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European Human Rights and Family Law - Shazia Choudhry

European Human Rights and Family Law

Paperback Published: 27th April 2010
ISBN: 9781841131757
Number Of Pages: 482

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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 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 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 inevitable 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.

Shazia Choudhry is a Senior Lecturer in Law at Queen Mary College, University of London.

Jonathan Herring is a Fellow at Exeter College, Oxford and Lecturer in Law at Oxford University.

As a one-stop reference for the law on human rights as it impacts on family law this book excells... [an] excellent book Geraldine Morris New Law Journal September 2010 The book's academic strength will, above all, appeal to legal experts and those navigating the complex cartography of jurisprudence in European family law. NDu Agence Europe March 2010

Forewordp. v
Acknowledgementsp. viii
Abbreviationsp. xii
Table of Casesp. xiii
Table of Legislationp. xxix
Table of Conventions, Treaties, etcp. xxxvi
The European Convention on Human Rights and Family Lawp. 1
An Introduction to the General Structure of the Convention Articlesp. 1
The Relationship Between the Margin of Appreciation and Proportionalityp. 26
The Human Rights Act: Scheme, Principles and Implementationp. 35
Section 2: Taking Strasbourg Jurisprudence into Accountp. 38
Section 3: Statutory Interpretation under the HRAp. 44
Section 6-The Meaning of Public Authoritiesp. 54
Contracting out Services-the Significance for the Family and Family Lawp. 65
Proportionality, Judicial Review and Deferencep. 71
Deference, Discretionary Areas of Judgment and the Margin of Appreciationp. 76
Deference and Proportionality in the Context of Family Lawp. 80
Proportionality and the Clash of Rights within Disputes Concerning Private Individualsp. 91
The Clash of Individual Article 8 Rights-the Children Act as a Case Studyp. 94
Conclusionp. 96
Human Rights in Family Lawp. 97
Introductionp. 97
Rights: Definitions and Understandingsp. 98
What is a Right?p. 98
Hohfeld and Rightsp. 100
Rights and Dutiesp. 100
Will v Interest Theoryp. 102
Rights and Utilitarianismp. 103
What Is a Human Right?p. 106
The Benefits of a Rights-based Approachp. 108
Problems with a Human Rights Approachp. 114
Alternatives to Rights: Ethics of Carep. 122
Children and Rightsp. 127
Conclusionsp. 138
Marriagep. 140
Article 12p. 140
Transgender Personsp. 142
Same-sex Marriagep. 148
Restrictions upon the Right to Marryp. 155
The Role of Marriage in Creating 'Family Life' Under Article 8p. 167
Parenthood and Parental Rights: Intention, Family Life and the Parentp. 170
Fatherhoodp. 171
Motherhoodp. 198
Parents and Respect for Family Lifep. 205
Parental Rights and Responsibilityp. 206
Children's Rightsp. 221
Children's Rights under the ECHRp. 221
United Nations Convention on the Rights of the Childp. 225
Children's Rights under the Children Act 1989p. 227
Balancing Children's Rights and Adults' Rightsp. 232
Children's Rights and Corporal Punishmentp. 237
Access to Courtsp. 239
Conclusionsp. 241
Private Law Children Cases: A Rights Perspectivep. 242
Introductionp. 242
Contact and the ECHRp. 243
The English Courts' Approach to Contactp. 254
Application of the ECHR Principles to English Lawp. 261
Grandparents and Other Relativesp. 270
Religious Issuesp. 276
Relocationp. 282
Conclusionp. 285
Human Rights and Child Protectionp. 286
Introductionp. 286
Children's Rights to Protection from Abusep. 287
When a Local Authority May Take a Child into Carep. 299
Procedural Rights in Child Protection Lawp. 309
Contact with Children in Carep. 316
Liability of the Local Authority where it wrongly Intervenesp. 318
Secure Accommodation Ordersp. 323
Adoption and the Human Rights Actp. 323
Conclusionp. 339
Domestic Violence: The Extent of the Problem and the Recognition and Use of a Human Rights Discoursep. 342
Current Responses and Issues Concerning Domestic Violence in the UKp. 346
The Impact of the European Convention on Human Rights and the Human Rights Act 1998-the Right to Protection from Violencep. 348
Conclusions on the Right to Protection from Violencep. 394
Financial Disputes and Human Rightsp. 396
Ancillary Reliefp. 396
Child Support Issuesp. 411
Property Rights and Unmarried Couplesp. 417
Inheritancep. 423
Conclusionp. 426
Concluding Thoughtsp. 427
The Importance of Recognising Rights in Family Lawp. 427
Summary of the Chaptersp. 428
Issues Outstandingp. 432
Looking Backwards and Forwardsp. 433
Conclusionp. 435
Indexp. 436
Table of Contents provided by Ingram. All Rights Reserved.

ISBN: 9781841131757
ISBN-10: 184113175X
Audience: Professional
Format: Paperback
Language: English
Number Of Pages: 482
Published: 27th April 2010
Publisher: Bloomsbury Publishing
Country of Publication: GB
Dimensions (cm): 23.4 x 15.6  x 2.4
Weight (kg): 0.67
Edition Number: 1