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European Human Rights and Family Law (Paperback, New)
Loot Price: R4,417
Discovery Miles 44 170
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European Human Rights and Family Law (Paperback, New)
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This book examines the potential impact of human rights in the way
the law interacts with families. Traditionally family law has been
dominated by consequentialist/utilitarian themes. The most notable
example of this occurs in the law relating to children and the
employment of the "welfare principle". This requires the court to
focus on the welfare of the child as the paramount consideration.
Hitherto the courts and, to a certain extent, family law academics,
have firmly rejected the use of the language of rights, preferring
the discretion and child-centred focus of welfare. However, the
incorporation of the European Convention on Human Rights via the
Human Rights Act now requires family law to deal more clearly with
the competing rights that family members can hold. In addition, it
is clear that, to date, the courts have largely ignored or
minimised the different demands that the HRA imposes on the
judiciary and, in particular, judicial reasoning. This book
challenges that view and suggests ways in which the family courts
may improve their reasoning in this field. No longer can cases be
dealt with on the basis of a simple utilitarian calculation of what
is in the best interests of the child and other family members -
greater transparency is required. The book clarifies the different
rights that family members can hold and, in particular, identifies
ways in which it may be possible to deal with the clash of rights
between family members that will inevitably occur. Whether this
requires an abandonment of the utilitarian nature of family law, or
a reworking of it, is a theme that runs throughout the book.
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