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Preview: International Journal of Law, Policy and the Family

International Journal of Law, Policy and the Family

Volume 20, Number 3, December 2006

Published: Fri, 13 Oct 2006 09:35:40 EST


The Tide in Favour of Equality: Same-Sex Marriage in Canada and England and Wales

Fri, 13 Oct 2006 09:35:40 EST

Volume 20, Number 3, December 2006 p.249-285
The tide in favour of legal equality for gay and lesbian individuals and couples continues to roll forward on both sides of the Atlantic. In Canada, the federal Parliament recently passed legislation (the Civil Marriage Act) (CMA) that extends the legal capacity to marry for civil purposes to same-sex couples throughout the country. This change in the law was driven not by the executive and legislative branches of government but by the courts, interpreting and applying the Canadian Charter of Rights and Freedoms (the Charter). On the other side of the Atlantic, in England and Wales, the Westminster Parliament in 2004 passed legislation (the Civil Partnership Act) (CPA) that will enable same-sex couples to obtain legal recognition of their relationships, and to access most of the legal rights and responsibilities offered to married couples. However, unlike the Canadian legislation, civil marriages between same-sex couples will still not be legally recognized. This article considers whether the English courts will also facilitate the legal recognition of same-sex civil marriage, like their Canadian counterparts. The author concludes that, in light of recent case law, there is an increasingly strong argument that the opposite-sex marriage requirement in England and Wales violates Article 14 (the equality provision) of the European Convention on Human Rights (ECHR), which is incorporated into UK law by the Human Rights Act, 1998. However, the author also concludes that there are a number of reasons to be cautious that a positive result would flow, at this point, from a domestic court challenge to the opposite-sex marriage requirement.

The Non-Resident Parental Role for Separated Fathers: A Review

Fri, 13 Oct 2006 09:35:40 EST

Volume 20, Number 3, December 2006 p.286-316
Ideas about the role of fathers in the separated family have changed over the last few decades. The prevalent legal construct of 'co-parenting' implies that children should be able to maintain contact with a non-resident parent, usually the father, if they wish, except in cases where there has been abuse or violence. Research in several disciplines has sought to explain the processes of contact by examining the behaviour of separated fathers, their relationships within the family, and the separated family as a whole. Quantitative studies have explored levels of involvement, the father-child relationship and the inter-parental relationship as factors affecting children's outcomes, while an expanding body of qualitative work has sought to map the practice of co-parenting through identifying the diversity of separated parenthood and the perspectives of non-resident fathers in particular. The contributions of these diverse approaches to current debates on non-resident fathers are reviewed in this article.

The Quest for Truth: Substantiating Allegations of Physical Abuse in Criminal Prosecutions and Care Proceedings

Fri, 13 Oct 2006 09:35:40 EST

Volume 20, Number 3, December 2006 p.317-343
The protection of children from violence is increasingly being placed on national and international societal and political agendas throughout the world. Although responses vary, measures to punish abusers in the criminal courts and measures to protect child victims in the family courts are common to many jurisdictions. When an allegation of abuse is contested, the conflict must be resolved before these punitive or protective measures can be implemented. However, proving that a child has been abused is a process fraught with difficulties. This article explores the concept of proof and illustrates the challenges faced in substantiating allegations of physical abuse in criminal prosecutions and care proceedings in England and Wales. In so doing it considers the relationship between the two kinds of proceedings in the light of their respective punitive and protective objectives. It concludes that, although recent developments may occasionally have blurred the distinction between the two systems, the fundamentally different objectives of each remain and that this distinction justifies apparently conflicting outcomes in the quest for truth.

Contact/Shared Residence and Child Well-Being: Research Evidence and its Implications for Legal Decision-Making

Fri, 13 Oct 2006 09:35:40 EST

Volume 20, Number 3, December 2006 p.344-365
This article considers the implications for legal decision-making of one aspect of research on children's adjustment to parental separation: the significance for child well-being of maintaining a relationship with both parents, either by way of contact with a non-resident parent or by means of a shared (dual) residence arrangement (known in some jurisdictions as 'joint physical custody'). It is argued that policy-makers who have rejected recent calls for a statutory presumption of child/non-resident parent contact, or of equal division of a child's time between parents, have acted appropriately in the light of the research evidence.

Judicial Monitoring of Compliance: Introducing 'Problem Solving' Approaches to Domestic Violence Courts in England and Wales

Fri, 13 Oct 2006 09:35:40 EST

Volume 20, Number 3, December 2006 p.366-378
This article examines the development of specialist domestic violence courts. It overviews the features of 'problem solving' courts and considers the extent to which the fledgling domestic violence courts in England and Wales are adopting the problem solving approaches found in some specialist courts in the United States of America. Whilst noting some of the successes of the first seven domestic violence courts in England and Wales, the article concludes that more effective interventions in domestic violence cases can be achieved through greater involvement of the judiciary in ongoing monitoring of the defendant's compliance with court ordered perpetrator programmes.