European Human Rights and Family LawPaperback
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- Publisher: Hart Publishing
- Format: Paperback | 482 pages
- Dimensions: 166mm x 232mm x 28mm | 821g
- Publication date: 27 April 2010
- Publication City/Country: Oxford
- ISBN 10: 184113175X
- ISBN 13: 9781841131757
- Edition statement: New ed.
- Illustrations note: black & white illustrations
- Sales rank: 753,352
This book examines the potential impact of human rights in the way the law interacts with families. Traditionally family law has been dominated by consequentialist/utilitarian themes. The most notable example of this occurs in the law relating to children and the employment of the "welfare principle". This requires the court to focus on the welfare of the child as the paramount consideration. Hitherto the courts and, to a certain extent, family law academics, have firmly rejected the use of the language of rights, preferring the discretion and child-centred focus of welfare. However, the incorporation of the European Convention on Human Rights via the Human Rights Act now requires family law to deal more clearly with the competing rights that family members can hold. In addition, it is clear that, to date, the courts have largely ignored or minimised the different demands that the HRA imposes on the judiciary and, in particular, judicial reasoning. This book challenges that view and suggests ways in which the family courts may improve their reasoning in this field. No longer can cases be dealt with on the basis of a simple utilitarian calculation of what is in the best interests of the child and other family members - greater transparency is required. The book clarifies the different rights that family members can hold and, in particular, identifies ways in which it may be possible to deal with the clash of rights between family members that will inevitably occur. Whether this requires an abandonment of the utilitarian nature of family law, or a reworking of it, is a theme that runs throughout the book.
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Shazia Choudhry is a Senior Lecturer in Law at Queen Mary College, University of London Jonathan Herring is a Professor of Law at Oxford University and a Fellow of Exeter College.
...this book is both thoughtful and thought-provoking. It stands as an original and valuable contribution to scholarship in this field. It is well-written and readily accessible, whilst also attending to the nuances of the argument(s) propounded. Whilst undoubtedly of benefit to academics working in and around family law (eg tort lawyers could benefit from the coverage of the public authority liability materials regarding care proceedings and the police), it should also certainly be recommended to students. I suspect too that the authors would very much like the judiciary to read and engage with the ideas within if indeed rights are to be brought 'home'. Caroline Jones Child and Family Law Quarterly Volume 24, No.4 As a one-stop reference for the law on human rights as it impacts on family law this book excells... [an] excellent book Geraldine Morris New Law Journal September 2010 The book's academic strength will, above all, appeal to legal experts and those navigating the complex cartography of jurisprudence in European family law. NDu Agence Europe March 2010
Table of contents
Chapter 1: An introduction to the ECHR Chapter 2: The concepts of rights and welfare Chapter 3: Parenthood and parental rights Chapter 4: Children's rights Chapter 5: Disputes over the child's upbringing Chapter 6: The private ordering of family disputes Chapter 7: Child Protection Chapter 8: Adoption Chapter 9: Domestic Violence Chapter 10: Marriage, Cohabitation and Civil Partnerships Chapter 11: Property Disputes between separating couples