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7719 results in Intersentia

Page 316 of 386

  • The First in Time Rule in Historical Context

  • Edited by Gruyaert Dorothy, Ramaekers Eveline, Rostill Luke
  • Book:
    Property Law Perspectives IV
    Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    05 January 2016, pp 41-54

  • Summary

    Introduction

    Creditors run the risk of not being repaid in full, especially in the event of insolvency of the debtor. Theoretically all creditors can recover their debt from the proceeds of liquidation. In legal systems based on Roman law, every creditor is satisfied in accordance with the principle of paritas creditorum (equality of creditors) on a pro rata-basis, which means that the proceeds will be divided in proportion to how much each is owed. In practice however, these creditors receive, on average, no payment at all.

    The above does not apply to secured creditors, who have taken proprietary security from debtors to support the repayment of loans or other obligations. Traditionally this can take the form of the fiduciary transfer of property (fiducia cum creditore), possessory security (pignus) or consensual security (hypotheca). In the event of the debtor's insolvency, secured creditors take priority over unsecured creditors.

    Contrary to fiducia and pignus, non-possessory security interests can be given over the same asset more than once. When this is the case and all secured creditors enforce their hypothec while the claims exceed the value of the charged property, it is relevant to determine the order of priority between those security interests. The basic principle of priority between security interests can be reduced to four words by Roman Emperor Caracalla: prior tempore, potioriure. This means that in the context of priority disputes the first in time to be created prevails.

    Owing to the Reception of Roman law, the first in time rule turns up explicitly in the civil code of several continental European countries. Commonly, the principle of priority is expressed in the context of security rights. The range of application is actually wider in most countries, because the first in time rule is usually mentioned as a characteristic of rights in rem in general. The fact is, a real right is attached to property itself and can be enforced against anyone who encroaches upon it. So when successive interests in an asset have arisen, the one to whom a security interest was granted first may enforce his right without hindrance from any subsequent secured creditor.

Property Law Perspectives IV
  • Volume 145
  • Edited by Gruyaert Dorothy, Ramaekers Eveline, Rostill Luke
  • Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    05 January 2016
  • Property Law Perspectives IV contains a selection of the papers presented at the fifth meeting of the Young Property Lawyers Forum (YPLF), which took place at Wadham College, Oxford, in 2014. The YPLF is an informal, international network of property law researchers, which is primarily aimed at junior scholars. The papers presented at the YPLF are representative of the rapid developments currently taking place in property law scholarship, particularly in connection with EU law, environmental law, and internet law. Property Law Perspectives IV shows that attention is still being paid to the roots of property law. The papers in this volume take us on legal and historical journeys, exploring basic principles and well-known concepts of property law, such as the prior tempore rule, expropriation, proprietary security, and the rules on acquisitive and extinctive prescription. The wide variety of topics and jurisdictions discussed make this book a fascinating read for anyone interested in property law.

  • Chapter 9 - The Guidelines

  • Edited by Miet Vanderhallen, Marc Van Oosterhout, Michele Panzavolta, Dorris de Vocht
  • Book:
    Interrogating Young Suspects II
    Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    04 January 2016, pp 385-406

  • Summary

    INTRODUCTION

    The present guidelines represent the result of the legal and empirical study conducted by the research group. The drafting of the guidelines is the step that complements the legal and empirical findings of the research. They move from the commonalities and take into account the differences highlighted in the legal study. Within this legal framework they build upon the empirical findings, to suggest improvements with regard to the present state of affairs in three respects: 1) in order to reduce gaps between the law in action and the legal principles affirmed in the law in books; 2) in order to counter the risk of bad or negligent practices; 3) in order to promote the good practices emerging from the empirical study.

    The guidelines take the well-being of the juvenile as their polar star, in accordance with the principles of all of the key supranational legal sources. Their aim is to contribute to shaping, defining and improving the well-being of juveniles who come into contact with juvenile punitive justice. They are drafted from a supranational perspective and are addressed to State authorities. Their purpose is to serve as an impulse for improving the protection and the wellbeing of juveniles during the interrogation of juvenile suspects.

    The guidelines have been discussed by the entire research team and represent a collective effort. Like in all collective efforts the guidelines do not represent the personal view of the single members, who at times have been forced to surrender to a majoritarian view.

    The guidelines are complemented by a brief explanation (in italics), in order to clarify the meaning of a rule (mostly in light of the legal and empirical study) or to highlight some of the problematic issues that have emerged during the discussion.

    The guidelines are divided into ten parts, whose headings are as follows:

    1. Definitions; 2. General Principles; 3. Right to information; 4. Assessment; 5. Legal assistance; 6. Appropriate adults and social services; 7. Conduct of interrogation; 8. Recording of interrogation; 9. Training; 10. Remedies and scope.

    THE GUIDELINES

    The treatment of young suspects shall comply with the following guidelines.

    DEFINITIONS

    A juvenile (or a child) is a young person below the age of 18 at the moment of first contact with the public (police or judicial) authorities. A young adult is a person between 18 and 25.

  • Chapter 4 - England and Wales: Empirical Findings

  • Edited by Miet Vanderhallen, Marc Van Oosterhout, Michele Panzavolta, Dorris de Vocht
  • Book:
    Interrogating Young Suspects II
    Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    04 January 2016, pp 127-182

  • Summary

    INTRODUCTION

    This chapter examines police practices and safeguards connected to the interrogation of juvenile suspects in England and Wales. Arising out of concerns over police pressure encouraging false confessions in interrogations in the 1970s, the Philips Commission was set up in order to examine the duties and powers of the police and the rights of suspects in respect of the investigation of criminal offences. The murder of Maxwell Confait, a 26-year old homosexual prostitute in 1972 became a cause célebre because of the way in which the police obtained false confessions from three young people. They were all subsequently convicted of serious offences but the convictions were later quashed by the Court of Appeal. Subsequently, the Police and Criminal Evidence Act 1984 (PACE) set out a legislative framework in order to protect suspects arrested and detained by the police, which includes a number of safeguards required during interrogations. These include the contemporaneous recording of all interrogations with suspects, the right to legal assistance during detention and interrogation, and the provision of an appropriate adult for juveniles and for vulnerable adults. Furthermore, section 76 of PACE requires that for confessions to be admissible in court, they must be voluntary and not the result of coercion and/ or oppression. From analysis of interrogations post-PACE, however, it was found that a manipulative form of interrogation had been replaced by a confrontational form in which the police would accuse suspects of having committed an offence at the start of the interrogation and ask for their response to such accusations. In response to this practice the new ‘PEACE’ model of interrogation, which arose out of a collaborative effort between the police and psychologists in England and Wales, was adopted by the police in the early 1990s.

    The assumption underlying the PEACE model is that a suspect who is relaxed, and with whom the interrogator has a rapport, is more likely to cooperate by responding to police questions. While the PEACE model was reported to have the desired effect on police interview styles in the 1990s, there has been very little research subsequently into police interrogations with juvenile suspects. The most recent study, conducted by Medford and others was based on interrogations undertaken in 1997. Subsequently in 2002 a performance target was introduced which required the police to increase the number of detections.

  • State Curriculum and Parents' Convictions under the European Convention on Human Rights

    • By Sanna Mustasaari, Doctoral candidate, Faculty of Law, University of Helsinki, Finland, Sanna Koulu, LL.D., Lecturer in Child and Family Law, University of Rovaniemi, Finland
  • Edited by Maarit Jänterä-Jareborg
  • Book:
    The Child's Interests in Conflict
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    04 January 2016, pp 55-72

  • Summary

    TRAVELLING WITH CHILDREN IN STRASBOURG

    Anyone who has travelled with children - or observed these journeys as a fellow passenger - is familiar with the challenges and frustration that travelling with children may involve. Parents do, nevertheless, take their children to places far from home, and most of the time they do so willingly, as experiences and memories springing from such trips enrich the lives of children and adults alike. Using this as metaphor, we wish to begin our contribution by noting that for a lawyer too, “travelling with children”, that is, going beyond national law with regard to children's legal rights, is both exhausting and rewarding. As the legal regulation concerning children is increasingly fragmented and internationalised, the applicable norms and principles are oft en found in transnational contexts, for instance in the case law of the European Court of Human Rights. While drawing interpretative guidelines from the case law of the Strasbourg Court may sometimes be challenging, there is no denying that the Court plays a crucial role in taking the rights of the children seriously and developing child-centred approaches to legal argumentation.

    In this chapter we will discuss one specific issue with regard to the Court's case law and the rights of the child, namely the possibility for the child to be exempted from certain lessons or school activities on grounds of freedom of religion. The issue can arise for example in conjunction with music lessons, dancing as a part of physical education, or sex education. While the content of the lessons for which exemption is sought can vary, the common feature is the conflict between state-mandated curricula and the convictions of the parents. The position of the child is less clear, and it is not clear how the best interests of the child could best be safeguarded in these cases.

    The European Convention on Human Rights, like many other human rights conventions, stresses the role of the parents in bringing up children. The case law of the Court, however, supports the importance of state curricula. We argue that whichever side is emphasised, that of the parents or that of general society, more attention should be paid to the concrete circumstances of the child and the family as well as to the probable consequences for the child of allowing or denying the exemption.

The Child's Interests in Conflict
  • The Intersections between Society, Family, Faith and Culture
  • Edited by Maarit Jänterä-Jareborg
  • Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    04 January 2016
  • The Child's Interests in Conflict addresses one of the most pressing issues of any multicultural society, namely the conflicting demands on children from minority groups or children born to parents of different cultural or religious backgrounds. What the family considers to be in the child's best interests and welfare in the studied situations is not shared by society at large. Each guided by faith, culture and tradition, society views the child to be exposed to a significant harm or risk of harm if certain traditions are followed, whereas in contrast the parents believe that their child is harmed or in harm's way if that tradition is not respected.Focusing primarily on Europe, the contributions in this book, written by internationally leading experts and with a interdisciplinary element, address situations of conflict regarding the child's upbringing and education in general, the shaping of the child's cultural or faith-based identity, underage marriages, circumcision of boys, the role of faith and culture in society's placements of children outside the care of their family, and the role of faith in cross-border child abduction and disputes over parental responsibilities. Attention is paid to the case law of the European Court of Human Rights and to less well-known national case law, as well as to recent national legislation, all of which show not only the complexity of the issues discussed but also the differing ways multicultural challenges are dealt with.The authors strive to answer, inter alia, how legal systems should navigate between the competing claims and conflicting interests without forgetting the main person to be protected, namely the child; and how the scope of tolerance, recognition and autonomy should be defined.

  • Chapter 8 - Integrated Analysis

  • Edited by Miet Vanderhallen, Marc Van Oosterhout, Michele Panzavolta, Dorris de Vocht
  • Book:
    Interrogating Young Suspects II
    Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    04 January 2016, pp 305-384

  • Summary

    INTRODUCTION

    The empirical study carried out in the five jurisdictions aimed to explore the nature of the interrogation of juveniles. Its goal was to examine to what extent the practice lives up to the existing legal frameworks, and, where possible, highlight good practices in the protection of the juvenile suspect during interrogation.

    Merging the national findings of the empirical studies was indeed a difficult endeavour, not only for methodological reasons. The national experiences proved to be significantly different from one another, as they are inevitably affected by the surrounding legal framework and culture of each system. Nonetheless it was possible to highlight some recurrent themes in all the countries. In this respect it is important to observe from the outset that there is at times significant convergence in the experiences and opinions of the same group of respondents participating in the focus group interviews. The common function performed by the interviewees (or, in the cases of juveniles, the common experience of coming into contact with the criminal justice system) gives rise to experiences that are sufficiently similar to be compared across countries. The present chapter is intended to offer a comparative transversal overview of these different experiences and, insofar as possible, to combine the national findings into an integrated perspective.

    The combined analysis also required that the empirical findings be tested against the underlying legal framework. The testing has been done according to a two-tier process: first, the relevant empirical findings have been measured against the national framework. Then, the transversal findings – which are presented in this chapter – have been evaluated in light of the differences/ commonalities between legal systems that had been highlighted during the legal study, presenting an integrated analysis in a legal thematic way. Inevitably, this chapter will summarise this process and only where relevant the empirical findings and the analysis will be discussed in light of the substantive legal findings.

    The chapter is structured as follows. First it looks in general at the treatment of juveniles (paragraph 8.2), then it deals with the findings concerning the way in which juveniles are informed of their rights (paragraph 8.3). Next it formulates some reflections on the difficulties concerning the (lack of) assessment of the juvenile's maturity, health and fitness to be interrogated (8.4). The following paragraph (8.5) looks into the topic of assistance, first by a lawyer then by an appropriate adult (hereafter: AA).

  • Chapter 6 - The Netherlands: Empirical Findings

  • Edited by Miet Vanderhallen, Marc Van Oosterhout, Michele Panzavolta, Dorris de Vocht
  • Book:
    Interrogating Young Suspects II
    Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    04 January 2016, pp 217-266

  • Summary

    INTRODUCTION

    In the Netherlands little is known about what happens when police interrogate juvenile suspects. Two recent studies have shed some light on the matter, where juvenile interrogations were included in a larger body of work. This study aims to fill at least part of this gap. In order to provide a picture of the current Dutch practice of interrogating juveniles, focus group interviews with lawyers, police officers and juveniles were conducted and recorded interrogations with young suspects were analysed.

    The focus groups with legal actors were balanced on various criteria in order to obtain a heterogeneous composition of respondents. The focus group with police officers represented a mixture of training backgrounds. The aim was to have a proper balance between male and female respondents but due to unforeseen cancellations four female and one male participants were present. These five participants came from three different regions, covering a large section of the Netherlands. The focus group with lawyers aimed at a balance on general selection criteria, but late cancellations resulted in a small group consisting of two male lawyers and one female lawyer. Although this was only a small group, their views varied widely. Nevertheless, caution is needed when interpreting the findings of such a small group. No focus group with appropriate adults (hereafter: AA) was organised since AAs as such find no basis in Dutch criminal procedural law.

    The focus group with juveniles was conducted at a youth detention centre. Four boys participated of whom one was still a juvenile (17 years old). The other participants were young adults who had been interrogated when they were juveniles. All participants were convicted for an offence.

    The sample of recorded interrogations was based on the general selection criteria. In total 12 recorded interrogations were analysed, of which eight were video-recorded and four were audio-recorded. With regard to 11 of these interrogations, the written record was analysed as well. The interrogations concerned juveniles between 11 and 17 years old of which most juveniles were male (eight). Half of the juveniles were invited to attend the interrogation and the other half were brought to the police station after arrest.

  • The Body as Identity Marker. Circumcision of Boys Caught between Contrasting Views on the Best Interests of the Child

  • Edited by Maarit Jänterä-Jareborg
  • Book:
    The Child's Interests in Conflict
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    04 January 2016, pp 125-162

  • Summary

    INTRODUCTION

    A TOPIC THAT DIVIDES OPINIONS AND COMMUNITIES

    The subject of this contribution is a limited one, but one that is closely linked to very topical issues, as I will seek to demonstrate. It must however be placed in the wider context of contemporary plural societies, where debates on what are considered fundamental values and the way in which respect for those values may be ensured are increasingly frequent giving rise to disputes between individuals and/or communities that are oft en extremely difficult to resolve. These debates revolve around the question of how to accommodate diversity in a way that is compatible with democracy and the protection of fundamental rights and liberties for all. There is no shortage of illustrations ranging from inheritance rights that are discriminatory toward certain relatives, especially women, through marriage practices stemming from patriarchal values, to restrictive dress codes, to mention but a few.

    In Europe in particular, the tensions that accompany these debates are oft en the direct or indirect consequence of the presence of recently established communities within a country, i.e. migrant communities, although they are not exclusively the result of such cross-border movements. Secularisation, as well as the individualisation of lifestyles in contemporary society, likewise give rise to new tensions between values that are perceived or experienced as clashing. One need think only of recent debates in France about the legalisation of gay marriage and in Italy about the display of the crucifix in state schools. Each of these cases has in its own way revealed a profound division within public opinion as regards rights that are deemed essential to the smooth functioning of a democratic society, while having nothing to do with the arrival of new communities. In France, it was the right to choose one's partner and the protection of privacy that were at issue, and in Italy, the right of parents to claim for their children the protection of the freedom not to believe.

  • Circumcision of Young Boys: A Conflict between Parental and Child Rights. The Swedish Experience from a Medical Point of View

    • By Staffan Janson, Senior Professor of Public Health at Karlstad University
  • Edited by Maarit Jänterä-Jareborg
  • Book:
    The Child's Interests in Conflict
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    04 January 2016, pp 111-124

  • Summary

    INTRODUCTION

    Male circumcision is practiced all over the world by approximately a billion Muslims, three hundred million Christians, at least sixteen million Jews and an indeterminate number of animists and atheists. It involves, all in all, about 30% of the world's male population. Circumcision is performed for three main reasons.

  • (a) Circumcision is regarded to be an important cultural tradition and initiation rite. The background is undetermined, but may have to do with hygiene or sexual reasons.

  • (b) Religious reasons, prescribed in Judaism and Islam are decisive. References are made mainly to the old testimony in the Bible. Male circumcision is, nevertheless, an older practice, even if its origins are obscure.

  • (c) Circumcision is a non-religious, routine operation. This is the case mainly in the United States of America, where it has been widely practiced since about 1870, initially to prevent a number of alleged diseases such as epilepsy, enuresis, impotence and a variety of psychiatric diseases. It was also meant to prevent masturbation, which at the time was thought to give rise to a number of severe diseases. These circumcisions are usually done while the mother is still at the maternity ward. In 2010 about 60% of all infant boys in the US were circumcised at a total cost of 800 million dollars per year.

    • Male circumcision of small boys, unable to personally consent to the operation, has been debated for several hundred years. The principal debate has been about the parents’ rights to decide about the intervention, contra the young boys’ right to bodily integrity. Over the last two decades, probably due to the immigration of hundreds of thousands of Muslims to the Scandinavian (Nordic) countries, oft en as refugees, this topic has gained renewed interest in Sweden and the other Nordic states.

    The current discussion, in the Nordic countries, is mainly centred on four topics:

  • (a) medical reasons in favour or against circumcision, including risks of side effects;

  • (b) parental rights versus children's rights and the importance of informed consent;

  • (c) respect for children's bodily integrity and autonomy;

  • (d) cultural and religious aspects.

  • The Child in the Intersections between Society, Family, Faith and Culture

    • By Maarit Jänterä-Jareborg, Professor of Private International Law and International Civil Procedure, Faculty of Law, Uppsala University
  • Edited by Maarit Jänterä-Jareborg
  • Book:
    The Child's Interests in Conflict
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    04 January 2016, pp 1-30

  • Summary

    INTRODUCTION

    The various contributions in this book address situations of conflict between society and the child's family regarding what lies in the child's best interests. In these cases, from society's point of view, the child is exposed to a significant harm or risk of harm. Society's actions are based on state law. According to the parents’ understanding, on the contrary, the child is harmed or risks being harmed if the parents’ outlook on the issue is not respected, be it the manner in which the child is to be brought up, the shaping of the child's cultural or religious identity, the child's education, underage marriage, or circumcision of a boy child. The parents’ outlook is oft en based on a cultural or faith-based understanding of the issue, indicating that a normative system other than state law is relevant. In some cases, and in particular in cross-cultural marriages, only one of the parents has this frame of reference. The focus of the contributions is, consequently, on children with links to different cultures and faiths, in a European and particularly a Nordic (Scandinavian) context. The problems identified are, nevertheless, in no way unique to Europe and are addressed in a manner which can be expected to be of interest even outside this geographic context.

    A core issue is how the legal system should respond to the increasing and no longer negligible normative diversity in society, in situations where majority values concerning children's welfare differ from minority values, and where the family's claim to decisional autonomy collides with state law. Cultural encounters take place today as never before, and the individuals concerned seek justice from a broader normative perspective than before. Expressed in more trendy language, the challenge is how the legal system should “navigate” between the competing claims and conflicting interests, having regard to the fact that the threatened values have gradually developed in society, alongside increased welfare and increased emphasis on the rights of women and children.

  • Preface

    • By Maarit Jänterä-Jareborg, Professor of Private International Law and International Civil Procedure, Faculty of Law, Uppsala University
  • Edited by Maarit Jänterä-Jareborg
  • Book:
    The Child's Interests in Conflict
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    04 January 2016, pp v-vi

  • Summary

    This collection consists of nine contributions on situations where the interests of society, family, faith and culture concerning the child's welfare are in conflict. The focus is thus on one of the burning issues of any pluralistic, multicultural society encountering a diversity of norms, whether legal, cultural or faith-based. The English summary of the Swedish Law Commission's report Strengthened Protection against Forced Marriages and Child Marriages, which formed the basis of Sweden's 2014 law reform in the field, is included in order to demonstrate societal responses to encountered problems.

    My thanks go to all the speakers, chairpersons, and participants at the “Families, Faith and Functions, The Child in the Intersections between Family, Society, Faith and Culture” symposium, held at Uppsala University in May 2013 on the occasion of the fifth anniversary of the university's multidisciplinary research programme “The Impact of Religion: Challenges for Society, Law and Democracy”. One of the most vital themes of this research programme, funded as a Linnaeus Centre of Excellence (2008–2018) by the Swedish Research Council, is “Family and Society”. I wish to thank, in particular, my dear colleague and co-convener of the symposium Professor Anna Singer, as well as the Wenner-Gren Foundation and FORTE Research Council. Thanks are due also to Karolina Markgren LLM who assisted me with the drafting of the index and the final editing of this volume. All the presentations have been updated and rewritten for the purpose of this publication.

Interrogating Young Suspects II
  • Procedural Safeguards from an Empirical Perspective
  • Edited by Miet Vanderhallen, Marc Van Oosterhout, Michele Panzavolta, Dorris de Vocht
  • Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    04 January 2016
  • This book is the second of two volumes published in the context of the research project 'Protecting Young Suspects in Interrogations'. This EU-funded research project sprung from the observation that knowledge of the existing level of procedural protection offered to juvenile suspects during interrogation is limited. The research project aimed to fill at least part of this gap by shedding more light on the existing procedural rights for juveniles during interrogations in five EU Member States with different systems of juvenile justice (Belgium, England and Wales, Italy, Poland and the Netherlands). In doing so, it intended to identify legal and empirical patterns to improve the effective protection of the juvenile suspect. The project has been a joint effort of Maastricht University, Warwick University, Antwerp University, Jagiellonian University and Macerata University in cooperation with Defence for Children and PLOT Limburg. The results of the first part of the project - a legal and comparative study into existing legal procedural safeguards for juvenile suspects during interrogation in the five selected Member States - have been published in a separate volume (M. Panzavolta, D. de Vocht, M. van Oosterhout and M. Vanderhallen, Interrogating Young Suspects: Procedural Safeguards from a Legal Perspective, Cambridge: Intersentia 2015). This second volume reflects the results of the second and third part of the research project. First, it contains the results of the empirical research conducted in the five Member States consisting of focus group interviews and observations of recorded interrogations. The empirical findings of each Member State are discussed in separate chapters to provide an in-depth account of perceptions and practices in the context of each jurisdiction. Second, the country reports are followed by an integrated analysis resulting from the merging of the legal and empirical findings offering a comparative overview and combining the national findings into an integrated perspective. Finally, the book contains a set of guidelines - a framework of minimum rules - developed on the basis of the research project's findings. The guidelines and their additional explanatory remarks include recommendations for good practices and are intended to serve as an inspiration for promoting good practice in the context of juvenile suspect interrogations throughout the EU. The book is intended for practitioners, academics, researchers and policy-makers working in the area of juvenile justice and interrogation.

  • Care Placements of Children Outside their Parental Home - Concerns of Culture

    • By Sanne Hofman, Legal Advisor in Child Rights, Save the Children, Norway, Kirsten Sandberg, Professor of Law, Department of Public and International Law, University of Oslo, Norway
  • Edited by Maarit Jänterä-Jareborg
  • Book:
    The Child's Interests in Conflict
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    04 January 2016, pp 73-84

  • Summary

    INTRODUCTION

    As part of a larger project, entitled “From formal rights to real rights” at the Institute of Women's Law at the Faculty of Law, University of Oslo, the subproject “Cultural considerations – in the best interests of the child?” analysed Norwegian decisions on taking minority children into care. The research question was how the “cultural background of the child” had been used as an argument in such decisions.

    More specifically, the questions were, first, in what ways the cultural background of the child had been used in the assessment of the basic requirements for taking a child into care, and second, how it had been taken into account in the best interests determination which has to be undertaken once the requirements are considered to be fulfilled. The third issue that emerged from looking into the cases was the consideration of culture in deciding where the child should be placed, that is, in what kind of a foster home.

    In this chapter, a “minority child” is understood as a child with an ethnicity and cultural background other than Norwegian, and who may have a different language and/or religion (that is, not belonging to Norway's majority church, the Church of Norway). The term “cultural background” is used as the short form of “ethnic, religious, cultural and linguistic background”, as in Article 20(3) of the Convention on the Rights of the Child.

    Taking as a starting point the legal rules and their interpretation through the use of authoritative legal sources, not least by the Supreme Court of Norway, the project examined decisions from the county boards and the courts of first and second instance to see how the law was applied in practice. The county board is the competent body to decide that a child is to be taken into public care, whether or not with the consent of the parents or the child. It is an administrative body; however, it resembles a court in its independence and procedural safeguards to the extent that it is considered as a “court”, e.g. under the European Convention of Human Rights. Its decisions may be brought before the court of first instance, the County Court, whose decisions may in turn be appealed to the Court of Appeal.

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