INTRODUCTION

On 16 December 2015, the Supreme Court of Japan made two important and impactful decisions relating to marriage law. In the first case, the Court held that the provisions of Article 733 of the Japanese Civil Code, which prescribes a waiting period of six months for women only as a requirement of remarriage, violated the equality principle of the Japanese Constitution. The Court held that the waiting period of 100 days would be constitutional, however. Many scholars hold that the waiting period for a woman to remarry should be totally abolished.

In the second case, the Court held that Article 750 of the Civil Code, which prescribes the mandatory common family name for the married couple as an effect of a marriage, does not violate the equality of husband and wife. In Japan about 96 per cent of married couples choose the name of the husband as a common family name. Many wives must bear the practical and emotional burden as the result of the change of their name. Most of the Supreme Court justices, 10 of 15 justices, held that the common family name system has been established for a long time in Japanese society and that a common family name is rational for a natural and basic unit of society. With a common family name, one can recognise oneself as a member of a family. Furthermore, a legitimate child can have the same name as both parents.

Japan's ruling party (LDP) and conservative people believe that the common family name is one of the beautiful traditions of Japanese society, a tradition worthy of preserving, although such a mandatory common family name is seldom seen in foreign countries. They also point out especially that a different name of a husband (father) and a wife (mother) could inflict harm upon their children. Many Japanese scholars, however, have strong opinions that both the husband and wife should be able to preserve their names as they wish, so that a common family name should not be mandatory

Introduction

Reparations play an important role in upholding the rule of law, restoring equality, and providing remedial justice to those harmed as a result of a breach of an international obligation. The essential role and importance of reparations within any legal system is perhaps best described by Justice Guha Roy: ‘[t]hat a wrong done to an individual must be redressed by the offender himself or by someone else against whom the sanction of the community may be directed is one of those timeless axioms of justice without which social life is unthinkable’. Although the idea that the consequences of a wrongdoing should be adequately redressed was first established under domestic jurisdiction, the international legal framework has extensively developed the content and scope of redressing wrongful acts. Primarily, the laws of state responsibility, as interpreted and developed by the International Court of Justice (ICJ) that is the ‘supreme public international law tribunal’, have played a major role in shaping the content of reparations. The laws of state responsibility codified the most common forms of reparation used under international law during the last 200 years. In addition to the ICJ's key role in the creation and interpretation of international law in general, international human rights law8 has significantly influenced the international legal framework governing reparations.

This chapter provides an overview of the main characteristics of reparations and their development as both a state obligation stemming from internationally wrongful acts and as an individual human right. The chapter opens with a brief explanation of how reparations form one of the two elements of the right to a remedy within the framework of both public international law and international human rights law. It continues with a discussion on the most important developments of the law and practice that underpin reparations in public international law. In particular, it focuses on the law of state responsibility and the landmark cases related to reparations from the International Court of Justice. The chapter also takes a human rights perspective to discuss the most relevant law on and the practice of awarding reparations. In doing so, it focuses primarily on the jurisprudence of the two main regional judicial bodies: the Inter-American Court of Human Rights and the European Court of Human Rights. These two courts have each produced a vast body of case law on remedies and reparations.

This chapter draws from a larger study titled ‘Achieving child-friendly justice’ in Africa. The study aimed to assess the state of child friendly justice in Africa. Part of the work sought to explore the extent to which children encounter informal justice systems in juvenile justice, child protection, family law matters, and as victims of criminal offences. Although reflecting mostly on the paucity of literature available, the work was bolstered by seven country studies which were undertaken in parallel with the preparation of the main work, which contribute to the understanding of children's contact with informal justice systems. The characteristics of informal justice processes are discussed, as well as the reasons for communities’ continued reliance on them, in preference to formal justice systems. The challenges facing the implementation of children's rights principles in informal justice processes is scrutinised. Finally conclusions and recommendations for strengthening the linkages between formal and informal justice systems, and for infusing a more child rights orientation, are put forward.

INTRODUCTION

Africans perceive conflict as the motor and engine of relationships. This is because it is impossible to speak of a relationship without conflict and it is impossible to speak of conflict without a relationship. Being a social phenomenon, the general intention of conflict resolution … is to mend broken or damaged relationships, rectify wrongs, and restore justice and harmony between individuals, families and the community at large. The traditional concept of conflict resolution is to reconcile and make peace between disputing parties, ensure the reintegration of the disputing parties into the society and to promote co-operation and harmony between them that may help improve their relationship.

The continued use of informal justice mechanisms must be seen in both historical and contemporary contexts. Sidelined and regarded as backward during the colonial era, informal justice systems were regarded as an impediment to development. Upon liberation from colonial rule, it was thought that they would simply die out. However, for reasons set out below, this did not occur and they continued to form the backbone of access to justice for citizens in an estimated 70 per cent to 90 per cent of instances, according to some sources.

As a famous centre of tailoring expertise, Hong Kong is well versed in cutting our coats to suit our cloth. Family mediation provides a process option which is both tailored and responsive for Hong Kong families experiencing the transition through family separation. Hong Kong family mediation practice to help parents construct new realities for their children has evolved to take into account the cultural context in Hong Kong and the legal parameters of family law.

In Hong Kong, a family mediator may work with married parties as they divorce or separate to make arrangements in respect of their children and finances (asset division, spousal maintenance (if any) and children's maintenance). For unmarried parties, it is not unusual for family mediators to work with parents in relation to their children and any joint assets/child maintenance arrangements. In either case, the court will consider the arrangements for children and, if approved, these will be converted into consent orders both in relation to custody/access and also maintenance. For married parties the financial arrangements (asset division/spousal maintenance (if any)) will also be turned into a separate consent order in respect of finances. Therefore, the legal framework in Hong Kong informs and delineates the parameters for the work of family mediators.

How does the legal and cultural landscape in Hong Kong shape the experience of parties in family mediation when seeking to resolve arrangements for their children? Although society and family life is changing, Hong Kong's legislation regarding custody and access remains the same, and recent attempts to modernise the regime in respect of children have met with resistance (section 1). This has led to stasis in the law affecting children in Hong Kong and has directly impacted the way in which family mediators must work with parties.

The peculiar circumstances of Hong Kong's history and population, and the existing legal framework have produced a unique blend of modernity and anachronism (section 2). What do mediators need to take into account when supporting families through transition, and how do these considerations impact the practice of family mediation in Hong Kong in relation to arrangements for children? (section 3).

INTRODUCTION

Families and family realities are constantly evolving, and so does family law itself. Over the last decade Belgian family (property) law has been subject to many reforms. The legislator has made important changes in the field of parentage (2006), divorce and post-divorce maintenance (2007), child maintenance (2010), family and juvenile courts (2013), co-motherhood (2014), naming law (2014), foster care (2017) and inheritance law (2017). Through an analysis of the existing legal provisions and the relevant case law of the Belgian Constitutional Court and the Court of Cassation, this contribution aims to offer an overview of Belgian family law as of 2018. This contribution offers a view of the various aspects of Belgian family, such as marriage and divorce (section 2), cohabitation outside marriage (section 3), filiation (section 4), and parental responsibilities and child maintenance (section 5).

MARRIAGE AND DIVORCE

ENTERING THE MARRIAGE: BASIC AND FORMAL REQUIREMENTS

Marriage is the most formalised form of cohabitation in Belgium, with many basic and formal requirements. Marriage stands alongside the less formalised forms of partnership, namely legal cohabitation and de facto cohabitation, which are covered in section 3.

In Belgium, a marriage can be entered into by two adults (Article 144 Civil Code) of the opposite or same sex (Article 143, paragraph 1 Civil Code). Consent of both spouses is essential; absence of consent leads to the annulment of the marriage (Article 146 Civil Code). Another basic requirement to marry is that a second marriage cannot be entered into before dissolution of the first marriage (Article 147 Civil Code). Finally, the spouses may not be related within the prohibited degrees of kinship, the so-called ‘impediments to marriage ‘(Articles 161 – 163 Civil Code and Article 353-13, 1 ° –5 ° Civil Code).

Alongside the aforementioned basic requirements to marry, there exist some formal requirements. A person wishing to enter into a marriage must first make a declaration to the Registrar (Article 63, section 1, paragraph 1 Civil Code), which will be followed by a waiting period of 14 days (Article 165, section 1 Civil Code) during which the Registrar checks whether the basic requirements to marry are met and verifies, among other things, the (non-)existence of a marriage of convenience or so-called'sham marriage ‘. Moreover, the marriage itself must be concluded in public (Article 166 Civil Code).

INTRODUCTION

Family is the building block of society. The institution of marriage as a legal construct is integral to enforcing the family structure and stipulating the obligations and duties of husbands and wives, parents and children. The greatest concern when a marriage falls apart is the potentially profound negative impact not only on parents but especially on children. Studies have shown that divorce is one of the most stressful life events that can confront an individual. Further, developmental outcomes for children are adversely affected when they are exposed to persistent parental conflict and violence. Such children may carry difficulties into adulthood that range from feelings of sadness and vulnerability, to more serious mental health issues, which translate into deeper issues for society as a whole.

It is imperative that society should take care of families, especially the vulnerable and the young, and the courts play an important role in this regard. The courts represent a fundamental institution of government, set up to perform the judicial function of helping parties resolve their disputes by upholding the rule of law. However, family disputes are unique. Unlike ordinary commercial disputes, underlying many family disputes are deeper emotional and psychological wounds, as well as fractured family ties and relationships that often have to endure long after the legal dispute has ended. More fundamentally, family disputes often involve vulnerable children who require special protection.

There has been growing awareness that courts cannot simply dispense ‘justice’ simpliciter when handling family disputes, without any regard to the deeper underlying issues. Since the mid-1990s, the Singapore courts have been drawing on the insights gleaned from related social science disciplines, to enhance the way family disputes are resolved and ‘justice’ dispensed, whilst upholding the law. Innovations and initiatives (e.g. court mediation and counselling) have been incrementally injected into the court system, to shift the courts away from a purely adversarial court model which has the potential to inflict even greater harm on parents and children, given its tendency to aggravate rather than ameliorate conflict.

INTRODUCTION

Family law in Ireland is premised upon absolute respect for the marital family. The family is accorded an elevated status in the Irish Constitution, where it is expressly regarded as a unit that is superior to all positive law with inalienable and imprescriptible rights. This marital union is founded upon the express constitutional preference for the wife and mother to remain in the family home to fulfil her duties to the family as a whole. Article 41.2.1 of the Irish Constitution critically outlined below, obliges the state to take the steps necessary to ensure that no woman is forced through economic necessity to work outside the home. The normative importance of the married family in Irish society simply cannot be overstated, and this absolute preference for the family unit founded upon marriage has in turn hugely influenced the state's approach to regulating marriage breakdown. Whilst facilitating the remedy of divorce, the state has retained this protectionist approach and has enacted a statutory framework which normalises life-long interdependence, placing such financial obligations on the breadwinner (former) spouse, making it impermissible to seek or secure individual financial freedom. As a means of influencing social policy and directing individual behaviour and choice, Irish lawmakers have elected to permanently protect the homemaker rather than mandate any expectation of, or right to post-divorce independence.

In creating the necessary legal framework which operates to dissolve the union, lawmakers have resolutely maintained this marital fiction by refusing to permit any scenario where spouses can be deemed to have definitively severed their financial ties, thereby insulating the position of the homemaker, irrespective of the individual financial circumstances of the former spouses. These deep rooted inter-spousal obligations exist to incentivise marital commitment and serve to ensure the imposition of entitlements should the parties divorce. This community, lifetime-based, view of financial obligations maintains an expectation of inter-spousal responsibilities post-divorce, creating a marital union that is not necessarily binding, but a financial commitment that is. The heterogeneous nature of modern Irish family life mandates that Irish family law move away from its long held aspiration of a family based on heterosexual marriage with idealised gender-specific roles.

INTRODUCTION

Ideas of equality between family members have received strong support in Norway, equality between children born in and out of wedlock, between husband and wife and between fathers and mothers. In recent years, fathers have strengthened their position in child law and same-sex couples have attained equality in marriage law. At the same time, child law has become an arena for political disputes, often pitting mothers ‘rights against the rights of fathers and biological parenthood against social parenthood (section 2). Marriage law, on the other hand, has seldom been at the centre of political debate, with the exception of equal rights for same-sex couples. Recent changes have concerned the legal age of marriage and wedding ceremonies (section 3).

RECENT REFORMS IN CHILD LAW

Norwegian child law has experienced frequent legislative amendments in the last decade. An important goal of the latest legislative changes in 2016 and 2017 has been to ensure the rights of fathers with regard to paternity, parental responsibility, custody and access. Another purpose has been to safeguard children's rights in areas where they look good on paper, but where reality tells a different story.

CONTESTATION OF PATERNITY

Paternity rules have been the subject of several amendments in the last decades, and new provisions allowing legal action on paternity were introduced in 2016.

The husband of the mother is automatically established as a child's father. If the mother is unmarried at the time of the child's birth, paternity is determined either by the father's declaration or by court judgment. Declaration by a father is only valid with the consent of the child's mother. In cases where the child does not have a legal father in accordance with these provisions, the authorities are responsible for establishing paternity. The authorities may require that the mother, the child and the man or men who may be the father of the child shall provide suitable samples for DNA analysis.

Between 2005 and 2013, cohabiting fathers were allowed to register paternity without the consent of the child's mother.

Inheritance involves the vital interests of thousands of families, the interests of any spouse's creditor(s) and ensuring that property and assets are transferred securely. Unlike other jurisdictions where testaments are widely used, the Chinese are still reluctant to use wills or other testamentary dispositions to deal with property problems after one's death. Therefore, the intestate succession system continues to be an important way of dealing with inheritance disputes in many provinces in China. With the development of China's economy and the generally increasing wealth of its people, private enterprises, including self-employed households, have become an important force in economic development. The owners of these enterprises, that is, private entrepreneurs, tend to have even more wealth. They have more inheritable interests than others, and their heirs are more likely to fall into succession disputes. Civil law codification is currently underway in China. Therefore, we carried out a survey on the property ideas and inheritance habits of Chinese private entrepreneurs during the first two months of 2017. Owing to limited funds and the general Chinese tendency to avoid any discussion of property problems with strangers, we had to conduct this survey in a comparatively unusual way to discover entrepreneurs ‘attitudes. The responses came from students’ face-to-face interviews, which to some extent might influence the scientific validity of the survey. But they are indeed suggestive of what this special group of people with property might think. Owing to space limitations, we only present the data on the intestate inheritance system part of the questionnaire, analyse their responses on intestate inheritance and inheritance habits, summarising the characteristics of the respondents and analysing the main reasons given for their choices. From the analysis of this survey and studies of scholars ‘legislative proposals, we put forward suggestions on intestacy legislation for the Succession Part of the Civil Code based on Chinese individuals’ positions.

BASIC INFORMATION ABOUT THE RESPONDENTS

The survey was carried out by investigators from the Southwest University of Political Science and Law, China. During their winter holiday break in 2017, investigators visited entrepreneurs in their respective hometowns and recorded the questionnaires, eventually collecting 179 sets of responses from Sichuan, Chongqing, Hebei, Fujian, and other provinces and cities.

INTRODUCTION

A government bill has just been approved by the Portuguese Parliament which will introduce major amendments into the legal framework applicable to the guardianship of incompetent adults.

There are many reasons why this legal reform has become urgent, as will be explained in section 2 of this article. On the one hand, sociological and demographical phenomena have occurred in recent decades, as well as significant developments in medicine; on the other hand, some reasons arise from the legal standard of protection that ought to be awarded in accordance with the Portuguese constitutional framework and in compliance with the international commitments on the safeguarding of human rights, to which the Portuguese state is duty bound to comply.

The combination of those non-legal and legal factors led to the obsolescence of the legal framework currently applicable to incompetent adults. As will be described in section 3, the law on the books does not offer an appropriate response, nor does the law in action provide a suitable response to the problem of adults who require special protection, as they present a particular vulnerability that has to be properly addressed by the law.

The new provisions that are included in the recently approved new Law (Law 49/2018, dated 18 August 2018) involve a paradigm change regarding the legal approach to this problem. The paternalistic intervention based on the restriction or deprivation of legal capacity will be replaced by a more supportive intervention based on the promotion of autonomy and inspired by the principle of proportionality. In section 4, the new legal framework will be considered in order to highlight the main traits of the law that will come into force in this area in February 2019.

THE NEED FOR A REFORM OF THE LEGAL FRAMEWORK APPLICABLE TO INCOMPETENT ADULTS IN PORTUGAL

As the data on demographic trends shows, the ageing of populations is a phenomenon perceptible worldwide; not only is there a rise in the number of older persons, but their proportion amongst the overall population is also increasing. Portugal is no exception – the population aged 60 years or over represents 28 per cent of the overall Portuguese population.

INTRODUCTION

Since the 1980s, Canada has made various efforts to modernise and better address the serious problem of intimate partner violence. In 2018, the Federal Government introduced revisions to the Criminal Code, including amendments aimed at increasing the effectiveness of the criminal justice response to the problem. As well, provinces have created specialised courts to deal with intimate partner violence. These initiatives are promising. Unfortunately, a continuing problem is inconsistency in the quality of responses to intimate partner abuse across the country and within provinces.

Canada also has been challenged by the problem of high-conflict custody disputes. Ongoing serious conflict between parents compromises the best interests of the children and leads to disproportionately heavy use of the family justice system. Measures to address high-conflict cases have been identified, but their adoption across the country has been uneven.

INTIMATE PARTNER ABUSE

Intimate partner violence, including violence between those in a spousal, cohabitation or dating relationship, whether current or past, is a serious problem in Canada as elsewhere. In 2015, there were 92,000 victims of intimate partner violence, representing over one-quarter of all victims of police-reported violent crime. 80 per cent of these victims were women. Not all incidents of intimate partner violence are reported to the police and are therefore not captured in these statistics. However, virtually all homicides are identified by the police, and the homicide numbers show that women are at greater risk of being killed by an intimate partner. In 2015, the rate of intimate partner homicides of women was 4.5 per 1 million, and for men the rate was 0.9 victims per 1 million.

In an effort to reduce intimate partner violence and increase the effectiveness of the criminal justice response to the problem, the Federal Government introduced mandatory charging and ‘no drop’ prosecution policies in the early 1980s. The provinces subsequently adopted the same approach. The policies signalled that intimate partner violence was not to be regarded as a private matter but as a serious societal problem and a violation of the law. The policies were also intended to protect victims by placing the onus for laying charges on the police and Crown. The risk of recrimination against victims was reduced because the decision to lay charges and proceed was no longer theirs.

INTRODUCTION

This comparative review briefly presents the legal positions of the UN Convention on the Rights of the Child (CRC) and of the Swedish, Norwegian and American legal systems with respect to parental corporal punishment of children (CP), then outlines and compares the available remedies and enforcement in practice when incidents of CP occur in each of the three countries.

‘Corporal’ punishment, for the purposes of this chapter, x2019 a physical touching of a child for the purpose of correcting the child's behaviour. In the term ‘parental ‘we include biological and adoptive parents and step-parents, but exclude consideration of violence committed by other caregivers or guardians, also to limit the scope of discussion.

In the past century many legal regulators have moved from viewing ‘mild’ CP of children as a parental right or even duty to viewing it as a harmful and abusive practice. In a growing number of jurisdictions – including Sweden and Norway but not the United States – CP is now a crime.

With this comparison, we test our hypothesis that actual legal consequences for various types of parental behaviour that can be defined as CP do not differ as starkly as one might initially expect when one knows only that CP of children is criminally punishable in Sweden and in Norway but lawful in all 50 states of the United States. We find this true to an extent, yet also describe significant differences in state actions taken when CP occurs in Sweden and Norway compared to in the US, including compensatory damages paid to children and potential criminal conviction of offending parents or removal of the child from the home. These consequences correlate with a much higher rate of CP occurring in the US than in these two Scandinavian countries today. We conclude with brief comments on the implications of our findings.

LEGAL LIMITS ON PARENTAL DISCIPLINE

Because of the widespread international approval of the UN's CRC, we begin with its position on the proper legal regulation of parents ‘behaviour as they guide the upbringing of their children, specifically its position on disciplinary practices collectively known as CP, then summarise the three studied countries’ approaches to CP regulation.