scholarly journals Who Determines Children's Best Interests?

1999 ◽  
Vol 17 (2) ◽  
pp. 309-314
Author(s):  
Michael Grossberg

Danaya Wright's analysis of English child custody law is thoughtful and thought provoking. Through an excursion deep into English legal history, she not only contextualizes the De Manneville case but also convincingly demonstrates that child custody has long been contested and that those contests have always contained an incendiary mix of policies and practices. Wright's article documents that the key elements of custody conflicts—property, children's needs, and paternal and maternal rights and claims—have distinct and collective histories and that both defy easy analysis. In doing so, her essay makes it clear that these cases have always been difficult because they involve changing and clashing interests and because common law tribunals are the setting for their definition and application. Consequently, her essay is a compelling example of the benefits of locating a case in its particular place and time.

1987 ◽  
Vol 17 (4) ◽  
pp. 127-130 ◽  
Author(s):  
E.A.A. Lambiase ◽  
J.W. Cumes

Close scrutiny of legal precedents and psychological literature has revealed significant differences in the views of legal and mental health professionals regarding the major criteria used in custody decisions. This article carries the investigation further and considers empirically the responses to the criteria of these two groups of professionals in South Africa. Findings show subtle but significant differences between them, particularly with regard to the ‘child’ dimension of the ‘best interests’ concept. The implications for mental health professionals in their evaluation of custody cases, and in their giving of testimony, are underscored.


2018 ◽  
Vol 25 (1) ◽  
pp. 98
Author(s):  
Farihan Aulia ◽  
Sholahuddin Al-Fatih

The legal system or commonly referred to as the legal tradition, has a wealth of scientific treasures that can be examined in more depth through a holistic and comprehensive comparative process. Exactly, the comparison of the legal system must accommodate at least three legal systems that are widely used by countries in the world today. The three legal systems are the Continental European legal system, Anglo American and Islamic Law. The comparative study of the three types of legal systems found that the history of the Continental European legal system is divided into 6 phases, while Anglo American legal history began in the feudalistic era of England until it developed into America and continues to be studied until now. Meanwhile, the history of Islamic law is divided into 5 phases, starting from the Phase of the Prophet Muhammad to the Resurrection Phase (19th century until nowadays). In addition to history, the authors find that the Continental European legal system has the characteristic of anti-formalism thinking, while the Anglo American legal thinking characteristic tends to be formalism and is based on a relatively primitive mindset. While the thinking character of Islamic Law is much influenced by the thought of the fuqoha (fiqh experts) in determining the law to solve a problem, so relatively dynamic and moderate.


Legalities ◽  
2021 ◽  
Vol 1 (2) ◽  
pp. 187-209
Author(s):  
Man-chung Chiu

Since 2005, the Hong Kong Government has proposed to replace the concept of ‘parental rights’ with ‘parental responsibility’ in the legal machine controlling and regulating child custody in divorce cases. However, it has again reduced ‘children’ to a powerless position, arguing that it can positively protect the ‘best interests’ of children. In this article, the author suggests that only by de-ageing law can the unequal power relationship between children and adults be challenged, and hence, can – and will – children’s views and subjectivity be respected and constituted in family law proceedings.


2021 ◽  
pp. 29-63
Author(s):  
Marie Seong-Hak Kim

The idea of the dynamic movement of law—diffusion of legal institutions, rules, and culture—is deeply embedded in European legal history since antiquity. All the while, a potent spirit of local custom has sustained national history, forming an equally integral part of Europe’s legal tradition. This chapter examines the sources of law in late medieval France and the doctrine of custom. It also discusses the growth of royal justice and the relationship between private law and political power. An overview of major historiographical debates concerning the theory and nature of custom sheds light on the question as to whether the notion of common law (droit commun) emerged autonomously in France or only after custom was written down on the model of Roman law as jus commune.


2021 ◽  
pp. 37-58
Author(s):  
Jo Samanta ◽  
Ash Samanta

This chapter deals with consent as a necessary precondition for medical treatment of competent adults. It provides an overview of the common law basis of the Mental Capacity Act 2005, followed by discussion of issues relating to information disclosure, public policy, and the key case of Montgomery and how this applies to more recent cases. It considers the statutory provisions for adults who lack capacity, exceptions to the requirement to treat patients who lack capacity in their best interests, and consent involving children under the Children Act 1989. Gillick competence, a concept applied to determine whether a child may give consent, is also explained. Relevant case law, including Gillick, which gave rise to the concept, are cited where appropriate.


Childhood ◽  
2011 ◽  
Vol 18 (4) ◽  
pp. 526-539 ◽  
Author(s):  
Niina Rutanen

In Finland, the policies and practices in early childhood education and care (ECEC) have been characterized by a division into practices and forms of care for children under and over 3 years old. This study analyses the construction of space in the national and local level curricula for the very youngest children. These documents both present ‘child’s best interests’ as age-related, and generalize and distinguish the needs and abilities of the ‘younger’ and the ‘older’ children. At the local level, the space offered for the youngest children is linked to the emphasis on the daycare group as a community of social actors; the youngest ones are seen as inexperienced newcomers, faced with adaptation to the group and its rules.


2005 ◽  
Vol 48 (1) ◽  
pp. 295-303 ◽  
Author(s):  
MARGOT C. FINN

The common law tradition: lawyers, books and the law. By J. H. Baker. London: Hambledon, 2000. Pp. xxxiv+404. ISBN 1-85285-181-3. £40.00.Lawyers, litigation and English society since 1450. By Christopher W. Brooks. London: Hambledon, 1998. Pp. x+274. ISBN 1-85285-156-2. £40.00.Professors of the law: barristers and English legal culture in the eighteenth century. By David Lemmings. Oxford: Oxford University Press, 2000. Pp. xiv+399. ISBN 0-19-820721-2. £50.00.Industrializing English law: entrepreneurship and business organization, 1720–1844. By Ron Harris. Cambridge: Cambridge University Press, 2000. Pp. xvi+331. ISBN 0-521-66275-3. £37.50.Between law and custom: ‘high’ and ‘low’ legal cultures in the lands of the British Diaspora – the United States, Canada, Australia, and New Zealand, 1600–1900. By Peter Karsten. Cambridge: Cambridge University Press, 2002. Pp. xvi+560. ISBN 0-521-79283-5. £70.00.The past few decades have witnessed a welcome expansion in historians' understanding of English legal cultures, a development that has extended the reach of legal history far beyond the boundaries circumscribed by the Inns of Court, the central tribunals of Westminster, and the periodic provincial circuits of their judges, barristers, and attorneys. The publication of J. G. A. Pocock's classic study, The ancient constitution and the feudal law, in 1957 laid essential foundations for this expansion by underlining the centrality of legal culture to wider political and intellectual developments in the early modern period. Recent years have seen social historians elaborate further upon the purchase exercised by legal norms outside the courtroom. Criminal law was initially at the vanguard of this historiographical trend, and developments in this field continue to revise and enrich our understanding of the law's pervasive reach in British culture. But civil litigation – most notably disputes over contracts and debts – now occupies an increasingly prominent position within the social history of the law. Law's empire, denoting the area of dominion marked out by the myriad legal cultures that emanated both from parliamentary statutes and English courts, is now a far more capacious field of study than an earlier generation of legal scholars could imagine. Without superseding the need for continued attention to established lines of legal history, the mapping of this imperial terrain has underscored the imperative for new approaches to legal culture that emphasize plurality and dislocation rather than the presumed coherence of the common law.


Author(s):  
Lawrence Schäfer

AbstractThe Roman-Dutch doctrine of parental authority differed markedly from the parallel doctrine in English common law, particularly in relation to the balance of power between parents and generally in relation to illegitimate children. This paper traces the judicial development of the Roman-Dutch doctrine by the South African courts and focuses on two important turning points, at which the unnecessary adoption of principles of English law resulted in a departure from Roman-Dutch principles. The product of this judicial development was a doctrine of parental authority that differentiated sharply between legitimate and illegitimate children, and greatly impeded the capacity of judges to apply the 'best interests' principle in disputes concerning the latter.


Sign in / Sign up

Export Citation Format

Share Document