International Journal of Law, Policy and the Family - current issue

The Best Interest of The Child as an Argument in Assessments of Parent Potential in Sweden

Lind, J. — 2008-03-13

This article examines the ways in which the best interest of the child has been used as an argument for state-authorized assessments of persons who are aspiring to parenthood, but who are not yet parents, i.e. of parent potential rather than parental performance. The policies included in the analysis concern three different areas in which assessment of parental potential is made: adoption, assisted reproduction and presumptive parents with intellectual disabilities. The status of the best interest of the child as an argument for state-authorized assessments of parent potential, I argue, varies with the amount of involvement from state authorities that is needed in the process of creating a family. The state claims the right to assess the parent potential of individuals only when it contributes to the creation of families in which there are no or only partial biogenetic links between parents and child. This does not mean that the state does not aim to encourage women who belong to what is perceived as a risk group to refrain from having children. The argument used in this effort, however, is not the best interest of the child, but the best interest of the woman herself.

Obligations Between Adult Partners: Moving From Form to Function?

Glennon, L. — 2008-03-13

It was observed at the end of the twentieth-century that in relation to family law policy in the UK, the ‘parent-child relationship was the only clearly ascertainable family relationship to which legal consequences can be attached’ and it was predicted that relational obligations between adult partners would become individually negotiable. Some considered that while parenthood would remain subject to normative obligations, the legal position of married and unmarried couples would be equated via the gradual de-regulation of marriage through increasing the capacity of adults to define the terms of their own relationships. However, recent policy and practice-based developments reveal a different picture. The purpose of this article is to consider the interaction between these mutually informing discourses and to suggest that rather than developing a more function-based approach to the imposition of intra-familial obligations, relationship status continues to carry determinative weight. Particular attention will be paid to evolving jurisprudence in the ancillary relief context which has given the fact of marriage, by itself, greater distributive consequences on divorce. It will be argued that contrary to predictions at the end of the twentieth century, the regulatory gap between married and unmarried relationships is becoming wider, and that obligations between parents which are created by the ‘joint parenting exercise’ are being confined, in both arenas, to remedial awards based upon the disadvantaged economic position of the primary caregiver.

Family, Social Inequalities, and the Persuasive Force of Interpersonal Obligation

Ferguson, L. — 2008-03-13

To date, the privatization of the costs of social inequalities for women and children has been criticized predominantly from a policy perspective. This article seeks to make a stronger case against remedying social inequalities through private law obligations by addressing the theoretical difficulties with such privatization with a particular focus on familial obligations. I take my core examples from the current Canadian understanding of the spousal and child support obligations.

My analysis proposes and proceeds on the basis of a new discourse for obligations traditionally grouped together as "Family Law" obligations: first, interpersonal obligations, which arise from and tie together two citizens through either a single interaction or through their relationship as a whole; second, social obligations, which are owed by the community as a whole to individual citizens.

I argue that the persuasive force of the focus on an individual's responsibility for another's financial need has obscured the reality of the state's obligation, the broader social obligation, to respond to this need. I conclude with a discussion of the consequences of my analysis for the future of the spousal and child support obligations. If we deny an expanded role to these support obligations, can we do so in a way that avoids leaving the impoverished in an even more precarious position?

Trends in Non-Muslim Divorces in Singapore

Chan, W.-C. — 2008-03-13

This article examines the trends and patterns in the way the secular divorce law has been utilized by couples in Singapore seeking to end their marriage. Social and demographic features of the divorcing couples, as well as the ‘fact’ relied on in support of their divorce petitions, are studied and compared to earlier analyses. It is found that while some patterns observed by earlier researchers have remained intact, others have changed. This article suggests explanations for these observed patterns and contributes to the discussion on whether and how the divorce law can be improved in Singapore and elsewhere.

Choice of Law in International Child Support Obligations: Hague or Vague, and Does it Matter?- An American Perspective

Rosettenstein, D. S. — 2008-03-13

This article explores, through American eyes, the choice of law rules associated with the child support aspects of the proposed Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. It considers the role these rules play in capturing the "construct" that is the "family" for the purposes of child support by implicitly determining who is an acceptable claimant and who is an appropriate obligor. In addition, the rules determine which jurisdiction's law will establish the amount of support and thus, implicitly, they determine which jurisdiction sets the standards for family "performance". American constitutional law demands a connection between the individual to be burdened and the jurisdiction imposing that burden. The proposed rules seem designed to take this into account, but doing so requires the scheme to abandon a preference for relying on the law of the creditor's habitual residence. American child support proceedings use pre-established guidelines to determine the amount of any child support award. These guidelines, which are premised on economic conditions in the individual states, are not suited to dealing with international disputes. The cases suggest that American courts are reluctant to abandon the efficiency of the guidelines in favor of detailed fact based analysis, even if the result is an "inappropriate" order – certainty comes at a price.

Children's Rights to Representation: A Comparison Between Sweden and England

Ryrstedt, E., Mattsson, T. — 2008-03-13

In both England and in Sweden, the approach to a child's right to representation differs between public law cases and private law cases regarding legal custody/parental responsibility, residence or contact. This article discusses the basis for this distinction, and how far it accords with the best interests of the child.