European Human Rights and Family Law

by Shazia Choudhry, Jonathan Herring

Overview

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.

Product Details

ISBN-13:	9781841131757
Publisher:	Bloomsbury Academic
Publication date:	04/27/2010
Pages:	480
Product dimensions:	6.14(w) x 9.21(h) x 0.97(d)

About the Author

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.

Table of Contents

Foreword v

Acknowledgements viii

Abbreviations xii

Table of Cases xiii

Table of Legislation xxix

Table of Conventions, Treaties, etc xxxvi

1 The European Convention on Human Rights and Family Law 1

An Introduction to the General Structure of the Convention Articles 1

The Relationship Between the Margin of Appreciation and Proportionality 26

2 The Human Rights Act: Scheme, Principles and Implementation 35

Section 2: Taking Strasbourg Jurisprudence into Account 38

Section 3: Statutory Interpretation under the HRA 44

Section 6-The Meaning of Public Authorities 54

Contracting out Services-the Significance for the Family and Family Law 65

Proportionality, Judicial Review and Deference 71

Deference, Discretionary Areas of Judgment and the Margin of Appreciation 76

Deference and Proportionality in the Context of Family Law 80

Proportionality and the Clash of Rights within Disputes Concerning Private Individuals 91

The Clash of Individual Article 8 Rights-the Children Act as a Case Study 94

Conclusion 96

3 Human Rights in Family Law 97

Introduction 97

Rights: Definitions and Understandings 98

What is a Right? 98

Hohfeld and Rights 100

Rights and Duties 100

Will v Interest Theory 102

Rights and Utilitarianism 103

What Is a Human Right? 106

The Benefits of a Rights-based Approach 108

Problems with a Human Rights Approach 114

Alternatives to Rights: Ethics of Care 122

Children and Rights 127

Conclusions 138

4 Marriage 140

Article 12 140

Transgender Persons 142

Same-sex Marriage 148

Restrictions upon the Right to Marry 155

The Role of Marriage in Creating 'Family Life' Under Article 8 167

5 Parenthood and Parental Rights: Intention, Family Life and the Parent 170

Fatherhood 171

Motherhood 198

Parents and Respect for Family Life 205

Parental Rights and Responsibility 206

6 Children's Rights 221

Children's Rights under the ECHR 221

United Nations Convention on the Rights of the Child 225

Children's Rights under the Children Act 1989 227

Balancing Children's Rights and Adults' Rights 232

Children's Rights and Corporal Punishment 237

Access to Courts 239

Conclusions 241

7 Private Law Children Cases: A Rights Perspective 242

Introduction 242

Contact and the ECHR 243

The English Courts' Approach to Contact 254

Application of the ECHR Principles to English Law 261

Grandparents and Other Relatives 270

Religious Issues 276

Relocation 282

Conclusion 285

8 Human Rights and Child Protection 286

Introduction 286

Children's Rights to Protection from Abuse 287

When a Local Authority May Take a Child into Care 299

Procedural Rights in Child Protection Law 309

Contact with Children in Care 316

Liability of the Local Authority where it wrongly Intervenes 318

Secure Accommodation Orders 323

Adoption and the Human Rights Act 323

Conclusion 339

9 Domestic Violence: The Extent of the Problem and the Recognition and Use of a Human Rights Discourse 342

Current Responses and Issues Concerning Domestic Violence in the UK 346

The Impact of the European Convention on Human Rights and the Human Rights Act 1998-the Right to Protection from Violence 348

Conclusions on the Right to Protection from Violence 394

10 Financial Disputes and Human Rights 396

Ancillary Relief 396

Child Support Issues 411

Property Rights and Unmarried Couples 417

Inheritance 423

Conclusion 426

11 Concluding Thoughts 427

The Importance of Recognising Rights in Family Law 427

Summary of the Chapters 428

Issues Outstanding 432

Looking Backwards and Forwards 433

Conclusion 435

Index 436

Editorial Reviews

"...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'." --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" --New Law Journal

"The book's academic strength will, above all, appeal to legal experts and those navigating the complex cartography of jurisprudence in European family law." --Agence Europe

From the Publisher