests that conceptualizing children, autonomy, and—by extension—their rights as relational may improve rights protection for children who are in conflict with the law. It offers four justifications for a relational approach to juvenile justice—the descriptive, methodological, normative, and conceptual. The chapter then applies a relational framework to the specific context of juvenile justice rights in England and Wales and identifies three jurisprudential trends which, it suggests, indicate a partial shift by (some) courts towards a relational approach. However, there is still a considerable way to go before relationality goes beyond the superficial to become fully embedded as the basis for children’s rights in juvenile justice law. The chapter concludes by suggesting therefore, that as well as examining how the concept of autonomy is conceptualized in juvenile justice rights, we must also unpack and explore how the courts understand the concept of autonomy per se, if we are to achieve greater compliance with international rights standards.
Sara McLanahan, Kate Jaeger, and Kristin Catena
Families formed by unmarried parents increased dramatically in the United States during the latter half of the 20th century. To learn more about these families, a team of researchers at Princeton University and Columbia University designed and implemented a large birth cohort study—The Fragile Families and Child Wellbeing Study. This chapter highlights several findings from the study. First, most unmarried parents have “high hopes” for a future together at the time of their child’s birth; but their resources are low and most relationships do not last. Second, unmarried mothers experience high levels of partnership instability and family complexity, both of which are associated with lower-quality parenting and poorer child well-being. Finally, welfare state, child support and criminal justice policies play a large role in the lives of fragile families.
Patrick Parkinson and Judy Cashmore
This chapter explores the different ways that children can participate in custody and child protection cases. It is not only articulate older children and young people who ought to have an input into decisions. Children can “speak” in a variety of ways, and not only through words. To allow them to participate effectively, adults need to assist them through “scaffolding” their participation. Hearing the voice of the child also involves dilemmas. Children may not want to be involved for a variety of different reasons, some of which they may not feel free to disclose. The chapter concludes by offering four principles about how to hear from children in cases involving parenting arrangements.
This chapter focuses on children’s rights to religious freedom raised against state policies in state schools. It analyzes the distinction usually drawn between religious education (RE) courses and others. Most legal systems will allow non-denominational RE courses in state schools provided they are accompanied with rights to opt out. By contrast, purely “secular” courses will usually be mandatory. This chapter will argue that, assuming that rights to opt out legitimately accompany RE courses, they should also attach to secular courses on ethics and morality. On the contrary, religious and moral implications of scientific theories, such as evolutionary theories, should not give rise to exemption rights. In a second part, the chapter considers religious symbol cases, arguing that whether symbols are state endorsed or worn by pupils, courts should resist the temptation to ascribe unilateral meanings to symbols, but carry out instead a contextual assessment of their impact.
This chapter examines how (if at all) children’s right to privacy is concretely implemented in the legal realm. It considers children’s privacy when they are involved in legal proceedings, children’s privacy in schools, children’s online privacy, children’s involvement with media publicity, and children’s right to confidential medical advice and treatment. It also considers children’s privacy in their relationship with their parents, focusing on parents’ surveillance and monitoring of their children and parents’ use of social media in a manner that involves their children. Existing legal policies and rules across these contexts fail to carve out a space where children can be free from constant adult gaze and supervision. This chapter argues that there is insufficient research about children’s needs and interests in privacy, and where research does exist lawmakers fail to take notice of its findings; privacy theories are mainly adult-centered and cannot adequately be applied to children; and family law conceptions still focus on parental authority, and around the idea of “the family” as a unit.
Jens M. Scherpe
This chapter discusses family law in relation to comparative law. It first considers whether family law can be a subject fit for comparative study in a constantly changing world before describing various efforts aimed at introducing comparative perspectives into family law, both by individuals as well as by several key groups and institutions. It then examines ‘organic’ and ‘institutional’ harmonization of family law, along with the ‘great debates’ and future challenges with respect to comparative family law. In particular, it explores issues relating to horizontal family law (marriage, divorce, and property division; registered partnerships; cohabitation/de facto relationships) and vertical family law (parentage; paternity and maternity; parenthood; parental responsibility). The chapter also analyzes individual family law and concludes with an overview of family law’s move away from form towards function.
Vivian E. Hamilton
Adolescents are developmentally distinct from both children and fully mature adults in ways that are relevant to policymaking. This chapter discusses some of those developmental differences and shows how the decision-making context influences adolescent competence in different settings. Thus, depending on the nature of the decision and the context in which decision-making will occur, policies appropriately extend to adolescents the ability to exercise different rights at different ages. This chapter focuses on three areas of non-criminal regulation of adolescent life: voting, driving, and the purchase/consumption of alcohol.
This chapter discusses the tension over recent decades in child welfare policy in the United States between two conflicting value systems, one focusing on parent and group rights over children, and the other focusing on child rights to grow up with nurturing parental care. It describes the leading legal and policy movements that have promoted keeping children with the family of origin and in the racial, ethnic and national group of origin. It contrasts these with some laws and policies that have instead prioritized protecting children against abuse and neglect, and placing them with nurturing parents including in adoption. It situates domestic US child welfare policy debates within the larger international context.
William V. Fabricius
This chapter reviews several sources of evidence bearing on the question of whether equal parenting time with both parents is in the best interests of children of divorce. First, the scientific evidence consists of correlational findings that meet four conditions necessary for a causal role of parenting time: A legal context that constrains the possibility of self-selection; a “dose-response” association between parenting time and father-child relationships; positive outcomes when parents disagree and courts impose more parenting time; and negative outcomes when relocations separate fathers and children. Second, the cultural evidence is that norms about parenting roles have changed in the last generation, and this is reflected in public endorsement of equal parenting time. Third, test-case evidence comes from the 2013 equal parenting law in Arizona, which has been evaluated positively by the state’s family law professionals. Finally, examples from recent Canadian case law show courts responding to the new cultural norms by crafting individualized equal parenting time orders over one parent’s objections even in cases of high parent conflict, accompanied by well-reasoned judicial opinions about how that is in children’s best interests. The chapter concludes that the overall pattern of evidence indicates that legal presumptions of equal parenting time would help protect children’s emotional security with each of their divorced parents, and consequently would have a positive effect on public health in the form of reduced long-term stress-related mental and physical health problems among children of divorce.
Family law is largely an aggregation of instrumental legislation, designed to achieve specific social and political purposes. Unlike disciplines that take a legal concept as its starting-point — such as contract, trust, or restitution — family law tends to be more than usually susceptible to shifts in politics and social behaviour, and the complex interplay between the two. This means that a dominant theme of family law scholarship has been that of change and transformation. This article offers a brief history of these transformations in family law, and describes how change has been described and analysed. This historical narrative provides a framework for a discussion of the debates that have characterized the discipline in the latter part of the twentieth century.
Family laws concern relationships, belief, and values, and reflect the social diversities as well as a dynamic nature. This article analyses the relationship between family and the state that emerges at the juncture of the conformation of family dynamics to the social benchmark of codes. It opens up with the discussion of three central concerns of empirical work: the first two arise from demographic change reflected in marriage breakdown and its consequences for finance and parenting. The third strand deals with criminal law and is concerned with the protection of children from abuse and neglect. This article emphasizes the contribution of research to policy development and evaluation. It reviews the gaps in current empirical work with particular attention to the delivery of family justice through both traditional mechanisms and alternative methods of dispute resolution. Finally, it offers implications of the body of empirical work for the development of a theoretical framework for family justice.
Elizabeth S. Scott and Ben Chen
Family members bear primary responsibility for the care of dependent and vulnerable individuals in our society, and therefore family relationships are infused with fiduciary obligation. Most importantly, the legal relationship between parents and their minor children is best understood as one that is regulated by fiduciary principles. Husbands and wives relate to one another as equals under contemporary law, but this relationship as well is subject to duties of care and loyalty when either spouse is in a condition of dependency. Finally, if an adult is severely intellectually disabled or becomes incapacitated and in need of a guardian, a family member is often preferred to serve in this role. This chapter examines the application of fiduciary principles and doctrine to close family relationships. The chapter explains that while the parent-child and spousal relationships are governed by fiduciary principles and duties, enforcement of these duties (at least when family relationships are intact) is largely accomplished through informal bonding and monitoring mechanisms. In contrast, when family members become guardians of adult relatives, including elderly parents and disabled adult children, obligations are formally enforced under fiduciary law with minimal recognition of the family bond. The chapter examines the rationales for these contrasting approaches and questions whether adjustments are indicated. It concludes that modest relaxation of formal fiduciary obligations in the context of close family relationships might sometimes serve the interests of the incapacitated adult by supporting her relationship with the family guardian.
Francine T. Sherman
From the time the first US training school for girls was opened in 1856 to today, girls have been over-represented in the juvenile justice system for behaviors that stem from trauma, and the justice system has been used to promote a narrow and typical view of female gender-conforming behavior. This chapter examines the pathways girls and LGBTQ youth take into and through the juvenile justice system to show disparate impact on black girls, girls with child-welfare histories, girls who experience violence in their homes, girls with mental and behavioral health issues, and girls and LGBTQ youth who are victims of sex trafficking. In all these categories, best practices would reduce juvenile and criminal justice system involvement in favor of community-based, positive developmental solutions. Some of those more promising and evidence-based solutions are provided at the conclusion of the chapter.
Jill Duerr Berrick and Daniel Heimpel
This chapter examines federal child welfare policy in historical perspective with close attention to the financial inducements used to encourage state policy and practice. The authors show that rather than setting a single child welfare policy for all fifty states, the US approach relies heavily on the budgeting process as a mechanism for shaping the field. Examples include the structure for accepting and responding to child maltreatment referrals; the design of foster care services; the approach to reunification and permanency services; extension of foster care beyond age eighteen; and, most recently, adoption of foster care prevention services to reduce reliance on out-of-home care. The result is similar system goals across states, with ample opportunities for disparate system designs and likely different experiences for families.
The Incorporation of Shari‘a in North America: Enforcing the Mahr to Combat Women’s Poverty Post-relationship Dissolution
This article examines the shari‘a debate in North America, particularly the argument that shari‘a must be banned in Canada and the United States based on the belief that Islam is a threat to western culture and that Muslim men are dangerously sexist against women. It contends that the mahr or bridal gift, a key element of every Islamic marriage agreement, must be enforced in North America as a means to combat poverty among post-relationship dissolution women. The article begins by assessing false assumptions and myths about shari‘a law and its interaction with state law and policy. It then considers how US and Canadian courts have actually recognized the diverse desires of their Muslim citizenry, paying attention to various Muslim requests and shari‘a-based rules. It argues that an outright denial of the mahr as contrary to vague notions of public policy is unjust and contrary to longstanding American and Canadian traditions.
Jason P. Nance
This chapter discusses the intersection between schools and the criminal justice system, why this intersection has tightened in recent decades, and the negative consequences associated with this negative trend on individuals, families, and our nation. It also describes how marginalized student groups often suffer disproportionately from these negative trends, leading to further harm. Finally, it discusses initiatives that schools can adopt to promote safe learning environments without resorting to coercive policies that lead to more student involvement in the criminal justice system.