Legal Capacity at a Crossroad: Mental Disability and Family Law

In this introductory essay to the Special Issue, I argue that both family law and disability rights law scholars should examine a key point of intersection across areas: legal capacity or the law's recognition of the rights and responsibilities of an individual. For example, parental termination proceedings center on parental fitness and functional capabilities. I contextualize the articles in the Special Issue by Leslie Francis and Robyn Powell on the role of reasonable accommodations for parents with disabilities in parental termination proceedings. In addition, I call upon legal scholars, family law courts, and practitioners to reimagine governing legal standards in family law according to principles of universal design to shift the baseline capabilities associated with parenting and parental fitness.     

PERSONS WITH DISABILITIES AND THEIR SEXUAL,REPRODUCTIVE, AND PARENTING RIGHTS: AN INTERNATIONAL AND COMPARATIVE ANALYSIS

Despite important gains in human rights, persons with disabilities — and in particular women and girls with disabilities — continue to experience significant inequalities in the areas of sexual, reproductive, and parenting rights. Persons with disabilities are sterilized at alarming rates; have decreased access to reproductive health care services and information; and experience denial of parenthood. Precipitating these inequities are substantial and instantiated stereotypes of persons with disabilities as either asexual or unable to engage in sexual or reproductive activities, and as incapable of performing parental duties. The article begins with an overview of sexual, reproductive, and parenting rights regarding persons with disabilities. Because most formal adjudications of these related rights have centered on the issue of sterilization, the article analyzes commonly presented rationales used to justify these procedures over time and across jurisdictions. Next, the article examines the Convention on the Rights of Persons with Disabilities and the attendant obligations of States Parties regarding rights to personal integrity, access to reproductive health care services and information, parenting, and the exercise of legal capacity. Finally, the article highlights fundamental and complex issues requiring future research and consideration.     

WHAT DOES ACCESS TO JUSTICE REQUIRE? — OVERCOMING BARRIERS TO INVOKE THE UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES

Persons with disabilities have a right to effective access to justice under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). This article provides insights on the parameters of that right, including a close examination of the history and text of Article 13, which directly addresses access to justice and other relevant UNCRPD provisions. In addition to the UNCRPD, this article discusses implementation guidance from the Committee on the Rights of Persons with Disabilities, including its guidelines for State Party reports and jurisprudence. The initial reports by eleven States Parties — Argentina, Azerbaijan, China, Costa Rica, Croatia, Dominican Republic, Ecuador, Hungary, Mexico, Peru and Turkmenistan — are also considered. The Committee’s feedback regarding implementation of Article 13 by these eleven States parties is critiqued for being limited and inconsistent. This article then attempts to clarify what effective access to justice actually requires. It does so by focusing on the insights that can be drawn from implementation of Article 13 since the UNCRPD was adopted as well as implementation guidance from the Conference of States Parties, the International Disability Alliance, the World Network of Users and Survivors of Psychiatry and the National Center for Access to Justice. This article concludes with recommendations on how the Committee can improve its guidance on access to justice to help ensure that equal rights will not be illusory for persons with disabilities.     

Family Law,Parents with Disabilities,and the Americans with Disabilities Act

Parents with disabilities contend with bias within the family law system, often threatening their custody and visitation rights. The overarching goal of this article is to explore the experiences of parents with disabilities involved in custody and visitation disputes and the application of the Americans with Disabilities Act (ADA) in these cases. This article begins with an overview of parents with disabilities and their interactions with the family law system. Next, the article examines the ADA and its applicability to custody and visitation disputes. Finally, the article offers thoughts about strategies that can be utilized by attorneys to ensure that the rights of parents with disabilities are protected.     

Parenting in Families of Low Socioeconomic Status: A Review with Implications for Child Welfare Practice

Families involved in the child welfare system overwhelmingly draw from low socioeconomic (SES) populations. Impoverished children are placed in foster care at disproportionate rates. Addressing this dynamic requires understanding the adaptations low‐income families make when parenting under adversity so that accurate assessments of their needs occur. This article focuses on two aspects of child welfare practice: the evaluation of parenting capacity and service delivery. It examines, in particular, how well current practices and guidelines, as outlined in the literature, fit with more general research on families and parenting in low‐SES environments and offers suggestions for improving practice.     

EVIDENCE OF A DIFFERENT NATURE: THE CHILD‐ RESPONSIVE AND LESS ADVERSARIAL INITIATIVES OF THE FAMILY COURT OF AUSTRALIA

This article charts the constellation of vision and research that underpin a new era in the Family Court of Australia, focusing on the development and outcomes of two programs that have attempted to meaningfully reinforce the centrality of children's rights and needs in family court proceedings. The Less Adversarial Trial and its front‐end Child Responsive Program (CRP) both aim to minimise the potentially negative effects on parents of a litigation process by application of a more intensive case management model adopted with the intention of altering the parents’ experience of the journey. Key features of this approach include the adoption of inquisitorial techniques, which include direct consultation with children through the CRP, modified application of the rules of evidence, and strong judicial management rather than being party driven. Findings from two studies into the pilot Children's Cases Program (now the Less Adversarial Trial) and the CRP are discussed. Significantly, evidence is outlined around the capacity of the new processes to impact on both the co‐parenting and parent–child relationships and to influence short‐term adjustment of complex families in high‐conflict dispute. In encouraging a more active focus on children's needs and views and by facilitating a stronger voice for children in proceedings that affect them, both initiatives advance Australia's commitments under the United Nations Convention on the Rights of the Child.     

Building and Enhancing Efficacious Coparenting in Parenting Coordination

Parenting coordination is a dispute resolution process to assist the subset of separating/divorcing parents who remain entrenched in high conflict coparenting post‐separation/divorce. Based on factors known to impact positive child outcomes, its goals include assisting parents to protect children from their conflict and implementing a framework that will assist the child to have a good relationship with both parents. Despite significant efforts, parenting coordination often falls short of achieving its intended goals, which include not only healthy child adjustment but also efficacious coparenting, which is itself an important mediator and moderator of child outcomes. This article raises questions and concerns about the extent to which child outcomes may be limited if the goals of parenting coordination are limited to establishing and implementing a disengaged, parallel model of coparenting, while avoiding or giving up on efforts to build and enhance cooperative coparenting. Given preliminary findings indicating some parents note change here express dissatisfaction with the process and outcomes, it is necessary to consider whether the seemingly intractable subset of parents referred for parenting coordination might benefit from something more or different. We discuss two innovations: One aims to strengthen individual parent readiness and responsiveness and the other brings parents together in a child‐centered team‐building approach. Though cooperative coparenting is a challenging and unrealistic goal for some parents, further research is necessary to understand more fully which interventions help which families, when and in what manner.     

Court Considerations in the Termination of Parental Rights: A Comprehensive Analysis of Israeli Court Decisions

Court decisions to terminate parental rights (TPR) have a major impact on parents and children, but the decision‐making process is unclear. Analysis of 261 Israeli TPR court cases indicated the dominance of considerations relating to normative parental functioning, the parents' ability to change, the impact of separating a child from his family, the parents' social normativity and educational ability. The legal considerations relate to the importance of the biological family, the necessity of adoption and the importance of a fair legal process. Insufficient consideration is accorded to cultural differences in parenting practices and the voice of the child.     

Assistive technology as support for the exercise of legal capacity

Exercising legal capacity refers to engaging in legal transactions and relationships and is essential for the full inclusion of people with disabilities in society. The United Nations Convention on the Rights of Persons with Disabilities has enumerated the right to legal capacity on an equal basis and has created a state obligation to provide access to support for the exercise of legal capacity. This article examines the use of assistive devices as support for decision-making in exercising legal capacity for individuals with physical and cognitive impairments; for example, the use of voice recognition programmes, screen readers, and screen enlargement applications to support people with mobility and sensory impairments to use online portals essential for legal actions such as banking. It also discusses the experimental use of cognitive assistance, including computer or electrical assistive devices, to facilitate communication for people with cognitive impairments including those with no external signs of consciousness. It highlights the diversity of options for ‘support for the exercise of legal capacity’ showing how they can assist people with various disabilities. Finally, the article examines the boundaries of the state obligation to provide such support, including issues of practical implementation and resource allocation.     

EMPIRICAL ANALYSIS OF REFERRAL ISSUES AND “ULTIMATE ISSUE” RECOMMENDATIONS FOR PARENTS IN CHILD PROTECTION CASES*

Mental health professionals frequently respond to requests for clinical information on parents in child protection cases; however, little data exist on the issues precipitating requests or on the controversial practice of offering “ultimate issue” recommendations in forensic clinical reports. We investigated 243 requests for clinical information on parents and 204 clinician reports submitted for use in child abuse and neglect proceedings in a large, urban juvenile court system. We coded 56 objective and qualitative characteristics regarding referral questions, pending legal issues, and four levels of recommendations. We found that the most common referral questions related to service planning, parenting ability, and/or parents' mental health functioning, and the most common pending legal issues were selection or change of a permanency goal and visitation arrangements. Levels of recommendations varied with type of legal decision, in that clinicians always offered direct recommendations for narrow, statute‐based issues (e.g., termination of rights, adoption) and less so for other issues. Community‐based evaluators were more likely to offer direct recommendations than court‐based clinicians. Based on the findings, we offer practice recommendations and directions for further research in forensic parenting assessment.     

The weight of history: child protection and parenting with a disability in 20th Century Iceland

ABSTRACT

This contribution focuses on four periods in Iceland, from the early twentieth century until the time of writing, in order to document and analyse the struggles of people with intellectual disabilities to marry, have a family and maintain custody of their children. Each period is linked to specific pieces of legislation that governed the bodies and lives of disabled people and reflected larger social norms concerning issues of family life and parenthood. An emphasis is placed upon the perspective of contemporary critical disability studies in analysing the historical development of this struggle, and the voices of those who experienced this struggle first-hand, drawn from a number of research projects conducted in Iceland. Our main contention is that the weight of history still comes to bear upon matters of parenting and family life, even in the most recent shift toward a human rights approach to disability. There remains a strong socio-cultural resistance toward parenting with an intellectual disability, rooted in the ideology of early twentieth-century eugenics. Our goal is to document the development of these phases throughout the twentieth century in Iceland in order to illustrate how older ideas and prejudices still inform contemporary child protection practices concerning parents with disabilities.     

The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) took effect in 2008. This paper discusses a number of flashpoints where the CRPD will require real and significant reconsideration of English mental health and mental capacity law. The CRPD introduces a new paradigm into international disability law, relying on the social model of disability. While that is no doubt a good thing, there is as yet no clear sense as to how that is to be implemented. After providing an introduction to the Convention, the paper considers four specific areas: mental capacity law (focussing on the provisions of the Mental Capacity Act 2005), psychiatric treatment without consent, civil detention of people with mental disabilities, and mental disability in the criminal system (fitness to plead, insanity and diminished responsibility).     

Associations between Parent and Child Reports Of Interparental Conflict/Violence And Child Difficulties in A Family Mediation Setting*

We examined the association between parents’ (N = 52 mothers and 52 fathers) and children's (N = 27) reports of interparental conflict and child difficulties in a family mediation setting. Parents’ reports of conflict were moderately associated with children's reports of exposure to parental conflict, but only fathers’ reports of conflict were associated with children's reports of negative responses to parent conflict. While mothers and fathers agreed on their child's difficulties, only mothers’, not fathers’, report of child difficulties were moderately related to child reports of child difficulties. Mothers’ and fathers’ reports of conflict generally were not strongly associated with reports of child difficulties. In contrast to parent reports, children's reports of exposure to parents’ conflict were moderately and significantly related to self‐reported child difficulties and moderately related to parents’ reports of child academic difficulties. The magnitude of the association between the child's report of interparental conflict and self‐report of difficulties was stronger than the association between parent report of conflict and parent report of child difficulties, suggesting that parents may not fully understand their child's exposure to parent conflict/violence or the problems their child is experiencing.

Key Points for the Family Court Community:
• Family law stakeholders prioritize the creation of parenting arrangements that are in the best interest of the child; however, it is unclear how to gather information about the child and the child's perspective in order to inform such arrangements.
• The study results suggest that parents may not agree with each other or with the child about important family issues, such as parent conflict and child difficulties. For example, parents may not fully understand their child's exposure to parental conflict/violence when in the midst of custody negotiations.
• More research is needed to determine the best method for gathering information about the child during custody proceedings. In the meantime, it is important to gather information from multiple sources and to consider the agreement and differences across such sources of information.

     

Mental health law and the UN Convention on the rights of persons with disabilities

People with a mental illness may be subject to the UN Convention on the Rights of Persons with Disabilities (CRPD), depending on definitions of terms such as ‘impairment’, ‘long-term’ and the capaciousness of the word ‘includes’ in the Convention's characterisation of persons with disabilities. Particularly challenging under the CRPD is the scope, if any, for involuntary treatment.     

A genealogy of hostility: parental alienation in England and Wales

ABSTRACT

This article explores the emergence and development of parental alienation (PA) in England and Wales. It considers the background into which PA first appeared in private law proceedings concerning children in England and Wales, and examines how it progressed in the case law through the changing political and discursive context of private family law from 2000 to the end of March 2019. A clear pattern emerged of, initially, parental alienation syndrome and subsequently PA being raised in family proceedings and in political and popular arenas in response to concerns about and measures to address domestic abuse. The case law revealed a high incidence of domestic abuse perpetrated by parents (principally fathers) who were claiming that the resident parents (principally mothers) had alienated the children against them, which raises questions about the purpose of PA. More recently, a PA ‘industry’ appears to have amassed comprising experts, therapists and lawyers, advocating transfers of children’s care from ‘alienating’ mothers to non-resident fathers, as well as PA therapy for children and parents. While PA has had a chequered history and is not without its critics, it has become part of the discursive repertoire of current family law, with increasingly harsh consequences for women and children.     

The New Insolvency Law and Governance of Corporate Legal Person

Start of the insolvency proceedings influences the two basic problems of corporate governance: restriction about the “soft budget” of corporation and “information asymmetry” between the interior and exterior person. In fact, the insolvency law is a mechanism of the potential exterior supervision. In the insolvency proceedings, most of the information is open to the creditor and to the superintendent, who is liable for protecting the interest of the creditor. The key problems of corporate governance are transparency and information disclosure. The insolvency law provides the power of supervision to the creditor when corporation insolvency. Of importance is that power is conducted by collectivity and supported by judicatory and professional organization. In June 2004, the finance committee submitted the new draft of the insolvency law to the standing committee of the national people’s congress. There are many articles about corporate governance. These articles are generally divided into two kinds, one is restriction on conduct of the supervisors in the period of the insolvency proceedings, and the other is examination of the conduct before the start of the insolvency proceedings. Translated from Jurist Review, Vol. 2, 2005 (in Chinese)     

Understanding Parental Gatekeeping in Families with a Special Needs Child

Supporting the positive development of a special needs child is especially challenging when parents have separated or divorced. Invariably, there is an increased need for collaborative co‐parenting wherein information is shared and intervention plans can be implemented effectively. In this article, the evolving literature on parental gatekeeping is applied to families with special needs children, as it offers a useful model for understanding the strengths and liabilities of co‐parenting relationships. We describe some of the typical and unique gatekeeping dynamics that occur when children suffer from developmental, physical, and/or psychiatric syndromes that require specific treatment and specialized parenting skills. Examples of both restrictive and facilitative gatekeeping are described as they manifest in these families. Implications for decision making are also discussed.     

Court‐Based Interventions in Spain for Families in Divorce Transition: Challenges in the Implementation of (Co)‐Parenting Coordination

Families facing separation or divorce in Spain encounter a number of obstacles, including a primarily adversarial and slow justice system, nonspecialized courts and judges, and a lack of resources to help them through the process. Recent legislation at the regional level (autonomous communities) is moving toward emphasizing shared parental responsibility and introducing parenting plans, while at the national level, legislation advances slowly. One of the main challenges professionals are facing in high‐conflict couple separation is protecting children from the effects of being in the middle of their parents’ conflict. Traditional psychological, legal, and social services are insufficient to support parents and protect their children from interparental hostile conflict—which can be exacerbated by litigation, professional intervention, domestic violence, or addiction. This article illustrates, through a case study, the implementation of parenting coordination in Spain. Different jurisdictions in Spain are slowly implementing (co‐)parenting coordination, an in‐depth intervention designed to support these families. The objective is to help families focus on children's needs and follow the court‐approved parenting plans or court orders, reduce relitigation, and improve parental communication and conflict resolution skills. This article analyzes different aspects and challenges relating to the implementation of parenting coordination in Spain. Recommendations are then made to address them.     

Perspectives of Mothers,Fathers, and Parenting Coordinators Concerning the Process and Impact of Parenting Coordination

In a small pilot study, 31 interviewees, including 12 parenting coordinators, 11 mothers, and 8 fathers representing 14 different parenting coordination cases retrospectively described child and family functioning both pre‐ and post‐parenting coordination in phone interviews. They also detailed how often and how well different issues that arose during the parenting coordination work (acrimony, problem‐solving communication, triangulation of the child into the conflict) were actively addressed. Parties tended to view coparenting more positively when reflecting on post‐ compared with pre‐intervention, but reported less change in child adjustment. Discrepancy among same‐case informant reports was common. Parenting coordinators (PCs) consistently rated their interventions as more frequent and successful than did parents. Mothers and fathers largely disagreed on interventions they experienced. While this small N pilot can offer no definitive conclusions, it underscores need for research and wisdom in including both parents' perspectives.