This concluding chapter draws together themes from across the book and assesses the current health of children’s rights. It opens by considering the extent to which parents’ interests hamper the law’s development of children’s rights. It proceeds to assess the fragmented manner in which children are constructed by law and policy to fulfil adult perceptions of their needs. The difficulties posed by society’s negative attitudes towards young people and their exclusion from the political process are also examined. The chapter concludes by arguing that these problems should be addressed by adopting a more vigorous rights-based perspective and assessing the risks that the current climate of rights scepticism pose for the future of children’s rights.

This chapter considers public decision-making and children’s rights. Government action is essential to providing the legal, social and economic conditions in which children are protected from violations of their rights and provided with the environment in which they can thrive. Nonetheless, significant challenges remain in creating and securing consistent and practically effective protection for children’s rights in public law. The privatisation of many public services that affect children can create an accountability gap in which responsibility for children is fragmented. Further, any of the rights that are most important to children have a clear basis in international law, but a more uncertain foundation in domestic law. Finally, consideration of children’s interests in public decision-making and legislating is patchy, with no systematic means of reviewing policy or legislation for compatibility with children’s rights. This chapter considers these challenges before looking specifically at the issue of child poverty.

This chapter considers the role of rights in decisions concerning the health of children who are not yet competent to consent to their own medical treatment. The medical treatment of children is particularly contentious in cases involving disagreement between parents and medical professionals over the provision of life-sustaining treatment. These fraught disputes have often become a site of disagreement over the extent of parental freedom and state intervention in determining children’s best interests. Despite the obvious implications for the child’s own rights to life and bodily integrity, those rights rarely play an overt role in such decisions. A further area of contention is in the extent of parental discretion to consent to non-therapeutic intervention, such as tissue donation or circumcision. These decisions are again treated primarily as a matter of parental discretion; in practice, again the law is content to tolerate significant intervention without adequate protection for the child’s own rights.

It is well recognised in international children’s rights law that children have a right to participate in decisions concerning them. This chapter considers that right and the extent to which it is protected in domestic law. Many working within the family justice system are committed to improving children’s participation and there has been significant progress in including children in some decisions. This includes increasing judicial willingness to meet children, hear children’s evidence, grant them party status and allow competent young people to give direct instructions. Nonetheless, the system provided for representing children in family proceedings is extraordinarily complicated and the extent to which children are heard in practice varies considerably, particularly for children caught in private parental disputes. As a result, many children find that significant decisions are made about their lives without the opportunity for them to be heard or represented in the decision. Where children have been heard, the weight given to their views remains inconsistent and unpredictable, despite greater commitment in the higher courts to taking children seriously.

This chapter assesses the extent to which children’s rights are protected in domestic law. The heart of the problem for children’s rights in domestic law is that those international rights that are designed for children are not directly enforceable, while those rights that are directly enforceable have not been written for children. Further, the central place of the welfare principle in domestic child law has often been interpreted as being in conflict with a rights-based approach to children. Nevertheless, the Human Rights Act 1998 has been the vehicle for some real advances in protecting children, especially through the use of international instruments in interpreting its rights to be more effective for children. In the political sphere, children’s rights have gained greater influence, especially through the enhanced role of the Children’s Commissioner. This chapter assesses these developments and analyses the continuing weaknesses in the protection for children’s rights in law and policy.

The right to education is one of the most important rights for children, providing the foundation upon which the child’s future is built. The primary responsibility for ensuring that a child receives an education is that of the parents. That responsibility takes on particular significance in circumstances in which the convictions of the parents, or the child, are at variance with those held by the majority in society. The extent to which parents may insist that the child is educated in a way that conforms to parental values remains contentious. The law on the right to education has sought to find a balance between protecting pluralism and upholding the state’s right to run an efficient education system reflecting society’s shared values. The child’s own right to education has often been neglected in these debates. These concerns are considered with particular attention to home education, British values, religious worship and school uniform. A children’s rights approach would ensure that the children whose education is at stake are placed at the centre of a debate which is often dominated by tensions between parental freedoms and state interests.

This chapter charts the development of children’s rights in international human rights law. The centre piece of international children’s rights law is the United Nations Convention on the Rights of the Child (CRC). This chapter explores and assesses the content and principles of the CRC and its ability to remain effective in the modern law. Particular consideration is given to the implementation and enforceability of the CRC, including the development of the individual communications procedure. The chapter then turns to the European Convention on Human Rights (ECHR) and assesses the extent to which it has been able to respond to the development of international children’s rights. Through creative interpretation, the unpromising ECHR text has become a more effective means of protecting children’s rights. Nonetheless, the limitations of the text and the practical obstacles to litigation continue to hinder children who look to enforce its rights.

This chapter considers the child’s right to identity. It is for good reason that the Convention on the Rights of the Child requires that core aspects of a child’s legal identity are in place soon after birth. A legal identity secures the child’s place in society, nation and family, providing the foundations for the child’s sense of self and relationships with others. The fact that these crucial aspects of identity are put in place when the child is an infant means that particular care must be taken to ensure that the child’s interests are not lost; not least because adults often have powerful interests in the way in which a child’s identity is determined and recorded. This chapter considers the formation of a child’s legal identity through recognition of parenthood and the challenges posed by changing reproductive technology and social norms such as the growth of international surrogacy arrangements. Further, a child’s knowledge of their genetic origins and the circumstances of their birth may be important to their sense of self and personal identity. The extent to which the right to identity incorporates a right to knowledge of origins is also considered.

In 1973, in Birmingham the International Society of Family Law was born.

Professor Falk was the one in whose brain this brilliant idea took form.

The objective of the Society was the study and discussion of Family Law

Furtherance of international research, dissemination of ideas and much more.

The first ISFL World Conference was held in West Berlin, in 1975.

Its theme, The Child and the Law, is still so very much alive.

The second World Conference in Montreal, Canada, in 1977

Was on Violence in the Family, an ever-present painful cry to heaven.

Family Living in a Changing Society was theme of World Conference three

In 1979, in Sweden, new knowledge gained, we didn’t leave ignorantly.

Come 1982 at Harvard Law School, the fourth World Conference was held.

The first in the USA, but the theme, I do not know, and no one could tell.

Belgium in 1985 was the fifth, on The Family, the State and Individual Security.

Still so relevant and concerning to all, whether you live in the country or the city.

The sixth World Conference in 1988, in Tokyo, Japan, was the first in Asia.

Issues of the Ageing in Modern Society was the theme chosen for us to hear.

The seventh World Conference in 1991, in Croatia, had longest title you’d see:

Parenthood, The Legal Significance of Motherhood and Fatherhood in a Changing Society.

The eighth World Conference, in 1994, in Cardiff, Wales, was my first.

Families Across Frontiers, an intellectual fare, birthed in me an insatiable thirst.

For the ninth World Conference in 1997, I went to Durban, South Africa, to dine.

One of the conference presentations later published in the Survey was mine.

Changing Family Forms: World Themes and African Issues was the topic.

The Relationship Between Social Change and the Law – The Concept of ‘Family’ and the Child Born Out of Wedlock, was my pick.

The tenth World Conference was held in 2000, in Queensland, Australia.

The theme, Family Law Processes, Practices and Pressures was good to hear.

The eleventh World Conference was held in Copenhagen and Oslo

On the theme, Family Law and Human Rights, one that we all know.

UPPSALA 1979

My first experience of the International Society of Family Law (ISFL) was the third World Conference, held in Uppsala, Sweden in 1979, which I attended together with my colleague at the University of Bristol, Gillian Douglas. I had never been to an ISFL World Conference before, and I was excited by the prospect – and I was not disappointed. For me, it remains one of the best and most stimulating international conferences I have attended. The theme of the conference was ‘Cohabitation’, which in those days was regarded as being very ‘avant-garde’, but then, this was Sweden after all. Indeed, I recall one of the sociological papers was on ‘deviant behaviour’, and examined, in particular, jurisdictions in which, because of its incidence, cohabitation had become ‘normative’ as opposed to ‘deviant’ behaviour. Another memorable paper was one given by Eric Clive, who argued that marriage could be jettisoned as a legal concept (aliter a religious one) in favour of one based on cohabitation. Food for thought indeed!

I remember, too, being impressed and not a little overwhelmed by a scholarly paper presented by a German academic examining English common law. I was clearly going to have to ‘up my game’ if I was to perform on the world stage.

Amongst the myriad of stars that attended and presented at Uppsala, one stood out above the rest – Mary Ann Glendon. Not only did she give a fascinating paper, but on one occasion she considered the English simultaneous translation of a paper given in French to be inadequate. She offered to take those who wanted to to a separate room, where she gave a seminar on what the speaker was trying to say. Sadly, that was the only occasion that I came across Mary Ann.

The conference, of course, was not without incident – I remember one in particular. After a German scholar had made his presentation in English, he was asked a question, to which he turned to the German-speaking Chair and answered in German. The Chair translated his answer into English.

I no longer remember what sort of notice I received, in 1982, announcing an International Society of Family Law World Conference that would take place at Harvard Law School in June. I had never heard of the International Society of Family Law. Even the subject of family law was new to me. I am pretty sure that the Spring 1982 semester was the first time I had ever taught the course, and I was still learning the basics. It was a period of tremendous upheaval in the field: no-fault divorce was gaining ground, gender-based roles and rules were disappearing, and both women and children were gaining new rights and entitlements. It was an exciting time in family law – that was a major reason why I had volunteered to teach a subject I had deemed too dull to study when in law school. The prospect of a conference bringing together family law scholars from around the world was immensely exciting. I sent in my registration form.

The conference was packed and immensely interesting. At this remove, I can no longer remember details, but I do recall meeting many fascinating people, and the constant sense of learning something new. Various presentations about the move to no-fault divorce also gave me an idea for an empirical research project that ultimately consumed years of my time, but I do not think I can blame the ISFL for that!

That exciting 1982 conference was my last ISFL experience for more than a decade. During those early days, there were no regional conferences – or at least there were none in North America – and other 1980s World Conferences took place in venues (Brussels, Tokyo, the former Yugoslavia) far more distant than Boston. By this point, I had young children and wanted to stay closer to home.

Sometime in, when? – 1993 or 1994 – a bright gold notice turned up in the mail. Its top border was decorated with an abstract design of peaks, and it announced a North American regional ISFL conference to take place at the Jackson Lake Lodge in the Tetons, in June. There were then no regular American events devoted to family law scholarship, other than the annual meeting of the Family Law section at the American Association of Law Schools.

Résumé

Au cours des trois dernières décennies, l’utilisation de l’intelligence artificielle (IA) et des algorithmes a gagné du terrain dans la pratique du droit de la famille. Les litiges « classiques » de droit de la famille, tels que le divorce, les pensions alimentaires et la liquidation des régimes matrimoniaux et des successions, sont encore représenté s par des images de salles d’audience, où les parties au litige et leurs avocats comparaissent devant un juge. Pourtant, de l’obtention d’un divorce à la liquidation du régime matrimonial des époux, en passant par l’organisation des modalités d’exercice de l’autorité parentale et de résidence des enfants, le règlement des contentieux familiaux s’effectue de plus en plus souvent en ligne, par le biais d’une application ou d’un site web. Dans le présent article, nous donnons un aperçu de l’utilisation de l’IA dans la pratique du droit de la famille aujourd’hui, spécialement dans sa dimension patrimoniale. Nous retraçons l’émergence des outils d’IA dans les contentieux traditionnels, ainsi que dans les processus de règlement extrajudiciaire des litiges (ADR), et en particulier dans le règlement des litiges en ligne (ODR).

Les présents développements s’attachent d’abord à expliquer les technologies d’IA utilisées et à explorer leur application dans la pratique juridique en général et en droit (patrimonial) de la famille en particulier. À l’aide d’exemples concrets, nous examinons l’utilisation actuelle de l’IA dans la pratique du droit de la famille à travers le monde. Ensuite, les avantages et les inconvénients de ces outils technologiques sont étudiés. Une réflexion sur l’utilisation de l’IA dans la pratique du droit de la famille est menée afin d’en analyser, de manière critique, les succès et les échecs et d’en tirer les leçons qui s’imposent. Enfin, nous nous interrogeons sur la valeur ajoutée que l’IA et les algorithmes peuvent apporter à la pratique du droit de la famille, aujourd’hui et à l’avenir, en nous concentrant particulièrement sur l’Europe.

INTRODUCTION

When you hear the word ‘divorce’, what image comes to your mind? Adam Driver and Scarlett Johansson’s characters in the Netflix movie, Marriage Story, exchanging snarky barbs across conference tables and courthouse corridors? Perhaps you think of the public dramas of celebrity divorces that have graced the pages of broadsheet and tabloid newspapers? Or perhaps you think of the mindful ‘conscious uncoupling’ of Gwyneth Paltrow and Chris Martin?