Elaine E. Sutherland

The future of child and family law : international predictions

1. Imperatives and challenges in child and family law: commonalities and disparities Elaine E. Sutherland 2. Australia: the certain uncertainty Frank Bates 3. Canada: a bold and progressive past but an unclear future Carol Rogerson 4. China: bringing the law back in Michael Palmer 5. India: a perspective Anil Malhotra and Ranjit Malhotra 6. Israel: dynamism and schizophrenia Rhona Schuz and Ayelet Blecher-Prigat 7. Malaysia: what lies ahead? Noor Aziah Mohd Awal 8. The Netherlands: the growing role of the judge in child and family law Paul Vlaardingerbroek 9. New Zealand: the emergence of cultural diversity Bill Atkin 10. Norway: equal rights at any costs? Tone Sverdrup 11. Russia: looking back, evaluating the present and glancing into the future Olga A. Khazova 12. Scotland: the marriage of principle and pragmatism Elaine E. Sutherland 13. South Africa: changing the contours of child and family law Jacqueline Heaton 14. The United States of America: changing laws for changing families Marygold Shire Melli.

Making Best Interests Significant for Children Who Offend: A Scottish Perspective

The United Nations Convention on the Rights of the Child (‘CRC’) is the most ratified treaty in the world. Through rights, therefore, it offers uniform protection and priority to almost all of the world’s population aged under 18. As part of this, the Article 3 ‘best interests’ rubric holds out the promise of ‘really good’ decisions for children being taken by public bodies, courts and tribunals. This chapter considers the application of Article 3 to children who offend looking both at how it is applied and how it ought to apply in their cases. The chapter’s key argument is that Article 3 mandates ‘really good’ outcomes for all children including, equally, for those who do wrong, a position which is fully supported by the Committee on the Rights of the Child. The paper will firstly consider the negative perception of children who offend in relation to their rights. It will then turn to the terms of Article 3 itself and examine the ways in which it is incorporated into Scots law as it applies to offenders, and its application. Finally it will look at recent research reports compiled by the Centre for Youth and Criminal Justice and by the Scottish Children’s Reporter Administration which shed some light on young peoples’ own views of decision-making allegedly in their best interests. Overall, it concludes that the terms of Article 3 provide the framework to offer and achieve much more in terms of outcome than is currently the case.

Undue Deference to Experts Syndrome

Expert witnesses are a recognized part of the legal landscape and, indeed, providing expert evidence to courts has become something of a growth industry.2 Expert witnesses often make valuable contributions. Engineers give evidence of the unique nature of particular designs in patent cases. Accountants explain how the books might be kept in a business context. Forensic scientists speak to the methodology and probability of matching physical evidence, such as blood or hair samples found at a crime scene, to the accused. Expert witnesses play no less of a role in family-related cases. Psychiatrists explain what might drive one adult partner to kill the other when the killer has been the victim of domestic abuse at the hands of the deceased. Psychologists offer expertise in terms of what is likely to have positive or negative effects on a particular child in the context of custody disputes. Actuaries help the court to understand the value of various assets, like pensions, and how these valuations may be arrived at, in property disputes. Expert witnesses feature particularly prominently when syndromes " 3 come before the

The law protecting children

The role of the legal system in attempts to ensure the protection of children has attracted considerable attention of late. It should be borne in mind, at the outset, that the law alone cannot ensure adequate protection. Any approach to the problem must be multi-disciplinary, involving various other professions and the community as a whole. What the legal system can do is to provide a framework — defining standards of protection, mechanisms by which they might be achieved and the roles of the parties involved.