Abstracts from Second International Workshop
Abstracts from the April workshop are available plus links to the Slides.
Session 1 - Responding to diversity
Fiona Arney is the Chair of Child Protection and Director of the Australian Centre for Child Protection at the University of South Australia. Fiona was Deputy Director of the Centre until she moved to the Menzies School of Health Research in early 2010 to establish and lead their Child Protection Research Program. She has a strong body of research, especially in relation to Aboriginal children and families. Fiona has conducted pioneering research in a broad range of areas, including families from refugee backgrounds coming into contact with the child protection system; mothers of Aboriginal infants receiving nurse home visiting; family decision making in child protection matters for Aboriginal families; intersectoral initiatives in child protection practice and policy; and the use of research evidence in practice, policy and program development.
The Intervention: Insights from Northern Territory and Australia
The over-representation of Australian Aboriginal children in care, protection and justice systems is well documented. In the past decade, two inquiries into child abuse and neglect and related departmental responses have focused on Aboriginal children in the Northern Territory. Both of these inquiries took a systemic approach to the examination of child sexual abuse and other forms of abuse and neglect, yielding very different responses from the Territory and Australian governments. This paper will explore the responses to the Little Children are Sacred and Growing Them Strong, Together reports. It will focus on the measures and strategies emphasised in each response, the associated assumptions about the rights, roles and responsibilities of individuals, of families, of communities and of the State, and the subsequent impacts on children and their families in the Northern Territory.
Gillian Douglas is Professor of Law at Cardiff Law School and a former Secretary-General of the International Society of Family Law. She studied at the University of Manchester and the London School of Economics, and taught previously at the University of Bristol and National University of Singapore. She is the author of several works on Family Law, including (with Nigel Lowe) Bromley’s Family Law (9th and 10th editions) and (with Chris Barton) Law and Parenthood. She is a co-Editor of the Child and Family Law Quarterly and joint Case Reports Editor for the journal, Family Law. With colleagues from Law, Psychology, Child Health and Social Work, she has conducted a number of studies into aspects of the family justice system, including on the separate representation of children in family proceedings and the role of grandparents in divorced families. She recently completed a study on the operation of religious courts.
Who regulates marriage? The case of religious marriage and divorce
The monopoly power of the state to regulate the entry into and exit from marriage is apparently being challenged by religious minorities purporting to exercise a parallel jurisdiction over their adherents. There is, it is alleged, a growing practice in the United Kingdom of informal, unregistered marriage ceremonies being performed, particularly within the Muslim community, and increasing use of religious tribunals, particularly sharia councils, to deal with marriage termination. This phenomenon is viewed with concern by those arguing that it undermines social cohesion. Drawing on empirical research into the operation of different religious tribunals, this paper argues that, far from constituting a threat to the secular nature of British society, it should be seen in the context of a withdrawal by, or from, the state, in the regulation of intimate relationships, as evidenced by changes to family structure and the promotion of private ordering for the resolution of the consequences of relationship breakdown.
Click here to view Slides:Who Regulates Marriage? (Douglas, UK)
Karen Czapanskiy joined the faculty of the University of Maryland Francis King Carey School of Law in 1983. She is a co-author of Family Law: Cases, Text, Problems (with Ellman, Kurtz, Bix, Weithorn & Eichner)(5th edition 2010). As a teacher, lawyer and scholar, she has worked on issues such as domestic violence, welfare reform, caregiving, and gender equality. In recent years, she has researched the submerged issues in law and policy facing parents whose children have disabilities and chronic health problems. Articles emerging from this work propose a new post-divorce financial remedy called chalimony, the creation of a caregiver stipend, and changes in special education to take into account the needs of parents for support for their competence and conservation of their resources. Underlying her work is the proposition that society, families and children relate to one another interdependently through a caregiving parent or parent-substitute. When law, policy and practices ignore that person's role, the result usually is to unfairly overburden that person to her detriment and to the detriment of the child.
Special Kids, Special Parents: Making Them Visible in Law and Policy
Millions of parents in the United States live with children who have disabilities or chronic illnesses. Raising these children often requires more than the usual dedication of time, energy and resources. Although the children are dependent on the parents and the parents often need an unusual level of support from families and community, law and policy envisions them as separate entities. The invisibility of their interdependency may leave the parents vulnerable to health problems, family dissolution, social isolation, unemployability and poverty. My paper examines instances of invisibility in family law, public benefits and special education. Remedies are proposed and examined in light of sources of resistance to change.
Judge Paul Grant, President, Children’s Court of Victoria, is a graduate of Monash University (Arts and Law) and was admitted to practice as a solicitor in 1979.
He Went to the Bar in 1980, joined the firm of Slater and Gordon in 1985 as in-house counsel. He was appointed a Magistrate in 1988 and was Deputy Chief Magistrate and Supervising Magistrate for Koori Courts at the time of his appointment to the County Court in April 2006. Judge Grant was a member of the Victorian Child Death Review Committee between 2001 and 2004 and the Victorian Mental Health Reform Council from 2007 to 2012. On 26 April 2006, he was appointed a Judge of the County Court and on 1 May 2006, President of the Children’s Court of Victoria. He is currently a member of the Aboriginal Justice Forum.
The Koori Court: Responding to cultural diversity
"The Koori Court in Victoria provides an alternative sentencing process for Aboriginal offenders. Elders and Respected Persons from Aboriginal communities participate in a "sentencing conversation" that involves direct engagement with offenders. The sentencing decision is still made by the judicial officer but it is made after extensive discussion involving the child, family, Elders and Respected Persons and other interested people. The Court has received strong support from Aboriginal communities throughout Victoria. Currently, there are seven Magistrates' Koori courts, five Children's Koori Courts and a County Koori Court. The paper will discuss the development, establishment and operation of these courts with particular reference to the Children's Koori Court. It will also comment on the challenges faced by Koori Courts. "
Click here to view Slides: The Koori Court (Grant, Australia)
Protection, surveillance and rights
Nathan Harris is currently a Fellow at the Regulatory Institutions Network (RegNet). Previously I have been a Lecturer at the Institute of Criminology, University of Cambridge, and a Post-Doctoral Fellowship at the Katholieke Universiteit Leuven, Belgium. His current project explores the experiences of parents within child protection systems and the impact of these experiences on their future capacity to care for their children. This is an extension of research which draws on a number of perspectives to examine how institutions, such as criminal justice, can more effectively respond to social problems. Restorative justice and responsive regulation are a focus of this research because they represent important frameworks for reform. The psychological dynamics between social disapproval and the shame-related emotions are important because they explain how individuals respond to intervention in their lives, and why some approaches at intervention are better at creating change than others.
Balancing rights and protection in child protection: The challenge posed by formalistic assessment.
A question that the child protection model has struggled to answer is when to empower families to solve their own problems, when to intervene forcefully to protect children, and how these two very different approaches can coexist without undermining each other. Responsive regulation (Braithwaite, 2002), which has only more recently been applied to child protection (see Burford & Adams, 2004), seeks to address this question by proposing a framework in which authorities are responsive to the changes made by families. It is argued that by doing so intervention is less likely to be intrusive and that there is better balance of the rights of parents and families with the need to protect children. However, it is argued that a characteristic of contemporary child protection systems which prevents responsive regulation is that statutory agencies have become reliant on formalistic assessment, and as a consequence interactions with parents have become dominated by a focus on assessment compliance.
Click here for Slides: Protection, surveillance and rights (Harris, Australia)
Julie Doughty LLB (Bristol) PhD (Cardiff) is a Lecturer in Law at Cardiff University. She has worked as a high street solicitor in England and Wales and was a founder member of a women’s legal services co-operative in Bristol in 1990. She subsequently managed a guardian ad litem panel in south Wales which was transferred into Cafcass (the Children and Family Court Advisory and Support Service) where she worked as a team manager until 2003. Since joining Cardiff University, she has participated in a number of research projects studying care proceedings. Her PhD studies included comparative analysis of family court systems in England/Wales and Australia. She teaches family and child law at LLB and LLM levels and is a consultant in the design and delivery of continuing professional education in law for social workers.
Child protection – avoiding litigation
The governments of England and Wales have accepted the conclusion of the Family Justice Review (2011) that care proceedings take too long to resolve in court. Legislation is consequently being introduced to reduce court scrutiny of state decisions made about children at risk of harm. The Review also recommended changes to improve parents’ and children’s understanding of processes and explore potential alternatives that might be less distressing for them. However, current proposals indicate a possible power shift between professional groups rather than participation of children and families in decision making. Aspirations that de-legalisation may produce better outcomes for children are undermined by ideological policy drivers.
This paper considers two aspects of de-legalisation: avoiding a court application and reducing the input by the court. It will outline a range of alternative mechanisms in child protection drawn from Europe, Australia and the US, aiming to generate discussion about what we might learn from each other.
Click here for Slides: Child Protection: Avoiding litigation (Doughty, UK)
Ian Butler, formerly Professor of social work at Keele University and Visiting Professor in the Department of Child Health at the University of Wales, College of Medicine, Ian Butler is currently Professor of Social Work at Bath University. From 2005 to 2012, he was seconded to the Welsh Assembly Government where he served as a Special Advisor to the First Minister. He is an Honorary Member of the Council of the NSPCC and was elected to the Academy of Social Sciences in 2004. In 2009, he was appointed to the Board of Cafcass (England). He has published widely on social work policy and practice with children and families.
In amongst new forms of governance, some familiar forms of governmentality persist. Taking as its example the UK government’s ‘troubled families initiative’ (TFI), this paper will argue that for some families, a reversion by the state to its 19th century minimalist and deterrent roots has provided little more than a justification for the politics of austerity. The re-emergence of explicitly re-moralising and disciplinary modes of welfare intervention, such as the TFI, and a marked swing in the pendulum from ‘rehabilitation’ to ‘rescue’ as the focus of welfare practice with children and families provide the context in which a resurgent interest in adoption in the UK should be viewed. For every family, the protection that a robust legal system can provide, set in the context of an enforceable set of human, civil and political rights protected by a strong welfare state might offer an altogether more promising future than that available through the TFI.
Click here for Slides: Troubled Families (Butler, UK)
Dorothy Roberts is the fourteenth Penn Integrates Knowledge Professor, George A. Weiss University Professor, and the inaugural Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights at University of Pennsylvania, where she holds appointments in the Law School and Departments of Africana Studies and Sociology. She is the author of the award-winning books Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (Random House/Pantheon, 1997) and Shattered Bonds: The Color of Child Welfare (Basic Books/Civitas, 2002), as well as co-editor of six books on constitutional law and gender. She has also published more than eighty articles and essays in books and scholarly journals, including Harvard Law Review, Yale Law Journal, and Stanford Law Review. Her latest book, Fatal Invention: How Science, Politics, and Big Business Re-create Race in the Twenty-First Century, was published by the New Press in July 2011.
Child Protection as Surveillance in African American Families
A host of family law and social science experts have debated the causes, effects, and solutions to racial disparities in the U.S. child welfare system. While a 2006 report condemned these disparities as a “chronic crisis,” some child welfare advocates have recently argued that the high rates of placement of African American children in foster care are necessary to protect them. I argue that we should approach racial disparities in the child welfare system as a political issue. How does child welfare policy in the United States, both historically and today, reflect and reinforce the disadvantaged political status of African Americans through a regime of family surveillance? I will focus on an interesting paradox I discovered in my study of intense child welfare agency intervention in a black neighbourhood in Chicago: residents wanted more agency involvement despite their criticism of too much surveillance.
Click here for Slides: Child protection as family surveillance (Roberts, USA)
Session 3: Reimagining regulation
Belinda Fehlberg is a professor of law in the Melbourne Law School, University of Melbourne, specialising in family law. She has a particular interest in how ‘law in books’ is understood, applied and experienced by professionals and families. Belinda has conducted empirical research over the past 20 years on a wide range of family law issues including spousal guarantees, pre-nuptial agreements, overlapping powers of the state children’s courts and family law courts, children's contact services and, most recently, post-separation parenting and financial arrangements following the 2006 family law and process amendments. With Juliet Behrens, she is the author of Australian Family Law: The Contemporary Context (Oxford University Press, 2008).
Rachel Carson BA (Melb) LLB (Hons) (Melb) PhD (Melb), is a socio-legal researcher with particular expertise in family law and qualitative research about family law disputes. After practising as a family lawyer, Rachel worked as a researcher on the Children’s Contact Services: Expectation and Experience Project (The University of Melbourne, Griffith University and the Australian Institute of Family Studies). Rachel's socio-legal PhD study investigated high-risk contact between children and their non-residence parents post-separation, with a particular focus on supervised contact. Just prior to joining the Institute, Rachel was a researcher on the longitudinal Post-separation Parenting and Financial Settlements Study at Melbourne Law School, The University of Melbourne. Her work on this project included interviewing parents and children and analysing parents’ experiences of FDR and legal mechanisms over time. Rachel is currently working on the Independent Children’s Lawyer Study.
Parents’ experiences of Family Dispute Resolution and family law services following shared parenting reform: recent qualitative findings
This paper explores parents’ experiences of family dispute resolution (FDR) and family law services (family lawyers and courts), drawing on parent interviews conducted for a qualitative study of post-separation parenting and financial arrangements from 2009-11, following Australia’s shared parenting amendments. FDR was typically accessed for parenting and lawyers were more likely to be used regarding property but parents often used both. Whether parents accessed FDR or family law services, positive experiences and outcomes tended to be described where both parents were cooperative and able to negotiate. Parents were particularly critical of the limits of FDR to deal with dominating or controlling ex-partners, while criticisms of legal services focused on poor quality and high costs of services. In both cases the descriptions of our participants underlined the on-going challenges involved in providing the ‘right’ support at the ‘right’ time and in addressing power imbalance.
Click here to view Slides: Family dispute and family services (Fehlberg & Carson, Australia)
Margaret “Peg” Brinig melds her expertise with law and social science in empirical studies of families, social capital, and social welfare legislation.
Prof. Brinig is best known for her expertise in family law. She sits on the executive council of the International Society of Family Law, and among her many books and more than ninety journal articles and chapters, recently published Family, Law, and Community: Supporting the Covenant (University of Chicago Press, 2010), which offers a distinctive study of legal reform from the perspective of family dynamics and social policy. The book examines a range of subjects of current legal interest including cohabitation, custody, grandparent visitation, and domestic violence. She concludes that conventional legal systems and the social programs they engender ignore social capital: the trust and support given to families by a community.
She is a past Chair of the American Association of Law Schools' Family Law Section and remains on its executive, and is also a member of the American Law Institute.
Substantive Parenting Arrangements: The Tragedy of the Snipe Hunt
The snipe is a shore bird that is difficult for even trained hunters to catch. Inexperienced hunters (or campers) are teased with the impossible (or imaginary, in the case of campers) task of going on a snipe hunt. The snipe hunt has therefore become a metaphor for an impossible task, usually undertaken by the unwary and unequipped in the fog or dark. Developing the “best” child custody standards has become rather like a snipe hunt, for policy makers use (or misuse) studies that are often not up to the task in order to serve adult interests that are necessarily at odds. When things are not resolved, they resort to other strategies (such as unfounded accusations of domestic violence or of the “parental alienation syndrome”) that are the legal equivalents of banging rocks together, completely ineffective except for hurting the child.
In the United States, children’s voices are mediated primarily through their parents. Most of the time this is the best solution, but in cases of conflict between the parents, or any time when parents’ and children’s interests’ conflict, a variety of processes ostensibly safeguard the child. While over the last thirty years there has been a focus on various sorts of ADR, a critical question in determining “best interests” involves the standard that should focus the decision makers’ attention. In particular, should individual decision-making protect the most vulnerable parents and their children, who may well have their cases decided by a judge, or should rules be more determinate to facilitate non-conflictual resolution of the vast majority of cases? What is the appropriate role of social science research in making this substantive choice or reaching the best conclusion from the child’s perspective?
Click here to view Slides: Substantive Parenting Arrangements (Margaret Brinig, USA)
Anne Barlow is Professor of Family Law and Policy at the University of Exeter and leads the Leverhulme International Network on New Families; New Governance. She has a particular research interest in the regulation of adult relationships – especially marriage and cohabitation - and has published widely in this field. As a socio-legal researcher, she has held a number of research grants awarded by the ESRC, Ministry of Justice and the Nuffield Foundation looking empirically at a variety of topical issues including cohabitation law reform, pre-nuptial agreements and community of property. Currently, she is working (with Rosemary Hunter (Kent Law School) and Janet Smithson (Exeter, School of Psychology) on an ESRC-funded project Mapping Paths to Family Justice which is exploring alternative family dispute resolution.
Awareness and Experiences of Alternative Family Dispute Resolution in England and Wales
The response to the acknowledged crisis in the Family Justice System in England and Wales has been a push towards alternative dispute resolution and mediation in particular, as triggered by the government response to the Family Justice Review 2011 and imminent legal aid reforms. Yet, there has been no recent research in England and Wales on the experience of using mediation; nor on the two alternative forms of out-of-court family dispute resolution which challenge it – solicitor negotiation and collaborative law.
Drawing on the preliminary findings of the ESRC-funded Mapping Paths to Family Justice project which aims to plug this research gap, this paper will consider how well equipped mediation and other ADRs are to become the default means of family dispute resolution and will examine the normative discourses embedded within these different processes in the England and Wales context.
Click here to view Slides: Awareness and experiences of alternative family dispute resolution (Barlow, UK)
Prof. dr. Frederik Swennen is professor of family law at the University of Antwerp. He was appointed in 2002, after serving as a legal clerk for the Attorney General in the Belgian Supreme Court. He also is attorney-at-law at the Brussels bar (Belgium).
Frederik Swennen studied at the Universities of Antwerp (Belgium) and Cape Town (South Africa). He achieved his Ph.D. at the University of Antwerp in 2000 and teaches the basic & advanced courses on the Law of Persons and Family Law, Family Proceedings, International and Comparative Family Law.
He is (co-)promoter or participant in several international and national research projects on family law, particularly atypical families and family governance. He is co-author of almost 200 publications in his fields of expertise, including Het personen- en familierecht (Handbook Law of Persons and Family Law, 2012).
Frederik Swennen is member of several (inter)national scientific organisations and of editorial boards of Belgian and Dutch family law reviews.
The Quadrants of Contractualisation
In this presentation, the delegalization of family regulation will be tackled from a perspective of privatization through contract law. Family relations mag be governed by the State, Civil Society, the Family and the Individual. The focus here will lie on the Family and the Individual and will encompass an assessment of the quadrant of contractualisation in family regulation, in particular from a human rights perspective.
Click here to view Slides: Contractualization and mediation (Swennen, Euro)
Judith Masson M.A., PhD is Professor of Socio-legal Studies at the Bristol University, specialising in Child Law. She has undertaken numerous studies on law in social work including: step-parent adoption; representation of children: Out of Hearing (1999); partnership with parents of looked after children Lost and Found (1999); and emergency intervention: Protecting Powers (2007). In 2007-8, Judith directed a project examining 400 child protection cases which resulted in court proceedings – Care Profiling Study (Ministry of Justice, 2008). This was followed by an ESRC-funded qualitative study on the representation of parents in such proceedings, Pearce et al, Just following Instructions? (2011). She is currently completing another ESRC-funded study on the pre-proceedings process in the PLO. Judith has been a specialist adviser for Parliamentary Committees and a member of the Judicial Studies Board. From 2004-2011 she was the academic member of the Family Justice Council.
Procedure or theory? – the case of the PLO
The PLO is a way of handling serious child protection cases, introduced in England and Wales in 2008. It requires local authorities to send a letter to parents and hold a meeting with them before child protection proceedings are started, unless the case requires immediate action. Parents are entitled to free legal advice/ representation at these meeting. The aim was to divert cases from court and ensure those remaining were better prepared, so they could be decided more quickly.
How should the PLO be understood theoretically? The PLO both extends the reach of law into child protection practice – juridifying social work through the attendance of lawyers at meetings with clients, the use of written agreements but also pushes back the start of proceedings. A new space is created for ‘responsive regulation’; before proceedings are used parents have a further opportunity to co-operate and change.
There are further questions about the nature of the PLO meeting–Is it a form of public law mediation, esatz collaborative law or a social work meeting with professional advisers / witnesses, to make social workers behave? None of these theoretical issues discussed or considered in the creation of the PLO, as my second point explores
Procedure as a solution. In England and Wales at least, adding procedures seems to be the new way that family law issues are addressed, not with substantive law reform. Many reasons may be identified for this – the unwillingness/ inability of policy makers to address issues which relate to private family life; the poverty of polity, with the loss of deep debate and polarisation on issues of gender; the search for simple answers and the need to appear to do something, quickly, without regard to its potential effectiveness: the view that procedure is a solution because of a positivist rather than naturalist understanding of the legal system. If procedure is a solution there is a need to understand both theoretically and empirically about what forms of procedure can solve problems; the sorts of problems that procedures can solve; and the negative consequences of adding procedures.
Click here to view Slides: Procedure or Theory - the case of the PLO (Masson, UK)