Family Law in the GCC and the Best Interests of the Child

Hawwa ◽  
2018 ◽  
Vol 16 (1-3) ◽  
pp. 309-332
Author(s):  
Lena-Maria Möller
Keyword(s):  
Parental Care ◽  
United Arab Emirates ◽  
Family Law ◽  
Best Interests ◽  
Gulf Region ◽  
Legal Concept ◽  
Family Structures ◽  
Societal Values ◽  
The Family ◽  
The Persian Gulf

AbstractThis article considers the inclusion of the best interests of the child standard in the family law regimes of Bahrain, Qatar, and the United Arab Emirates, as well as its implications for our understanding of families in the Persian Gulf region. Specifically, the degree and ends to which the concept of the best interests of the child have been used in formulating the rules governing domestic child law generally, and parental care in particular, will be investigated. As the best interests of the child standard remains a vague and largely undefined legal concept in all three family codes, the analysis will not limit its focus on statutory approaches to reforming child law. More importantly, this article also considers legal practice in child law and the courts’ interpretation of the best interests of the child standard. In doing so, the article: (i.) discusses how the introduction of the best interests of the child standard has served to reform family law on its codification in Bahrain, Qatar, and the UAE; and (ii.) explores what the interpretation of the concept of best interests of the child tells us about changing societal values, family structures, and present-day attitudes towards motherhood and fatherhood in the GCC. I argue that, although the best interests of the child standard has come to influence most aspects of child law in the three countries under review, its usage and meaning remains inconsistent. The concept serves multiple purposes in the area of parental care in particular. What is still missing in all three jurisdictions is a thoroughly grounded and all-encompassing framework to determine the best interests of the child standard and also an understanding of its overall function within family law.

scholarly journals The principle of self-determination in the family law through history and today

2004 ◽  
pp. 159-178
Author(s):  
Gordana Kovacek-Stanic
Keyword(s):  
Parental Care ◽  
Family Law ◽  
Family Relations ◽  
Historical Context ◽  
Civil Code ◽  
Self Determination ◽  
200Th Anniversary ◽  
Parents And Children ◽  
The Family ◽  
The Moment

In the jubilee year 2004, Serbia marks the 200th anniversary of The First Serbian Uprising, structuring of modern Serbian state and its legal system comparatively speaking, France marks the 200th anniversary of passing the French Civil Code, one of the most significant civil codifications in the 19th century. It was an occasion to study certain institutions of family law through history and today. The used approach is modern, we studied the ways how the principle of self-determination influenced the family-legal solutions today, and we investigated if one could talk about the effect of this principle in the historical sense, too. The principle of self-determination implies the possibility for the subjects of family-legal relations to arrange their own relations themselves ? both the partner and parent relations. However, this principle undergoes significant limitations in the family law because the family relations are personal relations by character, as well as because of the need to protect the weaker participant, both the weaker partner or a child who needs protection stemming from his/her very status. Within marriage law, the principle of self-determination of the spouses (extramarital partners) is, among other things, made concrete through the possibility for an agreement about the effects of marriage (extramarital union), then through the possibility of agreed divorce, while the procedure of mediation in the marriage litigation contributes to the realization of the mentioned principle. As for the effects of marriage (extramarital union), the paper particularly discusses property relations, that is the marriage property contract, because it is at the moment a current issue in our domestic law. Within the relations between parents and children, the concretization of the principle of self-determination in parental care is significant, particularly in the situations when the relations between the parents were disturbed and resulted in a separation or a divorce with the joint parental care (application of the parental right). All institutions are analyzed in the positive law, in the historical context (solutions from the Serbian Civil Code the former Hungarian Law), and viewed comparatively in the European legal systems of the east and west European countries.

scholarly journals The Principle of Protecting the Best Interests of the Child in Shia Jurisprudence and Iran’s Legal System with Emphasis on Custody (New Understanding of a Traditional Legal Concept)

2019 ◽  
Vol 6 (1-2) ◽  
pp. 67-82
Author(s):  
Seyed Masoud Noori ◽  
Maryamossadat Torabi
Keyword(s):  
Legal System ◽  
Children's Rights ◽  
Children’S Rights ◽  
Best Interests ◽  
International Treaties ◽  
Best Interest ◽  
Legal Concept ◽  
Rights Of The Child ◽  
The Family ◽  
Made In

In this article, children’s rights will be studied in the Iranian legal system with remarks on its references in the Shia Jurisprudence. One of the main issues regarding children, is their guardianship, custody or tutorship. The Iranian legal system, same as the Shia Jurisprudence, has always kept the best Interest of the child as an essential ground for law making. Referring to court decisions; it is evident that control of the guardianship on the child is limited by the best interests of the child, because this interests is what we are sure to understand from the reason of custody of the child and that this system is designed only to secure child’s best interests since he/she might be incapable to secure his/her interests alone. The Iranian legal system, especially in the family law section is based on the Islamic rules. The main documents in the Shia Jurisprudence in Islam are Quran, Hadith, Consensus and reasoning which will be defined herein. In addition, a more recent review will be made in this study regarding the ratified laws regarding children’s rights and international treaties and conventions while focusing on the Convention on the Rights of the Child even though, Iran joined this convention by having several reservations.

Ways of protection of interests in family law

2021 ◽  
pp. 162-172
Author(s):  
Svitlana Khodak
Keyword(s):  
Family Law ◽  
Legal Regulation ◽  
Educational Process ◽  
Best Interests ◽  
Practical Significance ◽  
Legal Method ◽  
The Family ◽  
Welfare Of The Child ◽  
The Subject ◽  
Family Code

Purpose. The purpose of the study is ways to protect the interests of family law and the need to formulate scientifically sound recommendations for improving the current legislation of Ukraine in the field of family law interests. Methodology. The technical and legal method was used in the study of ways to protect interests in family law. Scientific novelty is that the article states that the list of ways to protect family interests should go beyond the Family Code, be open, which determines the possibility of their protection in other ways not prohibited by law. The article also proves that in determining the child's place of residence, the main issue is to decide what is best for the interests of the child, and not the presumption in favor of the mother. It is argued that the essence of the principle of the best interests of the child is manifested in the priority consideration of the interests of the child in the parents, legal representatives of the child, authorities, courts and other persons to meet any of its needs (depending on age, health, gender and specifics of child development). The author proves that the principle of the best interests of the child includes the principle of the welfare of the child, and this eliminates the need to distinguish them as separate legal categories. Results. The article analyzes the problems of using methods of protection of family law interests. The author proves that the interest in family law is protected in the same ways as subjective family law. 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 on the subject "Family Law of Ukraine".

scholarly journals Social support for orphans and children deprived of parental care: Ukrainian innovations

2019 ◽  
pp. 41-48
Author(s):  
Iryna Albul
Keyword(s):  
Social Support ◽  
Parental Care ◽  
Family Environment ◽  
Social Protection ◽  
The State ◽  
Best Interests ◽  
Adopted Children ◽  
Innovation Activities ◽  
The Family ◽  
State And Local

Modern European integration of Ukraine provides for the revision of the main guidelines in the state policy for creating conditions for satisfying the needs and interests of children, and realization of their rights. In particular, the main factor in the field of childhood protection is the focus on the upbringing of the child in the family environment, in support of the family; as an alternative, in the absence of parental care, to create a child-friendly environment. This orientation requires changes in the social support of orphans and children deprived of parental care. The purpose of the research. The aim of the study is to highlight and analyze certain aspects of Ukraine’s innovation activities regarding social support for orphans and children deprived of parental care; determine innovative features of social protection of Ukrainian children in terms of parental care absence. Methodology. The use of methods of analysis, synthesis and generalization revealed the main tendencies of innovative activity of the state authorities regarding orphans and children deprived of parental care. Results and practical meaning. It has been found out that the innovative development of the Ukrainian social support system for orphans and children deprived of parental care is due to positive world experience and focused on the protection of the best interests of the child and the satisfaction of their vital needs; reforming social protection system requires active involvement of the state and civil society institutions, aimed at the deinstitutionalization of placement of orphans and children deprived of parental care, and reorientation of the principles of financial support for families with adopted children; special attention is paid to cooperation with business representatives and international donors. The following basic vectors of social support for orphans and children deprived of parental care have been stated: modernization of algorithms for financing establishments of institutional type, approval of co-financing mechanisms from state and local budgets, and approval of state standards for social care for families with specified category of children. Prospects for further research. The study and analysis of regional programs of social support for orphans and children deprived of parental care in terms of decentralization and funding have been identified as promising.

The silent minority: The voice of the child in family law

2003 ◽  
Vol 28 (4) ◽  
pp. 31-38 ◽  
Author(s):  
Amanda Shea Hart
Keyword(s):  
Family Relationships ◽  
Family Law ◽  
Well Being ◽  
Best Interests ◽  
Law Reform ◽  
Value Judgments ◽  
Rights Of The Child ◽  
The Family ◽  
The Right ◽  
The Voice

Family law in Australia is an important and unique jurisdiction that directly impacts upon the well-being and future family relationships of children whose families are in dispute over post separation parenting arrangements. The United Nations Convention on the Rights of the Child states that children have the right to participate in decisions that directly affect them. But there are many barriers and tensions to children's participation in the jurisdiction of family law in Australia. Decisions said to be in the child's ‘best interests’ are influenced by value judgments and beliefs that are informed by dominant western discourses on the needs and competencies of children. In practice under the Family Law Reform Act 1995 children remain marginalised without an effective voice. Failure to hear the voice of the child is of special concern for children who have been traumatised by exposure to family violence and ongoing conflict. It is important to develop new understandings about children and the importance of giving children a voice.

scholarly journals “Family” as a legal concept

Revista CS ◽  
2015 ◽  
pp. 91-109
Author(s):  
Isabel Cristina Jaramillo Sierra ◽  
Helena Alviar
Keyword(s):  
Social Policy ◽  
Subject Matter ◽  
Legal Theory ◽  
Family Law ◽  
Same Sex ◽  
Legal Concept ◽  
Same Sex Couples ◽  
The Family ◽  
Proper Definition

The concept of “family” plays an important role in the way national legal regimes distribute both power and resources. However, the idea of what a family is or should be is not univocal for all branches of law. In this paper we wish to contribute to feminist thinking about the law and to legal theory in general, by showing the contradictions and gaps in law’s incorporation of the legal concept of the family and their distributive impact. We use the notion of conceptual fragmentation to refer to the irregular manner in which family as a legal concept lands into the realms of diverse fields of law at different moments in time and with different emphasis. We argue that conceptual fragmentation makes connections through time and subject matter invisible, and therefore makes it harder to have a critique of the role of the family, treated as a legal concept, in the oppression of women. We establish that conceptual fragmentation is not irrational or incoherent but rather patterned in ways that correspond to the losses of women in contemporary societies. We use the case of colombian law to illustrate the stakes involved in defining the family and the operations that we call fragmentation. In particular, we explain how family law exceptionalism was produced, the importance of the legal concept of the family within family law and its ambivalence as to the proper definition, and the evolution of the concept of family within social policy. We argue that even if the stakes of the family seem to be all for same sex couples, in so far as “family” is still about reproduction and distribution, we should be vigilant about how women fare in the conceptual turns that seek to bring us closer to the natural family.

Family and Family Law

2018 ◽  
Author(s):  
David Archard
Keyword(s):  
Family Law ◽  
Good Thing ◽  
Legal Concept ◽  
Evaluative Judgments ◽  
Personal Relations ◽  
The Family ◽  
Definition Of ◽  
Contemporary Writing ◽  
Better Than

Much contemporary writing on ‘family’ and ’family law’ cites extensive changes to the family as evidence that the very concept of the ‘family’ is redundant, or that the family has disappeared. Conceptual questions (What counts as a family?) should be distinguished from normative ones (Is the family a good thing? Are some families better than others?). The use of the term ‘the family’ can be normatively innocent such that there are different family forms none of which should be privileged. Having distinguished ‘the family’ as an extra-legal concept and as a legal construct, I defend a functional definition of the family. This value-free definition can serve as the basis of evaluative judgments about the family. There are good reasons why law might recognize the family, consistent with law also recognizing non-familial personal relations. Nevertheless we need not accord familial status to such relations, or abandon the term ‘family’.

I Wish the Views Were Clearer: Children's Wishes and Views in Australian Family Law

2013 ◽  
Vol 38 (4) ◽  
pp. 184-191 ◽  
Author(s):  
Alan Campbell
Keyword(s):  
Family Law ◽  
Best Interests ◽  
Parental Separation ◽  
Law System ◽  
Meaningful Relationship ◽  
Australian Family ◽  
The Family ◽  
Legislative Changes ◽  
Children’S Views ◽  
Level Of Understanding

In 2006, legislative changes were made to the Australian Family Law Act 1975. These changes included a revision of the matters that must be considered when determining children's best interests following parental separation, at Section 60CC. This section lists two ‘primary considerations’, which relate to the child's having a ‘meaningful relationship’ with both parents and ensuring that children are safe in their interactions with their parents and others in their lives. The first of the ‘Additional considerations’ under Section 60CC concerns ‘any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views’. This consideration differs from that in the pre-2006 Act, which referred to a child's ‘wishes’ rather than her/his ‘views’. There is evidence, however, that those working in the family law system may not yet have made the shift towards understanding what these changes may entail.In this article I explore the differences between the concepts of ‘wishes’ and ‘views’ as they relate to children in family law matters. I argue that these concepts are qualitatively different, and that children's ‘views’ are far more encompassing than their ‘wishes’. Moving to a far broader understanding of children and their ability to understand issues that directly affect their lives may lead to the development of more comprehensive decisions about their futures.

PROSTOR ZA AUTONOMIJU VOLjE UČESNIKA U POSTUPKU ZASNIVANjA POTPUNOG USVOJENjA

2021 ◽  
pp. 495-509
Author(s):  
Tamara Mladenović ◽  
Keyword(s):  
Family Law ◽  
Comparative Law ◽  
European Countries ◽  
Court Decision ◽  
Best Interests ◽  
Adoptive Parent ◽  
The Family ◽  
The World ◽  
The Will ◽  
The Republic

The author deals with the issue of extending the autonomy of participant’s will of the procedure of complete adoption in the Family Law of the Republic of Serbia in 2005 in comparison with the previous legal solutions. The legislator envisaged the possibility of adopting a child under parental care if his or her parents agreed to the adoption, whereby their consent may have the effect of waiving the parental right or transferring the parental right to other persons. The autonomy of the participant’s will is also expressed in situations when the legitimate or illegitimate partner of the child's parent appears as the adoptive parent. Due to the strengthening of the protection of the child's rights at the world level, as a condition for the establishment of a valid adoption, the legislator in the Family Law of the Republic of Serbia stipulates that the adoption must be approved by the adopted person who has reached the age of 10 years. The author in particular draws attention to the fact that in some European countries there is a possibility that the non-consent of parents who do not live with the child may be replaced by a court decision, invoking the best interests of the child. The legislature of the Republic of Serbia does not allow this, which is why the autonomy of the will is more broadly set in relation to the solutions of comparative law.

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