When therapy meets the bench: subpoenaed clinical notes in family law

A book series dedicated to the harmonisation and unification of family and succession law in Europe. The series includes comparative legal studies and materials as well as studies on the effects of international and European law making within the national legal systems in Europe. The books are published in English, French or German under the auspices of the Organising Committee of the Commission on European Family Law (CEFL). The ageing population poses a huge challenge to law and society and has important structural and institutional implications. This book portrays elder law as an emerging research area and brings together authors from different disciplines (history, sociology and law) and from different legal jurisdictions (Austria, Belgium, England, Germany, the Netherlands and Spain). Topics discussed inter alia include: the recognition of informal care in private law and in inheritance law, the question of whether special consumer protection is needed for the elderly, intergenerational support duty between children and their parents, and public law offering options to support informal care by means of leaves for employees. In doing so, this book reflects on the allocation of responsibilities between different actors and answers questions at an institutional level: what is the role of the state, the family and the individual in taking care of the elderly? This book will appeal to academic scholars and postgraduate students of law and social sciences. With contributions by Elisabeth Alofs (Free University of Brussels), Susanne Burri (Utrecht University), Christian Dorfmayr (University of Vienna), Susanne Heeger-Hertter (Utrecht University), Leen Heylen (Thomas More University of Applied Sciences), Jeroen Knaeps (Thomas More University of Applied Sciences), Dimitri Mortelmans (University of Antwerp), Froukje Pitstra (University for Humanistic Studies), Jordi Ribot (University of Girona), Wendy Schrama (Utrecht University), Ute Christiana Schreiner (University of Vienna), Brian Sloan (University of Cambridge), Veerle Vanderhulst (Free University of Brussels) and Frauke Wedemann (University of Münster). Elisabeth Alofs is Professor of Family (Property) Law and Director of the Master of Laws in Notarial Studies at the Free University of Brussels. She is a post-doctoral researcher at the University of Antwerp and is Vice President of the Flemish Association of Lawyers. Elisabeth publishes on family law and social security law and is an editor of several law journals and book series. Wendy Schrama is Professor of Family Law and Comparative Law and Director of the Utrecht Centre for European Research into Family Law (UCERF) at Utrecht University. She serves as an editor of several family law journals and commentaries, and has published extensively on family law issues. She also is a part-time family law judge at a Dutch district court and has previously worked at the Dutch Ministry of Justice.

For Islamic family law, the 21st century started with groundbreaking reforms. In January 2000, the Egyptian parliament passed Law No 1 of 2000 governing procedure in personal status cases, article 20 of which henceforth permitted women to seek judicial divorce without any fault on their husband’s part and without his consent. The Egyptian legislature’s reinterpretation of the traditional Islamic divorce procedure of ‘mukhālaᶜ’ allows the wife to dissolve her marriage against her husband’s will so long as she is willing to ransom herself by paying him financial consideration. These Egyptian reforms were quite famously termed ‘the dawning of the third millennium on shariᶜa’ (Arabi 2001). At the same time, roughly 1,300 miles to the southeast, i.e. in the small Arab Gulf monarchies of Bahrain, Qatar, and the United Arab Emirates (UAE) as well as in Saudi Arabia, family law appeared less dynamic. Rules governing Muslim personal status remained uncodified and questions of family and succession law were guided by the individual judge’s own interpretation of the multitude of differing opinions that make up Islamic law. Hence, in the Arab Gulf, women in particular were ‘in the anomalous position of enjoying one of the highest standards of living in the world and yet being subject to a law which was developed over a thousand years ago’ (Hinchcliffe 1986). In 2005, however, the idea of comprehensively codifying Islamic family law was eventually picked up by the UAE, followed by Qatar in 2006 and Bahrain in 2009. Currently, even Saudi Arabia is debating a draft code of Muslim personal status. Codification as a means for the state to shape family relations has taken root in the Arab Gulf.This chapter first explores the legal setting prior to the codification of family law in Bahrain, Qatar, and the UAE (part II). The focus will be laid on the influence of European notions of codification and Egyptian law – the birthplace of the majority of jurists working in the region – on the development of the legal regimes in the Arab Gulf following their independence. In addition, the family court systems and the few legislative steps already taken by the three governments in the area of family law before the comprehensive codifications were introduced will be assessed. Part III is devoted to the codification process itself; both the actors and the debates surrounding the first-time codification of family law will be explored. Finally, part IV will trace the approaches to codification and legal reform in the new family codes of Bahrain, Qatar, and the UAE by using selected examples from among the many new statutory rules.The two main questions that the chapter sets out to answer are as follows: First, how did the three Arab Gulf States approach family law codification approximately ninety years after the very first codification of the field in the Muslim world (ie the Ottoman Law of Family Rights of 1917) and, second, did the three legislatures create a ‘modern family law’ in the sense that it accommodates the current socioeconomic realities of the Arab Gulf monarchies?

The ‘cultural constraints argument’, submits that family laws are embedded in unique national cultures, that this cultural and historical diversity is unbridgeable and therefore family laws are not spontaneously converging and cannot be deliberately harmonised. This article argues against the core assumption of the cultural constraints argument – the alleged embedment of family laws in unique and unchangeable national cultures. History shows that in the field of family ideology and law one cannot really talk of unique national cultures, but rather of a pan-European culture, which is not homogeneous but an amalgamation of pan-European ‘conservative’ and pan-European ‘progressive’ cultures. The relative influence of these two opposing family ‘cultures’ varies from country to country and from time to time. Examinations of history of family law suggest that there are the differences in the balance of political power between ‘progressive’ and ‘conservative’ forces, rather than national culture that determines the differences in the pertinent national family laws.

Today, family law is, to a surprising degree, at the center of com parative law inquiries committed to legal unification. Comparative family law projects range from analyzing convergence and harmoni zation proposals in the West, to law and development schemes in the rest of the world. The most salient reforms of abortion, same-sex mar riage, transsexual, and adoption rights are increasingly promoted at the transnational level through international human rights and an tidiscrimination principles. Regional and international human rights tribunals in Europe and Latin America are called upon to interpret the right to family life, non-discrimination, and freedom of movement principles to redefine the contours of domestic family, immigration, and employment law regimes. While comparative lawyers are increas ingly involved in shaping these transnational family law regimes, they present their choices as reflecting objective scientific knowledge that they have acquired through the comparative law method. This consensus about a single comparative law method is troubling because it allows comparison between abstract family law regimes that bear little relevance to what happens in practice or to the proposal of a best family law regime for unification purposes, while obscuring the political and economic implications of adopting one particular family law regime over another. Since the early 1900s, however, two conflicting methodologies have characterized the work of Western comparative lawyers address ing the family: social-purpose and positive-sociology functionalism. These Western comparative lawyers separated the individualist and universal sphere of the market from the altruistic, organic, and tradi tional sphere of the family. Because of this market I family dichotomy, family law was marginalized by those interested in the harmonization

I am a child of the 1970s. I grew up in Adelaide in the Dunstan decade. My earliest political recollection is of my parents discussing the dismissal of Whitlam in 1975. I believed university educat...

In many jurisdictions registered partnerships were introduced either as a functional equivalent to marriage for same-sex couples or as an alternative to marriage open to all couples. As marriage is opened up to same-sex couples in an increasing number of jurisdictions, this raises the question of what the future of registered partnerships should be. Is there a function or indeed a need for another form of formalised adult relationship besides marriage? In this book, family law experts from 15 European and non-European countries present and explain the history and function of registered partnerships in their own family law systems as well as the role registered partnerships play under the ECHR and under EU law. In the concluding chapters the different approaches are analysed and compared. This book provides the basis for an informed discussion on the way forward for jurisdictions reviewing the recognition of adult relationships in general and registered partnership regimes in particular

INTRODUCTION It is a great privilege and pleasure to contribute to this Festschrift celebrating Nigel Lowe's career as an eminent family law scholar. When one thinks of Nigel's distinctive contributions, the mind immediately alights upon the niche he has carved for himself as a pre-eminent scholar on international child law. Unpicking the complexity of the relevant international Conventions, their attendant case law and processes, and providing academic critical commentary thereon requires meticulous analysis and attention to detail – qualities which Nigel's work has always displayed. I first encountered Nigel's thorough accounts of domestic family and child law in Bromley's Family Law when I was a student; and the first edition of his co-authored detailed commentary on the Children Act 1989, Children Act in Practice , when I was a very junior lecturer. I say this not to make Nigel feel old, but to observe that his works were the places students and lecturers alike went for authoritative, detailed and thorough accounts of the law (and, of course, they still do). Each page packed with real mastery of the subject, the law was clearly explained and situated historically, the footnotes a veritable paper trail of Law Commission Reports and other pre-Parliamentary material, various Parliamentary reports, and accounts of Bills as they proceeded to law. Nigel's desire for a detailed understanding was evident also in his accounts of case law, in both the breadth and depth in which it was explored. An example is Nigel's tribute essay to PM Bromley, which appeared not long aft er I had begun my academic career and which I (and no doubt many others) found useful in understanding the House of Lords’ development, and interpretation, of the ‘welfare principle’. It was this contribution which largely prompted an invitation to contribute his account of the landmark case J v C to Landmark Cases in Family Law , which was the first time I had the privilege of working with Nigel. And so it is, with these reflections on Nigel's accounts of leading cases, and his focus on issues such as international child abduction, which is increasingly requiring the deliberations of our Supreme Court, that I am led to my choice of subject-matter for this chapter.

Sexual desire and sexual activity long have played central roles in family law, rationalizing its rules, informing its policies, and animating any number of calls for reform. Since the 1970s, gender equality has also become a salient value in family law - purporting to correct legally imposed double standards of the past. Yet, despite the conceptual centrality of sexual desire and sexual activity, family law says nothing explicit about sexual pleasure. And despite the salience of gender equality in contemporary family law, the field remains preoccupied with performances that produce heterosexual men's orgasms while ignoring or rejecting women's interest in orgasmic pleasure. As a result, family law today is marked by fundamental omissions and inconsistencies.This paper attempts to begin to fill the gap and to explore the incongruities. It builds on Susan E. Stiritz's Cultural Cliteracy: Exposing the Contexts of Women's Not Coming (published as a companion piece) and examines the relevance of Stiritz's analysis for family law. According to Stiritz, '[c]ultural cliteracy' denotes what an adequately educated person should know about the clitoris, which is that it is a culturally despised body part because it is an obdurate reminder of women's independence and power and supports women's liberation. Stiritz tracks the role of the and women's sexual pleasure through history, compares past and contemporary anatomical understandings of the clitoris, and then demonstrates through empirical studies, based on courses she has taught, how cultural cliteracy can empower women and bring new insights to the reading of women's texts. She calls for the integration of adequate understandings of the clitoris into a variety of different discourses, including law.In response, this paper focuses on family law as a promising site for integrating cultural cliteracy into legal discourse. Part I introduces the project and its challenges. Part II explores the central role of sex in family law, with emphasis on how family law seeks to channel sexual desire into monogamous marriage and how this effort to manage sexual activity plays out, given the pervasive silence about women's sexual pleasure. This analysis, in turn, exposes significant inconsistencies, challenging the coherence of family law’s own stated policies, including its simultaneous preference for monogamous marriage, acceptance of no-fault divorce, and commitment to gender equality. Part III turns to contrasting ways to make family law more culturally cliterate, specifically, allowing individuals to learn what they can from popular culture versus undertaking affirmative government efforts to promote such knowledge, through educational programs. Part III next looks beyond educational programs to suggest how respect for women's sexual pleasure might prompt rethinking several specific aspects of family law, including divorce grounds; civil actions for sexual harm; and the legal treatment of various supports, interventions, and protections that facilitate sexual pleasure, from sex toys to reproductive autonomy. Part IV concludes with a deeper look at the prospect of a culturally cliterate family law, including the fundamental paradoxes that it might pose.

There can be no doubt that both substantive family and succession law engage in significant interaction with private international law, and, in particular, the European Union instruments in the field. While it is to be expected that substantive law heavily influences private international law instruments, it is increasingly evident that this influence can also be exerted in the reverse direction. Given that the European Union has no legislative competence in the fields of family and succession law beyond cross-border issues, this influence is indirect and, as a consequence of this indirect nature, difficult to trace. This book brings together a range of views on the reciprocal influences of substantive and private international law in the fields of family and succession law. It outlines some key elements of this interplay in selected jurisdictions and provides a basis for discussion and future work on the reciprocal influences of domestic and European law. It is essential that the choices for and within certain European instruments are made consciously and knowingly. This book therefore aims to raise awareness that these reciprocal influences exist, to stimulate academic debate and to facilitate a more open debate between European institutions and national stakeholders. With contributions by Elena Bargelli (University of Pisa, Italy), Anne Barlow (University of Exeter, England, United Kingdom), Elena D'Alessandro (University of Turin, Italy), Elise Goossens (KU Leuven; Vrije Universiteit Brussel; University of Antwerp, Belgium), Nigel Lowe (Cardiff University, Wales, United Kingdom), Robert Magnus (University of Bayreuth, Germany), Maire Ni Shuilleabhain (University College Dublin, Ireland), Walter Pintens (KU Leuven, Belgium; Saarland University, Germany), Pablo Quinza Redondo (University of Valencia, Spain), Lukas Rass-Masson (University of Toulouse, France), Anne Sanders (University of Bielefeld, Germany), Jens M. Scherpe (University of Cambridge, England, United Kingdom; University of Hong Kong; University of Aalborg, Denmark; University of the Western Cape, South Africa), Wendy Schrama (Utrecht University, The Netherlands), Denise Wiedemann (Max Planck Institute for Comparative and International Private Law, Hamburg, Germany).

Law: Modern Family Law, 1800-Present: Gulf States

INTRODUCTION The Commission on European Family Law (CEFL) has reached its 19th year of existence. Established in 2001, the CEFL has drafted five sets of Principles of European Family Law in the field of divorce, maintenance between former spouses, parental responsibilities, property relations between spouses and de facto unions. They can be considered as model laws for national legislators in their quest to reform their family law systems. In turn, new family law legislation inspired by the European Family Law Principles contributes to the further harmonisation of family law in Europe. This contribution provides information about the various activities of the CEFL, its organisation, working method, results, finances and impact so far. Finally, the question of the next steps to be taken will be answered. ORGANISATION, COMPOSITION AND MEETINGS The CEFL is a foundation under Dutch law. The CEFL consists of two groups: the Organising Committee and the Expert Group. The Organising Committee set up the Expert Group and prepared and coordinated the work of the Commission as a whole. The members of the Organising Committee are at the same time members of the Expert Group. Over the years the composition of the Organising Committee has hardly changed. Frederique Ferrand (Lyon), Nigel Lowe (Cardiff), Dieter Martiny (Frankfurt (Oder), later Hamburg) and this author (Utrecht, later Hamburg) were the founding members, together with Walter Pintens (Leuven) and Dieter Schwab (Regensburg). The latter left in 2003 and two new members joined the Organising Committee in that same year: Cristina Gonzalez Beilfuss (Barcelona) and Maarit Jantera -Jareborg (Uppsala). Only in 2013 was Walter Pintens replaced by Velina Todorova (Sofia). The Expert Group is comprised of specialists in the field of family and comparative law from most of the European Union Member States, with the involvement of experts from other European countries, such as Norway, Russia and Switzerland. Over the years, the number of experts has increased. For each specific working field, they were invited to contribute by drafting a national report and taking part in Expert Meetings. Some of them have accompanied us over the years, others have been replaced by new experts, and still others have only joined the group for the latest working field.

The purpose of this work is to examine an issue of corporal punishment of children as a method of discipline in terms of family and criminal law. The author begins the study by taking a broader perspective of the issue in terms of extra-legal scientific disciplines, then conducts an analysis of the international legal frameworks for the corporal punishment and finally offers brief overview of the solutions found in comparative law. Further in the study, the author focuses on different aspects of family and criminal law in terms of necessity of complete prohibition against corporal punishment of children. In order to do this, the author compares present legal solution found in family law with suggested new solution of the Draft Civil Code of Serbia. Further, the attempts have been made to set the criteria for distinguishing the situations in which the exercise of parental rights can be considered specific basis for exclusion of the unlawfulness from those in which the crime of domestic violence is found. De lege ferenda proposals have been presented with an aim of serving as a possible middle ground between different aspects of family and criminal law by giving more flexible approach and there for making it acceptable for both branches of law.

Purpose. The aim of the research is to solve the scientific task of doctrinal development of regulation of interests in family law, to determine the criteria for building a hierarchy of interests in family and family law, to investigate the relationship between private and public interests in family law and to consider issues of abuse of family interests. Methodology. Among the philosophical, general and special scientific methods used are such as: logical-semantic method for in-depth clarification of the criteria for the division of interests in family law, formal-logical and system-structural methods used in making judgments, analyzing the content of current family law. legislation on the basis of which the legal regulation of the construction of interest in family law. The scientific novelty is that the article improves the concept of independence of interest from subjective family law and the criteria for their delimitation, which is based on the approach that interest is a prerequisite for the emergence of subjective family law, in the absence of the right to demand appropriate behavior from others persons with no specific legal obligations. It is stated that the balance of interests of each individual family member is formed in accordance with the principle of equality, which is inherent in family law, taking into account the priority interests of individual family members (children, pregnant women, disabled, etc.). The hierarchy of interests in the family and their dynamic nature have been further developed.Attention is paid to the study of the category of "abuse of rights", as well as the impact of interest on it. Results. The author investigates the connection between public and private interests and, accordingly, the exclusion of the possibility of abuse of state interests in relation to the interests of other subjects of family law. When these interests collide, the priority of the interests of society can take place only if the interests of the individual are ensured, which is achieved by legislative establishment of maximum guarantees for citizens, which exclude the possibility of abuse of their rights. Practical significance. The results of the study can be used in lawmaking to improve legislation in the field of legal regulation of the category of interest; in the educational process - in the development of textbooks, teaching materials in the discipline "Family Law of Ukraine".

Family law seems to be everywhere today. Abortion remains a litmus test for political allegiances. Single-sex marriage divides state voters. Child custody cases periodically domi nate newspaper front pages. Parents, family experts, and social critics debate the consequences of divorce and single-parent families. Adoptees demand the right to locate their birth moth ers. And on and on. The only place that family law seems absent is in the history classroom. Aside from occasional lines in textbooks about polygamy or abortion, students rarely encounter family law as a significant subject of historical inquiry. Yet that need not be the case. Like the present, the American past is strewn with the remains of family law conflicts and controversies. And there is now a substantial and accessible body of scholarship and materials that teachers can use to bring the history of family law into secondary and college classrooms. It chronicles a rich and revealing history that can be made into a teaching tool to probe fundamental questions about the relation ship between legal and family change as well as the changing nature of American society. Family law is the body of rules, practices, and beliefs that govern the home. Its policies govern all aspects of family life from courtship and child rearing to spousal violence and inheritance. And since family law is both a subject of its own and a means of studying other topics, it can illuminate a wide array of subjects such as changing notions of state authority, individual decision making, race, gender practices, and family size. Perhaps most importantly, family law holds an intrinsic fascination for stu dents. It touches their own experiences as family members and as legal actors as do few other subjects. Being barred from getting a marriage license, experiencing a parental divorce, confronting bans on birth control information, and countless other past contro versies bring students and family law together. Studying such encounters illuminates key themes in family law by building on the reality, recently documented by Roy Rosenzweig and David Thelen, that the family continues to be the central means through which most Americans study and understand the past (1). I want to explain how family law can be brought into the classroom by suggesting how teachers can conceptualize its history, offering some pathways through the literature, and providing examples of teachable episodes. My intent is to dem onstrate how teaching this topic allows us to probe the intersec tion of family and public life in a way that is only possible through historical inquiry.

It has been a privilege to bring together this special edition of the Family Court Review , which features a range of research and socio-legal commentary, each article dealing with the question of how respective family law communities are meeting the needs of and according due rights to children affected by postseparation dispute. This edition came from a meeting of two main story lines. The 4th World Congress on Family Law and Children’s Rights in Cape Town in 2005 was attended by many AFCC members and encouraged a new level of responsibility for moving the field beyond its own rhetoric about children’s rights and reinforced the need to better understand what was happening in practice. Concurrently, my own research and clinical inquiries into child inclusion in family law matters began to cohere into a body of work that suggested a potential connection between children’s inclusion and the elusive best interests principle. Seeing the intersection of interests, the Family Court Review editorial team invited me to bring together this special edition. The invited articles were selected to represent a diversity of current thought and action in the arena of children’s rights, and specifically the right to safe and appropriate inclusion. Empirical research about divorce impacts for children, together with the United Nations Convention on the Rights of the Child (CRC), have created an ethical mandate for widespread review of the core responsibilities of family law interventions. In particular, Articles 3, 9, and 12 of the CRC have been a driving force behind a move toward sensitive representation of children in legal matters that affect them. Article 12 states: