Judicial review,litigation effects and the ombudsman

Abstract

Judicial review is widely understood to be a remedy of last resort, but there remains little research on the extent to which the process can achieve meaningful redress. This article applies the results of a study into ombudsman judicial review to chart the outputs of the various stages of the process at which an outcome can be secured. The claim is made that ombudsman judicial review does secure a small level of success for claimants both in and out of court but that the rate of such success is lower for citizen claimants than the norm in all judicial review cases. The explanation provided for this pattern is that organisationally ombudsman schemes have learnt lessons from being repeat players in judicial review and are better equipped to integrate rule of law values than many other public bodies. Citizen claimants, by contrast, include a high proportion of inexperienced litigants-in-person for which the judicial review process is ill-designed to facilitate.     

A voice or a choice? Children’s views on participating in decisions about post-separation contact with domestically abusive fathers

ABSTRACT

The United Nations Convention on the Rights of the Child explicitly calls for children to be granted the right to participate in legal proceedings that affect them. Despite this legal obligation and an evolving consensus that recognises children as social and competent actors, this rhetoric has struggled to achieve translation into meaningful practice reality, particularly when decisions are being made about contact arrangements for children where there has been a prior history of domestic violence. Drawing on the narratives of children who participated in three separate research projects in Ireland between 2009 and 2015, this paper will consider the manner in which they were involved in the decision-making process and the extent to which their views were ascertained and their voices heard. This paper concludes by raising the key question of how the child’s best interests can be served if the child’s views are not sought, heard or considered.     

Sparing the rod: Schools, discipline and children's rights in multicultural Britain

How should we treat unruly children in our schools? Which punishments are appropriate? successful?; and will they instill order and discipline in the next generation? These are the perennial questions asked by adults, answered by adults, and rarely posed to children themselves! Instead, educationalists and parents have sought to control minors by resorting to a variety of disciplinary sanctions. Today, however, the questions have to be set within a developing philosophy of `children's rights' whereby young people are seen as having entitlements which challenge existing notions of adult authority. This paper explores these issues within an overarching theme of human rights. It does not seek to promote the case for children's rights in isolation, but rather locates the question within the context of rights and responsibilities of pupils, teachers, and parents. Discussion provides an historical perspective on physical chastisement in the home and at school; analysis of the impact of the European Court of Human Rights on abolition in Britain; and a review of alternative sanctions being explored. Further, attempts to re-introduce the cane are considered notwithstanding clear indication from Strasbourg that violence can no longer be condoned. Finally, the dignity and integrity of the person will continue to be at the forefront of the debate on children's rights as there is clearly discernible an international dissemination of legal norms which can serve as a mechanism of social control, responsive to changing popular ideologies and effecting influence on social policy and practice.     

Equal reproduction rights? The right to found a family in United Nations’ disability policy since the 1970s

ABSTRACT

With the adoption of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) in 2006, disability as an issue of human rights and international law can no longer be ignored. The history of this convention can be traced back to the 1970s, when disability was framed in United Nations (UN) declarations as a human-rights issue at the global level. One of the recurrent topics of debate during this trajectory was the right of people with disabilities to found a family. This right was far from self-evident and was evaluated very differently by various stakeholders.

This study follows the right to have a family in UN disability policy since the 1970s. The history of the family in relation to disability at the global level has been a neglected field of enquiry compared to other concepts such as gender and race. This study investigates how and why the right to found a family was framed in the Declarations on the Rights of Mentally Disabled Persons (1971) and Disabled Persons (1975), the International Year of Disabled Persons (1981), the International Decade of Disabled Persons (1983 ? 1992), the Standard Rules on the Equalization of Opportunities for Persons with Disabilities (1993) and the UNCRPD in 2006.

The trajectory of the right of people with disabilities to found a family that emerges from these cases shows a change in the 1990s from a social-policy to a human-rights approach towards disability – which reflects a broader trend in global and local histories of human rights. In the case of reproductive rights of people with disabilities this change meant that the emphasis was laid more on providing a legal protection for the individual against the interference of others (so-called negative freedom) than on enhancing the opportunities for disabled people to practice their (positive) freedom.     

‘Marrying light’: skin colour,gender and marriage in Jamaica,c. 1918–1980

ABSTRACT

While historians have increasingly examined inter-racial marriage, they have so far paid scant attention to intraracial marriage. This article tries to fill this gap in the scholarship by examining the practice of ‘marrying light’ in Jamaica from c. 1918 to 1980. Based on a wide range of sources, including memoirs and autobiographical fiction, it is particularly concerned with the motives for cross-colour marriage and the ways in which African-Jamaican children learned that ‘marrying light’ was an ideal to aspire to. It shows that colour, gender and class intersected in complex ways in ‘marrying light’ and that in most instances cross-colour marriages in Jamaica, like elsewhere, were a trade-off between one high-ranking variable and another. Due to the limitations of the source material, the article does not fully explore the extent of ‘marrying light’ and the quality of cross-colour marriages.     

A human rights-based approach to sex offender management: The key to effective public protection?

Abstract

This paper outlines recent ‘public protection’ legislation in the United States of America as a basis for considering possible outcomes when public concern and political pressures combine without due regard for efficacy and appropriate balance. It highlights concerns about the implications of policy measures developing in this way and questions whether a human-rights based approach should be applied in terms of public protection policy in order to develop more effective public protection.     

A GOOD EXAMPLE OF PARENT ADVOCACY FOR RIGHTS IN INCLUSIVE EDUCATION IN CHINA

While children with disabilities experience exclusion and segregation in education, parents’ involvement has been very limited due to the lack of parent support in China. Negative attitudes toward disability in an environment deeply influenced by the individual model of disability thinking makes it crucial for parents to advocate for their children’s rights in inclusive education through collaborative and organized efforts. This article examines barriers obstructing disabled children’s rights in pursuing inclusive education, barriers parents face to advocate for their children, and the development of parent support. The author argues that equal and inclusive education for all has a broader social impact beyond disability rights to eliminate barriers and pursue dignity for all. In doing so, the author reveals existing structural inequalities facing inclusive education, encourages the momentum for future changes, and utilizes a good example of parent advocacy for a deeper and meaningful policy advancement to overcome discrimination on the basis of disability that causes segregation and exclusion in education. Recommendations include strategies for the construction of a support network for parents to play their important roles in advancing the rights of their disabled children in inclusive education.     

Deregulation,property rights,and legal system

During regulation the regulator carries out an intermediary role between shareholders and managers, consequently affecting property rights and the agency relation between the two. Deregulation implies that this intermediary role ceases to exist. This article analyses how government deregulation changes property rights, differentiating between firms of network and non-network structures. Changes in property rights affect the agency relation between shareholders and managers, increasing information asymmetry and agency costs. I argue that the way to reduce agency costs depend to a great extent on the country’s legal system classified as of common or civil law tradition.

Privacy,stigma and public protection: A socio-legal analysis of criminality information practices in the UK

Criminality information practices involve public authorities in the UK (and elsewhere) gathering, retaining and sharing information that connects with an identifiable individual; all with the ostensible aim of upholding and improving standards of public protection. This piece first charts the landscape of contemporary criminality information practices in the UK today. The article then examines recent legal emphases and policy directions for public protection networks. Consideration is then given in the piece to privacy rights and values and the difficulties in providing an exact typology and grounding for these. The piece then outlines a suggested framework for correct legal regulation, as well as a through commentary on the work done by Catherine Bellamy et al. to empirically determine the extent to which public protection information sharing can in fact occur in correct adherence to legal regulation. A socio-legal analysis is undertaken of the nature of public protection networks as variants on Goffman's performance teams within a dramaturgical routine that foregrounds stigmatisation of perceived ‘risky’ individuals as an aspect of that routine. This piece also explores the processes of institutional isomorphism as a reaction to shifting policy directions and legal doctrines, acting as a driving force towards a hierarchical performance of criminality information practices by public protection networks. Three conclusions are offered up for consideration: firstly, that the growing complexity of the law and regulation relating to criminality information practices might improve privacy values in the criminal justice system and help to add precision to necessary processes of stigmatisation in relation to the aim of public protection. Secondly, that these shifts in the law still need ongoing revisions, in order that a hierarchical approach to criminality information practices can be arrived at over time. Thirdly, that if the permanency of potential stigmatisation through the indefinite retention of criminality information cannot change, due to the competing pressure on the criminal justice system from public protection duties, then consultation with ‘risky’ individuals where practicable, before criminality information connected to them is shared across public protection networks becomes essential as a privacy-enhancing value and practice.     

Incidents of discrimination and risk for delinquency: A longitudinal test of strain theory with an African American sample

This article examines the relationship between racial discrimination and delinquency. Using longitudinal data collected on approximately 700 African American children, we begin by establishing an association between exposure to discrimination and delinquent behavior. Next, we use structural equation modeling to test various hypotheses regarding the emotional and cognitive factors that mediate this association. For boys, the association between discrimination and delinquency is mediated by feelings of anger and depression and by the belief that aggression is a necessary interpersonal tactic. The results are somewhat different for girls. Although anger and depression mediate part of the effect of discrimination on delinquency, discrimination continues to display a small but significant direct effect. The implications of these findings for criminological theory are discussed.     

The first delinquency prevention experiment: a socio-historical review of the origins of the Cambridge-Somerville Youth Study’s research design

Objectives

Begun in 1939, the Cambridge-Somerville Youth Study (CSYS) is recognized as the first delinquency prevention experiment and the earliest example of a longitudinal–experimental study with criminological outcomes. This paper aims to develop a historical understanding of the origins of the study’s research design.

Methods

The present study is guided by the socio-historical approach and informed by past historical research in criminology. It draws upon a wide array of archival records and published works from the late nineteenth century to the present day.

Results

Richard Clarke Cabot designed and directed the CSYS. Major influences on the study’s research design can be traced to Cabot’s medical practice and research, his advocacy for social work practice and research, and his professional relationship with the Gluecks. The beginnings of experimentation in the social sciences during the early twentieth century may have also played a role. Joan McCord’s early involvement in the study proved instrumental to its longitudinal component.

Conclusions

The rigorous and innovative research design of the CSYS marks an important chapter in the history of experimental criminology, and its influence continues to this day. New experimental studies on the prevention of crime and delinquency must continue to strive to advance scientific knowledge and improve public policy.

     

National self-image as an obstacle to ensuring children’s rights in the context of domestic violence and family law – the case of Sweden

ABSTRACT

The aim of this paper is to highlight and discuss contradictions and challenges in the current policy and practice regarding fathers’ violence towards mothers and children in the Swedish welfare state. In particular, professional discourses and understandings of domestic violence in disputes about contact, custody, residence and maintenance, following parental separation, are analysed. My research suggests that abusers find ways to manipulate professionals and get them unwittingly to enable their continued control of victimised mothers and children. One conclusion is that oppression is maintained through processes of familialisation and selective repression. These discursive practices reproduce intersectional inequalities and, in doing so, in many cases result in the administration rather than prevention of further violence.     

Dignity or discrimination: what paves the road towards equal recognition of same-sex couples in the European Union?

Abstract

The article analyses possibilities for the Court of Justice of the EU to go beyond its current narrow approach towards same-sex couples’ rights within the EU non-discrimination law framework, considering a comparative treatment of dignity-based arguments. It critically reviews the CJEU’s current approach exclusively focusing on direct discrimination and the comparator paradigm. By doing so, the Court has tolerated a situation of de facto discrimination and limited advancement of same-sex rights. The question is then whether the situation could be overcome if the CJEU would follow other courts and develop reasoning based on dignity to underpin the EU non-discrimination analysis with substantive meaning. The article rejects this proposition. Dignity is not suitable because it is both too wide and to narrow to ensure certainty and substantive protection within EU non-discrimination law. While the concept of dignity protects a minimum standard and can provide a floor of rights, non-discrimination law fosters equality by imposing procedural standards and challenging measures that effect groups differently. The concepts should thus not be conflated. Instead, a consistent application of the concepts of direct and indirect discrimination seems more promising.     

调解权的价值、性质与实现

本文以纠纷当事人的调解权为核心和基础,以调解权与相关国家权力的关系为视角,分析了调解权的被动性、调解权的差异性以及调解权的受支配性等特征。认为当事人之间的调解权利意识,是社会公众所昭示的公共性政策在法律领域的延伸,强调在需求多样化与多元化的今天,调解权的实现有利于维护公民的利益。     

A human rights-based practice framework for sexual offenders

Abstract

Human rights create a protective zone around people and allow them the opportunity to further their own valued personal projects without interference from others. In our view, the emphasis on community rights and protection may, paradoxically, reduce the effectiveness of sex offender rehabilitation by ignoring or failing to ensure that offenders’ core human interests are met. In this paper we consider how rights-based values and ideas can be integrated into therapeutic work with sex offenders in a way that safeguards the interests of offenders and the community. To this end we develop a rights-based normative framework (the Offender Practice Framework: OPF) that is orientated around the three strands of justice and accountability, offender needs and risk, and the utilization of empirically supported interventions and strength-based approaches. We examine the utility of this framework for the different phases of sex offender practice.     

Terms of service and bills of rights: new mechanisms of constitutionalisation in the social media environment?

ABSTRACT

From a cursory look at the terms of service of the main social networking websites, it is immediately possible to detect that Facebook’s show a peculiar configuration. Although they represent a mere contract between private parties, these terms adopt the traditional jargon of constitutional texts and articulate their contents in terms of rights, principles and duties. This curious pairing between norms regulating social media and the constitutional sphere is also apparent in a series of non-binding documents that are unequivocally named ‘bill of rights’ and seek to articulate a set of principles to protect social media users. This paper examines whether the emergence of a constitutional tone in this limited number of texts could be related to the effective, or aspirational, constitutional function that these documents exercise. The identification of a series of significant shortcomings will lead to exclude that social media’s terms of service and bills of rights of social media users currently play a constitutionalising role. Nevertheless, the possibility to theoretically justify the use of these documents as mechanisms of constitutionalisation in the social media environment will be adduced as an evidence of the potential constitutional aspirations of these texts.     

劳动权的平等保护及禁止就业歧视的法律思考

目前我国社会就业歧视现象愈演愈烈,劳动权作为公民的基本权利之一,其内在包含的就业平等权要求禁止就业歧视,因此禁止就业歧视是劳动权的题中之义。本文将以劳动权的平等保护为出发点,界定就业歧视的概念和主要表现形式,论述禁止就业歧视的必要性。我国禁止就业歧视的相关立法存在不足,应从立法、执法、司法三方面完善禁止就业歧视、维护劳动者的就业平等权的法律保障。     

Can twitter change the Iranian legal landscape for women?

ABSTRACT

This article explores the effectiveness of international social media (Twitter) campaigns, as a modern form of transnational advocacy networks, seeking domestic legal change in Iran for women’s rights. Using the spiral model of human rights change and second wave normative theories, the article critiques current thought on social media as an advocacy tool using evidence from two Iranian campaigns. Gathering empirical data from the #stopstoning and #letwomengotostadium campaigns, the research finds that Twitter campaigns may be linked to regression in some areas of women’s rights. Early evidence indicates that social media may lead to amplified government backlash, lack of campaign persistence and foreign overshadowing of domestic voices, which all contribute to the ongoing problematisation of the role of transnational advocacy networks in domestic human rights change.     

Conclusion: international best practices

ABSTRACT

Three approaches presented at the International Symposium on Contact Disputes and Allegations of Domestic Violence – Identifying Best Practices offered the possibility of overcoming the limitations identified in the preceding papers in this special issue. A human rights framework, trauma-informed practice and integrated services taking a whole-of-family approach can all help to achieve cultural change in contact proceedings and to ensure the availability of the resources needed to address the issue of domestic abuse holistically. Four Australian initiatives are described as examples of trauma-informed practice and integrated services: Legally Assisted Family Dispute Resolution (LAFDR), the Family Safety Model (FSM), the Family Violence Courts Division of the Victorian Magistrates Court (FVCD), and the Family Advocacy and Support Service (FASS). FSM and LAFDR are out-of-court initiatives which aim to address a family’s abuse-related needs before they get to a court. The FVCD and FASS pick up families whose cases have entered the court system, and at that stage attempt to offer a wrap-around service which addresses both legal and non-legal needs. Lastly, the article describes the European human rights framework, which is designed to operate in cases which are ultimately adjudicated by a court.     

On a clear day you can see forever: Integrating values and skills in sex offender treatment

Abstract

The topic of sex offender rehabilitation frequently evokes fierce reactions, ranging from strident demands for harsher sentences contrasted with calls for more imaginative and compassionate sentencing options. There seems to be a polarization of positions centred on the question of offenders’ moral standing: are they moral strangers or fellow travellers? This fundamental disagreement about offenders’ moral status is at the core of a number of independent, although related current practice and research issues confronting the field, namely: (1) risk management versus strength-based treatment approaches; (2) the utility of utilizing individually tailored versus manual-based programmes for offenders; (3) focusing on the technical aspects or therapy as opposed to relationship and therapist factors (what has been called process issues); and (4) the conflict between protecting the community versus promoting the interests of offenders. In this paper I suggest that an approach to sex offender treatment based on a combination of human rights theory (an ethical resource) and strengths-based approaches can help us navigate our way through the above dilemmas in a way that addressees both the needs of offenders and those of the community.