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Chapter

Cover Bromley's Family Law

10. The Legal Position of Children  

N V Lowe, G Douglas, E Hitchings, and R Taylor

This chapter charts the changing legal position of children. It starts by considering the former importance of the status of legitimacy and its near complete abolition. It then discusses the changing nature of the parent–child relationship and the development of the law from paternal authority to shared parental responsibility. Finally the chapter considers the developing notion of children’s autonomy and independent rights which has both limited the scope of legitimate parental authority and emphasised that the interests of children are a matter of public, as well as private, concern. This latter point is well illustrated by the growing importance of the role of the Children’s Commissioner.

Chapter

Cover Bromley's Family Law

15. Children’s Participation in Family Proceedings  

N V Lowe, G Douglas, E Hitchings, and R Taylor

This chapter considers the increasingly important question of children’s participation in proceedings concerning them. It evaluates children’s right to participate in proceedings both as a matter of domestic and international law. It then assesses the complex law as to how children’s views are ascertained and the circumstances in which children will be represented both in private and public law. It then turns to children’s direct participation in family proceedings including children’s ability to initiate proceedings.

Chapter

Cover Bromley's Family Law

12. What is Parental Responsibility?  

N V Lowe, G Douglas, E Hitchings, and R Taylor

This chapter considers the meaning and function of parental responsibility. It examines the content and limits of parental responsibility including in areas such as: education; medical treatment; corporal punishment; religious upbringing; and naming the child.

Chapter

Cover Family Law

12. Human Rights, Children’s Rights, and Family Law  

Helen Stalford, Seamus Byrne, and Nazia Yaqub

This chapter explores children’s rights in the context of family law and family life. It aims to look at family law through the lens of the human rights of children and the associated theoretical, doctrinal, and empirical scholarship. It begins with a brief overview of the international children’s rights framework underpinning this area, including the UN Convention on the Rights of the Child and the European Convention on Human Rights. It then points to some of the cultural, legal, and practical obstacles to the protection of children’s rights in the context of family law. The updated chapter responds to changes in the law arising as a result of Brexit and the recent legislative changes on corporal punishment across the different UK jurisdictions.

Chapter

Cover Concentrate Questions and Answers Family Law

9. The Law Relating to Children: Children’s Rights and Private Law  

The Concentrate Questions and Answers series offers the best preparation for tackling exam and assignment questions. Each book includes key debates, typical questions, diagram answer plans, suggested answers, author commentary, and tips to gain extra marks. This chapter considers children’s rights and private law relating to children. The first essay question focuses on the rights of the child to make his or her own decisions and to participate in private law proceedings, whilst the second examines how the law ensures that children have a relationship with both parents after separation. The third question is a problem scenario that requires discussion of orders under s. 8 of the Children Act 1989, the welfare principle, and the welfare checklist. The final problem question concerns inherent jurisdiction and the right of a child to refuse medical treatment.

Chapter

Cover Family Law

9. Children’s Rights and Welfare  

This chapter moves on from the previous chapter to ask: Do adults always know best? That is an important assumption that needs to be addressed in this area of family law. To what extent, and under what circumstances, do the opinions of children count? This chapter considers the legal principle upon which most cases relating to children are decided. That is, the welfare principle. The chapter considers whether this principle is compatible with an approach that respects children's rights. The chapter begins by defining what is meant by the welfare principle and considers in what cases the welfare principle applies and, conversely, in what cases the welfare principle does not apply. The spectrum of issues here might seem quite narrow but in fact they are much broader than might be first imagined. There are multiple considerations, theories, and contradictions at play.

Chapter

Cover Family Law

11. Child Protection: State Support for Children  

This chapter considers how the Children Act 1989 provided a legal framework within which the state can support children to remain with their families through difficult situations and intervene to protect them when they face unacceptable risks. The chapter starts by giving a brief history of child protection law. The chapter then looks at the inherent tension in protecting children while aspiring to support their life with their families, before considering local authorities' powers and duties, resources, and the ever-increasing numbers of children who are involved with social services, whether as c hildren in need, looked after children, or as subjects of child protection investigations or applications.

Chapter

Cover Street on Torts

25. Capacity and parties  

This chapter examines the issues of capacity and parties in tort law. It explains that capacity refers to the status of legal persons and their ability to sue or be sued in tort and that a claimant’s injury might be caused by more than one person. Examples are given of the capacity to sue and be sued of companies and children. This chapter discusses also the point that any person successfully sued in tort can seek contribution from other joint or concurrent tortfeasors and this can be done in the course of the original action commenced by the claimant, or in separate proceedings between tortfeasors.

Chapter

Cover Sentencing and Punishment

11. Court orders for young offenders  

This chapter first considers the range of civil orders available to the courts in responding to anti-social or criminal behavior by children and young people. It therefore focusses on the criminal behaviour orders and injunctions as well as the community remedy. It then looks at the options available to the sentencing court in relation to criminal offending and so refers in particular to the referral order and the Youth Offender Panel, the youth rehabilitation order and the detention and training order. We note the welcome fall in the number of children in prison but note the increase in the average custodial sentence length. The chapter also discusses selected aspects of conditions in secure accommodation and reviews the role and achievements of using rights in responding to problematic issues.

Chapter

Cover Bromley's Family Law

16. Private Law Proceedings Concerning Children  

N V Lowe, G Douglas, E Hitchings, and R Taylor

This chapter considers the courts’ powers under Part II of the Children Act 1989 to resolve family disputes concerning the upbringing of children. These disputes, commonly labelled ‘private law disputes’, are normally between the parents following divorce or separation but can involve other family members. It first discusses the original scheme of Part II; changes made by the Children and Adoption Act 2006; and changes made by the Children and Families Act 2014. It then considers section 8 orders; family assistance orders; and section 37 directions.

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Cover Medical Law

6. Incapacity II: Children  

This chapter discusses children’s medical treatment. It looks at the limits of parental decision-making, and cases in which the courts have overruled parental wishes in order to protect the child’s best interests. Courts may also be asked to resolve disputes between parents, or to make decisions about particularly controversial treatments. If a mature minor is Gillick-competent, she can give consent to medical treatment, but her right to refuse life-saving treatment may be more limited.

Chapter

Cover Medical Law and Ethics

5. Children and Medicine  

This chapter explores how the law deals with cases involving children receiving medical care. It considers the circumstances in which children have capacity to consent to treatment. It explores the case law in cases where there is disagreement between parents and children over health care. It also looks at difficult cases where parents and doctors disagree on how to treat very sick children. The way the courts interpret the best interests of the child are examined. The chapter also explores the ethical and legal issues around the vaccination of children. The broader issue of whether there should be limits on the rights of children and the extent to which parents can determine what is in the best interests of the child are examined.

Chapter

Cover Family Law

10. Public Law Protection  

Penelope Russell

Public law protection of children challenges one of the fundamental principles of England and Wales that children are best brought up by their parents. Unlimited state intervention in the family is not permitted and the courts have to strike a balance between maintaining stability for children within their family, and protecting them from harm. This chapter considers the statutory duties of the local authority towards children as well as emergency action to protect a child. It examines what has to be proven to obtain a care order and the evidential difficulties connected with this; in particular, the difficulties posed for the courts where harm is caused to a child by an unknown perpetrator. The chapter ends by exploring the options available to the court at the welfare assessment once the threshold criteria have been met.

Chapter

Cover Essential Cases: Tort Law

McFarlane v Tayside Health Board [2000] 2 AC 59  

Essential Cases: Tort Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in McFarlane v Tayside Health Board [2000] 2 AC 59. The document also included supporting commentary from author Craig Purshouse.

Chapter

Cover Cross & Tapper on Evidence

V. Witnesses  

This chapter looks at some special considerations relating to the evidence of witnesses. It first sets out to sketch the way in which this branch of law has changed over time. The chapter then deals with the procedures for taking testimony in the standard case and, in particular, appropriate measures for dealing with witnesses who are fearful. Next, this chapter discusses factors peculiar to particular categories of witness, such as children, spouses, and offenders. In a number of cases, special rules have been devised to cater for these special categories. Sometimes special rules of competence and compulsion, rules requiring supporting evidence, and rules of practice dictating the form of direction are given to the jury when considering such evidence. Finally, the chapter deals with the nature of supporting evidence.

Chapter

Cover Essential Cases: Tort Law

McFarlane v Tayside Health Board [2000] 2 AC 59  

Essential Cases: Tort Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in McFarlane v Tayside Health Board [2000] 2 AC 59. The document also included supporting commentary from author Craig Purshouse.

Chapter

Cover Murphy on Evidence

6. Witnesses  

Competence and compellability; oaths and affirmations

This chapter is divided into two parts. The first part discusses the law on witness competence and compatibility. The general rule of law in England and Wales is that all witnesses, including children, are competent (able to give evidence) and witnesses are also compellable (liable to be required to give evidence subject to sanction for contempt). Particular rules apply to children and persons under disability, the accused in a criminal case, and spouses and civil partners. The second part deals with oaths and affirmations, covering the requirement of sworn evidence; the effect of oaths and affirmations; and exceptions to the requirement of sworn evidence.

Chapter

Cover Family Law

6. Financial Support for Children  

It is undeniable that anyone who is legally classified as a parent has an obligation to maintain their child. This chapter considers three areas of financial support for children: child maintenance as a percentage of gross weekly income of the non-resident parent, the financial outcomes of divorce as guided by the Matrimonial Causes Act 1973 or the Civil Partnership Act 2004, and Schedule 1 of the Children Act 1989. The chapter starts with a brief history of financial support for children in the UK.

Chapter

Cover Bromley's Family Law

14. The Welfare Principle  

N V Lowe, G Douglas, E Hitchings, and R Taylor

This chapter is concerned with the foundational principle of child law: the welfare principle. It discusses the contested meaning of ‘welfare’ in s 1 of the Children Act 1989, particularly through evaluation of the terms outlined in the welfare checklist. This includes consideration of matters such as the weight to be given to children’s wishes and feelings. The meaning of ‘paramountcy’ is then discussed, including assessment of the impact of the Human Rights Act 1998 and an explanation of the circumstances in which welfare is not paramount. The chapter then turns to the impact of the presumption of parental involvement, ‘no order’ principle and the need to avoid undue delay on the assessment of a child’s welfare.

Chapter

Cover Concentrate Questions and Answers Family Law

11. The Law Relating to Children: Public Law and Adoption  

The Concentrate Questions and Answers series offers the best preparation for tackling exam and assignment questions. Each book includes key debates, typical questions, diagram answer plans, suggested answers, author commentary, and tips to gain extra marks. This chapter deals with the public law relating to children, contained in Parts III, IV, and V of the Children Act 1989, and the law relating to adoption, under the Adoption and Children Act 2002. The questions contained in this chapter are a mixture of essay and problem questions that focus on: emergency protection for children, i.e. police protection, emergency protection orders, and local authority enquires; care, supervision, and education supervision orders; the difference between adoption and special guardianship orders and finally, the requirements and procedures for adoption.