scholarly journals PARENTING PLANS IN TERMS OF THE CHILDREN’S ACT: SERVING THE BEST INTERESTS OF THE PARENT OR THE CHILD?

Obiter ◽  
2021 ◽  
Vol 34 (2) ◽  
Author(s):  
Frans Mashilo Mahlobogwane
Keyword(s):  
Family Environment ◽  
Close Contact ◽  
Case Law ◽  
Best Interests ◽  
Growing Up ◽  
Legal Basis ◽  
Primary Caretaker ◽  
Close Relationship ◽  
Stable Family ◽  
Parenting Plan

The Children’s Act 38 of 2005 provides the legal basis for the reshaping of the exercise of parental responsibilities and rights. In previous case law the custody of a child was assigned to the parent who had been the primary caretaker during the subsistence of the marriage relationship, although the overriding factor remained the best interests of the child. This model has proved to be insufficient in order to promote the need for a child to be brought up in a stable family environment or, where this is not possible, in an environment that is as close as possible to a caring family environment; including the child’s right to maintain close contact with both parents. Facing this shortfall, the legislature adopted a “parenting-plan” model in terms of the Children’s Act, which attempts to help parents to set aside their differences and work out a plan which is in their child’s best interests. The parenting plan further attempts to help parents in exercising their parental responsibilities and rights over their children. The purpose of this article is to analyse this legal solution in an effort to ascertain whether it really promotes the best interests of the child, namely, promoting his/her right of growing up in a close relationship with both parents. 

The Best Interests of the Child

2020 ◽  
pp. 203-221
Author(s):  
Wouter Vandenhole ◽  
Gamze Erdem Türkelli
Keyword(s):  
Human Rights ◽  
Family Law ◽  
Children's Rights ◽  
Case Law ◽  
Children’S Rights ◽  
Best Interests ◽  
Rights Of The Child ◽  
European Court ◽  
Elusive Concept

The best interests of the child principle is considered a pillar of children’s rights law and, according to the UN Convention on the Rights of the Child (CRC), is to be a primary consideration in all actions concerning children. Yet best interests is an elusive concept and principle that has no single authoritative definition or description. Internationally and domestically relevant in such diverse areas as family law, adoption, migration, and socioeconomic policymaking, the best interests principle requires flexibility and is best served by a case-by-case approach, as has been recognized by the UN Committee on the Rights of the Child and the European Court of Human Rights. This chapter analyzes relevant international case law and suggests the use of a number of safeguards to prevent such requisite flexibility from presenting a danger of paternalism, bias, or misuse.

The Doctrines of Specification and Accession: Potential Bases for Legal Ownership through Labor?

1983 ◽  
Vol 4 (1) ◽  
pp. 1-17
Author(s):  
Melissa A. Barker
Keyword(s):  
Case Law ◽  
Dominant Mode ◽  
Legal Basis ◽  
Collective Ownership ◽  
Legal Relationship ◽  
American Case ◽  
Ownership Rights ◽  
Mode Of Production ◽  
Composition Of Products ◽  
Means Of Production

This paper explores the viability of the doctrines of accession and specification as potential sources of a historical-legal basis for ownership rights accruing to labor by recognizing its unique capacity to create value. Focusing on examples from American case law, the origin and development of these doctrines are documented. The changes in these doctrines, from their first appearance in the early civil law or Code of Justinian to the present, often reflect the historic changes in the composition of products, the legal relationship between labor and capital and the changes in the dominant mode of production. The purpose of this inquiry is to determine if a legal rationale exists which justifies collective ownership of the means of production.

Medical treatment and best interests: judicial interpretation of values, wishes and beliefs under the Mental Capacity Act 2005

2020 ◽  
Vol 22 (3) ◽  
pp. 165-173
Author(s):  
Owen P. O'Sullivan
Keyword(s):  
Medical Treatment ◽  
Clinical Decision ◽  
Case Law ◽  
Decision Makers ◽  
Best Interests ◽  
Content Type ◽  
The Supreme Court ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act ◽  
The Uk

Purpose The prominence of the best interests principle in the Mental Capacity Act 2005 represented an important transition to a more resolutely patient-centred model regarding decision-making for incapable adults (“P”). This paper aims to examine the courts’ consideration of P’s values, wishes and beliefs in the context of medical treatment, reflect on whether this has resulted in a wide interpretation of the best interests standard and consider how this impacts clinical decision makers. Design/methodology/approach A particular focus will be on case law from the Court of Protection of England and Wales and the Supreme Court of the UK. Cases have been selected for discussion on the basis of the significance of their judgements for the field, the range of issues they illustrate and the extent of commentary and attention they have received in the literature. They are presented as a narrative review and are non-exhaustive. Findings With respect to values, wishes and beliefs, the best interests standard’s interpretation in the courts has been widely varied. Opposing tensions and thematic conflicts have emerged from this case law and were analysed from the perspective of the clinical decision maker. Originality/value This review illustrates the complexity and gravity of decisions of the clinical decision makers and the courts have considered in the context of best interests determinations for incapacitated adults undergoing medical treatment. Subsequent to the first such case before the Supreme Court of the UK, emerging case law trends relating to capacity legislation are considered.

From ‘Don’t Mention the Titanium Dioxide Judgment’ to ‘I Mentioned it Once, But I Think I Got Away with it All Right’: Reflections on the Choice of Legal Basis in EU External Relations after the Legal Basis for Restrictive Measures Judgment

2013 ◽  
Vol 15 ◽  
pp. 537-562
Author(s):  
Geert de Baere
Keyword(s):  
European Union ◽  
Titanium Dioxide ◽  
Case Law ◽  
The European Union ◽  
Legal Basis ◽  
Court Of Justice ◽  
External Relations ◽  
Restrictive Measures

Abstract This chapter examines the choice of legal basis in EU external relations post-Lisbon in the light of the judgment of the Court of Justice in the Legal Basis for Restrictive Measures case. Before reaching the conclusion that the regulation at issue there was rightly based on Article 215(2) of the Treaty on the Functioning of the European Union (TFEU) and rejecting the European Parliament’s argument that the measure ought to have been taken on the basis of Article 75 TFEU, the Court made a number of important observations on the principles to be followed when choosing a legal basis and recalled some of its earlier case law, in particular Titanium Dioxide and its progeny. This chapter reflects upon the application of those principles in a post-Lisbon framework.

scholarly journals The Use of Neuroscience and Psychological Measurement in England's Court of Protection

2020 ◽  
Vol 11 ◽  
Author(s):  
Andrew McWilliams ◽  
Stephen M. Fleming ◽  
Anthony S. David ◽  
Gareth Owen
Keyword(s):  
Brain Function ◽  
Mini Mental State Examination ◽  
Case Law ◽  
Mental Capacity ◽  
Best Interests ◽  
Quantitative Review ◽  
Mental Capacity Act ◽  
State Examination ◽  
Neuroscience Community

The 2005 Mental Capacity Act of England and Wales provides a description in statute law of a test determining if a person lacks “mental capacity” to take a particular decision and describes how the “best interests” of such a person should be determined. The Act established a new Court of Protection (CoP) to hear cases related to the Act and to rule on disputes over mental capacity. The court gathers a range of evidence, including reports from clinicians and experts. Human rights organisations and others have raised concerns about the nature of assessments for incapacity, including the role of brain investigations and psychometric tests.Aim: Describe use and interpretation of structured measures of psychological and brain function in CoP cases, to facilitate standardisation and improvement of practices, both in the courtroom and in non-legal settings.Method: Quantitative review of case law using all CoP judgments published until 2019. The judgments (n = 408) were read to generate a subset referring to structured testing (n = 50). These were then examined in detail to extract the nature of the measurements, circumstances of their use and features of interpretation by the court.Results: The 408 judgments contained 146 references to structured measurement of psychological or brain function, spread over 50 cases. 120/146 (82.2%) referred to “impairment of mind or brain,” with this being part of assessment for incapacity in 58/146 (39.7%). Measurement referred on 25/146 (17.1%) occasions to “functional decision-making abilities.” Structured measures were used most commonly by psychiatrists and psychologists. Psychological measurements comprised 66.4% of measures. Neuroimaging and electrophysiology were presented for diagnostic purposes only. A small number of behavioural measures were used for people with disorders of consciousness. When assessing incapacity, IQ and the Mini-Mental-State Examination were the commonest measures. A standardised measure of mental capacity itself was employed just once. Judges rarely integrated measurements in their capacity determinations.Conclusion: Structured testing of brain and psychological function is used in limited ways in the Court of Protection. Whilst there are challenges in creating measures of capacity, we highlight an opportunity for the neuroscience community to improve objectivity in assessment, inside and outside the courtroom.

Family Ambivalence: The Contested Terrain of Intercountry Adoption

2016 ◽  
Author(s):  
Jacqueline Bhabha
Keyword(s):  
Family Environment ◽  
Current System ◽  
Best Interests ◽  
International Human Rights Law ◽  
Intercountry Adoption ◽  
Human Rights Law ◽  
Public Controversy ◽  
New Family ◽  
Child Migration ◽  
Developed World

This chapter examines intercountry adoption and how it affects children moved from the “majority” to the “developed” world each year to become part of a new family. The assumption that children belong within a nurturing family environment forms a bedrock of international human rights law. It is also a key feature of immigration and citizenship law. The chapter explains how intercountry adoption gives rise to heated public controversy over what constitutes the “best interests of children.” It considers several causes for skepticism about the value of intercountry adoption, including increased uncertainty about the unqualified benefits of “plenary adoption.” It also shows how increasing commercialization and the lack of adequate safeguards are resulting in criminal abuses including child trafficking, abduction, and sale. Finally, it discusses intercountry adoption as a form of child migration and argues the need to improve the current system of intercountry adoption.

Title XX Environment

2019 ◽  
Author(s):  
Sacha Garben
Keyword(s):  
Environmental Protection ◽  
Criminal Law ◽  
Policy Making ◽  
Environmental Law ◽  
Case Law ◽  
Legal Basis ◽  
Common Concern ◽  
Law And Policy ◽  
Dense Set ◽  
The Eu

The environment does not respect man-made borders, and is of common concern and interest of all mankind. As such, it is an area that merits and requires cross-border law and policy making par excellence. This should be reflected in the strong role played by the EU, which has a firm Treaty mandate and duty to protect the environment, features a rich body of case law, and boasts a dense set of secondary legislation. The very good reasons for this notwithstanding, it remains a remarkable development considering the absence of any reference to the environment in the original Treaties. Although a programme for action in this area was soon adopted in 1973, only in the 1986 SEA was an environmental legal basis introduced. Much of the initial environmental acquis was therefore developed by the Commission, the Council, and later the EP on the basis of other Treaty provisions, such as (now) Articles 114, 115, and 352 TFEU. EU environmental protection also owes a debt to the ECJ, which included it in the legitimate objectives on the basis of which MS could derogate from the free movement provisions. The Court has interpreted the provisions of EU environmental law generally in a protective manner, and endorsed the use of criminal law for the effective enforcement of EU environmental legislation.

3. Consent

2021 ◽  
pp. 37-58
Author(s):  
Jo Samanta ◽  
Ash Samanta
Keyword(s):  
Public Policy ◽  
Information Disclosure ◽  
Common Law ◽  
Case Law ◽  
Mental Capacity ◽  
Best Interests ◽  
Mental Capacity Act 2005 ◽  
Relevant Case ◽  
The Common ◽  
Mental Capacity Act

This chapter deals with consent as a necessary precondition for medical treatment of competent adults. It provides an overview of the common law basis of the Mental Capacity Act 2005, followed by discussion of issues relating to information disclosure, public policy, and the key case of Montgomery and how this applies to more recent cases. It considers the statutory provisions for adults who lack capacity, exceptions to the requirement to treat patients who lack capacity in their best interests, and consent involving children under the Children Act 1989. Gillick competence, a concept applied to determine whether a child may give consent, is also explained. Relevant case law, including Gillick, which gave rise to the concept, are cited where appropriate.

Non-State Armed Groups and the Power to Detain in Non-International Armed Conflict

2020 ◽  
Vol 53 (1) ◽  
pp. 3-33
Author(s):  
Joshua Joseph Niyo
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
Case Law ◽  
Customary Law ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Legal Basis ◽  
Armed Groups ◽  
Critical Feature

The restriction of personal liberty is a critical feature in all conflicts, whether they are of an international character or not. With the increased prevalence of non-international armed conflict and the drastic proliferation of non-state armed groups, it is critical to explore whether such groups can legally detain or intern persons during conflict. This article proposes that there exists a power and a legal basis for armed groups to intern persons for imperative security reasons while engaged in armed conflict. It is suggested that this authorisation exists in the frameworks of both international humanitarian law and international human rights law, as it does for states engaged in such conflicts. It is proposed that such power and legal basis are particularly strong for armed groups in control of territory, and can be gleaned from certain customary law claims, treaty law, as well as some case law on international humanitarian law and human rights. Certain case law of the European Court of Human Rights on detention by de facto non-state entities conceivably reflects a change in traditional thinking on ‘legal’ detention by armed groups.

scholarly journals EMOTIONS AND WELL-BEING IN LATER LIFE CHILDHOOD HAPPINESS, SELF-MASTERY, AND LATER-LIFE HEALTH

2019 ◽  
Vol 3 (Supplement_1) ◽  
pp. S576-S576
Author(s):  
Haena Lee ◽  
Markus H Schafer
Keyword(s):  
Depressive Symptoms ◽  
Family Environment ◽  
Social Life ◽  
Successful Aging ◽  
Living Arrangement ◽  
Later Life ◽  
Well Being ◽  
Adult Health ◽  
Growing Up ◽  
Self Rated Health

Abstract Considerable work has documented that positive childhood memories, especially childhood happiness, predict better health among young adults. However, it is not known whether growing up happy has enduring health consequences across the life course. Using two waves of the National Social Life, Health and Aging Project (2010-2011 and 2015-2016; N = 1,937), we investigate the relationship between childhood happiness and changes in physical, mental, and biological functioning in later life. Childhood happiness was retrospectively assessed using a question: “When I was growing up, my family life was always happy.” Self-rated health, depressive symptoms, and frailty over a five-year period were examined to reflect changes in functional status. Childhood SES and living arrangement were examined to assess childhood sociodemographic background. Educational attainment, family support and strain, and self-mastery were considered as potential mediators. We find that, among other childhood factors, childhood happiness significantly predicts older adult health. Specifically, childhood happiness was associated with better self-rated health and lower depressive symptoms at follow-up, net of baseline health conditions. We did not find a relationship between frailty and childhood happiness. Unlike prior work, we found no significant effect of childhood SES on the measured outcomes. Associations between childhood happiness and self-rated health and depression were mediated by psychosocial resources including self-mastery and perceived social support from family members. This implies that growing up in nurturing, cherished family environment has the potential to cultivate social relationships and build resilience which could provide an important pathway to successful aging.

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