The Meaningful Participation and Complex Capacities of Children in Family Law

This paper explores the connection between articles within the United Nations Convention on the Rights of the Child and the participation and capacities of children. Though discussed in an abundance of literature, this article aims to analyse conceptually articles relating to the participation of children and expand upon the concept of a child’s capacity. The specific setting of custody and access proceedings will be considered throughout. Four critical articles, 3, 5, 9 and 12, within the Convention, will be examined thoroughly which emphasise the capacities, voices, views and best interests of children. These articles will be adequately considered in order to determine how the provisions actualise the participation of children in custody and access proceedings. A conceptual analysis of the aforementioned articles will be included to discuss concepts, definitions, language and critiques.

CHILD CUSTODY AND ACCESS DURING PANDEMIC: BEING IN THE LIMELIGHT

Covid-19 Pandemic has affected human life socially, economically, and politically where their movement and activities have been restricted. The well-being of family institutions is among the most important aspects that are significantly affected by the pandemic. Issues surrounding custody, visitation, and access over a child involving divorced or separated parents may invite disputes between parties if not amicably resolved. By using a qualitative analysis of library-based sources and interviews, this article attempts to highlight the issues relating to custody and access orders in response to the pandemics. It is found that the traditional court order on custody and access over a child remains enforceable until a variation order pertaining to the same has been made. Nevertheless, during the Movement and Control Order (MCO) or other administrative movement control such as the Enhanced Movement Control Order/Tightened Movement Control (EMCO/PKPD) and Targeted Enhanced Movement Control Order (TEMCO), where the operation of the court is limited or rather suspended, the existing orders seemed to be impractical to certain extent particularly in-person access or shared parenting time where the child will get time to be physical with the father and mother. In the end, recommendations are posted for the betterment of parties in facing the issue.

Book review: Cross-Border Family Mediation –International Parental Child Abduction -Custody and Access Cases (Second and updated edition)In co-operation with MiKK, 2014 Wolfgang Metzner Verlag, Frankfurt am Main Edited by: Christopher C Paul and Sybille Kiesesewetter. Contributors: Eberhard Carl, Mary Carroll, Martina Erb-Klunemann, Mohamed M Keshavjee, Krya Nehls, Hansjorg Schwartz, Jamie Walker and Felix Wendenburgh

People have always relocated across borders in order to explore different cultures and lands. People also depart their own country for many other reasons, such as conflict, war or lack of work opportunities and their emotional journey is a key factor in how they adapt.

The Co-Parental Divorce: Removing the Children from the Jurisdiction

The preservation of parenting rights in contested custody or access proceedings arising on the dissolution of marriage necessitates a judicial reconciliation or balancing of the competing interests of the children, the parents and members of any extended or reconstituted families. In C. v. C., (unreported, March 7, 1984, Ont. S.C.) the mother was held to the terms of a prior separation agreement and was ordered not to remove the children from the Province of Ontario without the father's consent or a further order of the court. In reaching this decision, the trial judge placed heavy reliance on the evidence of a mediator who had unsuccessfully attempted to resolve the differences between the parents and who was of the opinion that the children would be at risk if the mother proceeded with her plans to remarry and establish a new home for herself and the children in England. C. v. C. raises diverse fundamental issues concerning the legal resolution of parenting disputes on marriage breakdown or divorce. The following issues are addressed in the commentary of this judgment (reproduced in annex): 1. What significance, if any, does, and should, a court give to the express terms of a separation agreement? 2. If a mediator is retained, should the mediation process, including the mediator's evaluation, be “open” (i.e. subject to disclosure to the court) or “closed” (i.e. confidential and excluded from any evidence adduced in subsequent judicial proceedings)? 3. How can the best interests of the children — the legal criterion to be applied in the adjudication of parenting disputes — be reconciled with the best interests of other concerned family members? 4. Could, and should, the court have addressed the possibility of some alternative form of parenting arrangements that might accomodate the competing interests of all the affected parties? 5. To what extent can the courts legally fetter the freedom of a custodial parent to establish a new home for (i) herself (or himself) and (ii) the children? Some of these issues are specifically addressed in the unreported reasons for judgment. Others are ignored. The purpose of this commentary is to canvass these issues and point to the need for a family-oriented approach to the resolution of parenting disputes, rather than an individual rights approach, such as has been traditionally adhered to by the courts in the adjudication of custody and access disputes.

9. Private Child Law

This chapter looks at the law used to resolve disputes about where children should live, who they should have contact with, and other aspects of parental responsibility. The majority of such disputes are between two parents, but they can also involve grandparents, other relatives, or even people like friends and neighbours. The Children Act 1989 is the main piece of legislation for the regulation of disputes between parents. This Act was an ambitious and largely successful attempt to modernise, simplify, and improve the law. As part of this reform, the old orders of custody and access were scrapped, and the Act introduced parental responsibility to regulate parents' legal status, and a set of orders which were designed to only affect practical arrangement. The chapter concludes with a brief outline of the High Court's inherent jurisdiction.