Lucinda Ferguson

Not Merely Rights for Children But Children's Rights: The Theory Gap and the Assumption of the Importance of Children's Rights

This article aims to reinvigorate the debate over the nature and value of the claim that children have children’s rights. Whilst the language of rights and children’s rights continues to be widely employed, and even relied upon, in many situations involving the legal regulation of children we lack strong child-centred evidence that it is better to regulate children through the lens of children’s rights, rather than their ‘best interests’ or in terms of duties owed to them.My argument proceeds in four stages. Firstly, I distinguish between rights for children and children’s rights. Understood in the sense of fundamental human rights, children are plainly rights-holders. The critical debate relates to children’s rights. Secondly, I argue that the expressive and procedural reasons for affirming that children hold children’s rights are contingent upon improved outcomes. Thirdly, I contend that we do not currently have a child-centred theory of children’s rights that improves, or increases the likelihood of improved outcomes in legal practice. This is not a claim that children do not have children’s rights. My argument undermines the current potential of both individual children’s rights and a rights-based framework of reasoning to improve outcomes for children. Finally, I argue that without such a theory we currently have no good evidence that it benefits children to think of them in terms of children’s rights in law. This is an optimistic conclusion as it suggests that with greater attention on making decision-making truly child-centred, or explicitly recognizing the inability to do so, the purposes for which we want to believe that children have children’s rights might be better achieved than they are at present.

Family, Social Inequalities, and the Persuasive Force of Interpersonal Obligation

To date, the privatization of the costs of social inequalities for women and children has been criticized predominantly from a policy perspective. This article seeks to make a stronger case against remedying social inequalities through private law obligations by addressing the theoretical difficulties with such privatization with a particular focus on familial obligations. I take my core examples from the current Canadian understanding of the spousal and child support obligations. My analysis proposes and proceeds on the basis of a new discourse for obligations traditionally grouped together as “Family Law” obligations: first, interpersonal obligations, which arise from and tie together two citizens through either a single interaction or through their relationship as a whole; second, social obligations, which are owed by the community as a whole to individual citizens. I argue that the persuasive force of the focus on an individuals responsibility for anothers financial need has obscured the reality of the states obligation, the broader social obligation, to respond to this need. I conclude with a discussion of the consequences of my analysis for the future of the spousal and child support obligations. If we deny an expanded role to these support obligations, can we do so in a way that avoids leaving the impoverished in an even more precarious position?

Arbitral Awards: A Magnetic Factor of Determinative Importance – Yet Not To Be Rubber-Stamped?

The High Court’s decision in S v S [2014] EWHC 7 (Fam) (S) is the first to give judicial endorsement to the Institute of Family Law Arbitrators’ (IFLA) scheme for parties to use arbitration to resolve the financial consequences of marriage and civil partnership breakdown. The significance of the decision extends beyond the case itself. Sir James Munby P’s judgment is important in four respects: first, he guides courts as to the process to adopt when considering applications made in the context of arbitral awards; second, he makes critical suggestions for future procedural innovations and rule changes; third, he directs courts as to how to weigh the substantive content of arbitral awards against section 25 of the Matrimonial Causes Act 1973 when hearing applications for consent orders and attempts to resile from the arbitral award; fourth, he comments on autonomy as the underlying theoretical basis for this substantive approach to arbitral awards.

The denial of opposite-sex couples’ access to civil partnership as discrimination?*

As a result of the extension of marriage via the Marriage (Same Sex Couples) Act 2013, same-sex couples can choose whether to secure formal legal recognition of their relationship via marriage or civil partnership. In Steinfeld and Keidan v Secretary of State for Education [2016] EWHC 128 (Admin), the claimant couple argued that sections 1 and 3(1)(a) of the Civil Partnership Act 2004, which restrict eligibility to enter into civil partnership to samesex couples, were incompatible with Article 14 of the European Convention on Human Rights taken together with Article 8, and sought a declaration of incompatibility under section 4 of the Human Rights Act 1998. Andrews J dismissed their application for judicial review, reasoning on alternative grounds. Firstly, the claim did not fall within Article 14 read together with Article 8. Secondly, were the couples’ claim seen to fall within the ambit of Article 14 read together with Article 8, differential treatment of same-sex and opposite-sex couples in terms of their access to civil partnership was objectively justified (para. 86). The High Court judgment in Steinfeld is important in four respects: first, it highlights the importance of seeing the couple’s discrimination claim as equality-based, which means it is properly addressed by the courts, rather than Parliament; second, it demonstrates the impact of the uncertainty over the relationship between domestic and ECtHR jurisprudence; third, it underlines the difficulties of relying on the High Court’s earlier decision in Wilkinson v Kitzinger and another (No 2) [2006] EWHC 2022 (Fam) in this context; fourth, it evidences significant assumptions made in this context about both the immutability and flexibility in the meaning of civil partnership and marriage, as well as the nature and relevance of the public interest to any reform of civil partnership.

'Families in All Their Subversive Variety': Over-Representation, the Ethnic Child Protection Penalty, and Responding to Diversity Whilst Protecting Children

This article explores the neglected issue of the over-representation in the child protection system of children from ethnic, cultural, religious, racial, and linguistic minorities. It focuses on the accommodation of children’s diverse backgrounds within the s31(2) threshold and s1 “best interests” stages of intervention under the Children Act 1989. Firstly, it introduces the ethnic child protection penalty as a new tool for capturing the complex nature of over-representation of these children. Secondly, it proposes a framework for understanding the judicial approach in higher court decisions on the current extent and nature of accommodation. Thirdly, it employs the penalty concept to help explain why case law analysis reveals difficulties with the current factor-based approach, whereas empirical research suggests generally satisfactory accommodation in practice. It concludes by proposing a contextualised framework for decision-making in relation to child protection.

Family justice in hard times: can we learn from other jurisdictions?

This paper presents the views of scholars from Australia, Canada, Scotland, France and Sweden on the current working of the Family Justice system in England and Wales, and comparing the experience here with those using the system in their own jurisdiction using vignettes describing a typical divorce and child protection case. The authors identify any special features of their own system which might be of interest here.

Complicating the 'Holy Grail', Simplifying the Search: A Critique of the Conventional Problematisation of Social Immobility in Elite Legal Education and the Profession

ABSTRACT This article challenges the conventional problematisation of and response to insufficient socio-economic diversity in elite legal education and the legal profession. I contend that the entrenched socio-economic stratification of admissions, the undergraduate experience, final degree classification, and career trajectories turns on elite institutions’ failure to recognise that education and educational proxies neither explain the core of socio-economic inequality nor are they the linchpin for improving social mobility. I draw on a case study of an elite UK university’s undergraduate Law programme. My argument proceeds in three parts. Firstly, I contend that justifiable commitment to “meritocracy” continues to be unjustifiably implemented via the indeterminate critical values of “potential” and “talent”, which undermines the meritocratic aim. Secondly, I explain how the inadequacy of the educational proxies employed for socio-economic disadvantage undermines the ability of targeted responses to achieve real improvements, and I call for the adoption of poverty-based proxies. Thirdly, I suggest that the search for mechanisms to increase diversity proceeds on the mistaken assumption that complex problems require complex solutions, which overlooks the transformative potential of “micro-adjustments” or “nudges”. I propose both universal and targeted micro-adjustments, which focus on fostering a universal diversity of excellence; bringing disadvantaged students within the “community of practice” to become expert in critical learning methods and assessment criteria; and enhancing disadvantaged students’ social and cultural capital.

The Jurisprudence of Making Decisions Affecting Children: An Argument to Prefer Duty to Children's Rights and Welfare

This chapter embraces the reasons for thinking that children have children’s rights but suggests that these aims are currently better achieved through a duty-based approach to legal decision-making affecting children. I start from the viewpoint that these various approaches of children’s rights, welfare, and duties owed to children should be seen as simply tools – language descriptors, ways of framing individual considerations, processes, and frameworks – for working with the same substantive content. Which approach we prefer or emphasise should depend on how well it guides decision-makers towards decisions that lead to or make more likely better outcomes for affected children. After briefly outlining why current conceptions of children’s rights cannot meet this test, I explain why a welfare or “best interests” approach is no more able to satisfy this objective than can the alternatives. The remainder of the chapter is focused on exploring the potential of a duty-based approach. I argue that duty can have three roles: as a tool to give specificity and resolve conflicts in current rights- and welfare-based decision-making; as a theoretical framework of itself, focused on the decision-maker; and as the basis for anchoring a virtue-led view of the aim for legal decision-making affecting children – to enable children to flourish on their own terms. I conclude by exploring the practical implications of a duty-based argument and discuss two key examples, namely the United Nations’ Convention on the Rights of the Child and private law disputes concerning children.