1. INTRODUCTION: ON INSPIRING AND WISE RESEARCHERS

John Eekelaar is a much-admired researcher who has inspired many other researchers. One of them is me, Wendy Schrama. I first came in contact with his work 25 years ago, when I was writing my PhD. This opened new ideas, and showed me that boundaries are there to be crossed. I would love to be a big thinker, like John, who can bring together knowledge, data and expertise to reflect critically on overarching policy aims. With his very broad expertise, he contributes to reflection on, and the reduction of, current pressing problems in society. I still am very much inspired by his work. During the last two decades, Dutch legal research on family law and family policy has made more use of sociolegal data, and there is a clear trend towards interdisciplinary research on family law and policy issues; but, as this contribution will show, there is still much work to be carried out. It is not only John’s work which stimulates others to cross boundaries, but he is, on top of this, a very kind and amiable man, which makes him all the more loveable.

Love is also what this contribution is about: the role love has, and should have, in family law, departing from the aims of family law. This is a topic John Eekelaar has written about extensively. We will start with a short investigation of what have been identified in Anglo-American and Dutch literature as the aims of family law, and more specifically, law dealing with intimate relationships (hereafter ‘relationship law’). What do we want from relationship law? This is necessary for the next step: an attempt to test whether current Dutch law serves these aims. We will limit this chapter to marriage, registered partnership and de facto unions. The same exercise could, and should, be done for informal religious marriages.

Dutch family law is regularly faced with religious marriages. As pointed out by John Eekelaar, the law confronts power structures created by the cultural or religious norms of minority groups, and this ‘raises one of the most difficult issues for modern societies: Can concurrent, possibly conflicting, systems operate alongside each other?’.

INTRODUCTION

The focus on the child's right to participate in the legal domain is relatively recent in Dutch family law. Even so, the actual right for children aged 12 years and over to be heard by a court was first introduced in 1982 in the Dutch Civil Code. The aim was to improve the legal protection of minors. In 1990 the right of children to informally approach a family court was added to the package of children's right to participate; it is not a right to initiate proceedings, but an informal access to court (see section 2.2). Participation rights are therefore not new, but the focus has shifted, partially as a result of the growing importance of children's rights in general. In legal proceedings related to divorce and separation, children now have the right to be informed and to give their opinion about the parenting plans of their parents. In the last decade there has been a tendency to better implement the child's right to participate in legal proceedings. This has led to policy improvements for the judiciary and to further use and professionalisation of guardians ad litem, who can be appointed to represent and support children in family law proceedings when there is a conflict of interests between parent(s) and child.

In 2018 the Dutch population of 17 million inhabitants consisted of 3.4 million children aged 0–18 years. Of particular interest for children's participation rights are divorce and separation proceedings (see below). In 2018, 93,500 children were born to married parents, and 55,800 to unmarried parents. It is not exactly known how many of these unmarried parents cohabit. Each year, a substantial number of children face their parents ‘ divorce or separation. The most recent data indicate that, in 2016, 50,000 couples with minor children split up. Of these, 27,000 were married couples with children and another 23,000 of these parents were informal cohabitants. In total, these separations involved 86,000 minor children.

In this chapter, Dutch statutory provisions and current policy relevant to child participation in family law proceedings are discussed. The various modes of child participation in family law proceedings are also explained, with a focus on legal practice. Furthermore, relevant research is presented and consideration is given to how the Dutch system of child participation could be improved.

INTRODUCTION

This Handbook has provided insights into how children participate in national family law proceedings nowadays and how this relates to relevant developments regarding children's right to participate from the human rights and social science perspectives. Thus, it endeavours to contribute to the growing body of research and literature in the field of children's rights, particularly the child's right to be heard, through both legal and psychological lenses. Bringing together the findings of this Handbook in a concluding chapter has been quite a challenge, since it contains so much information on many relevant dimensions: human rights law, national family law in 17 jurisdictions, private international law and social science research. Collating the various chapters has, however, enabled us to identify several key issues and themes, which we combine with our more general reflections.

To start with a few obvious conclusions: a clear one, as pointed out by many, if not all, of the contributors to this Handbook, is that decisions in family law proceedings can have a substantial impact on children's present and future lives and, for that reason, opportunities for children to participate in these proceedings are essential. Hearing the child's views can significantly improve the quality of the decisions made, as well as assist with the child's adjustment to his/her post-separation living and contact arrangements. A trend is also evident in national jurisdictions, private international law and human rights to pay more attention, and attach greater weight, to child participation to ensure that children have a real say in matters that affect them. A third general conclusion is that the rights of children in this domain are often diffuse and the result of processes developed over time, which has led to fragmentation. Even though this Handbook demonstrates clear developments favouring child participation in family law proceedings, much work remains to be done. We therefore identify a roadmap for future work in this field.

HUMAN RIGHTS

Clearly, human rights have had a major impact on the law, with six international instruments containing participation rights for children: the UN Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child, the European Convention on Human Rights, the European Convention on the Exercise of Children's Rights (1996), the Council of Europe's Guidelines on Child-friendly Justice (2010) and the Guidelines on Children in Contact with the Justice System of the International Association of Youth and Family Judges and Magistrates.

INTRODUCTION

Children's participation is now widely accepted as an important aspect of contemporary family law decision-making processes. Research findings emphasising children's desire for opportunities to be heard in legal proceedings affecting them, with appropriate weight to be attached to their views, coupled with children's Article 12 rights in the United Nations Convention on the Rights of the Child (UNCRC) 1989, have prompted many jurisdictions to enact, or strengthen, statutory provisions and to implement mechanisms to enable children to express their views in the family justice system. These laws and mechanisms vary significantly across the world and so this International Handbook aims to bring together the diverse range of approaches and practices in the field to identify their similarities and differences. The Handbook also highlights current trends and will help to point the way forward globally.

The idea for such a Handbook grew out of a collaboration between the four co-editors when we met in London in March 2017, and then in Leiden in October 2017, and agreed to develop an international project based on our shared research interest in child participation in family law contexts. Two of us are based in common law jurisdictions (New Zealand, England and Wales), while the other two are from a civil law jurisdiction (The Netherlands). We recognised the exciting opportunity offered by combining our common law and civil law expertise, and by inviting contributions from leading child and family law researchers in our respective networks, to produce a book that would provide a state-of-the-art update on child participation internationally. This seemed especially important given that so many jurisdictions, having embraced child participation, currently grapple with how best to implement this within their dispute resolution processes. The Handbook enables the modes of child participation in these national contexts to be considered within the growing body of research on children's right to be heard in family law proceedings from legal and social science perspectives and from theoretical and international perspectives.

Child and family law proceedings span both private law and public law issues. This International Handbook focuses on private law disputes when separated parents are seeking to resolve their children's future care arrangements (variously called residence, custody, contact, access, etc.).

SETTING THE SCENE

Demographic developments and trends in Western society have resulted in a radical change in terms of how people shape their personal lives. In recent history, there has been no period in which there have been as many singleperson households as there are now. According to data from Eurostat, these households accounted for almost one-third of the private households in the 28 Member-States of the EU in 2016. Marriage rates generally declined, while at the same time divorce rates increased. Further, informal couple relationships have gained popularity among EU inhabitants. In particular, the proportion of children born outside marriage has increased over the years. The EU average centres around 40%, but there are various patterns for individual countries. In Denmark, Estonia, France, Iceland, the Netherlands, Norway, Portugal, Slovenia and Sweden, around or over 50% of children are born outside of marriage, with particularly high rates in Iceland (70%). In Greece, by contrast, less than 10% of children are born outside marriage The total fertility rate in Europe dropped from 2.7 children in 1950 to 1.6 live births per woman in 2017. Even though many of these changes have been observed across Europe, there nevertheless remain considerable differences between individual countries.

These figures are the result of complex interactions of societal, economic and technological developments influencing how society operates and how people make decisions on lifestyles, relationships and parenthood. These changes challenge the law, especially since the law has historically been focused on marriage, leaving little room for new ways of arranging family life.

This chapter examines the way in which the law reacts to these trends across the different European countries and what this might imply for future legal developments. Currently, there are numerous family law models organising the different types of relationships, ranging from models facilitating only marriage for opposite-sex couples to systems that accommodate almost all forms of couple relationships in domestic family law. This clearly has implications for couples in cross-border situations, which are the focus of attention in this chapter.

In this book, pressing questions regarding ageing societies in Europe will be explored from a historical, sociological and legal perspective. As a response to these questions, ‘elder law’ has developed over recent decades as a new field of law, in particular in common law countries such as the United States. In Europe such a development has not yet become clearly visible, but the challenges that ageing poses for the law as well as for other scientific disciplines are a topic of research in many universities and institutions. One could argue that researching ‘old age’ as a social risk requires a combination of expertise from different disciplines and from different fields of law.

Elder law is an area of law that is very broad in its scope and defined by the age of persons. In many areas of law, age is a legally relevant fact which attracts legal consequences. Age, in combination with improved medical options, boils down to questions which are not new as such, but the extent to which they are dealt with nowadays in science in general, and in the legal field in particular, is unprecedented in history. The large scale and impact of the societal and legal issues related to older age seemingly put our current welfare systems under strain. High costs are involved, not only because older persons do not (have to) earn a living and are financed by the state, but also because they are on average in need of more (expensive) care. Taken together with diminished public budgets and a retreat of the welfare state, problems might arise. On the other hand, from the perspective of older persons who might in the future suffer from several vulnerabilities related to older age, the question arises: what can the law do to promote their best interests and how do we, as a society, deal with vulnerabilities connected to an older age? These questions also imply an allocation of responsibilities between different actors: what is the role of the state, and what is the role of the family or the individual?