Family Court Research Articles

Can GPS Monitoring Be Viewed as a Bodyguard, Rather than a Prison Guard?: The Use of Electronic Monitoring to Reduce the Risk of Cross‐Border Parental Child Abduction

Globally, the number of cases of international parental child abduction has remained consistent in the past decade, despite the array of legal provisions designed to prevent it. The current legal approach is ineffective. Reflecting on the findings of an empirical study on parental abduction from the UK, the article considers a novel solution which aims to protect children at risk of abduction through electronic monitoring. The electronic monitoring of children has negative connotations, particularly its use in the criminal justice system. The article considers whether electronic monitoring, in the context of family law proceedings, could serve a protective rather than a punitive purpose. Such an approach requires a conceptual shift, to view electronic monitoring as a bodyguard for the privileged few, rather than as a prison guard. The article reflects on the use of electronic monitoring in parental abduction cases by the Family Courts and examines the proposal drawing on the rights found in the European Convention on Human Rights and the UN Convention on the Rights of the Child. A rights‐based analysis, as opposed to one constructed solely on the child's best interests in English family law, enables its application in other legal jurisdictions and protective contexts.

Judicial Leadership in Family Court: A Cautionary Tale

Judicial Leadership in Family Court: A Cautionary Tale

Remarriage Restriction for Woman of 300 Days in Türkiye: Review of the ECtHR’s Nurcan Bayraktar v. Türkiye Judgment

Abstract On 27 June 2023, the European Court of Human Rights unanimously declared that the complaint of Nurcan Bayraktar was admissible and held that there has been a violation of Article 8 and Article 14 in conjunction with Article 12 of the European Convention on Human Rights. The violation arose from the application of Article 132 of the Turkish Civil Code which imposes a 300-day waiting period on divorced women to remarry, unless they lodge an application to a Family Court to lift the waiting period by proving with a medical report that they are not pregnant. The Court concludes that obligation to produce medical evidence to prove that the applicant was not pregnant - which can only be obtained by means of medical examination - constituted an interference with the applicant’s exercise of her right to respect for her private life, considering that it was not necessary in a democratic society. Moreover, the Court found that the obligation imposed on divorced women, due to the possibility of pregnancy, to wait 300 days amounts to direct discrimination on grounds of sex, which cannot be justified by the aim of preventing uncertainty as to the parentage of an unborn child. This study aims to summarise and review this judgment, which was delivered in French, in English for a wider audience, by providing a background information on Article 132 of the Turkish Civil Code.

Intimate Partner Violence: Access to Protection Beyond the Pandemic

Civil protection orders are the most common legal remedy victims pursue in response to intimate partner violence (“IPV”). They are more empowering for victims than the criminal legal system because victims themselves, instead of prosecutors, drive the process, and they offer more flexible and tailored relief. This Article argues that victims should be able to choose how they file petitions and participate in civil protection order hearings, and that judges should be required to honor those preferences absent good cause. This conclusion is driven by two new, original sets of empirical data collected from IPV survivors who have sought civil protection orders and legal services providers who assist victims with navigating the process. The data from legal services providers provide a picture of court protective order procedures in jurisdictions across the country from before, during, and in the late stages of the COVID-19 pandemic, once public health restrictions were generally lifted. This complements the rich data about the lived experiences of survivors who sought a protection order against their abuser during the pandemic in one of New York City’s five family courts. 85% of participants in this study are women of color, whose lived experiences are especially important to understand because they comprise a population that is disproportionately impacted by IPV. The data indicate that IPV victims have diverse preferences with respect to method of participation in hearings, based on their varying needs, concerns, priorities, and circumstances. The current landscape of procedures across the country largely fails to account for this diversity by mandating a particular participation method or by allowing individual judges to do so in accordance with their own preferences. Based on the research results, this Article argues for codifying “accessible process pluralism” in state protective order statutes. This statutory framework would give petitioners the opportunity to indicate their hearing participation preference on the petition itself and require judges to follow these choices absent good cause, among other accessibility-focused provisions. By harnessing the innovations and lessons from the pandemic, this proposal promotes survivor empowerment and access to justice for both petitioners and respondents.

Being made visible: Responding to complex needs created by child removal in the Family Court

ABSTRACT The transfer of residence (aka child removal) when domestic abuse is a factor appears to have increased as a practice to resolve challenging child arrangements in public and private law proceedings. Minimal data exists regarding the transfer of residence in public law and the number of private law orders made each year is less clear. Serious concerns about the safety of the family courts continue to be raised, including expert reports recommending the transfer of residency. Following, often harrowing, removals mothers report how they are left to manage complex needs while still being expected to ‘fight’ for their child’s return. In 2022, Project Lighthouse was founded in response to the growing population of mothers who have endured domestic abuse and child removal The charity is beginning to understand the impact and lifelong trauma caused by child removal and, often, is a mechanism of coercive control hidden in plain sight of the family court. Focusing mainly on doctoral and peer research, this paper discusses how mothers’ lived experiences suggest that child removal in private law proceedings is increasing. The paper concludes by calling for urgent research focusing on the impact of child removal, which will help increase much needed awareness.

When is ‘the end of the road’ reached? Observing the presumption of parental involvement through systems theory

ABSTRACT In 2014 the Children Act 1989 was amended to include a presuption that involvement of a parent in a child’s life will further the child’s welfare unless there is evidence of the risk of harm. Kaganas published two seminal articles which concluded that the government’s ideological rationale for introducting the presumption of parental involvement not only failed to materialise but had some unintended, possibly detrimental, consequences for mothers. This article examines the operation and effects of the presumption of parental involvement in recent years based on an analysis of private law family court judgments between July 2020 and December 2023. Drawing on Luhmann’s theory of autopoietic social systems, it examines the possibilities for and limitations on using law to drive social change beyond the operations of the legal system itself. It concludes that the statutory presumption has failed to serve its stated purpose and has even had the unintended consequence of generating legal communications about the risks of parental involvement. From a feminist perspective, it concludes that positive changes observed in the family court response to domestic and child abuse are an achievement, in light of the limits on steering society, at least until something changes in the unknowable future.

Housing and children’s social care in England: learning from embedded research

The UK housing crisis is having a detrimental impact on the lives of families. However, in England the links between housing and Children’s Social Care remain poorly understood. This paper draws upon 24 months of embedded research within Torbay Council, a Local Authority with comparatively high rates of children in care and acute housing challenges. It includes qualitative data from interviews/focus groups with parents (n = 66); Children’s Services professionals (n = 7), the housing department (n = 2); housing association (n = 2); and staff/volunteers from voluntary and community Sector organisations (n = 28). This study shows that housing circumstances can both trigger crisis situations leading to the involvement of Children’s Services and form a critical element of the complex needs many families in contact with Children’s Services confront. Parents described difficulties demonstrating their parenting abilities to Children’s Services and the Family Courts when living in inadequate housing, or indeed when homeless. This paper recommends better alignment of Housing and Children’s Social Care responses to ensure more effective support for families.

Felicity Kaganas: asking the woman question in family law

ABSTRACT This contribution to the special issue considers Felicity Kaganas as a feminist socio-legal scholar who persistently ‘asked the woman question’ in family law. It focuses on one of her important articles, ‘When it comes to contact disputes, what are family courts for?’ . After summarising her argument concerning the evolution of the family courts’ approach to contact disputes, it examines her critique of a problem-solving approach, in light of the recent introduction of the Pathfinder pilot courts, following the recommendations of the Ministry ofJustice report, Assessing risk of harm to children and parents inprivate law children cases (2020).

Does participation in a court-based trauma-focused evaluation program influence permanency outcomes for children involved in the child welfare system?

BackgroundChildren involved in the child welfare system, especially those in out-of-home care, experience high rates of mental health symptoms. Mental health symptoms have been linked to worse permanency outcomes in this population. ObjectiveThe present study aimed to evaluate whether children who received a trauma-focused evaluation, compared to children who received usual care, experienced differential permanency outcomes, as well as other court-related outcomes (e.g., legal system involvement). Participants and settingOne-hundred and twenty-five children (58% female, Mage = 10.61) from a family court in the Northeastern United States participated in a trauma-focused evaluation program. MethodsData for the current study were collected via a retrospective chart. Participants were recruited at a family court of a Northeastern state. Between-groups differences on court-related outcomes were assessed using logistic regression and Kaplan Meier estimates. FindingsThere were no significant differences between children who received the trauma-focused evaluation program versus usual care in the likelihood for guardianship changes, termination of parental rights, new child welfare petitions or new juvenile legal petitions. The groups significantly differed in the likelihood of case closure; children who received the trauma-focused evaluation program were more likely to experience case closure compared to children who received usual care. Additionally, on average, children who received the trauma-focused evaluation program achieved case closure almost 8 months sooner. ConclusionsThe findings suggest that initiatives aimed at identifying mental health concerns and linking children placed in out-of-home to relevant mental health services care can have a significant and positive impact on permanency outcomes.

What's emotion got to do with it? Reflections on the buildings of the Portuguese (Family) Courts.

Courthouses, as public edifices, serve as the physical backdrop for the administration of justice. Simultaneously, they are spaces inhabited and visited by a diverse array of court users, ranging from judicial professionals to litigants. This article explores the nuanced interplay between courthouse spaces and the emotional experiences they generate. It starts by surveying existing studies that examine such an intricate relationship. Then, and by drawing from a sample of interviews conducted across two distinct time periods (2010-2011 and 2017-2019) in Portugal, the article delves into the lived experiences of judges, prosecutors, and litigants. Their narratives provide a multifaceted view of the emotional experiences associated with the Portuguese (Family) Court buildings. To analyse these experiences, I turn to Henri Lefebvre's concept of lived space. Lived space refers to the emotions, memories, and interactions within a particular spatial context. Such dimension, in relation to courthouses, directly connects to the lived experience of legitimacy loss and low self-esteem affecting decision-making, on the one hand, and estrangement and rights' exclusion, on the other hand, felt by those subjects. By investigating how the spatial configurations of courthouses shape our emotions, we gain insights into the profound impact of such built environments on our understanding of the justice system, and the physical and symbolic obstacles in accessing it.

Fulfillment of parents’ obligation to carry out child education (germany’s experience)

In the scientific article, the author conducted a scientific study of the peculiarities of parents’ fulfillment of the obligation to raise a child in accordance with German family law, the grounds for the emergence and termination of this family obligation, the elements of rights and obligations that make up the content of parental care. On the basis of the conducted research, the author came to the conclusion that the concept of «parental custody» is used in German family law. as an obligation and at the same time - the rights of parents to take care of their minor child. Parental custody includes such powers of the child’s parents as: representation of the child’s interests in legal relations in which he is the subject, the duty and right of the parents to take care of the child, raise him and supervise him, as well as determine his place of residence , not to apply punishments that encroach on the dignity of the child, the duty and right of parents to help the child in obtaining an education and a profession, taking into account his abilities and inclinations, the right of parents to demand the handover of a child from another person who illegally deprives his parents or one of his parents of the opportunity exercise parental care, certain rights related to medical intervention. For the obligation to raise a child to arise, German family law establishes several legal facts: the presence of the child’s parents in marriage, when the presumption of paternity applies to the person who is the husband of the child’s mother; an application to take care of the child submitted to both parents who are not married; adoption of a decision by the family court to establish parental custody over the child to its parents who are not married, with determination of the limits of such custody for each parent. The fulfillment of the obligation to raise a child in accordance with German family law is carried out with the mutual consent of both parents in the interests of the child; if the parents cannot agree on the exercise of parental custody, their dispute is resolved by the family court, which may grant the right to one of the parents to make an appropriate decision related to the exercise of parental custody.

Cheating the evidence to get to best interest and the presumption of unfitness

AbstractThis article explores our national reactive child protection model which has focused on removing poor people from poor families and has resulted in conflating poverty with neglect. Significant issues of class and race are implicated given dramatic systemic racial and ethnic disparities and questions must be asked whether current practices have done more harm than good. In reviewing this landscape this article is descriptive and prescriptive and calls for adopting proactive public health‐oriented policies which support children and families in their homes and a culture of due process and fairness in juvenile and family court hearings involving children and their families. Dependency or abuse and neglect cases involve state intervention. These are not disputes between private parties where the sole focus is the best interest of the child regarding which guardian to be placed with. Cheating the Evidence warns against diluting the constitutional requirement of proving the lack of parental unfitness by clear and convincing evidence by making comparative judgments about placement which are based on often subjective assessments on best interests of the child which are resource based. Given that high percentage of cases involving allegations of neglect versus inflicted abuse these concerns are of paramount importance. There is a need for more rigor in fact‐finding and adherence to constitutionally required burdens of proof. Due process and fairness are best‐served by supporting client‐directed advocacy and greater transparency, including presumptively opening up the doors to closed juvenile and family court hearings as recommended by the National Council of Juvenile and Family Court Judges in 2005. Opening the doors is not a binary or either or proposition‐ we can preclude dissemination of records of youth, and protect confidentiality as a growing number of states have done. Transparency includes more than raising the level of practice of lawyers and judges‐ it includes encouraging systemic accountability from child serving agencies and educating the public about the complexities which are related to the birth or cradle to prison pipeline.

The Love Jones Cohort and singlehood are family law issues

AbstractThis article reviews the changing Black family and households. The core theme is to understand the uniqueness of those single and living alone in the Black middle class—the “Love Jones Cohort”—and how their intersecting identities of race, class, gender, and singleness inform their lifestyle, shape how they manage life decisions, and their relationship to policy as well as family law and family court. This essay moves beyond the popularized and omnipresent inquiry: “Why are Black women not getting married?” or “Why are there so many single professional Black women?” This line of questioning throws the spotlight squarely on Black women's individual dating practices, while often ignoring structural factors that undergird those decision‐making processes. It implies that because of the individual actions of the Love Jones Cohort, specifically Black women, they are somehow at a deficiency if they are not married and child‐free, rendering them invisible as a family. This article discusses the legal implications of the presence of the Love Jones Cohort.

과거 양육비청구권의 소멸시효 - 대법원 2024. 7. 18. 자 2018스724 전원합의체 결정 -

Supreme Court Decision 2008su67 on July 29, 2011 held that that a past child support claim was not a property right for the caregiver to exercise that right until it was established as a concrete claim for payment by the agreement of the parties or by a judgment of the Family Court, and therefore there is no scope for the extinctive prescription to run in this regard. However, there were criticism against this precedent. However, the Supreme Court en banc decision 2018su724 on July 18, 2024 overruled the precedent and held that the right to seek payment of past child support for a child between a divorced couple while the child is still a minor does not run due to the nature of the right unless the scope and content of the specific claim are determined by the agreement of the parties or by a judgment of the Family Court, but when the child reaches the age of majority and the parenting obligation ends, the extinctive prescription of the right to seek payment of past child support for the child should be deemed to run from the time the child reaches the age of majority. A concurring opinion of this decision argued that the right of a caregiver to support a minor child alone and then seek reimbursement of the expenses from the other party constitutes a right that is subject to the extinctive prescription even before the agreement or judgment. The dissenting opinion of the five justices argued that the precedent that the statute of limitations had no place to run on past child support claims was valid and should be upheld, and that they could not agree with the view that the statute of limitations runs from the time the child reaches the age of majority. In my opinion, the claim of the past child support should be considered to be subject to the extinctive prescription even before the agreement or judgment. The contrary view asserts that it is an abstract legal status and not a property right, so it is not subject to the extinctive prescription. However, it cannot be said that a right is not subject to the extinctive prescription just because it is abstract. Nor it cannot be said that the family law right be subject to the the extinctive prescription. The most important reason of the majority opinion is that that it would not be in the child's best interest to assume that the the extinctive prescription had run. However, once the law provides for the the extinctive prescription for rights, the application of the the extinctive prescription of such rights should not be denied without special grounds. On the other hand, there is also the problem of logical consistency in the majority opinion. The majority opinion argues that the statute of limitations does not run on past claims for child support against a minor child because they are abstract and indeterminate, but the mere fact that the minor child has reached the age of majority does not make it determinate.

Postseparation Financial Abuse Perpetrated Through Government Systems: A Survey of Australian Mothers' Experiences of Child Support.

Financial abuse is a form of violence that can extend well beyond intimate partner relationship breakdown. A survey of 540 Australian separated parents examined how financial abuse was perpetrated, with a focus on child support and other government systems. Women reported that their ex-partners minimized and withheld child support payments to inflict direct financial harm, while interactions between the family court, taxation, and benefit payment systems were taken advantage of to threaten or control them. Findings revealed how the mandatory and complex Australian child support system provided perpetrators with a useful means of perpetrating financial abuse across households.

Domestic Violence and Custody Proceedings: An Analysis of Judicial Decisions in Portugal

Abstract Purpose To understand court decisions in custody cases involving allegations of domestic violence, a qualitative study was conducted among Portuguese family court magistrates. Methods A nonprobabilistic snowball sampling process, which involved six judges from Portuguese family courts who were authorized by the Superior Magistrate’s Court to participate in an interview, was used to construct the sample. Results When the data were analyzed, three main themes emerged, namely, the characteristics of the processes, the factors considered in the judicial decisions, and the impact of shared custody. The results also revealed several legal and extralegal aspects that influence judicial decisions, such as the characteristics of the violence, the mediation process, and the status attributed to victims, suggesting that there are objective and subjective factors in the perpetuation of violence. Conclusions Allegations of domestic violence in custody proceedings are not uncommon, and these allegations can complicate the process and delay a decision. Efforts by one parent to restrict contact with the other parent raise suspicions of attempted alienation that tend to undermine the risk assessment. There can also be overreliance on shared custody, potentially undermining children’s safety. The negative impacts of exposure to domestic violence and the instrumentalization of children are recognized, but it is questionable whether they are being prevented to the extent advocated by the Istanbul Convention. The effectiveness of communication between criminal and family courts is also debatable, despite its importance for protecting victims.

Family Courts in England & Wales: A population-level evidence base about court users who experience domestic abuse

ObjectivesThe caseload of family courts in England and Wales includes a growing share of domestic abuse cases. To increase knowledge about such cases, the research uses new administrative datasets and linkages. Trends between 2011-2021 are examined in the context of policy and operational changes. MethodThe complete set of family court cases is held in HM Courts & Tribunals Services (HMCTS) systems. Some family court data are collected by the Children and Families Court Advisory Support Service (Cafcass), insofar as courts refer the case to Cafcass. Using their new linkage, we conduct a descriptive analysis of domestic abuse cases in England and Wales over the ten years from 2011. This project is one of the first to gain approval from HMCTS to use their de-identified family court data. ResultsThe data linkage allows to describe how court users approach domestic abuse matters, drawing distinctions between: emergency cases; lack of legal representation in court (litigants in person); repeat applications; presence of children in the household. Furthermore, the data show how courts respond through case management, timeliness of decisions and legal outcomes made. The policy context reveals how court users adapted to changes in eligibility for civil legal aid and to changes over how courts operated under lockdown measures. ConclusionData linkage research is providing an evidence base at population level about court users in England and Wales who experience domestic abuse. This can help inform practice to support families, and policies to ease overburdened courts and avoid returns to court.

Increased mortality among mothers involved in family court care proceedings compared with their peers in England

ObjectiveResearch has called for Family Courts (FC) and social care services involved in removing children from parental care to consider and address the health of the mother. ApproachWe linked England FC and healthcare data to compare the 10-year mortality risk and cause of death after a first live birth (FLB) for mothers who were involved or not in FC proceedings in England. Results3,072,946 mothers (15-39 years) with a FLB between 2007 and 2019 were followed for up to 10 years (median:8.7 years, IQR: 5.4-10), during which 33,759 were involved in FC. Ten-year cumulative mortality was higher among the FC mothers (1.7 vs 0.3%) and the age-adjusted mortality rate ratio was 7.8 (95%CI: 7.00-8.6). The majority of maternal deaths in both groups met criteria for avoidable death (FC 82.9% vs no-FC 66.8%). Injury was the leading cause of death (204/420; 48.5%) in mothers involved in FCs and cancer (2,823/6,208; 45.5%) in mothers in the no-FC group. Compared with no-FC mothers, more deaths were related to drug use (35.0% vs 6.0%), suicide (14.5% vs 8.4%) or alcohol (9.8% vs 3.5%). Among mothers involved in FCs, maternal mortality was higher in cases when children were placed into out-of-home care (1.65%, 463/28143), than when placed at home (0.94%, 53/5563) at first FC proceeding. Conclusions and ImplicationsAddressing high rates of avoidable mortality among mothers involved in FCs is important for children and parents and could be monitored using routinely linked healthcare, social care and family court data.

Exploring litigation abuse in Ontario: An analysis of costs decisions

AbstractLitigation abuse is a pattern of conduct that misuses the Family Court process in a way that could reasonably be expected to cause emotional or financial harm to the other party or their children which is greater than would occur with the proper use of the family justice process. Litigation abuse may be motivated by a perpetrator's desire to gain an unfair advantage in the litigation or to control a former partner, or may be the result of anger, vengeance, or mental health issues. Litigation abuse is a particular concern in cases of coercive controlling violence that may victimize women and their children, or in cases that involve parental alienation. Previous empirical research has mainly involved studies of women who report that they have been victims of litigation abuse, with one study focusing exclusively on male victims. No previous study has considered both men and women as possible victims (or perpetrators) of litigation abuse, or the perspectives of neutral professionals like judges for assessing whether there has been litigation abuse. This empirical research project is based on an analysis of Ontario Family Court decisions over a three‐year period dealing with litigation costs, which under provincial law may be awarded at a higher level against a party whom the judge considers acted unreasonably, vexatiously or in bad faith during litigation (n = 222). Men were somewhat more likely to have engaged in litigation abuse than women (53% vs 47%). Self‐represented litigants were roughly twice as likely to engage in litigation abuse, though most cases of litigation abuse involved parties with lawyers. Women were more likely be victims of litigation abuse in economic cases, while men were more likely to be victims of litigation abuse in cases focused on parenting.

Variation in 10 year birth trajectories of mothers involved in family court care proceedings and their peers in England.

ObjectiveFamily court (FC) care proceedings decide on removing children from parental care in response to concerns about risks of harm. Courts and social care report frequent births, often after short birth intervals as a key problem among mothers presenting to FCs. ApproachWe used a cohort of mothers with a first live birth (FLB) between 2007 and 2019 to estimate the cumulative incidence of FC within 10 years and compare birth trajectories with peers. Results3,118,327 women (15-50 years) had a FLB, of whom 34,062 had FC involvement. Cumulative incidence of FC within 10 years from FLB was 1.3% (95% Confidence Interval [CI]; 1.3-1.3) overall but highest in mothers who were younger (6.7% if <20 years), more deprived (2.5% in most deprived areas) and with morbidity (22.7% with learning or multiple disability, 12.8% with adversity-related injuries or 5.7% with mental health admissions). If followed for 10 years from FLB, 58.4% (8,889/15,229) of women with FC involvement had ≤2 deliveries, compared to 82.2% otherwise (1,007,365/1,225,163). If <25years at FLB, women involved in FC had more deliveries than their peers (3+ deliveries: 47.8%, 5,853/12,255 vs 29.5%, 123,092/416,904), however, if 25+, they had fewer deliveries if involved in FC (1 delivery: 49.6% 1,475/2,974 vs 39.2% 316,976/808,259). Conclusions and ImplicationsAt-risk mothers may benefit from early, targeted health and social care interventions to prevent FC involvement. Birth data highlights variation in birth trajectories and dispels the stereotype of women involved in FCs having many children, particularly if older at FLB.