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.
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 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.
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.
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.
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.
Antonia Fraser Fujinaga
This article examines Islamic law in post-revolutionary Iran, with particular emphasis on areas where Islamic and Iranian law intersect. Before discussing the various manifestations of Islam in Iran, it traces the history of Iran’s adoption of Islamized laws. It then turns to the nature and history of the post-revolutionary Iranian constitution and constitutional law, along with the efforts of Iranian Islamic reformists and thinkers to conceptualize Islam so as to accommodate popular representation and adaptability to changing social and cultural preferences. It also considers the relationship between conformity to Shi‘a law (and/or its governmentally endorsed interpretations) on the one hand, and the exigencies of a modern state—including some responsiveness to popular and parliamentary demands for legal reform—on the other. Finally, the article looks at various areas where Islamic law intersects with Iranian law.
This article is divided into three parts. The first part provides a short overview of the history of Islamic law in Western Europe. The second part explains in some detail the different legal levels for the application of Islamic law in Western Europe (private international law; optional substantive law; implementation of Islamic norms; alternative dispute resolution), and describes the scope and limits of such application. The third part contains a brief introduction to the legal aspects of Islamic religious practice in the region, followed by a description of contemporary trends regarding the interpretation and handling of shari‘a norms among Muslims in Western Europe.
After providing background on the law of marriage in the United States, this article examines the numerous religious exemptions—solemnization exemptions, religious-organization exemptions, commercial exemptions, Religious Freedom Restoration Act exemptions, the ministerial-exception exemption, and tax exemptions—that are currently in effect or proposed for American marriage laws. Although these exemptions are usually proposed in the name of religious liberty, over the long run their number, scope, and breadth threaten the religious neutrality that the First Amendment of the U.S. Constitution requires. Solemnization exemptions control which clergy and which government officials are allowed by states to perform marriages. Religious organization exemptions free some institutions from holding marriages they find exceptionable. Commercial exemptions threaten many limits to same-sex marriages. RFRA, ministerial exception, and tax exemptions also pose risks to equal celebration of same and opposite sex marriages.
This chapter explores the impact of technology on parenthood. It draws out some of the themes raised by the genetic enhancement debate, arguing that they reflect some of the current themes in contemporary parenthood. Particularly pertinent is the phenomenon of hyper-parenting, which itself often relies on technology to enable surveillance of children. It is argued that this practice reflects the political and popular rhetoric around conceptions of parental responsibility, which has been picked up and reinforced in the law. The chapter concludes by arguing against an overemphasis on the power that parents have over children to train them to be good citizens and argues for a relational vision of parenthood, recognizing also the power that children have over adults and the way that children can shape parents.
Sheila A.M. McLean
Both at national and international level, the right to reproduce and form a family has considerable personal and social implications. The policies that underpin the regulatory approach in this area need careful consideration for their supporting values and principles. While regulation of reproductive decisions may be direct or indirect, it is virtually universal. Reflection on the importance of the decision whether or not to reproduce, irrespective of the sophistication (or not) of the techniques used to effect it, demands attention to the human rights guaranteed by national laws and international agreements. This remains the case whether or not the decision concerns an individual, a couple, or a nation. Thus, both individual reproductive choices and policies on population control must be measured against human rights norms. As regulation is generally based on policy decisions, it is also important to explore how policy is made and the assumptions that underpin it.
Katharine K. Baker
This chapter explores the contemporary relevance of genetic connection to legal parental status. After briefly explaining the legal origins of the link between genetic and legal parenthood—mostly through paternity law—the chapter analyzes the U.S. Supreme Court’s dance with the constitutional relevance of genetic connection to legal parenthood. Although the Supreme Court was eager to dispense with marriage as the sole arbiter of legal parenthood, it was unwilling to embrace genetics as a complete substitute. Instead the Court suggested that genetics must sometimes be relevant to legal parenthood, without giving any clear guidelines on when or why. The absence of any guidelines is particularly relevant in the United States today because 40 percent of children are born to unmarried mothers and, thus, usually have a father identified through a regulatory mechanism rooted mostly in genetics. The men identified as legal fathers in this way, while often desirous of being good fathers, are often—through no fault of their own—unable to provide either financially or emotionally for their children. Attempts to bolster the legal rights and parenting opportunities of these men often expect the law to do what it cannot: force two people (in this case, the genetic parents) to trust and cooperate with each other. This chapter thus raises the question of whether the link between genetic and legal parenthood still serves any useful purpose. The best solution for children may be for the law to grow more comfortable with the legitimacy of single parenthood.
Marcia Robinson Lowry
Child welfare has changed in some superficial ways over the years but key problems remain. The foster care population is once again rising, and most states fall far short of meeting even lax federal standards. States seem to have short attention spans to address these problems, reacting to the inevitable abuse- or neglect-related deaths of children with calls for more “preventive” services, while many such services are often inadequate, unproven, and not individualized. Rather than tolerating systemic problems—such as the shortage of meaningful services, high worker caseloads, and low numbers of foster homes, particularly adequate ones—many states continue to seek to reduce their in-care populations, leaving children with neither foster care nor necessary services. Litigation on behalf of children can change that, or at least move things forward. Marcia Robinson Lowry, a long-time child advocate engaged in many landmark child welfare lawsuits, surveys the current landscape from the vantage point of years seeking to reform child welfare systems, points out the advantages to this litigation, and urges more common sense approaches to delivering what children need.