THE HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION AND THE GRAVE RISK OF HARM EXCEPTION

International child abduction is a problem that affects families around the world. The Hague Convention on the Civil Aspects of International Child Abduction was instituted to ensure that abducted children are promptly and safely returned home. Although the goal has been met, recent decisions and their use of Article 13(b) have limited the return of children to Israel on the premise that political turmoil and increased incidences of terrorist attacks constitute war. Although few would dispute that the recent escalation of terrorist attacks in Israel is troublesome, these incidences do not rise to the level of war. Such interpretations of Article 13(b) is too broad and undermines the Convention's policies. Unfortunately, in the global post-September 11th climate, terror attacks are inevitable throughout the world. In light of this harsh reality, courts must not be quick to declare that a country is a zone of war absent clear and convincing evidence.     

未成年子女利益之保护:意大利法的经验与借鉴

意大利是深受罗马法家父权传统影响的国家,未成年子女一直处于弱势的法律地位。经过理论界若干年的讨论与酝酿,1975年意大利修订了民法典中关于家庭法的部分。非婚生子女与婚生子女的法律地位实现了有限平等化。承认父母子女的利益是各自独立的,而且在存在利益冲突的情况下,诸多的司法判决都认可子女的意愿优先。监护权的行使,受到公权力的监督,无论是剥夺父母的监护权,还是临时性的收养,在监护障碍消除之后,往往还是鼓励孩子回归其原来的家庭。在保护未成年子女利益上,司法积极介入家事特别是父母与子女之间的关系,这点对深受传统思想影响的中国家庭尤其具有借鉴意义。     

Transgender Family Law

Transgender people face unique issues in parentage, custody, and divorce cases. Many transgender people are raising children or wish to do so. This article examines the main legal issues facing transgender people who become parents by giving birth or impregnating a partner, through assisted reproduction, through marriage, by raising a child, or through adoption. In the past, some courts viewed a parent's gender transition as a sufficient reason to terminate parental rights. Today, the law has shifted to provide much more security for transgender parents, though significant bias still remains, particularly in divorce and child custody cases. In addition, many states have not yet fully addressed how to determine the legal parentage of children born through assisted reproduction. I analyze the legal landscape for transgender parents and spouses and offer critical suggestions to ensure that transgender people are able to protect their families and their parental rights.     

Equal opportunities: protecting the rights of AIDS-linked children in the classroom

Within the past few years a number of children have been excluded from attending public school because they are linked to AIDS. School boards have justified their decisions to exclude these children on the basis that protecting the public's health, safety and welfare outweighs the rights of these children. Most courts have rejected this justification and have held that either under the equal protection clause of the Constitution or section 504 of the Rehabilitation Act of 1973, children cannot be excluded from the classroom solely because they are linked to AIDS. This Note discusses both section 504 and equal protection analyses used by the courts. When analyzing a school board's decision to exclude an AIDS-linked child from the classroom, most courts have used a higher level of scrutiny and individualized inquiry in order to ensure that the rights of both the AIDS-linked child and his or her uninfected classmates and teachers are protected. After applying these analyses to a hypothetical case, this Note concludes that both section 504 and the equal protection clause ensure that AIDS-linked children will not be barred from the classroom unless the presence of additional factors increases the risk of these children transmitting the virus to others.     

Freedom of choice,gender equality,or employment promotion? Finnish party positions on childcare in the light of election manifestos 2015

The principle of freedom of choice in childcare matters has been a central element of Finnish family policy since the 1980s and is something that makes the country unique in an international comparison. One the one hand, this principle has been manifested as a legislated right for parents, notably mothers, to choose paid work supported by the use of public childcare. On the other hand, it has also given parents with children under three the right to stay at home with their children and to receive a child home care allowance during this period. This dualism has been widely popular among parents and has also been seen by most leading parties as something that is good for families. However, since the outbreak of the international financial crisis, this system has faced increasing criticism from some experts and politicians, which has made the principle of freedom of choice, and especially the child home care allowance/leave, susceptible to renegotiation. This article investigates how the principle of freedom of choice was politicized by eight leading parties during the Finnish parliamentary election campaign in 2015, through an analysis of election manifestos. First, we analyse to what extent this principle was politicized, and by whom. Secondly, we study how the principle was framed. The findings show that the principle of freedom of choice was a rather politicized topic, creating a cleavage between conservative and leftist/liberal parties. Moreover, they indicate a renegotiation of this principle in favour of higher parental employment promotion and gender equality.     

Separated Children: A Comparison of the Treatment of Separated Child Refugees Entering Australia and Canada

Separated children are in a uniquely vulnerable situation. Notonly are they in fear of persecution but they have been separatedfrom their families. They are seeking multifaceted protections.Such children need a country to protect them from further persecution,a caregiver to nurture them and fulfil the family role and asociety that will foster their social and intellectual growth.This article analyses the treatment of separated child refugeesin the context of international human rights law as it relatesto children and from the viewpoint of domestic immigration law.The article bases this analysis on a comparison of the treatmentof separated child refugees in Australia and Canada. The fundamentalprinciple of the International Convention on the Rights of theChild is that member states should act in the child's best interests.This principle has two important aspects, firstly, that detentionof children should only be used as a last resort and, secondly,that child refugees should enjoy the right to seek asylum. Thearticle examines the domestic law of both Australia and Canadawith a view to determining how these two aspects are appliedto unaccompanied children.     

Breaking The Cycle Of Intergenerational Child Maltreatment: A Case For Active Efforts For Dependent Minor Parents And Their Children In State Custody

Dependent minor parents placed in foster care with their children often face significant hurdles. These parents are responsible to make caregiving decisions for their children, while they themselves fall under the caregiving responsibility of the state child welfare system. As such, dependent minor parents live in a “twilight zone” – they hold full parental rights, but limited rights as teenagers. For a number of reasons, the children of minor parents in foster care often come into state custody. When two generations are in foster care at the same time, states must balance the safety and best interests of the children with the rights of minor parents to care for their own children. Currently, the state child welfare system is only required to provide “reasonable efforts” to reunify parents with children when they have been removed from their care for abuse, neglect, or dependency. However, dependent minor parents in state custody often require more supportive services in order to successfully reunify with their children than in a typical child welfare case. This article places the circumstance just described in the context of dependent minor parents’ constitutionally protected rights, and advocates for a higher standard which would require states to provide “active efforts” to protect and preserve these young families.     

Homicides of abused children prematurely returned home

Five homicides of abused children are reviewed. These children had been removed from the parents because of physical abuse, then later returned to the home where they were subsequently killed. In each case, certain factors were present either during the interval of removal or after the return of the child, which could have alerted individuals, agencies or the court and, if heeded, could have prevented the deaths. Premature return occurred because of administrative inadequacies, including abbreviated investigations, violation of routine procedures because of heavy caseloads, and inadequate or absent psychotherapy of parents or caretakers. Court dates are not extended to compensate for these failings. The factors which operate in the home after the return of the child are essentially the same as those which prompted the removal: physical abuse. In these circumstances, more frequent follow-up visits by the agency or social worker are necessary and for a longer period of time. There should be a heightened awareness that in children who are returned home after removal for physical abuse, further physical abuse is a signal for immediate removal before a fatality occurs.     

Consequences and dilemmas in therapeutic relationships with families resulting from mandatory reporting legislation

Mandatory reporting legislation has been adopted in every state to insure the protection of children from maltreatment. These statutes have become a significant factor in the lives of mental health professionals who work with children and families. Thirty psychotherapists who had made a recent report of child maltreatment on a client in treatment were interviewed about their experiences with reporting and the consequences of reporting for therapeutic relationships. Several potentially problematic consequences and dilemmas were identified by the therapists, including immediate and long-term effects on the therapeutic alliance and course of therapy, and conflicts of interest in working with children and families.     

Project SafeCare: Improving Health, Safety, and Parenting Skills in Families Reported for, and At-Risk for Child Maltreatment

Project SafeCare was a 4-year, in-home, research and intervention program that provided parent training to families of children at-risk for maltreatment, and families of children who were victims of maltreatment. Parents were trained in treating children's illnesses and maximizing their own health-care skills (Health), positive and effective parent–child interaction skills (Parenting), and maintaining low hazard homes (Safety). The effectiveness of these training components was evaluated as the change in the parents' scores on roleplay situations for child health problems, hazards present in the home, and the frequency and quality of parent–child interactions during activities of daily living. Statistically significant improvements were seen in child health care, home safety, and parent–child interactions.     

IN SEARCH OF PERMANENCY

President Clinton signed the Adoption and Safe Families Act (ASFA) into law on November 19, 1997. ASFA is designed to prevent children in foster care from being returned to unsafe homes and to find safe homes for children who are not able to return to their families. Some critics say that ASFA is too extensive and intrusive; others feel it does not go far enough. The author focuses on the practical issues of what ASFA has done so far and how various communities can still use it to ameliorate some of their child welfare problems. She begins with the history of child welfare in the United States, followed by an extensive discussion of ASFA's provisions. The author then addresses criticisms of some of ASFA's key components. A discussion of the ways the states have implemented ASFA follows. The author concludes that ASFA could be a powerful and important tool in aiding the child welfare system.     

International Hague Network of Judges: Significance in Implementation of the 1980 and 1996 Hague Conventions on the Civil Aspects of International Child Abduction

The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) provides for the prompt return to the country of habitual residence of children taken by a parent from one country to another. It was created to address the threshold problem in such cases, that is, which court should determine the rights of the parties involved. In a case under the Convention, the court's concern is which country is the country of habitual residence and practical aspects of the return to ensure the safety of the child and the taking parent. This article will discuss the formation of the International Hague Network of Judges (IHNJ), why it is crucial in the advancement of the Convention's goals, and, specifically, what it does to educate judges and facilitate communication between judges, and how the IHNJ can facilitate the return, including providing information on services, procedures, and protections offered in the countries of return.     

A comprehensive 5-year evaluation of project 12-ways: An ecobehavioral program for treating and preventing child abuse and neglect

Evaluations of services designed to ameliorate the problems associated with child abuse and/or neglect (CAN) are relatively rare. The present investigation examines the impact of ecobehavioral services provided to families with extensive histories of CAN and examines the demographics of two groups of families. Project 12-Ways provides in-home ecobehavioral treatment to families referred by the state protective service agency. Impact data were collected and compared from families served by Project 12-Ways and families served by the stale protective service agency and other community programs. These data focused on the rates of CAN, placement of children outside of the parental home, and permanent termination of parental rights. Comparisons were made on pretreatment, treatment, and post-treatment rates. It was determined that both samples experienced significant decrements in CAN. While the two samples were equivalent in rates of CAN, data were presented showing differences in severity and priority of CAN which suggest that ecobehavioral services can be successful in reducing CAN. Thus, a heuristic model is available for evaluating CAN, including the manner in which the data were collected, the range of independent variables included, and the considerable span of the families' lives covered in the evaluation. These results suggest some modification of the way in which follow-up data are collected and used to change policy and practice.     

Child protection as surveillance of African American families

The over-representation of black children in US out of home care results from racial bias in placement decisions and a political choice to address startling rates of child poverty by investigating parents instead of tackling poverty's societal roots. The impact of state disruption and supervision of African American families is intensified when it is concentrated in inner-city neighbourhoods – the system's ‘racial geography.’ A small case study of a black neighbourhood in Chicago with high rates of out of home placement found profound effects on both family and community social relationships, as well as reliance on child protective services for financial assistance, linking surveillance of black families to the neoliberal shrinking of public programmes. The surveillance of African American women by the child welfare system is also intensified by these women's disproportionate involvement in the prison system. Acknowledging racial bias in child welfare reveals the need to radically transform the system from one that relies too much on punitive disruption of families to one that generously supports them.     

UNDERSTANDING CHILDREN'S RIGHTS: THEORY AND PRACTICE

This article discusses the meaning of children's rights in the context of the European Convention on Human Rights and the UN Convention on the Rights of the Child. Both place primary responsibility for the upbringing and education of children on their parents and families. The freedom of parents to bring up their children in their own way is an important component of a liberal democracy founded on respect for individual differences. So if parents believe in moderate corporal punishment as a means of educating their children in their own religious beliefs, is the state justified in banning such punishment either in school or in the home in order to protect the children's rights? This article discusses the children's rights which are protected by doing so.     

INTERCOUNTRY ADOPTIONS: INSTITUTING EDUCATIONAL PROGRAMS IN THE ADOPTION PROCESS TO FACILITATE AWARENESS OF CULTURAL IDENTITY ISSUES

In 1995, China first claimed the designation as the number one location for parents from the United States seeking to adopt children. The children, for the most part girls, are between 6 and 20 months old, when they are adopted. Most of the girls that were adopted in 1995 are now entering into their preteen years, and if they have not already confronted the issue of who they are, they will soon be forced to. Adoption is a complicated and emotional process that affects the entire family. Traditionally, parents who adopt have been able to consciously choose when and how they will first tell their child that they are adopted. However, when the adopted child is a member of a transracial family, where the parents and adoptive child are obviously of a different race, this decision can sometimes be taken out of their hands by a stranger thoughtlessly asking, “Is she yours?” The parents who choose to adopt from a foreign country should be prepared to answer this question and numerous others before they bring their adopted child home. This note will explore the concept of incorporating educational programs into the intercountry adoption process as an effective method of educating prospective parents on the challenges that transracial families will confront.     

NEED TO BE HEARD: INCREASING CHILD PARTICIPATION IN PROTECTION MEDIATION THROUGH THE IMPLEMENTATION OF MODEL STANDARDS*

There are more than three million reports of abuse and neglect each year. Some children may enter the court system while others will voluntarily or by court order enter a mediation program. What these children have in common is these youths are often removed from their home and placed in foster or institutional care without ever expressing their wishes or concerns. This Note advocates for the adoption of model standards drafted to ensure universal and meaningful child participation. The Model Standards are set forth in detail and accompanied by useful tips on their implementation. Through the course of this Note, the benefits of child participation are outlined, as are the reasons most often given for denying children the opportunity to meaningfully participate. The Note concludes with an explanation of how the benefits derived from implementing these standards far outweigh any potential negative side effects.     

LIFE AFTER DEATH: THE NEED TO ADDRESS THE LEGAL STATUS OF POSTHUMOUSLY CONCEIVED CHILDREN

The advance of reproductive technology, coupled with a legal system that cannot keep up, has had a detrimental effect on posthumously conceived children. There is controversy over whether a child conceived after the death of one parent, by way of reproductive technology, is considered a child of that parent for inheritance purposes. An overwhelming majority of state legislatures have not given consideration to the unique question that posthumously conceived children pose. Legislative inaction has forced state courts to apply antiquated laws in the midst of a technological revolution. The result: children are being denied inheritance rights to their deceased parent's estate solely because of the way they were conceived. This Note advocates that all children should be given the same rights and benefits regardless of how they are conceived. To accomplish that goal, this Note proposes a model state statute to be adopted in all states. The model statute deems a posthumously conceived child to be the child of his or her deceased parent, and thus entitled to inheritance rights, if 1) the posthumously conceived child was provided for by will, or 2) the deceased parent intended to be a parent; there is a genetic relationship between parent and child; the child is born within three years from the death of his or her deceased parent; and the child's best interest, balanced against the state's interests, exceeds the state's interest. The desired effect of the statute is to put posthumously conceived children on equal footing with naturally conceived children.     

LESSENING THE STING OF ASFA: THE REHABILITATION‐RELAPSE DILEMMA BROUGHT ABOUT BY DRUG ADDICTION AND TERMINATION OF PARENTAL RIGHTS

Congress passed the Adoption and Safe Families Act of 1997 (ASFA) as a response to children waiting in foster homes for years without permanent placement. In addressing the problem of permanency, however, Congress set a strict limit on how long a child could be in foster care (15 out of the most recent 22 months) before a state must either commence a proceeding to terminate parental rights or else lose valuable federal funding. Due to health care funding schemes and quality of treatment, this requirement, in particular, negatively impacts parents currently in drug rehabilitation whose parental rights may be permanently terminated before a realistic chance to recover is permitted. Although ASFA requires that states make “reasonable efforts” to keep families united, it does not define “reasonable efforts,” leaving parental rights and family unity subject to a chaotic interpretation of this requirement from state to state. “Reasonable efforts” should be interpreted to take into account current drug addiction and recovery research and drug court programs should be used to facilitate this goal. Research has shown that focusing on adequate treatment saves states money and improves the lives of children and their families, reducing the need for reliance on termination of parental rights.     

WHEN JAIL FAILS: AMENDING THE ASFA TO REDUCE ITS NEGATIVE IMPACT ON CHILDREN OF INCARCERATED PARENTS

The Adoption and Safe Families Act (ASFA) requires states begin termination proceedings when a child resides in foster care for fifteen out of the last twenty‐two months. Many states interpret this to mean that an incarcerated parent is unfit when they leave their child in foster care just because they are separated from their children. Parents and children can still have meaningful relationships even when separated. Thus, parental unfitness should depend on many factors such as the relationship with the child, age of the child, and ability to provide support for the child—not just the time spent away from the child. This Note advocates for the amendment of ASFA to include factors courts should consider when terminating the parental rights of incarcerated parents and encouraged states to focus not on a time frame for termination, but rather consideration of circumstances relevant to each individual family. States should incorporate the factors into their state laws. Further, states should actively work with prisoners and their children to help maintain contact and if possible, reunify families after incarcerations. These services will help prevent the need for termination after a parent completes their sentence and will help to reduce recidivism.