现代英国家事案件审判体制的变迁及其启示

英国家事案件审判体制的变革顺应了社会发展,反映了民众呼声,从最初由宗教法院审理离婚案件发展到20世纪末建立完整的三级家事案件审判体制,即家事程序法院——治安法院中由家庭问题专家开庭审理案件;郡法院;高等法院家事法庭。英国家事案件审判体制变迁的司法理念包括建立专门的家事法庭;设立专门的保护儿童权利的机构;重视和解和调解工作。对我国未来司法体系变革的启示是：建立专门的家事合议庭;建立配套的儿童保护机构;完善家事纠纷中的法院调解。     

Child Welfare Workers and Michigan's Family Court Legislation: The Relationship Between Policy and Practice

Michigan created a family court in 1998, combining in a single court jurisdiction over most family law cases. This study examines the child welfare workers' role in creating the family court, the family court's impact on child welfare workers' practice, and child welfare workers' efforts to educate other professionals on the potential benefits of the family court system. This study found that child welfare workers were not actively involved in the creation of the family court and have not aggressively sought to educate other professionals regarding the family court's potential. Further, though child welfare workers' reception of the family court has largely been positive (or at least neutral), child welfare workers must take greater advantage of the family court system to improve the effectiveness of their practice.     

FAMILY COURTS-20 YEARS AFTER REFORM

The Rt. Hon. Dame Elias discusses the changes the people of Australia and New Zealand have seen and can expect from their respective family courts. She goes on to say that if judges of the family court are to play a more positive role in society, they need to stay abreast of what is happening with current legal trends as they relate to the "best interest of the child" standard, equal rights (especially between genders), and changing international trends in family law. The Chief Justice also addresses problems concerning lack of legal aid funding and an increase in unrepresented litigants. The Chief Justice explains that these issues and problems can best be dealt with through legislative reform as well as family court reform. Where there is an influx of additional resources better preparing judges to deal specifically with those seeking justice in the family court, these additional resources should also lead to a greater general understanding of current trends in the community. Chief Justice Elias asserts that without community support, these issues cannot be resolved.     

ARE WE REALLY LOOKING OUT FOR THE BEST INTERESTS OF THE CHILD? APPLYING THE NEW ZEALAND MODEL OF FAMILY GROUP CONFERENCES TO CASES OF CHILD NEGLECT IN THE UNITED STATES

This Note advocates for state laws to be amended to implement family group conferencing (FGC) as the first step in cases of alleged child neglect. FGC was developed in New Zealand nearly twenty years ago and have since become a realistic method of balancing the best interests of the children, families, agencies, courts, and communities involved in the child welfare system. A FGC is a meeting among family members and professionals that is conducted in order to develop a plan for a child who is the victim of neglect. FGC places the family at the center of the welfare proceedings and empowers them to reach a solution without having to resort to the often lengthy and expensive adversarial court system. If FGC is incorporated into the child welfare systems throughout the United States, communication between the parents, social services, and the courts could increase, helping families adequately address the problem of neglect and getting the children out of the child welfare system quickly and more efficiently.     

Threats to Perceptions of Fairness in the Termination of Parental Rights

Termination of parental rights (TPR) proceedings are among the most important family court activities. This study contributes to knowledge of the TPR process by illustrating practices employed in TPR proceedings and considering ways that certain practices can hinder perceptions of fairness. TPR court records from one state were analyzed using inductive coding procedures. The analysis identified nine categories of threats to perceptions of fairness in the TPR process. Findings have implications for procedural justice and the legitimacy of child welfare practice.     

MEASURING PROGRESS IN IMPROVING COURT PROCESSING OF CHILD ABUSE AND NEGLECT CASES

With all of the changes in federal law relating to child maltreatment, foster care, and adoption, courts have become active partners with child welfare agencies in assuring safety and permanency for children. Outcome measures are needed to track achievement of the distinct goals of courts and those goals they share with child welfare agencies. This article presents a set of measures that focuses on the court contribution to desirable outcomes for children and families. These measures have undergone extensive development, review, and field testing by representatives from several national organizations interested in court reform and child welfare, but they still require more discussion and refinement. Indeed, outcome measures are an essential component of a process of continuing improvement, which means they need to be reviewed periodically to ensure they are valid, reliable, and not redundant.     

Specialist domestic violence courts for child arrangement cases:safer courtrooms and safer outcomes?

ABSTRACT

Child arrangement cases in England and Wales are dealt with in the ordinary family courts. Whilst a special practice direction is applicable to child arrangement proceedings where there are allegations of domestic abuse, there is no specialist domestic violence court in the family justice setting. However, court specialisation is a feature of the criminal justice system and has been demonstrated to have success in domestic violence cases. Some of the potential benefits of specialisation, such as the provision of safer courtrooms, might be transferable to the family justice setting. Given the well documented problems of ordinary courts dealing with child arrangements in domestic violence cases, this article considers whether court specialisation could provide victims with safer courtrooms and safer outcomes in child arrangement cases.     

REEVALUATING WHERE WE STAND: A COMPREHENSIVE SURVEY OF AMERICA'S FAMILY JUSTICE SYSTEMS

The call for court reform remains critical in the face of the growing complexity of burgeoning family law cases nationwide. Many states have restructured their court systems using the unified family court model, resolving legal, personal, emotional, and social disputes with the aim of improving the well‐being of families and children. Other states utilize the traditional approach, resulting in cases being handled in a fragmented, time‐consuming and expensive manner. In this article, Professor Barbara A. Babb presents the results of her nationwide survey regarding how each state handles family law matters. The survey is a follow‐up to her comprehensive 1998 survey and her 2002 survey update. The results of the recent analysis reveal that a total of thirty‐eight states now have either statewide family courts, family courts in selected areas of the state, or pilot or planned family courts, representing seventy‐five percent of states. The number of states without a specialized or separate system to handle family law matters has decreased from seventeen states in 1998 to thirteen in 2006. These changes are significant when one considers the complexities involved in court reform. The need for court reform remains an urgent one, as family law cases occupy a significant percentage of court dockets across the country. Families and children deserve a court system where justice is effective and efficient and where their legal, personal, emotional, and social needs are resolved in a therapeutic and holistic manner.     

大陆法系国家行政法院之考察与启示

西方大陆法系国家在多年的探索中,普遍建立了独立的行政法院专司行政审判职能,并取得了较理想的效果。我国有着和大陆法系国家相似的成文法传统,研究西方大陆法系国家行政法院的运作模式,对我国行政审判体制改革具有一定的借鉴意义,我国行政审判体制改革的路径选择就在于建立行政法院。     

FAMILY GROUP CONFERENCES

Family group conferencing has emerged as a child welfare system–transforming practice that fosters new collaborations between families, child welfare practitioners, and the courts. The key components of the model are explained. This article highlights the strengths and challenges associated with incorporating family group conferencing into traditional child welfare agency and court practice. It suggests future practice considerations and outcome-based study that are necessary to strengthen and sustain family group conferencing as a prevention/intervention strategy.     

英国21世纪的刑事司法改革——兼论对我国的借鉴与启示

此次英国的刑事司法改革很有特点,涉及人权、宪政、诉讼、公正等诸多理念的改变。确立了有利于证人作证、有利于被害人公正、有利于国家控诉和审判、有利于警察出庭等极赋人性化的改革原则,以最大程度地实现社会公正、更大程度地确保公众安全。为此,英国通过宪政改革,首先实施了“三权分立”的体制与模式,接着对具体制度进行了大胆革新。     

INTERORGANIZATIONAL UTILITY OF WELFARE STIGMA IN THE CRIMINAL JUSTICE SYSTEM*

The appropriation of “welfare stigma” or stereotypes about poor people's overreliance and abuse of public aid in two core criminal justice functions is examined: felony adjudication in a court system and space allocation in a jail. Through a comparative ethnographic study in which an abductive analysis of data (20 months of fieldwork) was used, we show that criminal justice gatekeepers utilize welfare stigma to create stricter eligibility criteria for due process in criminal courts and occupancy in jails. Specifically, the number of court appearances, motions, trials, jail beds, food, showers, and medical services is considered by professionals to be the benefits that individuals seek to access and abuse. Professionals view their role as preventing (rather than granting) access to these resources. The comparative nature of our data reveals that welfare stigma has interorganizational utility by serving two different organizational goals: It streamlines convictions in courts, which pulls defendants through adjudication, and conversely, it expands early release from jails, which pulls inmates out of the custody population. In the context of diminishing social safety nets, our findings have implications for understanding how discretion is exercised in an American criminal justice system increasingly tasked with the distribution of social services to the urban poor.     

The ‘beyond parental control’ label in Nigeria

Recent reports in Nigeria indicate a geometric rise in incarcerated adolescents, with an overwhelming majority of this increase being attributed to adolescents being declared ‘beyond parental control’. There is a nagging suspicion that the Nigerian juvenile justice system has over criminalised adolescents by declaring them ‘beyond control’ when behavioural problems have actually resulted from child abuse/neglect and family disruption. A study was undertaken in a juvenile justice institution in Nigeria to assess the adequacy of pre-incarceration parental care among adolescents that had been declared as ‘beyond parental control’. The study included 75 adolescent boys that had been declared as ‘beyond parental control’ and a comparison group of 144 matched school going boys. It examined self-reports received from the adolescent boys regarding their pre-incarceration family life and social circumstances, as well as the behavioural problems they had experienced. The findings indicate that adolescent boys who were declared as ‘beyond parental control’ had a significantly higher lifetime history of behavioural problems than the comparison group, and they also had significantly higher indicators of pre-incarceration child abuse/neglect and problems with stability and consistency of primary support. These findings pose questions regarding the presumption of adequate parental care prior to the declaration of ‘beyond parental control’. It also raises questions about child rights protection and juvenile justice reform in Nigeria.     

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.     

The King County (Washington) Systems Integration Initiative: A First Look at the Kent District Dual System Youth Pilot Program

King County is one of five counties in Washington State participating in the John D. and Catherine T. MacArthur Foundation's Models for Change juvenile justice reform initiative. One key aspect of King County's Models for Change participation involves ongoing “systems integration” work intended to improve how youth who have cross‐over involvement in multiple systems—e.g., juvenile justice, child welfare, education, mental health, and/or others—are handled. These cross‐over cases often present a range of challenges to juvenile courts including substantial risk factors that increase their likelihood of continuing system involvement. This article provides a first look at an emerging pilot project in King County that is intended to improve how cross‐over cases are handled by child welfare and juvenile probation with the longer term goal of improving outcomes for these difficult cases.     

THE AMERICAN BAR ASSOCIATION ADDRESSES THE NATIONAL PROBLEM OF YOUTH AT RISK

During the 2006–2007 American Bar Association (ABA) year, a special ABA Presidential Youth at Risk Initiative has addressed several important topics: addressing the needs of juvenile status offenders and their families; foster children aging out of the foster care system; increases in girls, especially girls of color, in the juvenile justice system; the need to better hear the voices of youth in court proceedings affecting them; and improving how laws can better address youth crossing over between juvenile justice and child welfare systems. Lawyers are encouraged to use their skills to improve the systems addressing at‐risk youth and their families and to help facilitate coordination of youth‐related community efforts. Learning how to effectively communicate with youth is an important skill attorneys must learn. Through the Youth at Risk Initiative, the ABA has held continuing legal education programs, hosted community roundtables among youth‐serving stakeholders, and developed projects on: juvenile status offenders; lawyer assistance to youth transitioning from foster care; educating young girls on violence prevention, conflict resolution, and careers in law and justice; and provision of useful information to youth awaiting juvenile court hearings. New ABA policy has addressed services and programs to at‐risk youth, assuring licensing, regulation, and monitoring of residential facilities serving at‐risk youth, enhanced support for sexual minority foster and homeless youth, juvenile status offenders, and improving laws and policies related to youth exiting the foster care system.     

论司法公正与我国法院体制改革

法院应当在社会关系中具有独立性和中立性,这是体现司法公正的前提和条件。对照联合国关于法院为司法公正的应当具有独立性的通常标准,可以查找出我国法院在体制方面存在一些不足,我国法院体制在实现司法公正方面应当进行改革。     

Post-Separation Abuse of Women and their Children: Boundary-Setting and Family Court Utilization among Victimized Mothers

Continued abuse of themselves and their children is a concern for many mothers leaving intimate partner violence (IPV) perpetrating husbands. This research examines women’s responses to abuse committed by ex-husbands with whom they had undergone custody disputes. In-depth, qualitative interviews were conducted with 19 mothers who had divorced IPV-perpetrating husbands between 1 and 3 years prior. Participants were located through publicly available family court divorce records and interviews were examined using analytic induction. Women’s strategies to protect themselves and their children from abuse involved setting boundaries to govern their interactions with ex-husbands. Mothers often turned to family court for assistance in setting boundaries to keep children safe, but found that family court did not respond in ways they believed protected their children. Conversely, when women turned to the justice system for restraining orders or called the police for help against IPV, they generally found the justice system responsive.