Back for the future: a client centred analysis of social welfare and family law provision

The landscape of legal advice provision is entering a period of significant change in England and Wales. Whilst there is a great deal of uncertainty about how the future landscape of advice service provision will evolve, there are lessons to be drawn from past delivery models.

This article first looks back at the period following the Access to Justice Act 1999, setting out a range of delivery models initiated following the Act, as well as research and evaluation conducted in the millennium decade. Findings are then presented from a comprehensive qualitative study on how people experience and deal with social welfare and family problems, and on facilitators and barriers to integrated advice provision, including inter-organisational working. This is explored through the lens of a delivery model which emphasised partnership and the pooling of resources and specialisms to meet client needs: the Community Legal Advice Centre model.     

Sickness Absence and the Court of Justice: Examining the Role of Fundamental Rights in EU Employment Law

Being absent from work due to sickness is a critical issue for individuals and their employers, but it has traditionally fallen outside the scope of EU employment legislation. This article argues that this is changing; it examines case‐law under the Working Time and Employment Equality Directives. The article considers the justifications that the Court of Justice has advanced to explain this expansion in EU employment law. It finds that the Court has, at times, invoked fundamental social rights as a basis for interpreting employment legislation in a manner favourable to workers. Yet the way in which the Court deploys rights‐based reasoning can be difficult to anticipate, not least the countervailing weight attached to the interests of employers. The case studies indicate that fundamental rights discourse offers a possible foundation for more extensive readings of employment legislation, but it is not a simple ‘trump card’ for advocates of stronger worker protection.     

Brave New Fathers for a Brave New World? Fathers as Caregivers in an Evolving European Union

This article focuses on the role that fathers play when it comes to family responsibility, in particular the care of young children, and how EU policy and legislation have contributed to it. This is important for several reasons. From a theoretical perspective, access to care for fathers represents the other side of the access to paid employment for mothers debate, and completes the deconstruction of the two‐sphere structure. From a more practical point of view, including fathers in the work/family life reconciliation debate is essential for the achievement of important EU policies, such as employment and gender equality. Although society is ready for a change, the legislator has been slow to address it, thus fathers are still missing from the EU's reconciliation policy and legislation. Against this background, the decision of the Court of Justice in Roca Álvarez has, potentially, laid down the basis for a new model of fatherhood.     

Third Way Regulation? Community Legal Service Partnerships

This article examines recent changes in the civil legal aid scheme in England and Wales (now called the Community Legal Service) and the creation of Community Legal Service Partnerships in particular. The article explores three main interests: it illustrates how third way thinking has been applied to the reform of the legal aid scheme under the Access to Justice Act 1999; it explores how partnership fits within theories of public regulation; and it illustrates how professionalism is being re-shaped by a combination of new public management, contractualism and partnership. It points to important limitations in new public law theories of extended accountability and democratised governance as manifested in partnerships.     

Why community compulsion became the solution - Reforming mental health law in Sweden

The aim of this article is to understand how compulsory community care (CCC) has become a solution in mental health policy in so many different legal and social contexts during the last 20 years. The recent introduction of CCC in Sweden is used as a case in point, which is then contrasted against the processes in Norway, England/Wales and New York State.In Sweden, the issue of CCC was initiated following high-profile acts of violence. Contrary to several other states, there was agreement about the (lack of) evidence about its effectiveness. Rather than focusing on dangerousness, the government proposal about CCC was framed within an ideology of integrating the disabled. The new legislation allowed for a broad range of measures to control patients at the same time as it was presented as a means to protect positive rights for patients. Compared to previous legislation in Sweden, the scope of social control has remained largely the same, although the rationale has changed — from medical treatment via community treatment and rehabilitation, to reducing the risk of violence, and then shifting back to rehabilitation in the community.The Swedish approach to CCC is similar to Norway, while New York and England/Wales have followed different routes. Differences in ideology, social control and rights orientations can be understood with reference to the general welfare and care regimes that characterize the four states.     

Male Sex Work: Exploring Regulation in England and Wales

Whilst sex-work policy in England and Wales claims gender-neutrality, local and national prostitution strategies primarily focus on female street-based sex workers. Men who sell sex are generally absent or inadequately considered in such policies, and measures to regulate commercial sex markets are rarely considered in terms of their impact on male working practice. Drawing on the Coordinated Prostitution Strategy for England and Wales, this paper has two aims: first, to offer a gender-based critique of the current policy framework for England and Wales by arguing that sex-work policy is infused by a gendered understanding of sex work in which male identities are neglected or assumed deviant; and second to explore the notion that understanding sex work as it is performed locally is valuable when generating local and national policy. Informed by gendered readings of policy, social understandings of masculinity, and the (in)visibility of male sexual commerce this paper explores male sex work in the context of Manchester, England.     

W(h)ither social work? Social work,social policy and law at an interface: Confronting the challenges and realising the potential in work with people needing care or services

Conclusion Social work asks of us all awkward questions, particularly since we are all members of the systems about which we are developing a critical knowledge base. This paper argues that social work, on the basis of a policy and political literacy, must engage in influencing higher levels of context. That is, it must engage with managers and policy makers about the objectives of welfare policy and the means by which they are to be realised — about issues of relevance to service users and to practice. This paper also suggests that other professional groups face the same awkward questions and must similarly engage in debates about the meaning of welfare, justice and rights. If social work in particular, and professional groups with which it interacts, lose the ability or willingness to question, they risk losing the empathy, values and practice skills which seek to counter the inequalities, internalised oppressions, alienation, and exclusion characteristic of contemporary social life. They risk identifying with the aggressor rather than using their position to promote an empowering difference.     

It's not just about the profits: privatisation,social enterprise and the ‘John Lewis’ prison

Abstract

The introduction of the Community Order (CO) and Suspended Sentence Order (SSO) in the 2003 Criminal Justice Act, on paper at least, radically reconfigured community sentences in England and Wales. The CO replaced the range of community sentences previously available with a single sentence. The SSO brought in a custodial sentence to be served in the community unless breached. Both orders were to be made up of one or more requirements from a possible of 12 (including unpaid work, supervision, accredited programmes, curfew and drug treatment).     

CHILDREN,THE UNCRC,AND FAMILY LAW IN ENGLAND AND WALES

There is no doubt that, overall, there has been a great deal of activity in relation to children's rights under the United Nations Convention on the Rights of the Child (UNCRC) since it was ratified by the UK government in 1991. Of particular significance in the context of family law, however, are the provisions of Article 12, which have in many ways proved to be more problematic than other provisions, not least because, in the context of family law, children's participation rights are necessarily juxtaposed with the long‐standing and hitherto unchallenged rights of parents to make important decisions about family life. The reorganisation in 2001 of the family court welfare services in England and Wales with the creation of the Children and Family Courts Advisory and Support Service (CAFCASS), generated a new impetus for the consideration of children's participation rights and, at an organizational level, considerable progress has been made in embracing the provisions of the UNCRC. More problematic, however, is the acceptance of children's participation in making decisions about their futures by adults using and working in the family justice system. At the level of the courts, judicial attitudes are slow to change and in England, as court judgments often demonstrate, these are firmly rooted in a view of children as being incompetent in such issues; at the level of parents using the system, it is arguable that new discourses about the best interests of the child serve as a proxy for continuing discourses about parents’ rights that have become evident, most recently, in the context of an increasingly influential fathers’ rights lobby; and at the level of welfare practitioners, recent research also demonstrates that, although the rhetoric of children's rights is widely accepted, the willingness and ability to make these real in the context of family proceedings is, for a variety of reasons, less in evidence.     

Charities and the 'New Deal': Compact relations?

Charities are playing a significant role in the implementation of the government's New Deal programme. From providing advice on local employment issues to administrative services to work placements, the voluntary sector has been working in public/private partnerships throughout England and Wales. However, despite the government's commitments in the Compact between it and the voluntary sector to support the independence and creativity of the sector, the New Deal for 18-24 year olds reinforces many of the negative sides to the 'contract culture'. This article will examine working relations between charities and the State post Compact, using charities'participation in New Deal as a case study. We will argue that participating charities face a series of potential legal pitfalls. They might also find that, instead of being fully funded through State funds, their participation in the delivery of New Deal is partially funded through their own charitable resources.     

Bellwether Citizens: The Regulation of Male Clients of Sex Workers

Dangerous and discriminatory new provisions against sex workers' clients have repeatedly been put before parliament in England and Wales. Female ministers keen to punish clients of sex workers eagerly supported the Bill. However, while sex work has become a rights issue it is no longer just about women's rights. Diverse and multiple sexualities and working practices see gay, trans or bisexual workers selling sex to a diverse range of lesbian, gay, trans, and straight clients who may be able-bodied or disabled. This article critically examines the regulation of clients of sex workers, explores the current legislation against them, and reviews recent research evidence. The ideas that inform policy will be discussed along with the various policy approaches. The latest move to criminalize clients in the Policing and Crime Bill 2009 will be discussed along with the spectre of trafficking, used to scapegoat clients by a government which has undermined civil liberties and the fundamental concepts of a free society.

[A]nyone indulging in sexual activity is entitled to a degree of privacy especially if it is on private property and between consenting adults (paid or unpaid)

                                                     Mr Justice Eady ¹     

Harnessing the Power of Data to Improve Family Justice: A New Nuffield Family Justice Observatory For England and Wales

A pilot Family Justice Observatory for England and Wales is being launched in Spring 2019. Its overarching aim is to address concerns about the limited and uncertain place of empirical evidence in the family justice system. The Observatory will focus on providing intelligence about how the system is working, especially through the accelerated use of electronic population level data on family justice cases. Drawing on collaborative relationships between data providers and users, as well as policy and practice colleagues, the Observatory will improve collective understanding of the needs of children and families and how they are met by the family justice system.     

When legal rights are not a reality: do individuals know their rights and how can we tell?

Public knowledge of rights has been the subject of a number of empirical enquiries over the last decade. In England and Wales, knowledge of rights and its relationship with an individual's capacity to ‘self-help’ and ‘self-represent’ when faced with a civil justice problem has become the subject of renewed attention following changes to legal aid which, from March 2013, will see the availability of legal advice and representation dramatically reduced. Previous studies focusing on public knowledge of rights in this (and other) jurisdictions have illustrated a lack of knowledge amongst the general population and more specifically, a widespread tendency of individuals to assume that the law aligns with their own moral, ethical or social attitudes. However, many of these studies have also suffered from methodological shortcomings. In attempting to address some of these shortcomings this study uses an open-ended format to ask individuals with one or one or more civil or social justice problems to describe their rights/legal position. We find that whilst an open-ended question approach to exploring knowledge of rights yields insight not acquired by other formats, its utility is constrained by difficulty reconciling articulation and actual knowledge of rights. We discuss the implications of these findings as they relate to the development of future research in the field of family and social welfare law, Public Legal Education (PLE) and access to justice post-March 2013.     

A model process for forensic mental health screening and evaluation

This article describes an operational definition and a model process for forensic mental health examinations developed on the bases of field research, reviews of literature and other documentary materials, and a survey of forensic mental health programs. Forensic mental health screening and evaluation is defined as the process conducted by mental health personnel, at the direction of criminal justice authorities, for the purposes of delineating, acquiring, and providing information about the mental condition of client-offenders that is useful in decision making in the criminal justice system. The proposed model encompasses 14 pragmatically oriented steps within three major structural components of the examination process—delineation, acquisition, and provision—in a manner that places the entire process in the functional context of the criminal justice and mental health systems. The definition and model are aimed at practitioners, program evaluators, and policy makers to be used as a starting point for the establishment of standards against which the practices and policies relating to forensic mental health screening and evaluation can be compared and improved.The preparation of this article was supported in part by a grant (No. 79-NI-AX-0070) by the National Institute of Justice. The views expressed are those of the author and do not necessarily reflect the positions of the National Institute of Justice or the National Center for State Courts. The author thanks his colleagues for their assistance and advice during the study upon which this article is based, as well their critical reviews of earlier documents related to this work. The comments and suggestions of Amiran Elwork and an anonymous reviewer are also gratefully acknowledged.     

Security,privacy and freedom and the EU legal and policy framework for biometrics

The adoption of the Treaty of Lisbon and the granting to the Charter of Fundamental Rights of the same legal force as the Treaty has lent a new impulse to the consideration of fundamental human rights by the European Union (EU). The question remains, however, as to how this legal discourse, centred upon human rights, is actually shaping the EU regulatory framework in specific policy domains. The aim of this paper is to critically appraise the ways that the fundamental rights of security, privacy and freedom guaranteed by the Charter are being construed in the context of EU law and policy on biometrics, an ethically and morally sensitive security technology whose development and use are being actively promoted by the EU. We conclude that the interpretation of the pertinent rights, as well as their balancing, owes a great deal to the goals of EU policies for research and development, and under the auspices of Freedom, Security and Justice, shaped largely by political and economic considerations. These considerations then tend to prevail over ethically or morally-based legal claims.     

Is the Open Method of Coordination Appropriate for Organising Activities at European Level in Sensitive Policy Areas?

This article addresses the question of the relevance of the most recent soft policy instrument of the EU, the open method of coordination (OMC), for organising actions at European level in politically sensitive areas. In addition to describing its origins and operational principles, we will compare its application to the areas of employment and social inclusion. Two hypotheses make up the structure of the text. The first is that the discourses produced in the framework of OMC in the areas of employment and social inclusion are broad enough to cater to the different welfare models, but that the changes to be made by the Member States to be in line with the European discourses differ considerably, depending on their welfare state family and their initial situation. The second is that the form of OMC is variable, depending on policy area. Our conclusions confirm both of these hypotheses.     

城隍神的构造原理:法律与宗教互动的古代中国经验

超出世俗理性主义的法史研究模式,重建古代中国法律与宗教的真实联系,颇有必要。古代法官的司法经验中附着于城隍神身上的“神迹”不完全是神道设教的虚构,而可能是真实的个案。城隍神作为正义守护神的构成原理具有四个部分:儒法合流的理性主义法律体制不足以解决法律全面实施的难题;神道设教的传统国策可以发挥神灵震慑的作用;只有在城隍神的法庭上才可能实现远比国法所能企及的更大的正义,就是使一个人对其生前死后一切行为负责的因果报应正义;源源不断的报应故事使神迹和神明建立起了因果联系。还原正义守护神的构成原理有助于理解为什么与宗教疏离的法律会失灵。     

美国女性主义法学及其启示

女性主义法学以其独特的方法论剖析法律问题,提出女性问题方法、女性主义实际推论方法、提高觉悟方法以及用社会性别视角观察历史、文化、社会现象,从而展现出与以往法学理论研究的不同进路。女性主义法学是一种对女性及性别进行全方位认识的法学流派。其"硬核"已经并非单纯要求女性在婚姻、家庭、劳动就业和社会福利保障等方面享有与男性同样的权利,它更要求在分配和界定上述权利的过程中,乃至在以法律为核心的整个现代法治结构中加入女性的视角和女性的生存体验与思维方式,要求立法中的社会性别意识,从而使两性关系、婚姻、家庭乃至社会健康协调地发展。     

Wrong about Rights: Public Knowledge of Key Areas of Consumer,Housing and Employment Law in England and Wales

Over many decades, processes of juridification have brought about huge growth in legal rights, responsibilities and protections, yet citizens appear to poorly understand this ‘law thick’ world. This impacts citizens’ capacity to ‘name, blame and claim’ in the legal domain at a time of retreat from public funding of civil legal services. This article examines public knowledge of rights in key areas relating to consumer, housing and employment law. Drawing on data from the 2010–2012 English and Welsh Civil and Social Justice Survey, the article uses responses to a series of hypothetical scenarios to explore public knowledge of rights and characteristics associated with knowledge. Our findings highlight a substantial deficit in individuals’ understanding of legal rights and responsibilities – even among those for whom particular rights and responsibilities have specific bearing. We also consider what these findings mean for public legal education and the efficiency, efficacy and legitimacy of the law.     

Re Edwards (2011) 4 ASTLR 392: who owns a dead man's sperm?

Re Edwards (2011) 4 ASTLR 392; [2011] NSWSC 478 adds to the small line of cases to have considered whether a woman can not only require medical staff to remove sperm from her dead male partner, but whether she is justified in terms of law and international human rights to use it to create children. In this case a Justice of the New South Wales Supreme Court framed the issue as "what right does a woman have to take sperm from the body of her deceased partner so that she may conceive a child?" He did so, despite the manifest ambiguity and difficulty in characterising the legislative rights in this case, without referring to substantive human rights obligations under international Conventions to which Australia is a ratifying party (particularly Art 10 of the United Nations International Covenant on Economic, Social and Cultural Rights and Art 23 of the United Nations International Covenant on Civil and Political Rights. Technological advances such as those creating the possibility of capturing a dead person's sperm by electro-ejaculation and creating children by subjecting it to intracytoplasmic sperm injection in connection with in vitro fertilisation have altered the balance of individual and social interests in deciding who should be regarded as owning a dead man's sperm and how that relates to basic common law rights of bodily inviolability without free consent. It is to be regretted that in jurisdictions lacking relevant constitutional human rights, or legislation requiring coherence with international human rights, judges do not avail themselves in cases of statutory ambiguity of interpretative insights to be gained from legally binding human rights treaties to which Australia is a party.