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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.
4. Dutch Filiation Law.
The Human Rights Act 1998 provides, for the first time, for the enforcement of the European Convention on Human Rights against a public authority directly, through any level of the domestic courts. Several Articles of the European Convention have been specifically drafted to deal with the rights of the family. Implementation of the Act will throw up a number of important issues for family lawyers, who must understand the scope of the Act or risk exposure to possible negligence claims. Family Law and the Human Rights Act 1998 explains the family-law related aspects of the Act and assesses the implications of the Act to family lawyers.
The Present and Future of European Family Law explores the essence of European family law – and what its future may be. It compares and analyses existing laws and court decisions, identifies trends in legislation and jurisprudence, and also forecasts (and in some cases proposes) future developments. It establishes that while there is, at present, no comprehensive European family law, elements of an ‘institutional European family law’ have been created through decisions by the European Court on Human Rights and by the Court of Justice of the European Union as well as other EU instruments. At the same time an ‘organic European family law’ is beginning to emerge. The laws in many European jurisdictions have developed similarly and have ‘grown together’, not only as a result of the aforementioned institutional pressures, but also as a result of societal developments, and comparable reactions to medical and societal advances and changes. Hence there already is a body of institutional and organic European family law, and it will continue to grow. This book, and the others in the set, will serve as an invaluable resource for anyone interested in family law. It will be of particular use to students and scholars of comparative and international family law, as well as family law practitioners.
Is the unification and harmonisation of (international) family law in Europe necessary? Is it feasible, desirable and possible? Reading the different contributions to this book may certainly inspire those who would like to find the right answers to these questions.
This book is a systematic commentary on half a century of case law on the Convention system made by a group of legal experts from various universities and legal disciplines. It provides a guide of the rights protected under ECHR as well as a better understanding, open to supranational scenarios, of fundamental rights in the respective Constitutions. Our intention is not only to make available a mere case law commentary. This work indeed offers succinct information on the most consolidated lines of case law and this is probably where it is most useful. Nevertheless there is also academic reflection, which we believe is nowadays essential as Europe is becoming more than a continent: it is, above all, a civilisation, with a common language of rights, a developing ius commune.
This book,written by a team of academics, judges and distinguished practitioners from the UK and abroad discusses the implications of the incorporation of the ECHR into Scots law. The contributors consider the impact of the Human Rights Act in light of the new constitutional settlement for Scotland and their experiences of other rights regimes in Europe, the Commonwealth, and the United States. The contributions span the fields of Private, Public, European Community and Comparative law and draw on human rights law and practice in the UK, the European Community, Canada, New Zealand, South Africa, the United States and Sweden, where the ECHR was recently incorporated. Topics include: analyses of the Human Rights Act and Scotland Act; human rights and the law of crime, property, employment, family and private life; Scottish court practice and procedure; Scots law and the European dimension; and building a rights culture in Scotland.
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