亲子关系的推定与否认制度的建构

法律上亲子关系实为立法构建的产物。亲子关系的确定应兼顾血缘真实、身份安定和未成年子女的最佳利益。以法律推定方法确定子女法律上的父亲,既应适用于婚生子女,也应适用于同居关系中的非婚生子女。对于与真实血缘不符的亲子关系的推定,特定当事人应当享有进行否认的权利。因此,法律应对各主体否认权的赋予具有不同的正当性基础,区分各否认权人的否认理由和否认时效,以体现不同的政策考量。同时还应对否认的法律后果做出明确规定。     

The State as Parent: The Reluctant Parent? The Problems of Parents of Last Resort

This paper will explore the idea of the local authority as a reluctant parent. It will consider the extent to which this reluctance is produced by the care proceedings system and its consequences for children. Local authorities are both expected to refrain from intervening (care proceedings are a measure of last resort) and to be fully prepared for intervention (whilst leaving children with their parents). Amongst the themes which will be developed here are the impact of the juridification of social work and the emphasis on the courts for holding local authorities to account; the balance between voluntary accommodation and compulsory care; and the problems of resourcing care services. Its main focus will be on children who enter care because of abuse or neglect. Its thesis is that the conflicting expectations on local authorities, resource constraints, and considerations of legal process make them reluctant parents.     

ALIENATING AUDIENCES FROM INNOVATION: THE PERILS OF POLEMICS, IDEOLOGY, AND INNUENDO

When judging innovative programs like Family Bridges™, it is important to balance careful scrutiny with openness to new ideas. Judicial responses to children who reject a parent are best governed by a multifactor individualized approach. A presumption that allows children and one parent to regulate the other parent's access to the children is unsupported by research. A custody decision based solely on the severity of alienation leaves children vulnerable to intensification of efforts to poison their affections toward a parent. Concern with possible short-term distress for some children who are required to repair a damaged relationship should not blind us to the long-term trauma of doing nothing. Professionals are urged to minimize the infusion of polemics, rigid ideology, and rumors when offering opinions with inadequate information, particularly public statements that risk harming children.     

Introduction to special issue: contradictory interests of offspring and parents, 1500–2000

Conflicts between parents and offspring at home are not a popular issue, at least not in the field of the history of the family. Nevertheless do they occur and it might be rewarding to study these phenomena, although historical sources are scarce. They can be an expression of more general social tensions and they might provoke social changes. This Special Issue presents four contributions in which the central focus is about tensions between parents and grown-up offspring that is still at home. Three topics will be dealt with: marriage, earnings of children working elsewhere, and the threat of leaving home. Factors that seem to affect the balance of interests between parents and offspring include parental power, family needs, public authority and interests taken by children in the outside world.     

RECONCILING PARENTS' AND CHILDREN'S INTERESTS IN RELOCATION In Whose Best Interest?

When a family comes before the court, whose interests are really served? Can the court's representatives act in the best interests of the children while respecting the rights of parents? When a case is sent to a court‐connected evaluator, how does the evaluator balance the tensions and varying perspectives inherent in this work? Within the bounds of advocacy and legal ethics, how does the attorney balance the demands and rights of the client while guiding the parent to consider the needs of the children? How do judges frame the dilemmas before them and consider the work of the evaluator? This article addresses these questions in a multidisciplinary fashion, using a hypothetical case as a guide.     

父母侵害胎儿权益问题研究

胎儿的民事权益应当得到保护，侵害胎儿权益也应当承担相应的民事责任。但父母能否成为侵害胎儿权益的主体，以及父母实施的何种行为可以构成侵权行为，在法理上及实践中均存在着较大争议。为了实现胎儿权益保护和家庭伦理保护之间的平衡，应当从是否婚生，是否存在故意，以及是否使用暴力等几个方面来综合考虑。此外，父母对损害发生与有过失应考虑适用过失相抵，父母的允诺应能构成阻却违法的事由。     

Punishing the Innocent: Children of Incarcerated and Detained Parents

Abstract

About 2 million minor children in the U.S. have at least one parent incarcerated for criminal offenses. There are about 33,000 undocumented persons detained by Immigration and Customs Enforcement in jails and federal detention centers around the country, and 79% of the minor children of these detainees are U.S. citizens. There are few government programs that measure and respond to the harm caused to these children by the incarceration and detention of their parents, and the negative effects on these children are largely ignored in public policy debates about incarceration and immigration detention. I argue that we have an obligation to these children based on (1) the special status of children, (2) the harm caused to children by the arrest, detention and incarceration of their parents, (3) current incarceration and detention policies even in the presence of alternatives that would, on balance, create less harm.     

Representation and participation in child care proceedings: what about the voice of the parents?

In Ireland, the Constitution guarantees very strong rights to parents and the family, and there has been a long and unfortunate history of failures to adequately protect children at risk. As a result, there has been much discussion in recent years about the need to improve legal mechanisms designed to protect the rights of children. By comparison, little attention has been given to establishing whether the theoretically strong rights of parents translate into strongly protected rights in practice. This paper presents new empirical evidence on the manner in which child care proceedings in Ireland balance the rights and interests of children and parents, including the rates at which orders are granted, the frequency of and conditions in which legal representation is provided, and the extent to which parents are able to actively participate in proceedings. A number of systemic issues are identified that restrict the capacity of the system to emphasise parental rights and hear the voice of parents to the extent that would be expected when looking at the legal provisions in isolation.     

European Union. Ethical considerations for clinical trials on medicinal products conducted with the paediatric population

This document has been developed by the ad hoc group for the development of implementing guidelines for Directive 2001/20/EC relating to good clinical practice in the conduct of clinical trials on medicinal products for human use, chaired by the European Commission. The document provides recommendations on various ethical aspects of clinical trials performed in children from birth up to the legal age of adulthood. This will contribute to the protection of all children who are the subject of clinical trials. As the approval of clinical trials, including ethical approval, is performed by the Member States, any recommendations on ethical aspects of clinical trials in children will also facilitate a harmonised approach to the application of the clinical trials directive across the EU, thereby facilitating the conduct of clinical trials in the EU and in whichever country the paediatric trial occurs. The protection against the risks of research in such a vulnerable population is paramount whilst this should not lead to denying them the benefits of research. Children are not small adults and there is a need to carry out specific trials that cannot be performed in adults. In general, children (minors) are unable to consent (in the legal sense) but their assent should be sought using age appropriate information. Ethics Committees need paediatric expertise to balance the benefits and risks of research in children. The lack of legal ability to consent has implications on the design, analysis and the choice of comparators used in trials, which should only be performed by trained investigators with paediatric experience. Pain, fear, distress and parental separation should be prevented and minimised when unavoidable. The neonate represents the most vulnerable of all paediatric age groups and requires even more careful review. Finally, various other aspects relating to the performance of trials in children are discussed.     

Speaking for Themselves: Hope for Children Caught in High Conflict Custody and Access Disputes Involving Domestic Violence

The Speaking for Themselves (SFT) project sought to enhance the physical, emotional, and psychological safety of children exposed to domestic violence and high conflict custody and access disputes. Children were provided with both a trauma therapist and a lawyer, in an attempt to ensure their well-being while providing decision-makers with reliable and authentic information about these children’s circumstances. This project was an attempt to balance the “best interests” approach applied in family law decision-making with the value placed on a child’s right to be heard, an approach espoused by children’s rights advocates. This article presents the SFT philosophy, model program, and evaluation results.     

Accommodation and Satisfaction: Women and Men Lawyers and the Balance of Work and Family

This study of graduates of the University of Michigan Law School from the late 1970s reports on the differing ways that women and men have responded to the conflicting claims of work and family. It finds that women with children who have entered the profession have indeed continued to bear the principal responsibilities for the care of children, but it also finds that these women, with all their burdens, are more satisfied with their careers and with the balance of their family and professional lives than other women and than men.     

The relationship between parents and adult children in the economic culture of rural Netherlands, 1880–1910

This study examines the complexity of contradictory interests in the relationship between parents and adult children among agricultural wage laborers in rural Netherlands about 1900. One important potential issue of conflict was the marriage of children. In the case of wage laborers, Hajnal's independent livelihood theory is not really helpful in explaining regional differences in age at marriage. Marriage is viewed as a problem of balance and competition between the livelihood problems of parents and children. Two main issues of wage laborers are dealt with: the help adult children give to elderly parents and the control of the earnings of unmarried adolescent and adult children by their parents. Regional variations in children's help and parental control are measured and explained using four independent variables: extent of property ownership by wage laborers, extent of their production for the market (and need for unpaid family labor), wage level, and percentage who belonged to traditional religions in the village. Statistical analysis suggests that the property of agricultural wage laborers was most important in explaining variation in parent–child relationships. Wage level and religion also showed considerable explaining power, particularly for wages earned by unmarried 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.     

The relationship between parents and adult children in the economic culture of rural Netherlands, 1880–1910

This study examines the complexity of contradictory interests in the relationship between parents and adult children among agricultural wage laborers in rural Netherlands about 1900. One important potential issue of conflict was the marriage of children. In the case of wage laborers, Hajnal's independent livelihood theory is not really helpful in explaining regional differences in age at marriage. Marriage is viewed as a problem of balance and competition between the livelihood problems of parents and children. Two main issues of wage laborers are dealt with: the help adult children give to elderly parents and the control of the earnings of unmarried adolescent and adult children by their parents. Regional variations in children's help and parental control are measured and explained using four independent variables: extent of property ownership by wage laborers, extent of their production for the market (and need for unpaid family labor), wage level, and percentage who belonged to traditional religions in the village. Statistical analysis suggests that the property of agricultural wage laborers was most important in explaining variation in parent–child relationships. Wage level and religion also showed considerable explaining power, particularly for wages earned by unmarried children.     

浅议近亲属的 “免证特权”

新刑诉法规定强制证人出庭，但对被告人的父母、配偶、子女做出例外规定，一定程度上确立了近亲属的“免证特权”，但该规定的不完善以及传闻证据规则的缺位，纵容了司法机关采纳未出庭证人的书面证言，不仅与“免证特权”的初衷相违，更是剥夺被告人的对质权。只有真正完善近亲属的“免证特权”，并确立传闻证据法则，才能从体系上实现发现案件真实、保护特定关系以及保障被告人对质权的平衡。     

音乐特长儿童的智力结构特点及其与学业成绩的关系

作者对音乐特长儿童和普通儿童的智力测验结果进行了比较,分析了音乐特长儿童在智力和智力结构上的特点,并考察了这种特点与学业成绩之间的关系。结果发现,音乐特长儿童的总体智力位于中等智力水平。他们的智力结构表现为,词汇、常识方面的发展较为突出。他们学业成绩与普通学生相比,语文、英语成绩要明显在优于普通生,而数学成绩则与普通儿童之间没有显著差异。进一步分析表明,这种学业成绩的表现与其智力结构的特点是相一致的。     

The Best Interests of the Child and the Sentencing of Offenders with Parental Responsibilities

There is a growing body of empirical research demonstrating that sentencing and other criminal justice decisions often have a detrimental, even traumatic impact upon an offender’s dependent children. Judges must balance numerous factors when making sentencing decisions, generally encompassing the protection of the public, the seriousness of the offence, and the personal circumstances of the offender. Should the probable impact of a sentence on an offender’s dependents be a significant factor to be weighed with these other factors in the process of sentencing? More specifically, when a court is sentencing an offender with parental responsibilities, does it have a duty to inquire about the potential impact of the sanction on the offender’s dependent child or children? Must it consider the principle of the best interests of the child or a child’s right to family life as a separate legal consideration in constructing a sentence? International human rights standards suggest that it does. After reviewing existing evidence on the potential hardship of sentencing decisions for an offender’s dependent children, the authors examine the experience of six countries in interpreting and applying these standards in their domestic laws, policies, and practices. They discuss some options for sentencing reforms in the broader context of efforts to reduce high rates of imprisonment in many countries and the need to address the differential impacts of criminal sanctions for primary caregivers and their children.     

“Experts by Experience”: The Involvement of Service Users and Families in Designing and Implementing Innovations in Family Justice

Drawing on international research, policy, and practice, this article explores what is meant by service user involvement, how it has developed, and how it has been implemented across different areas of practice. Using examples from across the health and social care fields, it reflects on how the learning from other areas of practice in which service user involvement has been successful may be applied to the family justice field. The arguments presented highlight the value of taking a bottom‐up approach in designing and implementing innovations in family justice, which would embrace the views of family members, including children, as ‘service users.’ It is important, however, to balance both the challenges and the opportunities offered by involving those who are ‘experts by experience’ in the family justice processes, in order to lead to improved services and experiences.     

Mothers Facing Imprisonment: Arranging Care for Their Adolescent Children

Although the population of imprisoned mothers is increasing, little formal data have been gathered about their dependents. This article draws on data from a study that examined the impact of maternal incarceration on 20 adolescent children in Victoria, Australia, focusing specifically on how and what care arrangements were made for the children and the implications of this care. Findings show a number of supportive and hindering factors that influence the making of care arrangements, including the support of another adult who enabled the woman in her role as mother, mothers' realistic outlook, and subsequent behaviors. Even where there were chronic problems, such as substance use, with a balance of supportive factors, these women were able to make reasonable and stable care arrangements for their children.