TRADE‐OFFS IN FORMULATING A CONSISTENT NATIONAL POLICY ON ADOPTION*

Just as the courts must consider the trade‐off between the best interest of the child and parental rights in involuntary termination of parental rights, policy on international adoption must consider the trade‐offs between the best interest of the child and the long‐term interests of the nation. We argue that countries that suspend international adoptions do not maximize social welfare. A consistent national policy to maximize the well‐being of the children and society at large would be to devote resources today to the oversight of international adoption in accord with child protections under the Hague Convention, while at the same time developing a domestic system of care that provides for the physical and developmental needs of orphaned children in the context of permanent families.     

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.     

BURDEN OF PROOF BEGONE

This article examines the tendency of emergency child removal decisions—by social workers, police officers, and judges—to become self-reinforcing and self-perpetuating in subsequent child protective proceedings. This snowball effect, as one court has referred to it, is widely acknowledged by lawyers who practice in juvenile court, yet is largely unknown beyond those circles. The article explores the causes and consequnces of this phenomenon in the age of the 1997 federal Adoption and Safe Families Act (ASFA), which converts every day that a child spends in foster care into one more tick of the clock in a countdown toward termination of parental rights. The article provides some background on the law and practice of emergency child removal in the United States today, analyzes the factors that make initial removals outcome determinative in many child protection cases, considers the implications of this phenomenon in light of ASFA, and identifies possible solutions.     

REJOINDER TO GARDNER'S "COMMENTARY ON KELLY AND JOHNSTON'S 'THE ALIENATED CHILD: A REFORMULATION OF PARENTAL ALIENATION SYNDROME'"

In this reply to Richard Gardner, we outline our points of disagreement with his formulation of parental alienation syndrome (PAS), showing that his focus on the alienating parent as the primary cause of children's negative attitudes and rejecting behavior toward the other parent is overly simplistic and not supported by findings from recent empirical research. It follows that we strongly object to Gardner's recommendations for legal and mental health interventions with alienated children as well as the use of the term PAS when referring to this problem.     

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.     

亲子关系变迁之考察

亲子关系是家庭法的核心,是亲属法的重要组成部分.但是,亲子关系并非一成不变,亲子关系在漫长的历史中经历着巨大的变化.即经历着从家父权威到父母责任、从家族本位到子女本位、从父权优先到儿童最佳利益和从为族收养到为子女收养的脉络变迁.这些变化是与儿童观及儿童的地位变化相契合的.父母子女之间的关系已不再是父母权威占据主导地位,父母权利具有义务性,转而成为父母责任,亲子立法上也偏向于子女本位并坚持儿童最佳利益原则.亲子关系的变迁反映了国际社会对儿童及其权利的重视.     

Mothers of children removed under a care order: outcomes and experiences

ABSTRACT

Focusing on accounts by women who have children taken into care, this paper reports on a socio-legal case study in England, investigating the life experiences of nine mothers, whose children have been made subject to care orders under the Children Act 1989. In particular it considers the women’s experiences of their relationships with their own mothers and places this within the context of the mothers’ own experiences of having their children taken into care. Drawing on free association narrative interviews, the study focuses on the mothers’ accounts of long-term harm that began in their childhoods, especially their experiences of their mothers’ own difficulties and of their experiences of harm. It highlights the impact of relationship difficulties between mother and child, and questions how the legal concepts of harm and reasonable parental care are defined and deployed. In conclusion, it demonstrates a need for the legal framework to address children’s experiences of harm in a more intergenerational and intersubjective way. It highlights a new approach, suggesting consideration of harm, reasonable parental care and welfare to involve an increased concentration on the welfare of mothers and the relationship between mother and child, akin to an intersubjective and intergenerational approach to harm.     

HIGH‐CONFLICT CONTACT DISPUTES: EVIDENCE OF THE EXTREME UNRELIABILITY OF SOME CHILDREN'S ASCERTAINABLE WISHES AND FEELINGS

This article challenges an increasing orthodoxy regarding the weight which courts might place upon the expressed views of children in a specific situation—high‐conflict contact disputes. I am a child psychiatrist who acts as an expert witness within the family courts of England & Wales. I have conducted a statistical analysis of cases in which I have conducted assessments of children caught in such disputes between their separated parents. Fifty‐eight children met the criteria for inclusion in the study—the child's consistent opposition to contact with the non resident parent (NRP), despite the court having determined that there was no good reason to constrain contact. My assessment routinely included attempted observation of the child at a visit with the NRP. Despite their stated views most children had a positive experience in those visits that took place, and despite the fact that most had not seen the NRP for a long time. Overall there was a statistical association between increased resistance to contact and the greater age of the child and the longer the time during which no contact had occurred. However, the responses of children and young people were unpredictable and it was impossible to conclude that apparent maturity or intelligence was a guide to the reliability of their expressed resistance. The possible reasons for this unreliability are discussed. I emphasize that my sample of children is unusual as many of the cases had involved serious, though unfounded, allegations of abuse. In addition most of the children showed indications of having become “alienated” from the NRP. I conclude that courts might exercise caution when evaluating the views of children and young people in this situation, and emphasises that assessors should consider including at least one observation of the child at a prolonged visit to the NRP. Because of the new orthodoxy some parents may be tempted to misuse their child's right to a “voice” in court in order to achieve their own ends. Practitioners who advise courts may need to be more aware of these difficulties.     

OVERCOMING BARRIERS FAMILY CAMP:A PROGRAM FOR HIGH‐CONFLICT DIVORCED FAMILIES WHERE A CHILD1 IS RESISTING CONTACT WITH A PARENT

Overcoming Barriers Family Camp is an innovative program designed to treat separating and divorced families where a child is resisting contact or totally rejecting a parent. Both parents, significant others, and children participate in a 5‐day family camp experience that combines psycho‐education and clinical intervention in a safe, supportive milieu. This article describes the components of the program, from referrals to intake to aftercare. Evaluation immediately following the camp experience is provided for the camps that ran in 2008 and 2009, and 6‐month follow‐up interview information is provided for the 2008 camp program as well as 1‐month follow‐up about the initiation of aftercare with the 2009 families. A discussion of the strengths and challenges of this approach with entrenched, high‐conflict family systems concludes the article.