La loi du 5 mars 2007 propose l'affirmation de la personne du majeur protégé, notamment en valorisant sa volonté dans le choix d'un type particulier de protection. On s'aperçoit toutefois que la prééminence de cette volonté glisse lentement vers une forme de suppléance, dans le sens d'une mesure de protection voulue et choisie à une mesure imposée par le juge. Ainsi, la hiérarchie protection conventionnelle, sociale et judiciaire révèle une volonté de plus en plus disparate et effacée, en raison de l'émergence progressive d'une cause médicale justifiant la mise à l'écart de la volonté. Par ailleurs, la même loi vantait la réelle prise en compte de la personne même, afin d'endiguer la trop grande importance accordée au patrimoine par la loi du 3 janvier 1968. Or, on voit que l'exercice d'une mesure de protection judiciaire consacre également la préservation du patrimoine en toutes circonstances, au même titre qu'une mesure sociale ou conventionnelle, et que les actes relatifs à la personne peuvent être sans effet si le majeur protégé ne peut plus exprimer sa volonté, volonté dont peut se passer la protection du patrimoine. S'opère dès lors la « régressivité » de la volonté du majeur dans les régimes de protection / The content of the 5th March 2007 Law suggests the empowerment of the legally protected adult, especially by highlighting his/her willingness in the choice of a particular type of legal protection. One can however notice that the pre-eminence of this will gradually turns into a form of substitution, i.e. from a wanted and chosen legal protection measure to a measure that is imposed by a judge. Thus, the conventional, social and judicial legal protection hierarchy for adults reveals a greater and more and more disparate and faded will-power, due to the gradual emergence of a medical cause that will justify side-lining the person’s wishes. Furthermore, the same law was presented as taking into account the actual person so as to contain the too great importance that was attached to assets and real estate by the 3rd January 1968 Law. One can however see that the implementation of a legal protection measure is also dedicated to preserving the person’s assets and real estate in all circumstances, just as a social or conventional measure would do. And that the legal actions related to a person can remain without effect if the adult under legal protection can’t express what he wants but that the protection of real estate and assets don’t need the persons will. This is how operates the “regressiveness” of will in adults legal protection mechanisms

The Gender Recognition Act 2004 has been hailed as radical and ground-breaking legislation and it can clearly be considered to be a successful piece of legislation because between coming into force on 4 April 2005 and the third quarter of financial year 2013/14 it provided full legal recognition of one’s gender identity to 3,664 individuals and interim recognition to 173 individuals; only 180 applications had been refused and 93 applications have been withdrawn. So clearly the law is doing what it was intended to do. However the legislation is not without its problems and it is far from perfect. This thesis argues that the UK Government, when enacting the legislation, adopted the medical model of transsexualism as understood within medicine in 2003/04 which resulted in the legislation enacting strong gatekeeper roles for medical professionals and the Gender Recognition Panel which means that it is difficult for one to obtain legal recognition of one’s gender identity under UK law. The thesis proposes that an alternative model of legal recognition based on gender self-declaration is possible and would achieve the same outcome but with less difficulties for the individual.

My work in the field of the European Convention on Human Rights (ECHR) and domestic family law grew out of concern as to whether the so-called 'paramountcy principle' contained in the Children Act 1989 (CA 1989) was compatible with the ECHR as incorporated by the Human Rights Act 1998 (HRA). My first examination of its compatibility took place within the context of the extension of the paramountcy principle from private law children proceedings to public law adoption proceedings by the Adoption and Children Act 2002. This evolved into a larger and more detailed analysis with Professor Helen Fenwick, an expert in the field of human rights, of the compatibility of the principle in both private and public law proceedings under the CA 1989 within the broader context of the merits of adopting a rights-based approach to applications by parents under the act. This also examined in detail what I considered to be a great deal of sceptism about the adoption of a rights based approach and the possible reasons for it within the domestic family law field. After this, I was able to provide a detailed analysis of the merits of adopting a rights based approach to the issue of domestic violence with Professor Jonathan Herring in two further publications. All of these publications therefore form part of the body of work on which the PhD is based.

This thesis is about family law under the Ben Ali dictatorship where the women's rights embodied in these laws constituted a cornerstone of the state's legitimacy. in 1956, Tunisia became the first Muslim country to reform Islamic family law radically, abolishing polygamy and granting women and men equal rights in divorce. Whether these laws have supported gender equality or not has been hotly contested. Based on fieldwork in a suburb of Greater Tunis and in a court (2007-2008) thesis provides an ethnographic account of the practice of marriage and divorce. From these dual perspectives it argues that ordinary ethics are an essential part of the law. The thesis begins by exploring the uncertainties that surround marriage in a lower-middle class neighbourhood. it then analyses some of the mechanisms through which the law is intimately intertwined with ordinary ethics, notably through an examination of the documentary practices of divorce files. This thesis argues that the connections between law and ethics generate radical uncertainties and anxieties. First, there is uncertainty as to whether a litigant can access justice in divorce. To access rights in divorce a litigant must strive to display highly gendered forms of ethical personhood. Rather than supporting gender equality the legal processes contribute to the homogenization of moral values at a national level as particular gender roles are debated and reinforced vial legal practice. Second, there is uncertainty as to the state's moral legitimacy as it is exposed to the moral scrutiny of its citizens through the operation of the law. The thesis argues that the politically charged setting of the court is the scene for a kind of extraordinary ethics, as divorce cases are a site where the morality of marriage and the morality of the state are simultaneously at stake.

This study examines the female-initiated divorce right of khulʿ in Ḥanafī jurisprudence and its practical implementation in Pakistan. Previous research presents Ḥanafī jurisprudence as only allowing a khulʿ with the consent of the husband coupled with a financial liability placed upon the wife. This thesis argues that there has been a fundamental misunderstanding of the khulʿ under Ḥanafī fiqh, which is capable of providing divorce rights to women without the husband’s consent and financial recompense. This research also illustrates the judicial activism exhibited by the Pakistani courts, which has created a no-fault khulʿ surpassing existing statutory provisions. To date, there have been no studies on the efficacy of these developments, so this research assesses the extent to which these new liberal divorce laws have filtered down into Pakistani society. Through qualitative interviews and observations, this study examines married Muslim women’s perceptions of the khulʿ and the obstacles that female litigants face whilst trying to utilise the khulʿ in the Lahore courts. The findings reveal that whilst the khulʿ has empowered some women within the marital domain, religious and cultural norms coupled with practical problems within the courts have curtailed the potential of the khulʿ as a liberating tool in marriage.

Currently, a great schism exists in the way that the law of financial provision treats cohabiting and married couples on relationship breakdown. Given that research consistently demonstrates that women are predominantly responsible for carrying out homemaking activities regardless of employment status, at the heart of this divide is the way that the law attributes value to this traditionally female role. In the married context, on divorce, breadwinning and homemaking contributions have equal value, yet in the cohabitation context only financial contributions are recognised, with homemaking having no value attributed to it. This polarised approach has received extensive criticism from the courts, the legal profession and the academic community, both for overvaluing domestic contributions in the married context and for ignoring or at best undervaluing them in the cohabitation context. Yet, despite the agreement over the inadequacies in this area, there is a lack of consensus over the direction that reform should take, and so far attempts have been slow and have often come to nothing, especially in the cohabitation context. Furthermore, feminist opinion is divided about whether financial recognition of domestic contributions in family law poses a threat to the financial autonomy of women, encouraging patriarchal financial dependence; or whether such developments redress a glaring inequality inherent in gendered roles freely chosen within the family. Consequently, this project uses the two very differing feminist positions of Ruth Deech and Martha Fineman who embody this divide as the lens through which to explore this dichotomous tension underlying the law in this area. To test out these two feminist stances, this project uses a range of doctrinal, feminist and empirical methodology, namely interviews with legal practitioners, to compare the approaches in New Zealand, Scotland and Queensland, Australia alongside England and Wales, where each jurisdiction differentially reflects a point on a spectrum between Deech and Fineman’s contrasting positions. This project also uses focus groups with members of the public in England and Wales to ascertain the affected communities’ views on these models of financial provision. Drawing on these results, this thesis shall consider how the law of financial provision in England and Wales should divide assets on relationship breakdown in the marriage, civil partnership and the same- and different-sex cohabiting context. Should it promote financial autonomy or should it offer greater protection to those who lead gendered lives in the private sphere?

This PhD by published work consists of: • 1 single authored monograph; • 1 single authored paper in a refereed journal; • 4 main authored articles in refereed journals; • 3 joint authored articles in refereed journals; • 1 joint authored paper in a non refereed journal; and • 3 joint authored published reports. It covers the period 2009-2014 This thesis and the papers submitted demonstrate my significant contribution to a body of knowledge that provides a rich and unique insight to the development of changes in legislation and protocols in child protection practice. Particular expertise is threefold: the impact on the practice of all professionals involved with vulnerable families and children; the impact on the assessment of risk and working with families and children; and the impact on the ‘timetable for the child’. The publications reflect an examination of pre-proceedings protocols over a 5-year period. Throughout, the work demonstrates a theoretical and practical commitment to fairness and justice for families. The rationale that underpins this thesis is the need to explore the impact of procedural changes to the lives of children and their families. The rhetoric of improving pre-proceedings work in an attempt to divert cases away from court, and to ensure decisions that are made for children are both rigorous and timely, is at odds from the reality of practice on the ground. The recent hegemonic concern with the timetable for the child (Holt and Kelly, 2014) reinforces a change agenda that was ushered in ahead of the Children and Families Act that became law on 22nd April 2014. The President of the Family Division, Sir James Munby, has stated that 26 weeks completion time when cases progress to court is ‘a deadline not a target’, reinforcing the message that only a ‘comparatively small number of exceptional cases’ will fall outside it (Munby, 2013:4). This leaves little time for the court to intervene when cases have not been properly progressed at the pre-proceedings stage. The evidence from detailed observations of practice at all levels within pre-proceedings protocols affords an opportunity to send a clear message to legislators, policy makers and practitioners. Front-loading and diverting more cases into pre-proceedings protocols is quite simply a strategic measure to reduce the financial burden away from the courts and to place this elsewhere. Local authorities have child protection systems that are properly designed to support children who are in need of protection, and where it has been decided by professionals from a range of agencies working with families that the risk cannot be managed without the need to seek the involvement of the court, there should be no further delay. My concern is that in many instances children are already left holding the risk for too long. The question must be raised as to why, when a range of professionals working with the child and their family make the decision that an application to court should be made, a system that purports to hold children and families at the heart builds in further delay.

Shared residence was previously viewed with suspicion by the judiciary, but following D v D [2001] a line of cases has developed, where this order is said to benefit children, firstly, by helping them feel cherished, and, secondly, by improving parental cooperation and thus protect children from the harmful effects of exposure to their conflicts. This thesis reviews available research to conclude that shared residence is so unlikely to achieve either objective where it is ordered against a parent's wishes, that the order should be restricted to families where both parents agree. Autopoietic theory is combined with feminist critique to explain the selfreferential nature of law, its tendency to prioritise children's abstract need for fathers and its inability to fully understand parents' complex disputes. The thesis compares the preconditions for, and use of, shared residence in England and in Sweden, concluding that despite better preconditions, Swedish court-imposed shared residence arrangements are unlikely to last, and can harm children by increasing their exposure to conflict. There is also, in contested cases, a worrying focus on equal rights for parents, with children who have grown up in these arrangements complaining of feeling objectified. This, combined with a growing emphasis in English case law on sending symbolic messages about status, is a strong argument against a shared residence presumption. It seems naïve to assume that new, collaborative co-parenting patterns can develop after separation merely because law coerces the adults into a particular kind of formal arrangement. The suspicion is therefore raised that law's agenda is in fact something very different: to mask familial and societal change by making post-separation families conform to a binuclear pattern which resembles the nuclear ideal not only in membership but also in its hierarchical structure.

No description available.

‘(…) to ensure equality for all children, this Regulation covers all decisions on parental responsibility, including measures for the protection of the child, independently of any link with matrimonial proceedings.' [Recital 5 of Brussels II bis] Brussels II bis (Council Regulation 2201/2003) complements the Hague Convention on Child Abduction, with its well-established set of international rules and the related definitions based on a considerable body of case law. The interrelation has given rise to difficulties of application and issues of interpretation despite the existence of a set of rules supposed to regulate the complementary structures. Besides this interrelation, the Regulation interacts with the Hague Convention on Child Protection. Though Brussels II bis has been analysed with regard to different single aspects, it has not yet been considered which consequences the actual provisions of the Regulation and the ECJ’s decisions have both on the interrelation and its application in the national courts. It has further hitherto not been critically analysed whether the Regulation and the judgments of the ECJ take the right direction to meet the ambitious aim defined in the preamble and throughout the text, respecting the ‘best interests’ of the child. Now that a decade of Brussels II bis has passed and with a series of pioneer cases decided by the ECJ and with an intervention of the ECtHR in Convention and Regulation cases, the Regulation’s effectiveness is worthy of critical consideration. Despite the existence of some specific rules on the interrelation of the Regulation and the Conventions, their very co-existence gave rise to various interacting situations and questions of interpretation. For courts familiar with the rules of the Convention on Child Abduction and with at least their own respective national case law arising under it, the application of the added layer of rules of the Regulation and the interpretation of its different concepts was and still remains a challenge. A comparison of Brussels II bis with the two international instruments with regard to the role of ‘habitual residence’ and the suitability of the other central concepts of the provisions for the particularity of family disputes will demonstrate the differences of cases involving the Regulation and those involving the Conventions. III By governing jurisdiction, recognition and enforcement of judgments and orders relating to parental responsibility, the Regulation has a very wide application covering, for example, custody, access, guardianship and even placement of children in foster or institutional care. Further, Brussels II bis takes up concepts which lie at the very heart of the application of the Convention on Child Abduction and about which there is extensive jurisprudence. This thesis will explore a selection of legal issues arising from the interrelation between these private international law instruments dealing with parental responsibility and child abduction which the national courts applying the Regulation are confronted with. The question whether Brussels II bis is an effective instrument which has strengthened the return mechanism under the Convention on Child Abduction and can work hand in hand with the Convention on Child Protection is also important to critically evaluate. It will be considered if the provisions in the Regulation have been drafted clearly enough and the concepts defined so well that they promote the interests of the children concerned, where the provisions are complementing the Convention on Child Abduction, and has learned from the latter’s flaws so as to enhance the recognition and enforcement processes related to child abduction. It will be concluded whether or not the Regulation is an advancement only in terms of having implemented efficient, intra-Community provisions on jurisdiction, recognition and enforcement or a real advancement supporting the ‘best interests’ of the child(ren), despite the complications of application it has introduced.