PROBLEMS AND SOLUTIONS IN THE MANAGEMENT OF CHILD ABUSE ALLEGATIONS IN CUSTODY AND ACCESS DISPUTES IN THE FAMILY COURT

Child abuse allegations in custody and access disputes are serious matters and present family courts worldwide with major problems. This article reports a large research study just completed that investigated the way the Family Court of Australia managed child abuse cases. The study showed that such cases had become a substantial part of the court's current workload, their "core business" in fact. The families involved had many difficulties, including a history of family violence, and the present system was not appropriate for their particular problems. Thus, as new specialized court lead model of intervention was devised, based on principles relevant to family violence and incorporating the most effective strategies identified in the research.     

Models and methods of cost-effective child custody evaluation

Child custody evaluations (CCEs) are often seen as a necessity by the legal system when caregivers cannot find a resolution to their child custody disputes. In many instances, these evaluations are quite costly for the litigants and cost can act as a barrier to equal access to justice. Affluent families are better able to access private evaluators while families with lesser means may encounter delays in receiving services or be unable to afford an evaluation at all. This can, in turn, prolong resolution of league disputes, increasing the emotional toll on families, and hamper courts in making decisions in the best interests of the children involved. This article examines models of providing CCEs outside of an isolated individual provider private practice format. It examines the benefits and considerations for lower-cost evaluations, while discussing how to maintain high quality services that adequately assess family systems. Broader issues that impact the courts and overall access to justice through offering cost effective evaluations are also discussed.     

Specialised domestic violence courts in Canada and the United States: Key factors in prioritising safety for women and children

ABSTRACT

This paper reviews the response of specialised domestic violence courts in Canada and the United States to contact disputes where there are allegations of domestic violence. It begins with a discussion of legal reforms responding to domestic violence in Canada and the United States, including the different types of DV courts and their rationales, key features, merits and drawbacks. Evaluations of Integrated DV courts in the United States and Canada are then reviewed. The research shows that although IDV courts hold more promise to deal with contact disputes given their inclusion of family law matters, there are few studies analysing the impact of IDV courts on these disputes, and some suggest these courts may actually increase contact and hence the potential for safety issues to arise. The final section discusses the strengths and weaknesses of IDV courts in relation to contact disputes, identifying the factors that make these specialised courts more or less successful in prioritising safety and minimising harm for women and children.     

司法政策与监管政策的竞争——基于信用卡纠纷裁判的观察

政策对司法裁判产生实然的影响,当司法政策与监管政策发生竞争时,作为裁判者的地方法院面临选择困境。信用卡民事纠纷实证研究表明,法院对"费率限定"的司法政策与"费率约定"监管政策的认同基本抗衡并受到政策解释路径的影响。改进政策在技术层面的适用,应发挥抽象规则的威慑力,关注政策可能的不利后果,加强个案裁判说理论证。而从根本上化解政策竞争,需要建立司法权与监管权协调机制。一方面,加强职能履行过程的协调,适用法律对政策竞争予以解释,运用消极司法审查发挥个案裁判灵活性;另一方面,加强政策制定程序的协调,横向上明确规范性文件征求意见程序,纵向上完善规范性文件备案审查程序,从而超越政策竞争,实现协同治理。     

EMPOWERING CHILDREN IN MEDIATION

The available research in the mediation arena regarding child custody disputes indicates a lack of and growing need for effective intervention techniques. The authors present practicing mediators with a specific intervention model for interviewing, safeguarding, and empowering children in the process of mediating custody disputes. The mediation model utilizes a structured, strategic, and process-oriented approach with a family systems theoretical orientation and may be used in private or court-connected settings. The model presented here goes beyond the child-centered interview norm to the inclusion of the child in the process to assist parents in decision making. The model supports the current California statute under Family Code Section 3023, which states that "if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an award of custody or modification." The model does, however, maintain the position that the final decision continues to lie with the parents or the courts and not the child.     

群体性纠纷的构成与法院司法政策的选择

就中国法院处理群体性纠纷的司法政策，学界存在大相径庭的评价。通过观察我国当前群体性纠纷的构成，可以发现，我国群体性纠纷呈现明显的多元化特征，各类纠纷对于纠纷处理机制的要求和对法院的挑战也不同。而无论是法院现行司法政策的设计还是学者对此种司法政策的批评，莫不体现了一种一元化的思维方式。在未来的制度建设和理论研究当中，需要摈弃这种思维方式，倡导一种“类型化处理”的思路。     

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.     

浅析军事法院的角色定位——以民事案件的管辖权为视角

军事法院试行审理军内民事案件,引发了一些争议。从军事法院的职能看,军事法院审理军内民事案件是可行的。但是,不宜将审理军内民事案件作为军事法院的主要职能。为了突出专门法院的特点,有必要对军事法院的角色进行重新定位,以实现司法资源的优化配置。建议将军事法院现有的一般审判职能向地方人民法院转移。具体而言,在平时,或者撤销军事法院,将其现有审判职能完全转移至地方人民法院;或者军事法院专属管辖军事行政诉讼案件。     

From Helping Court to Community‐Based Services: The 30‐Year Evolution of Australia's Family Relationship Centres

As a centrepiece of Australia's 2006 family law reforms, the community‐based Family Relationship Centres (FRCs) represented a major development in the Government's commitment to incorporate family relationship services into its family law system. This paper sees FRCs as a logical development of the original conceptualising the Family Court of Australia as a “helping court”. The paper suggests that the aspiration to create a helping court was partially achieved in 1976 via the creation of an in‐house family court counselling service, which was primarily focused not on law and legal principles, but on supporting the ways in which family members were managing the task of redefining relationships. While generally valued by judges and others, this service nonetheless found itself in tension with the Family Court's continued primary commitment to legally informed and adversarially driven negotiation and decision‐making processes. Since 2006, the creation of FRCs has spearheaded a family law system that provides relationship‐focused interventions away from the courts as the default option for most parenting disputes. Consistent with this aim, there is evidence of a diminished percentage of cases now requiring judicial intervention. The 2006 legislation also provides for courts to conduct “less adversarial trials.” Paradoxically, this has occurred alongside unequivocal evidence from the Australian Institute of Family Studies’ evaluation data that judicial officers are dealing mainly with families displaying seriously dysfunctional attitudes and behaviours. The legal challenge in dealing with these cases is for courts to provide child focused, fair and non‐destructive internal processes. In addition, however, it is increasingly clear that to support and help facilitate their decisions, courts also need good working relationships with FRCs and other community based services. FRCs and the 2006 reforms offer the possibility of moving beyond the ideal of a “helping court” to the broader concept of helping family law system.     

Litigating life and death.

In cases involving the "right to die," courts are faced with the agonizing task of developing legal standards governing termination of an incompetent patient's medical treatment. In this Article, Professor Rhoden criticizes the two dominant approaches courts have developed--the "subjective" and "objective" tests--and proposes that these standards be abandoned for a legal presumption in favor of family decisionmaking. She maintains that the "subjective" test, which requires the family to provide clear proof that termination of treatment is what the incompetent would have chosen, is often unworkable because a patient's character traits, and even her prior statements about medical treatment, seldom rise to the evidentiary level that courts purport to require. Similarly, she argues that the "objective" test, which requires the family to prove that the burdens of the patient's life, measured in terms of pain and suffering, clearly and markedly outweight its benefits, dehumanizes patients by suggesting that only their present, physical sensations count. Professor Rhoden suggests that the subjective and objective tests are not nearly as distinct as courts have made them. She argues that the rigidity of these legal standards reflects courts' acceptance of the medical profession's presumption in favor of continued treatment, a presumption that places a heavy burden on families seeking to terminate treatment. Drawing on the special qualifications of families as decisionmakers in such cases, Professor Rhoden proposes that courts recognize a presumptive right of families to exercise discretion over treatment decisions. Such a standard would recognize that, although doctors and others can readily prove that terminating the treatment of a patient who can still enjoy life is wrong, it is very hard for families to meet the current standards, which essentially require them to prove that termination is right.     

"I want you to listen to my side of this": is there a role for mediation early in the health care complaints process?

The resolution of disputes that arise out of the provision of health care services has historically taken place at an institutional level, with the hospital administrative unit conducting the process, or through the legal system with the parties traversing the relevant courts and tribunals. Increasingly, the wide range of decisions which must be made in relation to the delivery of patient and client care and the broad scope of variations in expectations as to what a health service is capable of delivering, are providing fertile ground for conflict. This column considers the potential role of mediation as an early intervention strategy to resolve health care disputes.     

论法院处理环境纠纷案件中的司法能动

司法能动是法院在案件审理中,不因循先例和遵从成文法的字面含义进行司法解释的一种司法理念以及基于此理念的行动。我国法院在发挥司法能动性,处理环境纠纷案件方面作出了大量努力,为经济社会发展提供了司法保障。但法院在发挥司法能动性处理环境纠纷案件中仍然存在较大的问题。解决这些问题,必须把握法院在环境纠纷案件处理中司法能动的向度,落实司法独立,引导法官正确行使自由裁量权,努力培养环境司法专业人才,发挥法官适用法律的能动性。     

GRANDPARENT VISITATION RIGHTS

In recent years, legislators in all fifty states have given grandparents rights to petition for visitation privileges with grandchildren that can be enforced over parental objections. Grandparent visitation rights reflect an effort to protect meaningful relationships children enjoy with nonparental caregivers, enlist the assistance of extended family when the child's nuclear family is disrupted, and defend the interests of grandparents themselves. This psycholegal analysis explores the direct and indirect consequences of grandparent visitation statutes for family functioning. Statutory provisions are summarized, and the effects of these statutes are evaluated in light of what is known about the role of grandparents in child development, how courts evaluate children's "best interests" in grandparent visitation disputes, and how these statutes can alter family functioning in informal ways. The authors conclude that there are risks as well as benefits to children and families in grandparent visitation statutes, and suggest directions for procedural and statutory reform.     

美国司法政治变迁的内在逻辑——从“罗伊案”说开去

美国的司法政治是司法与政治交互作用的产物。随着司法权的扩张,联邦最高法院突破"政治问题不审查"之传统,主动或被动地介入政治争议;随着政党对峙的尖锐,政治力量乐于将棘手的政治争议交由司法裁断;藉此,司法政治演变为常态政治,司法判例成为经久不衰的政治争点。自上个世纪70年代以来,围绕罗伊案半个多世纪的争议,不仅客观地暴露了美国司法政治发展的内在逻辑,而且也充分地展示出司法政治在美国的作用方式和涵摄空间。     

医疗纠纷可仲裁性之法律思考

无论是学术界还是实务界在研究、探索通过仲裁处理医疗纠纷的过程中，都要依据我国法律思考医疗纠纷的可仲裁性问题。医疗纠纷的可仲裁性不仅决定了仲裁协议是否具有法律效力，而且关系到仲裁裁决会被国内法院撤销或者不被外国法院承认和执行，最终导致仲裁无效。笔者认为，根据我国仲裁法的规定，营利性医疗机构发生的医疗服务合同纠纷具有可仲裁性，除此之外的医疗纠纷则不具有。     

海运直航提单管辖权冲突的相关问题

海峡两岸海运直航的开展,产生了越来越多的提单纠纷。尽管提单大多载有管辖权条款,但中国大陆与台湾地区的法院都有将直航中产生的提单纠纷纳入本法域法院管辖的倾向,因而不可避免地产生了管辖权冲突。这种冲突如何解决,直接影响一法域法院作出的提单纠纷判决能否在另一法域得到认可与执行。针对这种状况,采用比较和实证的方法,介绍中国大陆与台湾地区就提单管辖权在立法、司法以及学理方面的情况,结合中国目前的现实条件,提出解决海运直航提单纠纷管辖权冲突的四项具有可操作性的建议。     

司法的限度：在司法能动与司法克制之间

我国法院从司法改革初期积极扩张司法权的一端,转变到面对社会矛盾复杂性而采取自我限缩策略的另一端,暴露出司法权运作边界模糊的问题。社会需求决定了司法的供给,但司法权的能力是有限的,其机能的发挥有赖于一定的条件,而且当事人人数的多少、案件的复杂程度等都会影响司法权的能力。司法权应当恪守自己的边界。对超越自身能力的事情保持克制,是司法权威的必要保证。     

Adjudicating Executive Privilege: Federal Administrative Agencies and Deliberative Process Privilege Claims in U.S. District Courts

Government transparency is a key component of democratic accountability. The U.S. Congress and the president have created multiple legislative avenues to facilitate executive branch transparency with the public. However, when the executive branch withholds requested information from the public, the federal judiciary has the power to determine whether agencies must release documents and information to requestors. When enforcing standards of executive branch transparency, judges must balance concerns of executive autonomy and judicial intrusion into administrative decisionmaking. While much judicial scholarship focuses on the decisionmaking on high courts, in the U.S. context, federal district courts play a key role in adjudicating transparency disputes. In this article, I examine case outcomes in disputes involving agency claims of deliberative process privilege over internal agency documents litigated between 1994 and 2004. I find that U.S. federal district courts largely defer to administrative agencies in transparency disputes. However, factors such as agency structure and the congruence between judicial and administrative agency policy preferences influence whether federal judges require executive branch officials to release requested information.     

The Parenting Coordinator as Peacemaker and Peacebuilder

Parenting coordinators serve as case managers in high‐conflict families with the goal of protecting the children from parental conflict. Parenting coordinators are peacemakers and peacebuilders who identify and help set up structures in the family to support peace between the parents. The family court should promote and develop equipoise in litigants and professionals. Because parents who continue in conflict postdecree often have difficulty empathizing with their co‐parents and with their children, they might benefit from meditation training to increase mindfulness, empathy, and compassion. Self‐compassion training could also increase well‐being and more effective co‐parenting and aid in building peace in the family.

Key Points for the Family Court Community:
• Parenting coordination is a child‐focused intervention with high‐conflict parents that can help protect children from their parents' conflict.
• Parenting coordinators are peacemakers who resolve disputes between the parents and facilitate negotiation and communication between them and help them make decisions.
• Parenting coordinators are also peacebuilders who help identify and build structures and processes in the family system to strengthen interparental peace.
• Equipoise can be developed in litigants and professionals through mindfulness and compassion training.
• Family court judges can work with parenting coordinators in a team approach, in a manner similar to what occurs in problem‐solving courts, to benefit the families and the judicial system.

     

我国群体诉讼的立法与司法实践

我国大多数群体纠纷被法院分案受理,既有制度本身的问题,又与司法实践中存在着影响法院积极适用代表人诉讼的诸多因素和司法政策有关。由于群体纠纷本身就需要根据案件的具体情况,采取多元化的方式处理,所以,法院通过其他一些诉讼形式解决群体纠纷是无可非议的。但是,在多元化群体纠纷解决机制中,代表人诉讼制度是必不可少的,其独特的价值和功能是不可能被现在各地法院所尝试的其他替代性诉讼方式所完全取代的。