JournalTOCs

International Journal of Law, Policy and the Family
Journal Prestige (SJR): 0.223

Citation Impact (citeScore): 1
Number of Followers: 23

Hybrid journal (It can contain Open Access articles)
ISSN (Print) 1360-9939 - ISSN (Online) 1464-3707
Published by Oxford University Press

[413 journals]

The Best Interests of the Child Principle in Residence Disputes after
Parental Divorce in China
- Authors: Xia J.
  Pages: 105 - 125
  Abstract: AbstractThis article analyses how the best interests of the child principle have been implemented in residence disputes following a parental divorce in China. In doing so, it will analyse the Chinese Marriage Law 2001 and the Specific Opinions on Child-upbringing Issues after Parental Divorce, drawing on an empirical study conducted by the author involving 300 litigated cases over residence disputes in courts. This study shows that the continuity of circumstances and the abilities of each of the parents are used as the primary and secondary criteria for residence judgments, respectively. And it appears that Chinese judges prefer certain easily ascertainable factors, eg parents’ financial ability and the continuity of circumstances, to other internally emotional factors, eg children’s emotional needs and attachments. In addition, a considerable number (69 per cent) of the judges tend to simplify the decision-making process by only considering a single factor alone, or even no specific factor. In view of this, several legislative proposals for the statutory provision of residence disputes in the forthcoming Chinese Civil Code are put forward.
  PubDate: Tue, 04 Aug 2020 00:00:00 GMT
  DOI: 10.1093/lawfam/ebaa001
  Issue No: Vol. 34, No. 2 (2020)
Reactive Law or Conservative Law' The Reform of Divorce Procedure in
China
- Authors: Shi L.
  Pages: 126 - 144
  Abstract: AbstractA marriage can be terminated in two ways in China, by registration or by litigation. Recently, China’s crude divorce rate has been gradually rising. Reforms are being carried out by the judiciary by introducing more supportive measures in divorce litigation. The legislature is writing drafts of the marriage and family part in the Civil Code. In the third draft, proposed articles would change the law on divorce slightly. These reforms reflect some trends in the development of Chinese family law. With respect to some debates on these reforms, the author suggests there could be a better way to draw up drafts. At the level of the judiciary, the present family justice reform has its advantages, and this bottom-up reform should be adhered to.
  PubDate: Wed, 26 Aug 2020 00:00:00 GMT
  DOI: 10.1093/lawfam/ebaa002
  Issue No: Vol. 34, No. 2 (2020)
The Reporting of Child Abuse and Neglect in Ireland in an International
Context
- Authors: Hanly C.
  Pages: 145 - 167
  Abstract: AbstractStarting in the early 1990s, reports published over a quarter of a century detailed shocking levels of child abuse and child neglect in Ireland, along with failures by Church and State officials to take effective action. These revelations, supported by international research, made a compelling case for the introduction of some form of mandatory reporting. Yet until 2015, Ireland’s child protection system relied upon the discretion of those who suspected incidents of child abuse. The Children First Act 2015 introduced a new system of mandatory reporting that applies to professionals working in the health, education, childcare and law enforcement fields, a system that became active at the end of 2017. This article reviews the development of the reporting system in Ireland, and analyses the new obligations created by the 2015 Act. The article also analyses some initial figures for 2018, which show a substantial increase in the number of reports of child abuse and neglect made in that year. Additionally, the article argues for the insertion into the new system of some nuance in order that victim autonomy might be better respected.
  PubDate: Sun, 20 Sep 2020 00:00:00 GMT
  DOI: 10.1093/lawfam/ebaa003
  Issue No: Vol. 34, No. 2 (2020)
Marriage: A Get Out of Jail Free Card'
- Authors: Richardson S.
  Pages: 168 - 190
  Abstract: AbstractMarital rape is a particularly heinous form of sexual violence that occurs within intimate relationships. However, throughout much of the world, the marriage contract affords legal immunity to marital partners who would otherwise be convicted as sexual offenders. By reviewing the laws of the Commonwealth jurisdictions, this research highlights the necessity for reform in many jurisdictions that continue to allow for marital exemptions to sexual offending. This review identified three main forms of marital exemption, that is the general marital exemption to the primary sexual offence, the creation of spousal-specific sexual offences, and the use of marital exemptions to remove or reduce liability for sexual offences involving minors. The operation of these marital exemptions is then considered in the context of international human rights law and its prohibition on sexual violence within intimate relationships. An analysis of the jurisprudence surrounding Article 2 of CEDAW, Article 19 of the CRC and the prohibition of torture informs the argument that international human rights law requires the prohibition of marital exemptions to sexual offending throughout the Commonwealth nations. Marital exemptions continue to afford sexual offending with impunity across many Commonwealth jurisdictions in breach of the international human rights obligations of those nations and reform should occur in order to uphold the rights of sexual violence survivors.
  PubDate: Wed, 26 Aug 2020 00:00:00 GMT
  DOI: 10.1093/lawfam/ebaa004
  Issue No: Vol. 34, No. 2 (2020)
Sideswipes and Backhanders: Abolition of the Reasonable Chastisement
Defence in South Africa
- Authors: Sloth-Nielsen J.
  Pages: 191 - 203
  Abstract: AbstractThis article reviews the abolition of the defence of reasonable chastisement by the South African Constitutional Court on the grounds that it infringes the Constitution. After detailing the history of the abolition of corporal punishment in a democracy with the Constitution as supreme law, the article dissects the reasoning of the Constitutional Court. It argues that judgment in Freedom of Religion South Africa v Minister of Justice and Constitutional Development (hereafter FORSA), whilst overall positive in its result, is probably a low water mark in the development of children’s rights jurisprudence in South Africa. There are a number of inadequacies and strangely deferential statements in the FORSA decision. Whilst inescapably coming to the constitutionally correct decision, the reluctance of the Court to reach this point, and its desire to accommodate the religious and cultural beliefs of the appellants, is evident. The way forward has, as a result, been left rather obscure.
  PubDate: Sun, 20 Sep 2020 00:00:00 GMT
  DOI: 10.1093/lawfam/ebaa005
  Issue No: Vol. 34, No. 2 (2020)
China’s Non-Recognition of Foreign Same-Sex Unions
- Authors: Liu Y.
  Pages: 204 - 224
  Abstract: AbstractChinese law neither expressly recognises nor prohibits same-sex unions (‘same-sex unions’ in this article refers to homosexual relationships that are legally recognised and protected by law, including marriage, civil union, (un)registered partnership, and so on). Until now, no dispute over foreign same-sex union has been brought in a Chinese court. However, the Department of Consular Affairs of China’s Ministry of Foreign Affairs has adopted a blanket non-recognition rule, alleging that same-sex unions would violate China’s (‘China’ hereinafter refers to the jurisdiction of Mainland China, excluding those of the Hong Kong SAR, the Macao SAR, and Taiwan) family law and the public interest. However, it is argued that foreign same-sex unions should be recognised unless such recognition would violate the public policy of the forum state. First, foreign same-sex unions should be regulated by the Chinese conflict rules, not by Chinese domestic law. Additionally, China is internationally obliged to recognise and protect fundamental human rights (right to marry). Secondly, under China’s conflict rules, a foreign same-sex union should be governed by the lex personalis or the law that has the closest connection with that union. Thirdly, as more than 40 jurisdictions throughout the world have legally recognised same-sex unions, and China itself has decriminalised homosexuality, same-sex unions would not necessarily be incompatible with China’s public policy. Fourthly, non-recognition of same-sex unions would instead cause public policy problems because it practically always favours one party over another, helping foreign same-sex couples to evade their responsibilities imposed by the relevant foreign law.
  PubDate: Sun, 27 Sep 2020 00:00:00 GMT
  DOI: 10.1093/lawfam/ebaa006
  Issue No: Vol. 34, No. 2 (2020)