About Child and Family Law Quarterly

In 2018, the intended deportation of two Armenian children who had been in the Netherlands for over a decade but never managed to gain legal residence led to widespread protests. The children were supposed to be deported to Armenia, but their mother – who had been deported earlier – seemed neither able nor willing to take care of them due to mental health issues. Their situation sparked intense social and political debates and led to a number of policy changes in Dutch migration law. In this paper, we will analyse where and how tensions arise between migration law actors and child protection law actors regarding the situation of children and families without legal residence in the Netherlands. We will argue that fundamental differences between Dutch child protection law and migration law can lead to unequal treatment of different categories of vulnerable children as well as to tensions, frustrations, and distrust between migration authorities and child protection authorities. The article is based on a combination of legal and empirical research, including interviews with child protection and migration authorities, judges and lawyers, as well as an analysis of case law.

Children’s mobility and concerns relating to child protection in the cross-border context is an emerging field of study that has hitherto largely remained unexplored. Central to the effectiveness of transnational child protection are structures that facilitate collaboration between the local child protection and welfare authorities of different countries. Under the Hague Conventions on Child Protection 1996 and Child Abduction 1980, as well as EU Regulation Brussels IIter, Member States are required to appoint a central authority to serve as a contact point for this collaboration. Drawing on a study of cases handled by the Finnish central authority from 2011 to 2020, this article provides a unique window on the concrete practices of cross-border child protection. Informed by the idea that the state is a social relation and the notion of ‘stategraphy’, the article examines how the state is brought into being in the practices of authorities who work on child welfare and protection and draw boundaries that exclude or include children. It is argued that particular ideas and normative expectations about the state lead to misunderstandings of local child protection authorities concerning jurisdiction, which may result in a failure to fulfil the positive obligations to secure protection of the child in a cross-border context.

Studies of care proceedings in England have established a rise in the number of children placed with kinship carers at the end of proceedings, and a corresponding fall in the number of children placed for adoption. Coupled with this there has been a concern about children being placed with kinship carers with whom they have little or no pre-existing relationship. Where a child in need of protection from abuse or neglect has transnational connections, it may be necessary to explore their potential placement with a kinship carer overseas. However, there are clear challenges associated with establishing whether an international kinship care placement is in a child’s best interests and securing a legal framework for any international kinship care placement. This study draws upon a quantitative and qualitative analysis of 100 care cases heard in England between 2015–2018, together with qualitative interviews with professionals with experience of international kinship care. It identifies significant challenges for professionals and courts associated with trying to ‘fit’ cross-border situations into a domestic legal framework. It suggests that these difficulties stem from an approach in care proceedings which fails to treat international kinship care as a distinct form of care, with its own potential strengths and challenges.

In England and Wales, children involved in public law care proceedings may have significant familial connections with family abroad. In these circumstances, the English court must consider whether it has jurisdiction to make decisions over the child. Inherent to the decision on jurisdiction over the child’s welfare is the question of where the child ‘belongs’, usually determined by identifying the child’s habitual residence. This process legitimates the English courts’ decision-making over the child. This article examines the transfer of jurisdiction under the 1996 Child Protection Convention, and stays of jurisdiction under the principle of forum non conveniens for their use in child protection proceedings, considering the justifications for disrupting the primacy of habitual residence as a connecting factor and the assessment of the child’s best interests in this context. It considers how international family law implicitly engages with the concept of ‘place belonging’ when it ascribes legal meaning to locating a child subject to care proceedings. This concept is used to analyse the extent to which disruptions to the child’s habitual residence as the primary basis of jurisdiction must consider the best interests of the child.

This article discusses the scope of legal obligation for contracting states to the United Nations Convention on the Rights of the Child 1989 to realise children’s right to protection from all forms of violence in diplomat families, while simultaneously acknowledging diplomatic immunity. Based on an in-depth, qualitative study consisting of 43 written and oral accounts of former Norwegian Foreign Services children from 2015 to 2019, we show that children growing up in diplomat families experience infringement of their rights with little attention being paid to their situation by public authorities, neither in a receiving nor a sending state. The effect of being invisible to the authorities of either state is intensified by the legal framework of the Vienna Convention on Diplomatic Relations 1961 granting diplomat families and their children immunity from jurisdiction in a receiving state. The UN Convention on the Rights of the Child, however, requires that measures are taken by contracting states. We suggest certain types of actions by the receiving and sending state that are in line with the legal status of immunity of diplomat families, while still supporting the realisation of human rights of diplomat children.

Forced Marriage Law and Practice, Joshua Hitchens and Niamh Daly Dr Mohammad, reviewed by Mazher Idriss

Children and the European Court of Human Rights, Claire Fenton-Glynn, reviewed by Ruth Lamont

This article explores the methodology developed in McLaughlin and other recent cases that have seen cohabitants use the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 to gain access to legal protections originally intended exclusively for spouses and civil partners. It will be argued that whilst McLaughlin demonstrates a robust approach to discrimination affecting unmarried couples, the methodology is caveated, leading to questions surrounding whether its scope is wide enough to have any substantial benefit in future litigation. This article undertakes a systematic analysis of the stages of a claim under the European Convention to argue that the developments in these cohabitation cases should be welcomed, and that there is a role for human rights to play to alleviate the discrimination facing cohabitants. However, the continued acceptance of the legitimacy of promoting formalised relationships to justify different treatment, alongside a disproportionate weight attached to the presence of children means that the methodology may have limited application.

Female genital mutilation (FGM) according to the World Health Organisation, is a procedure that involves the total or partial removal of the external female genital organs for non-medical reasons. With only one conviction to date despite its prevalence within some communities in the country, it is apparent that the law as it stands in England and Wales is ineffectual in tackling FGM, and more must be done. Historically, the law on FGM was purely designed to penalise where an offence had occurred, and while this began to change with the introduction of female genital mutilation protection orders (FGMPO), analysis of the applications for such orders will demonstrate that the majority of girls at risk are not utilising them. It must, therefore, be considered what else can be done to tackle FGM in England and Wales. A multi-agency approach will be proposed, in which a duty to report risk, education and medical examinations are all considered as options available, alongside FGMPOs and criminal sanctions. Although criminal sanctions in relation to perpetrators are not new, proposing positive obligations and criminal sanctions on certain professionals for failing to report, will offer a distinctive contribution to the eradication of FGM.

When families are referred to local authorities, the State has power to intervene into private family life to assess whether a child meets section 17 and/or 47 Children Act 1989 thresholds. In 2019/2020 (the latest available data) nine percent of families in England and Wales were referred. Thirty-seven percent did not reach the section 17 threshold, and 88 percent did not meet the section 47 threshold. This is concerning given the available prevalence estimates, suggesting that 25.3 percent of children in the UK may have been abused. A legitimate debate is merited to consider whether State processes of referral and assessment have struck the right balance. We argue that given the apparently high number of false positives and false negatives under the existing policy framework, it is possible that the State may be failing in its primary aim of protecting sufficient abused children and risks potential harm to non-abusive families who are caught in the ‘glare’ of referral and assessment. We conclude by considering whether the balance between State power and private rights should be re-balanced to more clearly separate section 17 support from section 47 protection, as originally intended in the Children Act 1989.

This New Zealand study aims to examine the experiences of fathers in family mediation in an open, non-directive way. Qualitative, semi-structured interviews were conducted with fathers who attended family mediation. The interviews revealed a highly challenging post-separation period for fathers as they battled severe grief combined with confusing societal messages about fatherhood. The devaluation of fatherhood by mothers, mediators and often fathers themselves surfaced as a pervasive theme. The most prominent experience that transpired in the interviews was gender-based bias and a strong feeling of powerlessness as fathers perceived mothers as holding absolute power in the mediation. For most fathers, the full potential of mediation has not been fulfilled due to anger and frustration created by these difficulties. Implications for mediators include the need to be aware of the fragile state of fathers and to show respect for the different quality of fatherhood. Mediators should use techniques that maximise the potential for conflict resolution as opposed to settlement and use reflective practice and supervision, especially around gender bias and gender power issues. Increasing engagement with fathers will enable mediators to unlock the full potential of family mediation and enhance the well-being of children through enabling a meaningful relationship with fathers.

Procedural justice theories hypothesise that the fairness of a court process influences how the judiciary and the justice system is perceived, whether the outcome is regarded as just, and the extent to which decisions are accepted and followed. At a time when self-representation in family matters is the dominant mode of representation and Covid-19 has resulted in remote and hybrid hearings, whether courts can offer disputing parents a procedurally fair process is of paramount importance. Drawing on data from the author’s qualitative study of 34 litigants in person appearing in family courts, the article examines the participants’ relationship with the judiciary. Whilst procedural justice theories explain how the judiciary can provide litigants with a fairer process, in family proceedings achieving this can depend on the gender of the litigant in person and the representational status of the other parent. Ultimately, this article argues that of Tyler’s four criteria for procedural justice, the most important to litigants in person in private family matters were respect and trust. For these to develop it is imperative that the judiciary communicate in a manner that creates an inclusive atmosphere, where explanations are provided using accessible language and the atmosphere is premised on judicial continuity, identity, and control.

Tying the Knot: The Formation of Marriage 1836–2020, Rebecca Probert, reviewed by Russell Sandberg

Trapped in a Religious Marriage: a human rights perspective on the phenomenon of marital captivity, Benedicta Deogratias, reviewed by Rehana Parveen

This article criticises the Strasbourg Court’s reluctance to recognise the familial association between a natural father and a child with whom he had no opportunity to establish effective bonds, unless the child was the product of a committed relationship (by analogy with marriage) and planned conception, whilst downgrading family aspirations to a (less protected) privacy interest if the birth resulted from an extra-marital or fleeting relationship. The author also laments the Court’s readiness to accept superficial justifications for interferences with the father’s private or ‘potential’ family life (where it finds it engaged), such as the refusal to order genetic tests or contact. The Court allows the ‘child’s best interests’ façade to accommodate the mother’s choice of partner (especially in the case of children conceived in adultery) and remains oblivious to the modern plural fatherhood (whereby the husband continues his parental role qua stepfather, without obliterating the natural father’s family life with the child). It is further argued that, to end the gender-based double standard in the treatment of natural parents, the case law must de-couple the father’s family life with the child from the quality of the adults’ relationship and the circumstances surrounding conception (save for narrow exceptions) and acknowledge that currently pater certus est.

The registered intermediary represents an important resource in supporting young people’s participation in a criminal trial. However, in England and Wales there are significant disparities between the support provided by registered intermediaries to young witnesses and young defendants. Young defendants in criminal trials are offered much more limited support to participate in court proceedings. This article employs Fineman’s vulnerability theory and Nussbaum’s capabilities approach to investigate the provision of intermediaries for young defendants in England and Wales and throughout Australian jurisdictions. We examine failings in the provision of intermediaries to young defendants and consider the further work needed to align this provision with the right of children to be heard in proceedings affecting them contained in Article 12 of the United Nations Convention on the Rights of the Child 1989 and the right to a fair trial enshrined in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.

For separated families, the COVID-19 pandemic has impacted the making and workability of, and compliance with, court orders about shared care arrangements for children. This article presents an analysis based on the Australian experience of how COVID-19 related risks to children – such as the risk of being exposed to or contracting COVID-19, or their mental health suffering due to COVID-19 restrictions – have manifested in post-separation parenting disputes. It presents the first empirical study of published judgments in proceedings under Part VII of the Family Law Act 1975 that expressly identify COVID-19 related risks, and examines how the Family Court of Australia and the Federal Circuit Court of Australia evaluated those risks, and factors shaping the courts’ evaluation. The study findings reveal that: (i) the courts have given primacy to meaningful parent–child relationships during a time of great uncertainty, without compromising children’s safety; and (ii) limited evidence of COVID-19 related risks has made the already fraught task of assessing risk more challenging for judges. The study exposes an ongoing tension between the family courts’ protective instinct to shield children from harm or the risk of harm, and their concern to ensure that children benefit from a meaningful relationship with both parents.

This article explores how child neglect was criminalised during the period that the first statutory offence existed but was not enforced. The article addresses a gap in scholarship by exploring the Victorian origins of the neglect law and the ways it disproportionately penalised poor families when a child suffered from a lack of material provision. This was particularly true for biological mothers and a limited number of biological fathers who were treated more harshly by Victorian juries if they transgressed middle-class expectations of gender. Class conflict and gender bias featured heavily in the trials involving neglectful parenting which, this article asserts, provides another example of the ways that the poor were punished for their economic misfortune during the late-nineteenth century. Understanding the effectiveness of enforcement during this period is important because of the heavy reliance of modern neglect law on Victorian legislation.

International Handbook on Child Participation in Family Law, Wendy Schrama, Marilyn Freeman, Nicola Taylor and Marielle Bruning (eds), reviewed by Lara Walker 211

A History of Divorce Law: Reform in England from the Victorian to Interwar Years, Henry Kha, reviewed by Chris Barton

This commentary considers the Court of Appeal decision in Re H-N and Others (Children) (Domestic Abuse: Finding of fact hearings). The appellate court heard four conjoined appeals demonstrating what can go wrong in child arrangement proceedings where there are allegations of domestic abuse. The decision highlights a range of specific issues, including the difficulties of identifying and assessing the significance of coercive and controlling behaviour, which the court considers essential to a ‘modern’ understanding of domestic abuse. The court tackles the application of the guidance in Practice Direction 12J; including whether to hold a fact-finding hearing and, if so, determining which allegations to hear (through the formulation of directions, including Scott Schedules) and how to approach the evidence at a fact-finding hearing, including whether to have regard to criminal law concepts. In this commentary the reasoning of the court in relation to both the specific cases and the broader issues is analysed. The analysis is contextualised within recent developments, in particular the expert panel report, published in 2020, on assessing the risk of harm for children and adults in child arrangement proceedings in England and Wales.

Social science literature reports on the existence of institutional victim and mother blaming attitudes towards women who have experienced domestic abuse. Despite major law reform and a greatly improved understanding of domestic abuse, there remains a problematic victim blaming culture within children’s social care and the family courts. Women whose children have been adopted from care (referred to here as birth mothers) appear to be highly vulnerable to mother blaming by professional bodies. This study explores the personal perspectives of birth mothers who experienced domestic abuse and who were involved with children’s social care and the family courts. To achieve authentic voice, unstructured interviews were conducted with ten birth mothers. The interview transcripts were analysed using discourse analysis, with words and narratives being compared to examples of victim and mother blaming language in cases of domestic abuse. Analysis revealed that responsibility and culpability for domestic abuse was often placed on the victims by professionals, who at times adopted a ‘passive voice’ where domestic abuse is acknowledged but the perpetrator is not. This practice maintains the invisibility of the abuser, known as ‘agent deletion’, this being where the agent of the process, in this case the perpetrator of abuse, is omitted or backgrounded. The findings provide additional knowledge to the fields of adoption, birth mothers and institutional attitudes towards survivors of domestic abuse. As a group birth mothers are being stereotyped as culpable victims. The emotional implications for these women, who lose all rights to parent their children, are severe. They are traumatised by domestic abuse and then find they are blamed by authority figures who may have initially been seen as offering support. The residual culture of mother blaming within the family courts and children’s social care should be addressed with relevant training and awareness. Adoption of aspects of empowerment models, traditionally deployed by domestic abuse advocates, and a trauma-informed approach would be a step in the right direction.

Continuing to vest the judiciary with very wide discretion to determine maintenance issues on a case-by-case basis, the child maintenance system applied in Ireland is now an outlier in the common law world. However, while there are currently few judicially developed or legislatively established principles or guidelines to direct the exercise of this discretion – much less any formulae or tables – reform may be on the horizon. With this in mind, this article considers the legal framework for child maintenance in Ireland before drawing on recent empirical studies to highlight the challenges in practice. It places the spotlight on the mounting calls for the adoption of a more predictable and consistent formula-based approach to the quantification of child maintenance and investigates five key issues which would have to be addressed in devising any such reform.

As a former British colony, the option of a boarding school education remains an important part of Hong Kong’s educational framework. Whilst historically intended to provide offspring with ‘a proper British education’, reasons for sending children to boarding school are diversifying. This article presents a thematic analysis of published cases in the Hong Kong family jurisdiction referencing boarding school or overseas education, aimed at uncovering motivations for sending children to boarding school. The analysis reveals two emerging themes in boarding school applications that are of relevance beyond the Hong Kong jurisdiction: first, the use of boarding school as a means to lift a child out of a high-conflict divorce setting; and, secondly, boarding proposals as a form of ‘strategic diversion’, where one parent seeks to relocate with the child and the other parent suggests boarding as a compromise. The article discusses the findings from this analysis, including from the perspective of the best interests of the child, which may be served by a child’s physical removal from entrenched parental conflict, but perhaps not by becoming a compromise-boarder.

Allegations of parental alienation have gained traction in Singapore since it was first referred to in 1995 and first accepted by the Singapore High Court as a valid argument in 2014. This article provides an empirical study of 104 reported judgments by the Singapore courts, between 1961 and 2020, in which parental alienation was referenced or alleged. This article will also distil trends from the types of cases where parental alienation was referred to, the effectiveness of the allegation for parties to obtain their prayers, the types of legal responses employed by the Singapore courts, and whether there is a correlation between parental alienation and domestic abuse allegations.

Religion and Marriage Law: The Need for Reform, Russell Sandberg, reviewed by Stephanie Pywell

Relational Vulnerability: Theory, Law and the Private Family, Ellen Gordon-Bouvier reviewed by Stephanie Coker

In this paper we highlight the inadequacies of the current legal response to killings in the course of alleged rough sex. The issues we identify demonstrate the thinness of the legal conceptions of ‘consent’, ‘violence’ and ‘intent’, which have led to controversial outcomes in some such cases. If the law struggles to find an effective response to domestic abuse and sexual violence in cases where the victim has died, then this shows the severity of the challenges in dealing with them in non-fatal cases. We will critically consider some of the reform proposals that have been enacted in response to these cases and suggest that on their own they are highly unlikely to be effective. We need a more radical rethinking of the law’s approach to consent, sex and violence; to the use of evidence in these cases; and a shift in society’s understanding of consent to sex and violence.

The relationship between ‘rough sex’ and the criminal law has recently been subject to considerable scrutiny. Much of this debate has focused on male defendants in homicide cases, who have claimed the death of the female victim resulted accidentally from consensual rough sex. As a result, more commonplace occurrences of rough sex that do not result in death have received limited attention. In particular, the role that rough sex plays in abusive relationships, whether and how this is criminalised, has been largely overlooked. This article addresses this gap by illuminating the role that rough sex can play as both an instrument and a manifestation of coercive control. We problematise the ‘stories’ that are told about rough sex and coercive control in the criminal law. Three constructions of ‘rough sex’ have historically been applied in the case law: ‘violent sexual assault’, ‘deviant sexuality’ and ‘accidental injury’. The introduction of a new offence of ‘controlling or coercive behaviour’ was an opportunity to uncover a new, more accurate narrative of abusive rough sex. We argue, however, that the courts are still telling the same old stories.

When a violent sexual assault is caught on video or results in injuries, defendants sometimes claim that the sexual activity was consensual BDSM1 or ‘rough sex’. This article seeks to understand the impact of this strategy when the complainant has previously engaged in atypical sexual activity. The study of Canadian admissibility rulings and trial decisions shows that sexual history evidence is primarily used to support the legally prohibited inference that because a woman consented to rough sex in the past, she is more likely to have consented to the sexual activity in question. Defendants rely on the argument that repeated sexual activity is less likely to be criminal: if it is routine, then it is not rape. This strategy relies on and reinforces myths and stereotypes about sexual violence, particularly partner/marital sexual violence.

Concerns about the legal landscape of BDSM are being reinvigorated today through public attention to the issue of ‘rough sex’ defences for homicide and abuse. Victim-survivors have orientated around the language of ‘rough sex’ to express concerns about practices across a variety of contexts, from established BDSM relationships to casual heterosex. As such, this paper provides victim-survivors’ everyday navigation of activities and languages around BDSM, kink and fetish. It finds the following key themes as being crucial to participants’ understandings of safe and satisfying practice: (a) communication and recognition of agentic others; (b) community learning and accountability; and (c) being playful and bounded, but not too bounded. This paper presents these as a call to understand how some ‘rough sex’ defences not only excuse or obscure abusive practices but also stigmatise and marginalise certain BDSM, kink and fetish practitioners and communities.

In Lee the New Zealand Court of Appeal laid down a new and highly innovative legal approach to the question as to when to withdraw the defence of ‘victim consent’ to physical violence. It was a ‘hands off’ approach that favoured personal autonomy, even for harm occurring at the most serious end of the spectrum. However, unlike the approach taken in England and Wales and Australia it did allow individual victim vulnerability to be considered in relation to very serious harm, whatever the categorisation of the behaviour involved. In this article it is suggested that the New Zealand approach is not well suited to the kinds of issues thrown up by the practice of ‘rough sex’ and, in particular, the gendered norms that support and render invisible male violence against women.

Global Perspectives on Home Education in the 21st Century, Rebecca English (editor), reviewed by Daniel Monk

A History of Regulating Working Families. Strains, Stereotypes, Strategies and Solutions,  Nicola Busby and Grace James, reviewed by Eugenia Caracciolo di Torella

This article reassesses feminist challenges to the Divorce Reform Act 1969, and in particular Edith Summerskill’s notorious charge that divorce without consent represented a Casanova’s charter. It argues that Summerskill did not simply oppose divorce, but instead focused on giving voice to a demographic that was virtually invisible in Parliament at that time – deserted wives. The article reveals new accounts of backroom deals and underlying tensions behind the passage of the Divorce Reform Act 1969, based on a study of previously unexplored archival documents, interview data and letters Summerskill received from deserted wives. This close inspection of an individual’s role within a much larger network of reformers can help provide alternative historical understandings of family law reform from a feminist point of view. Furthermore, the article facilitates an unique appraisal of the current legal landscape, as reform of the financial consequences of divorce is being considered following the new Divorce, Dissolution and Separation Act 2020. It is argued that Summerskill’s view can be used to determine the focus of future reform of this area.

In the year following the introduction of social distancing measures in March 2020, quarterly applications for non-molestation orders in England and Wales increased by up to 27 percent whilst applications for occupation orders increased by up to 22 percent compared with the previous year. The heightened need for recourse to the family courts during this time supports a more general concern that rates of domestic abuse have increased during the pandemic. This paper presents the findings of in-depth interviews conducted with professionals in the North East of England who have represented or otherwise supported victims of domestic abuse in the family courts since the start of the Covid-19 pandemic. The aims of this article are not to ‘name and shame’ any particular court, but rather to evaluate the capacity of the remote family court to provide a safe and fair process for victims of domestic abuse. Where appropriate, the authors will also make recommendations for improving practitioners’ and litigants’ experiences within the current restrictions.

Many studies have been undertaken into the impact of separation and divorce on children and the extent to which they want to be heard to ensure that decisions made by parents and the courts are in their best interests. Arrangements are, generally, made by parents and their lawyers working from an assumption that parents know what is in the best interests of their children, often without consulting them. Drawing from empirical research undertaken as part of a wider research project examining the effectiveness of the collaborative process as a dispute resolution mechanism in Ireland, this article will present the views of a sample of ten separating parties and fifteen young adults whose parents separated when they were children. It will document the extent to which separating parents were aware of the impact of the family transition on their children and whether they were, therefore, best placed to determine what was in the best interests of their children post-separation. From the young adults’ perspective, did they believe that their parents understood the impact of the separation or divorce on them? Did they have, or would they have liked to have had, an opportunity to ‘participate’? The article will outline the advice these young adults wished to give to separating parents as to how to ensure that the best interests of the child are elicited and protected.

This article argues for a rethinking of the dichotomy between financial contributions and non-financial or domestic contributions within the common intention constructive trust case law. Judicial notice of the concept of ‘enrichment’ when referring to domestic contributions, and therefore the imposition of market norms into discussions surrounding homemaking and caring, may provide evidence in disputes at the end of cohabiting relationships which allows domestic contributions to be compared against more conventional financial contributions. Situating domestic contributions within the current economic approach of the law would provide increased impetus for proper valuation of these contributions. Recent case law is examined in order to shed light on the current language and narratives used about domestic contributions. The economic theory of commodification and the doctrine of unjust enrichment are evaluated in order to conceive of domestic contributions as economically impactful work with a marketable exchange value.

In financial remedy cases, the Duxbury calculation is used primarily as a guide for capitalising periodical payments. It has also on occasion been controversially used to assist in the calculation of the non-pension capital to be offset against a pension. Whilst it has its roots in the pre-White v White era of ‘reasonable requirements’, it continues to be used by the courts in financial remedy cases in England and Wales, as the maxim states, as a ‘tool not a rule’. Its importance in practice means that it has attracted a considerable body of professional commentary and analysis within both legal and financial fields. However, it has attracted less academic scrutiny. This article provides the first academic exploration of Duxbury through an examination of its history and present-day use. It presents findings from an analysis of reported cases over the past 10 years and suggests that the use of the calculation has become more of a ‘rule than a tool’. It considers the longstanding appeal of the calculation and its use by the courts, exploring why the courts appear reluctant to move away from it. It suggests that the calculation has neoliberal underpinnings which are apposite in an era where the dominant socio-political narrative leans heavily towards neoliberalism. It further argues that this neoliberal foundation has aided the Duxbury calculation’s survival despite cogent criticism of it.

Law, Drugs and the Politics of Childhood, Simon Flacks, reviewed by Sarah Corbett-Batson

Legal Recognition of Non-Conjugal Families: New Frontiers in Family Law in the US, Canada and Europe, Nausica Palazzo, reviewed by Chris Barton

This article considers the regulation of payments within surrogacy arrangements in the United Kingdom. In recent years, there has been growing academic criticism of the law governing surrogacy arrangements and repeated calls for law reform. In June 2019, the Law Commission of England and Wales and the Scottish Law Commission published a Joint Consultation Paper, ‘Building Families Through Surrogacy: a New Law’, which notes that, ‘the current law is out of date, unclear and not fit for purpose’.1 One area where such issues are apparent is the regulation of payments from the intended parents to the surrogate. The judicial approach to the granting of ‘parental orders’, under section 54 of the Human Fertilisation and Embryology Act 2008, has been criticised within the academic literature and the consultation paper recognises these criticisms in considering options for reform. However, while acknowledging that the position will likely be developed in the final report, this article argues that the equivocal approach taken in the consultation paper to the regulation of payments may result in the criticisms made against the current legal regime not being effectively addressed, because the approach regarding payments is piecemeal and lacks a clear underlying regulatory rationale.

By analysing the recent ruling reached by the High Court in R (Bell and Another) v Tavistock and Portman NHS Foundation Trust and consequent amendments to NHS England’s Service Specification regulating pubertal blocking, this article considers the impact of the decision on children’s rights in three areas: health, capacity, and involvement. It argues that the court’s narrow approach to defining health led the judges to focus on the biological outcomes of puberty blockers and overlook the psychosocial consequences of withholding or delaying treatment. In the context of capacity, the Bell judgment impacts the rights of gender diverse youth by employing age markers and disregarding parental consent. It also groups together hormone treatments as one medical pathway and hinders an individual’s right to confidential advice and treatment. In view of this, the article proposes that young capacities should be nurtured by adults, through clear dialogue and lengthy instruction. It examines these issues through a children’s rights lens, and particularly in light of the UN Convention on the Rights of the Child 1989. In doing so, the article highlights the importance of involving young individuals in decisions about puberty blocking, given the internal and individualised nature of gender variance, transition, and patients’ needs. The article adopts Laura Lundy’s Model of Child Participation to illustrate the wider implications court interference has for patient involvement. Overall, this article proposes that children’s rights should be central to decision making about gender diverse people’s access to puberty blockers.

Consummation and adultery were omitted from the Marriage (Same Sex Couples) Act 2013. This article explores the issue of consummation (in particular) and offers empirical evidence in support of reform. Assessing the functioning and role of relationship recognition to LGBTQ people, this article will assess the implications of the exclusion of consummation from same-sex marriage. It draws on semi-structured, in-depth interviews conducted with a group of 29 LGBTQ people following the 2013 legislation to argue that the current law contributes to a sexual hierarchy that maintains and privileges heteronormativity, and that this system should be reformed by either abolishing the consummation requirement or redefining it to include same-sex consummation, accommodating a wide range of sexual expression. Reforming marriage law to disestablish consummation’s current role would contribute both to the ongoing transformation of marriage instigated by no-fault divorce and to the queering of marriage by deconstructing heteronormativity.

Hailed as a landmark in the prevention of domestic abuse1 and the protection of victims, the much-anticipated Domestic Abuse Act 2021 was passed by the House of Commons in July 2020 and received Royal Assent in April this year. This article considers the extent to which the raft of measures introduced under the new legislation will transform the response to domestic violence and abuse in England and Wales. The paper considers domestic violence and abuse to be a gendered phenomenon with roots in broader social and cultural conditions of inequality, with women being disproportionately impacted due to the role violence and abuse have in sustaining male dominance at a societal level. Recognition of this necessitates a gendered approach to addressing domestic violence and abuse, which in turn shifts the focus away from discrete incidents and on to a full programme of behaviours aimed at disempowering victims. Through a discussion of the major provisions, the paper will argue that while the Act is a welcome addition and has clear potential to improve prevention and protection for individual victims, much more is needed in order to truly transform the response to domestic abuse in England and Wales.

Elderly Care and Upwards Solidarity: Historical, Sociological and Legal Perspectives, Elisabeth Alofs and Wendy Schrama (eds), reviewed by Ann Numhauser-Henning

It is 20 years since the Welfare Reform and Pensions Act 1999 introduced pension sharing on divorce in England and Wales. In this article, we consider three questions. First, we review what has happened in pension outcomes for divorced men and women since the Act came into force. We next turn to statistical analysis of the Wealth and Assets Survey to consider current pension accumulation among couples, what scope there might be for pension sharing in the event of divorce, and what the current situation looks like for divorced men and women. Third, we ask what the future might hold. Our analysis reveals that very widespread disparities persist between men’s and women’s accumulated pension wealth throughout the life course, and these disparities exist within couples, at all ages, and at all points on the income and pension wealth distributions. For many couples, there is a high probability that their pension wealth exceeds their property wealth. While we show that there is considerable potential for pension sharing among currently married people, there remains much we do not know about these issues. We close with a discussion of the substantial research agenda needed to provide a clear evidence base for ongoing reform.

Throughout the Pacific region, customary forms of adoption are widespread, and predominantly exist alongside formal, state-regulated adoption processes. In most countries, the state does not recognise or accommodate customary adoption, giving rise to a number of practical problems. Attempts to reform the law have rarely gone to the root of these issues, which stems partly from the contrasting perceptions of adoption. The recent passage into legislation of the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Child Rearing Practice) Act 2020 in Queensland, Australia, demonstrates an attempt to construct a bridge between customary and formal adoption. This article puts the new Act in context by highlighting key differences between customary and formal adoption and identifying the practical consequences of failing to accommodate the former. The law reform proposals from elsewhere in the Pacific are reviewed and contrasted with the Torres Strait Islanders’ initiative, with a view to assessing whether any of these offers a transferable Pacific model.

The possibility of financial repercussions for Jewish husbands in England and Wales who refuse their wives a religious divorce (Get) has now been affirmed by the Court of Appeal. Recent private prosecution attempts have also explored the avenue of criminal sanctions for Get refusers. This article analyses the consequences of state compulsion by reference to sources of Jewish law and the effects of similar developments in the state of New York. It makes two claims. First, that unilateral state action is counterproductive because divorces procured by compulsion are generally considered to be invalid by the religious courts that supervise them. Secondly, that secular coercion is constitutionally problematic because it inevitably involves the determination of contemporary religious disputes. The unilateral approach is contrasted to a proposed collaborative model involving cooperation with Rabbinic authorities, which offers an avenue to achieve the same goal in at least some cases while avoiding the issues engendered by state interference in an inherently religious process.

This article addresses one aspect of the Law Commission’s proposed reforms to weddings law: the extent to which these proposals mitigate the negative effects of the current weddings law regime for minority religious individuals and better affirm their status as both bearers of rights and religious individuals. This article is divided into three parts. First, it identifies the interaction between equality, family and religious rights, providing a summary of the current law, the Commission’s key proposals and the impacts on religious minority communities. It argues that the formalities, as they exist, have direct and indirect discriminatory effects. The second part analyses the Commission’s nascent conception of equality and argues for an express, substantive and intersectional conception against which these proposals ought to be measured. It further outlines the system and reflexive concepts that ought to inform the proposals going forward. In light of this framework, the third part analyses the proposals as they relate to religious weddings. It identifies the overarching challenges of validity and anti-discrimination, both of which form key framing concepts, and two particular challenges, relating to the place of marriage and to the officiant.

The Family Court Murders: Four Murders. Five Bombings. No Convictions, Debi Marshall, reviewed by Leslie J Moran 87