Helen Stalford

The impact of the Treaty of Lisbon on social welfare and family law

The Treaty of Lisbon (OJ 2007, C 306) finally came into force in December 2009 following protracted negotiations, extensive media and political scrutiny, and a wellpublicised series of setbacks. During this process, debates over the value and implications of EU membership resurfaced, with a particular focus on its implications for national sovereignty and democratic accountability. What of its impact, though, on social welfare and family law issues? Numerous articles published in this journal over the years have highlighted the growing significance of EU law in such areas. In fact, it is now difficult to identify any aspect of national welfare and family law which is not affected by EU law or policy, at least in an indirect way. Equality laws in the field of employment, harmonised measures governing immigration, asylum and the free movement of EU nationals, and provisions relating to consumer protection and the environment are obvious examples of direct EU intervention. But the more subtle influences of the EU have also been brought to bear on issues such as child protection, family law, disability discrimination, criminal procedure, humanitarian responses to international crises, education and healthcare. The Treaty of Lisbon reaffirms and consolidates the EU’s role in such areas through more explicit reference to them in the streamlined and remoulded EC Treaty, now renamed the Treaty on the Functioning of the European Union. It also introduces some bold amendments to the constitutional and fundamental rights fabric of the EU, many of which are set out in the revised Treaty on European Union (OJ 2008, C 15/49). Many of these changes are likely to be of interest to readers of this journal. First, and perhaps most significantly, fundamental rights acquire an enhanced status. The Charter of Fundamental Rights in the European Union, previously lauded as a veritable ‘pot pourri’ of rights at EU level but with no direct, binding legal status (Shaw 2002), is given the same legal value as the Treaties (Article 6(1) TEU). Equally significant is the Treaty’s resolution to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 6(2) TEU). While it is clear that such measures do not extend in any way the competences of the EU, they may well prompt a surge in rightsbased challenges to the legality of EU or Member State actions (Craig 2008, p. 165) or at least encourage greater sensitivity to the human rights implications of EU measures at the drafting stage. Worthy of note also are the Treaty’s attempts to address the perceived ‘democratic deficit’ of the EU. For instance, the EU institutions are now required to give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action (Article 11, TEU), while a new ‘citizens’ initiative’ enables one million citizens who are nationals of a significant number of Member States to call directly on the European Commission to bring forward an initiative of interest to them in an area of EU competence (Commission 2009). More generally, the legislative process

Constitutionalising Equality in the European Union: A Children's Rights Perspective

The concept of equality has been central to the development of the European Union social agenda to such an extent that it is now universally acknowledged as a constitutionally-embedded norm. This paper discusses how equality has driven important legislative, judicial and institutional change in the EU, particularly for women, and how the success of the gender campaign has inspired important changes in respect of other marginalised groups. The paper focuses, in particular, on how the concept of equality offers an appropriate, meaningful and effective basis on which to enhance the status of children in the EU. Following a formal analysis of how children fit within the equality/nondiscrimination paradigm at EU constitutional level, the paper moves on to discuss more critically how these provisions are transposed into tangible entitlement for this category of citizens. It explores mainstreaming as a potential mechanism for achieving substantive equality for children, again alluding to the successes of the gender campaign in this respect. The paper concludes by speculating on how a mainstreaming strategy might be adapted and applied in favour of children and discusses the advancements that have already been made in this regard.

Benefits, babies and the insignificance of being British

The Supreme Court ruling in HC concerned an Algerian woman who had been living in the UK since 2008, having arrived with leave but then over-stayed. In 2010, she married a British national on whom ...

Editorial Issue 38(1)

We are delighted to present the first issue of 2016. The picture in 2015 was bleak for social welfare and family law, as welfare and legal aid reform took a firm hold. Bruising cuts in legal aid have created a cavernous ‘redress gap’ for those unable to pay for advice and placed unsustainable pressure on frontline, not-for-profit advice providers (Low Commission, 2015). Benefits cuts coupled with tax increases have resulted in an unprecedented rise in evictions (Ministry of Justice, 2015) and in the number of individuals resorting to foodbanks (Trussell Trust, 2015). The withdrawal of universal credit to European Economic Area (EEA) nationals and their family members from June 2015 has further diminished migration incentives (Universal Credit (EEA Jobseekers) Amendment Regulations 2015, SI. No.546/2015). Such measures have incontrovertibly affected single parents, children, the disabled and minority ethnic communities in particular, prompting the United Nations (UN) Committee on Economic, Social and Cultural Rights (CESCR) to launch an investigation into the fairness and proportionality of the welfare cuts vis-à-vis society’s most vulnerable (CESCR, 2015). Notwithstanding the ongoing threats to family justice redress and social welfare entitlement, we enter 2016 with a marginal degree of optimism: we are told that the economy is on the up; the latest set of Government proposals to reduce tax credits for those on low pay have been successfully blocked by the Upper House, at least pending a detailed impact assessment; new, creative and technically resourceful ways of offering social welfare and family law support to individuals continue to be developed; and the courts have managed, for the most part, to maintain robust human rights standards in the face of austerity (Clarke v LB Sutton [2015] EWHC 1081 (Admin); Nzolameso v Westminster City Council [2015] UKSC 22; R (AM) v LB of Tower Hamlets and Havering [2015] EWHC 1004 (Admin). Further critical reviews of these developments will feature in this journal over the coming year. This issue begins with one such critique by Holt and Kelly who focus on the impact of changes to the family justice process. Specifically, they consider the effects of the 26-week deadline for the completion of care cases and the introduction of new pre-proceedings protocols to divert families to alternative forms of dispute resolution, all ostensibly aimed at reducing delay and achieving the best outcomes for children. The authors present some revealing and somewhat jaded responses from practitioners to these new changes, drawing on the findings of longitudinal research involving three local authorities engaged in pre-proceedings practice between 2009 and 2014. Morris, Morris and Sigafoos explore the scope and challenges associated with accommodating ‘carefully circumscribed exceptions’ under the Equality Act 2010, with particular reference to the requirements of Charity law. The authors illustrate the difficulties of interpreting and applying the exceptions by reference to cases involving discrimination on grounds of sexual orientation in the name of religious belief (notably the Catholic adoption cases). More generally, they consider how a modern equality framework should and can manage the competing demands of different protected characteristics and how this creates tensions within charity law to which such religious organisations are also subject. In her reflections on the values underpinning modern-day marriage, Elizabeth Van Acker questions the clarity, relevance and authenticity of the specific values of morality, equality, family stability and public order that the UK Government ascribes to marriage. She asserts

The CRC in Litigation Under EU Law

The Convention on the Rights of the Child (CRC) has been adopted as a frame of reference to guide the development of EU law and policy affecting children. The extent to which the instrument informs actual interpretations and implementation of those measures, however, is highly questionable. This chapter examines how the EU’s primary judicial institution, the Court of Justice, adjudicates on matters of EU law that relate to children. In particular, it explores the extent to which the Court uses the principles enshrined in the CRC and accompanying guidance to ensure compliance by the Member States not only with their obligations under EU law but with their obligations under the CRC. Moreover, it questions how the Court of Justice negotiates cases where the implementation of EU measures may undermine the principles and provisions of the CRC in the interests of pursuing and safeguarding the political and economic interests of Member States and, indeed, of the EU project more broadly.

Crossing boundaries: reconciling law, culture and values in international family mediation

Mediation is now widely advocated as a favourable alternative to judicial prescription in a family justice context, prompting the development of a critical mass of professional expertise in this area. While academic research and debate on mediation has also grown accordingly, there have been comparatively few attempts, particularly in a European context, to consider the application of mediation to family disputes that straddle geographical, cultural, linguistic and legal boundaries. This is in spite of the growing incidence of international relationship formation and dissolution, itself the product of an increasingly multi-cultural, multi-ethnic and multi-national landscape created largely by the progressive liberalisation of migration policies and the globalised market economy. A complex mesh of bi-lateral, private international, Council of Europe and, latterly, EU instruments, have been developed to regulate jurisdictional conflicts and ensure the smooth recognition and enforcement of divorce and parental responsibility agreements across borders. The widespread shift towards extra-judicial approaches to determining post-divorce arrangements at the national level demands a closer look, however, at whether mediation provides an appropriate, alternative response to this phenomenon. This paper therefore considers whether the regulatory and professional framework currently governing trans-national disputes is sufficiently robust to meet the (often more complex) dynamics of international family life. The first section summarises developments at International and EU level to regulate and facilitate this form of alternative dispute resolution. The second section pinpoints some of the logistical challenges associated with cross-national mediation and explores whether the framework responds sufficiently to them. The third section questions the efficacy and appropriateness of mediation in the specific and more sinister manifestation of international family disputes: that of cross-national child abduction. The final section speculates on the future of mediation at the trans-national level, suggesting how it might be improved to better accommodate the needs of families engaged in the process.