scholarly journals A capabilities approach to best interests assessments

Legal Studies ◽  
2021 ◽  
pp. 1-18
Author(s):  
Michael Thomson

Abstract It is an accepted principle of domestic and international law and policy that the welfare or best interests of the child must be the primary or paramount consideration in any decision made with regard to that child's upbringing. While this ‘best interests standard’ has become a core principle of welfare law, what might constitute a child or young person's best interests is given very little formal shape or content. This has provoked sustained criticism from practitioners, academics and the judiciary. In response, this paper argues that the capabilities approach can give best interests assessments much needed normative content, thereby addressing many of the criticisms directed towards the standard. The approach provides a theoretically nuanced framework for theorising about basic social justice and for evaluation, deliberation, and policy development across social welfare sectors. In arguing for a capabilities approach to best interests assessments, the paper sets out an agenda for change. It addresses the conceptual and methodological justifications for this change, and explores the empirical work that would be required. It identifies the steps and underlying principles necessary for a best interests process aligned with the capabilities approach, providing the necessary foundations for a radical reconceptualisation of best interests processes.

Author(s):  
Jessica Berg ◽  
Emma Cave

This chapter discusses patient autonomy, capacity, and consent involving children. It first provides a general overview of children’s rights with respect to making medical decisions in both the United States and Europe. The chapter then discusses the best interests standard (which is usually applied in cases of minors) and how to consider capacity in the context of children. In the discussions of European approaches, the chapter covers relevant international and regional human rights law. The jurisdiction of England and Wales are used as examples. The chapter also provides a general overview of US state approaches and federal law. The chapter concludes by noting some new areas of medical decision-making which challenge the traditional models.


2020 ◽  
Vol 16 (3) ◽  
pp. 253-268
Author(s):  
Vincent Chetail

AbstractThe Global Compact for Safe, Orderly and Regular Migration has prompted an intense political debate at both the international and domestic levels. Most controversies focus on its legal stance and highlight the hybrid character of the Compact as a soft-law instrument. While acknowledging the political nature of the Compact, this paper delves into its legal dimensions from the perspective of international law. This inquiry into its normative content discloses three main features: (1) the Compact is not a codification of international legal norms governing migration; it is an instrument of both (2) consolidation and (3) expansion of international law to foster inter-governmental co-operation and promote safe, orderly and regular migration.


2020 ◽  
Vol 28 (3) ◽  
pp. 613-631
Author(s):  
John Eekelaar

Abstract While Article 5 of the UN Convention on the Rights of the Child requires states to respect parents’ responsibilities to provide ‘appropriate’ direction and guidance to their children, Article 18 also proclaims that ‘the best interests of the child will be [the parents’] basic concern’. But how can this be done if, as is widely accepted, the “best interests” standard is too indeterminate safely to allow courts to substitute their assessment of children’s interests for those of a child’s parents? This reason for privatising such decisions has been reinforced by concerns over the extent of public expenditure on court involvement in and legal aid for such issues, with the possible result of withdrawal of the law from this process. This article argues that there are inherent risks in leaving the arrangements for children of separating parents entirely in the hands of the parents, and considers various ways in which such risks might be reduced.


Author(s):  
Katarina Galof ◽  
Zvone Balantič

The care of older adults who wish to spend their old age at home should be regulated in every country. The purpose of this article is to illustrate the steps for developing a community-based care process model (CBCPM), applied to a real-world phenomenon, using an inductive, theory-generative research approach to enable aging at home. The contribution to practice is that the collaboration team experts facilitate the application of the process in their own work as non-professional human resources. This means that each older adult is his or her own case study. Different experts and non-experts can engage in the process of meeting needs as required. The empirical work examined the number of levels and steps required and the types of human resources needed. The proposed typology of the CBCPM for older adults can provide insight, offer a useful framework for future policy development, and evaluate pilots at a time when this area of legislation is being implemented.


2020 ◽  
Vol 1 (10) ◽  
pp. 5
Author(s):  
Ingrida Baranauskiene

<p>Dear authors, members of the editorial board, and readers of the scientific interdisciplinary journal <em>Social Welfare: Interdisciplinary Approach</em>. We present to you one more issue of the journal. As in previous issues, in the present issue, an interdisciplinary approach to social welfare in a national and intercultural context is important to us. In this issue, we present to your attention the works of scientists from three countries in one way or another related to social welfare, the concept of which is constructed and presented in three chapters: <em>Social Challenges</em>, <em>The Development of Professional Competences</em> and <em>Disability Studies</em>. Going deeper into the presented scientific works, it can be seen that in many of them we can name social justice as the main idea. This scientific concept and the starting point of the formation of the concept of life has reached us from ancient times. All of us know Plato, Socrates’ disciple, and his ontological concept of justice related to a virtue of the soul. Justice for Plato is one of the major virtues that encompasses both state governance and human life in general. It can be argued that he saw the benefits of justice in the life of the state and the individual, including the idea that justice unites society (Plato, 2000<a title="" href="#_ftn1">[1]</a>). Aristotle gives justice the meaning of redistribution and sharing. On the other hand, although Aristotle’s justice is restricted to Greek citizens, in any case, the idea of sharing, redistributing, offsetting was spread thanks to Aristotle (Aristotle, 1990<a title="" href="#_ftn2">[2]</a>). Thomas Aquinas not only linked the Christian tradition to the teaching of Aristotle, but also further developed the idea of justice and emphasized the importance of transposing the idea into law (Aquinas, 2015<a title="" href="#_ftn3">[3]</a>). Immanuel Kant developed a moral theory which, in the context of our days, is, in my view, an important duty as the strongest pillar of morality (Kant, 1987<a title="" href="#_ftn4">[4]</a>). Without going into polemic about how much Immanuel Kant’s philosophy influenced John Rawls’ theory of social justice, I will quote the principles of justice defined by him: “a) each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value. b) Social and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity” (Rawls, 2002, p. 61<a title="" href="#_ftn5">[5]</a>). It can be said that Rawls’ idea that we will not achieve social welfare in the state until justice, including social justice, is ensured, has laid the foundations for a modern understanding of social justice. The dialectic of the concept of justice is also reflected in the works of our authors as the emphasis on justice as a value (Arūnas Acus, Liutauras Kraniauskas; Ilona Dobrovolskytė), the disclosure of the meaning of sharing (Jurgita Lenkauskaitė; Olga Kuprieieva, Tetiana Traverse, Liudmyla Serdiuk, Olena Chykhantsova, Oleksandr Shamych), the construct of the concept of law (Daiva Malinauskienė, Aistė Igorytė; Ingrida Baranauskienė, Alla Kovalenko, Inna Leonova), the understanding of a theory of civic morality, a duty that is a pillar of morality (Svitlana Kravchuk; Elena Kuftyak; Asta Volbikienė, Remigijus Bubnys; Simas Garbenis, Renata Geležinienė, Greta Šiaučiulytė). And it does not matter at all whether this is analyzed in the context of social challenges, disability studies or professional competences. It can be stated that the idea of social justice is the driving force behind the scientific works of this journal.</p><p>Wishing everyone to stay healthy, both physically and spiritually, I place social justice as a fundamental value in these turbulent times of a global pandemic. But life does not stand still, so we look forward to your new research works. There will be no us without you.</p><div><br clear="all" /><hr align="left" size="1" width="33%" /></div>


CHEST Journal ◽  
2010 ◽  
Vol 138 (4) ◽  
pp. 1021-1022 ◽  
Author(s):  
Mohamed Y. Rady ◽  
Joseph L. Verheijde

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