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Basson, Lindinette. "Perspectives on the best interests of the child : developments in the interpretation and application of the principle in the South African law relating to custody." Thesis, Stellenbosch : Stellenbosch University, 2004. http://hdl.handle.net/10019.1/18091.
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Thesis (LLM )-- Stellenbosch University, 2004.ENGLISH ABSTRACT: The Constitution of the Republic of South Africa entrenches the best interests of the child as being of paramount importance in all matters concerning the child. This commitment to the promotion of the welfare of children is not unique to modern South African law, but is an acknowledged principle of the common law and international child law as well. With such well-established recognition the question, which forms the primary focus of this study, arises whether the principle of the best interests of the child is workable and applicable in real life scenarios where the custody of a child has to be decided. The challenge to the application of the principle in this context is to reach a decision that will protect the parent-child relationship regardless of the marital breakdown. The question is whether the principle allows for and creates an honest awareness of and commitment to the welfare of children that influence decisions in this context or whether courts and decision-makers merely pay lip service to it in order to conceal the haphazard way in which custody is awarded. In order to determine the workability and applicability of the principle, it is necessary to know how the principle has evolved in the South African legal context. Through the examination and analysis of existing literature, international conventions, legislation and case law, a number of different perspectives on the developments in the interpretation and application of the principle are provided. These perspectives culminate in the useful and constructive insight and conclusion that the value of the concept is dependant upon the correct approach to the principle and its characteristics. The defining characteristic of the principle of the best interests of the child is its inherent vagueness and indeterminacy. Though this subjects the principle to serious criticism, this study supports the argument that indeterminacy is in fact essential. It ensures not only the flexibility of the concept, rendering it applicable to the time, cultural sphere and social context and unique circumstances of each case it is applied to, but a holistic approach to the child as individual and family as a unit as well. This holistic approach forms the foundation of the lists of criteria in McCall v McCall 1994 (3) SA 201 (C) and the Children's Bill, thereby establishing the workability and value of the principle for fair and just results in all decisions pertaining to the custody of children.
AFRIKAANSE OPSOMMING:Die Grondwet van die Republiek van Suid-Afrika verskans die beste belange van die kind as van deurslaggewende belang in elke aangeleentheid rakende die kind. Die verbintenis tot die bevordering van die belange van kinders is nie 'n verskynsel uniek aan die moderne Suid-Afrikaanse reg nie, maar is 'n erkende beginsel in beide die gemenereg en die internasionale kinderreg. Met hierdie wyd-verspreide en algemene erkenning ontstaan die vraag, wat dan ook die primêre fokus van hierdie studie vorm, of die beginsel van die beste belang van die kind werkbaar en toepaslik is in ware lewensdramas waar 'n beslissing oor die bewaring van 'n kind gemaak moet word. Die uitdaging vir die toepassing van die beginsels in hierdie konteks is om 'n besluit te neem wat die voortbestaan van die ouer-kindverhouding ten spyte van die verbrokkeling van die huwelik sal verseker. Die vraag is of die beginsel werklik 'n eerlike bewussyn van en verbintenis tot die welstand van kinders skep wat die besluitnemingsproses in hierdie konteks beïnvloed en lei en of howe en besluitnemers bloot die regte lippetaal gebruik om die lukrake manier waarop besluite geneem word te verbloem. Om die werkbaarheid en toepasbaarheid van die beginsel te bepaal is dit nodig om die proses van evolusie van die beginsel in die Suid-Afrikaanse reg onder oënskou te neem. Deur die ondersoek en analise van bestaande literatuur, internationale konvensies, wetgewing en hofuitsprake word 'n aantal perspektiewe op ontwikkelinge in die interpretasie en toepassing van die beginsel voorgelê. Hierdie perspektiewe lei tot die betekenisvolle en opbouende gevolgtrekking en insig dat die waarde van die konsep afhang van 'n korrekte benadering tot die beginsel en sy kenmerke. Die hoofkenmerk van die beste belange van die kind beginsel is die inherente vaagheid en ondefinieerbaarheid daarvan. Hoewel dit die beginsel aan ernstige kritiek onderwerp, ondersteun hierdie studie die argument dat die onbepaaldheid in der waarheid noodsaaklik is. Dit verseker nie alleen buigsaamhied, wat toepassing op alle tye in alle kulturele en sosiale omgewings en besondere omstandighede van 'n spesifieke geval moontlik maak nie, maar ook dat 'n holistiese benadering tot die kind as individue en die gesin as eenheid gevolg word. Hierdie holistiese benadering vorm die grondslag van die lyste van faktore in McCall v McCall 1994 (3) SA 201 (C) en die Wetsontwerp op Kinders 2003 waarmee die werkbaarheid en waarde van die beginsel vir billike en regverdige resultate in alle aangeleenthede rakende die bewaring van kinders verseker kan word.
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Fortune, Candice Lynn. "An overview of the foster care crisis in South Africa and its effect on the best interests of the child principle : a socio-economic perspective." Thesis, University of the Western Cape, 2016. http://hdl.handle.net/11394/5518.
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Abu, Zueiter Iman. "Family Reunification for Unaccompanied Refugee Minors, A Right or A Privilege? The Case of the United Kingdom." Thesis, Malmö universitet, Fakulteten för kultur och samhälle (KS), 2018. http://urn.kb.se/resolve?urn=urn:nbn:se:mau:diva-22614.
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Family reunification for unaccompanied refugee minors is one of the most debatable issues when it comes to deciding whether it should be viewed as a right or it can be justifiable for states to completely prevent it and rather provide it only as a privilege. The discussion in the legal sphere proved that the issue is still problematic in both international and European laws. In this thesis, I have analyzed this issue through assessing the three claims that were provided by the United Kingdom for its negative position on the case. Through the lens of the child’s best interests’ principle, the non-discrimination principle, and the global distributive justice theory, I argued for considering family reunification as a right rather than a privilege. Children should always be treated as children. It cannot be justifiable for states to completely prevent them from being reunited with their families for being refugees.
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Shariff, Salahudin Hidayat. "The application of the 'best interests of the child' principle as a criterion for fulfilling Malaysia's Convention on the Rights of the Child obligations : a comparative study between Malaysia's Child Act 2001 and the English Children's Act 1989 including the common law and Shari'ah law applications in the respective jurisdictions." Thesis, University of Kent, 2018. https://kar.kent.ac.uk/66815/.
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The Child Act 2001 (Act 611) was Malaysia's response to incorporate the principles of the Convention on the Rights of the Child (CRC) into Malaysian law. The CRC, like all international human rights instruments, is a rights based convention providing for child rights. This thesis is a study of whether the current standards on the best interests of the child principle is sufficiently applied in Malaysia in order to fulfil her obligations under the CRC. In order to answer this question, a deeper understanding of Malaysia's unique socio-legal complexities and background is needed so as to be able to analyse how far Malaysia has fulfilled her obligations. The research utilises a doctrinal and black-letter law approach since the data for analysis were documents and articles on the CRC, the Children Act 1989 and the Child Act 2001. The research methodology chosen is a comparative study England and Malaysia because of the strong historical and legal relationships. The research will use the literature available which is voluminous in England and try to understand the principle as applied in England. This thesis will compare the principle applied in England with that applied in Malaysia. This would include the English and Malaysian civil law (under the relevant Acts), the international law (CRC) and the Islamic Law (Shari`ah). The research will also analyse the principle as applied in England and how it compares to the CRC. This thesis will also show that the best interests of the child principle as envisioned under the CRC is closer to the Shari'ah approach and Malaysia should utilise it as a means to move forward and apply the best interests of the child principle as required under the CRC. Once the application has been done, Malaysia will be able to fulfil her obligations fully under the CRC.
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Mineikaitė, Aurelija. "Vaiko teisių apsauga Žmogaus teisių ir pagrindinių laisvių apsaugos konvencijos 8 straipsnio plotmėje." Master's thesis, Lithuanian Academic Libraries Network (LABT), 2013. http://vddb.laba.lt/obj/LT-eLABa-0001:E.02~2013~D_20130205_085829-57151.
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1950 m. Europos Tarybos Žmogaus teisių ir pagrindinių laisvių apsaugos konvencijoje įtvirtintas rinkinys teisių ir laisvių (teisė į gyvybę, kankinimų draudimas, teisė į teisingą teismą, teisė į privataus ir šeimos gyvenimo gerbimą ir kt.), taikomų kiekvienam, esančiam valstybės, ratifikavusios šią Konvenciją, jurisdikcijoje. Tačiau čia nėra išskiriamos vaikų, kaip specifinės socialinės grupės, reikalingos didesnės apsaugos, teisės. Visgi remiantis tuo, kad EŽTK įtvirtintos teisės taikomos „kiekvienam“, teigtina, kad jos taikomos ir vaikams.
Šiame darbe autorė siekia atskleisti, kokios teisės yra užtikrinamos vaikams EŽTK 8 straipsnio plotmėje, taip pat tam tikrus, iš šių teisių kylančius, probleminius aspektus. Siekiant šio tikslo, ypač didelis dėmesys skiriamas EŽTT jurisprudencijai, kadangi remiantis šio Teismo praktika ne tik nustatomas tam tikrų teisių turinys ir jo kaita, bet ir atskleidžiama vaiko teisių apsaugai aktuali problematika.
Pirmoje šio darbo dalyje bandoma apibrėžti, kas apskritai yra vaikystė, kodėl teisiškai svarbu nustatyti tiek aukštutinę, tiek žemutinę vaiko amžiaus ribas bei koks yra vaiko teisinis statusas. Nagrinėjama įvairi mokslinė literatūra bei įvairūs tarptautiniai ir nacionaliniai teisės aktai atskleidė, kad daugiausia problemų kyla nustatant žemutinę vaiko amžiaus ribą, kadangi šis klausimas tiesiogiai susijęs su abortų reguliavimu. Pagal kai kurių valstybių, tame tarpe ir Lietuvos, teisinį reguliavimą, matyti, kad neretai civilinėje teisėje... [toliau žr. visą tekstą]The 1950's Convention of European Council on Human Rights and Fundamental Freedoms establishes a set of rights and fundamental freedoms (the right to life, prohibition of torture, the right to a fair trial, the right to respect for private and family life etc.) applicable to everyone within the jurisdiction of the state that ratified the Convention. Children are a very specific social group, which needs greater protection. However their rights are not distinguished in the Convention. On the basis that the rights enshrined in the ECHR are applicable to „everyone“, it may be maintained that those rights can be applicable to children as well. The author of this work aims to reveal the rights that are guaranteed for children in the context of the article 8 of the ECHR. To this end, particular attention is paid to the jurisprudence of the ECtHR. According to the case law of this Court, it can not only be determined the contents and evolution of specific rights, but also relevant problematic issues for the protection of the rights of a child can be revealed. In the first part of this work the author attempts to define a childhood, to identify both the upper and lower limits of the child's age and the child's legal status. By examining different scientific literature and various international and national legislations it was revealed that most of the problems arise in determining the lower limit of the age of a child, since this issue is directly related to the regulation of... [to full text]
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Olsson, Annika, and Maria Sandberg. "Barns boende : socialsekreterares konstruktion av principen om barnets bästa i förhållande till materiell standard." Thesis, Stockholm University, Department of Social Work, 2006. http://urn.kb.se/resolve?urn=urn:nbn:se:su:diva-6699.
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The purpose of this study was to examine how a selection of social welfare officers based on the principle of the best interest of the child construct a minimum level of the material standard in a home. Another purpose was to examine whether different units with varying socioeconomic prerequisites in the municipality of Stockholm construct this level differently.
The method used in this study was Sociology of Law and two focus groups were used for the gathering of the data. A social constructive theory, a class perspective using concepts of Bourdieu and a perspective of law were used to analyse the material of data.
The results showed that the courses of action varied from enactment and the policies of the municipality of Stockholm, unspecified theories of the development of children, the conception of what is normal and what children needs, the context in which they work, the development of the society and what they estimate that children needs when attending school. The results also showed a difference between the two units concerning the minimum level of the material standard in a home
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Rogerson, Thomas Stephen, and thomas rogerson@deakin edu au. "Foucauldian analysis and the best interests of the child." Deakin University. School of Social Inquiry, 2001. http://tux.lib.deakin.edu.au./adt-VDU/public/adt-VDU20070330.135647.
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In this thesis I have developed a theoretical framework using Michel Foucaults metaphor of the panopticon and applied the resulting discursive methodology to prominent risk assessment texts in Tasmanian Government child protection services. From the analysis I have developed an innovation poststructural practice of discursive empathy for use in child protection social work.
Previous research has examined discourses such as madness, mothering, the family and masculinity using Foucaults ideas and argued that each is a performance of social government. However my interest is in the best interests of the child as governmentality; risk as the apparatus through which it is conducted and child abuse its social effect. In applying a discursive analysis, practices of risk assessment are therefore understood to actually produce intellectual and material conditions favourable to child abuse, rather than protect children from maltreatment.
The theoretical framework produces in this thesis incorporates three distinct components of Foucaults interpretive analytics of power: archaeology, genealogy and ethics. These components provide a structure for discourse analysis that is also a coherent methodical practice of Foucaults notion of parrhesia. The practice of parrhesia involves social workers recognised that social power is subjectively dispersed yet also hierarchical. Using this notion I have analysed the best interest of the child as a panopticon and argued that child abuse is a consequence.
This thesis therefore demonstrates how child protection social workers can expose the political purpose involved in the discourse the best interests of the child, and in doing so challenge the hostile intellectual and material conditions that exist for children in our community. In concluding, I identify how discursive empathy is a readily accessible skill that social workers can use to practice parrhesia in a creative way.
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Olars, Elin, and Natalie Claesson. ""DET ÄR VÄLDIGT TRÅKIGT NÄR EKONOMI AVGÖR FRÅGAN OM BARNETS BÄSTA" : Hur utredande socialsekreterare förstår och förhåller sig till principen om barnets bästa utifrån deras faktiska och upplevda handlingsutrymme." Thesis, Mälardalens högskola, Akademin för hälsa, vård och välfärd, 2021. http://urn.kb.se/resolve?urn=urn:nbn:se:mdh:diva-53397.
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Syftet med studien var att undersöka utredande socialsekreterares förståelse av och förhållningssätt till principen om barnets bästa. Tidigare forskning visar på att barnets bästa som begrepp är svårdefinierat, att hög arbetsbelastning och tidsbrist kan påverka bedömningar om barnets bästa och att tillit samt en förtroendefull relation mellan socialsekreteraren och barnet kan främja delaktigheten. Resultatet analyserades utifrån Bronfenbrenners utvecklingsekologiska teori och handlingsutrymme som teoretiskt begrepp. Studien har använt sig av en kvalitativ metod bestående av sex semistrukturerade intervjuer. Det empiriska materialet analyserades med hjälp av en tematisk analys för att finna teman. Socialsekreterarna upplever sig ha ett stort handlingsutrymme för att göra egna bedömningar om barnet bästa. Trots att resultatet visade att begreppet var svårt att definiera var socialsekreterarna relativt eniga om hur de förstår barnets bästa och vad de väger in i bedömningen. Resultatet visade även att socialsekreterarna för det mesta hinner träffa barnen vid endast ett tillfälle under utredningsprocessen på grund av hög arbetsbelastning och brist på tid. Verksamhetens ekonomiska förutsättningar visade sig även ha en inverkan på socialsekreterarnas handlingsutrymme när det gäller att bedöma barnets bästa.The aim of this study was to examine investigative social workers understanding of and approach to the principle of the best interests of the child. Previous research shows that it’s difficult to define the best interests of the child. Research also shows that a high workload and lack of time can affect assessments of the child’s best interests, and that a trusting relationship between the social worker and the child can promote participation. The theoretical background is based on Bronfenbrenner’s developmental ecology theory and room for maneuver as a theoretical concept. A qualitative method has been used and the empirical material was analyzed using a thematic analysis. Social workers feel that they have a large margin of maneuver to make assessments. Although the result showed that the concept was difficult to define, the social workers had a similar understanding on how they understood the concept and what they take in consideration in the assessment. However, the social workers have for the most part only time to meet the children at one point during the investigation process. Financial conditions also turned out to have an impact on their room for maneuver when it comes to assessing the child’s best interests.
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Venter, Marcia A. "Disputed parental relocation : determining the best interests of the child." Thesis, Stellenbosch : Stellenbosch University, 2003. http://hdl.handle.net/10019.1/53397.
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Thesis (MA)--University of Stellenbosch, 2003.ENGLISH ABSTRACT: In recent years the issue of relocation has been much discussed and litigated. The complexity of the issues inherent in relocation disputes and the relative lack of research in the area points to the need for a more comprehensive, coherent and empirically sound approach than exists at present. The major considerations involved in relocation disputes, using the best interests of the child standard as a reference point throughout, in terms of the available research and issues that require empirical attention, are presented. These include the relationship of the best interests of the child standard in considering the common motivations for relocation, significant psychological factors, cultural, gender and personal biases, the recent collaboration between the psychological and legal professions and the process of psychological assessment. A number of South African court decisions are reviewed to provide an overview of how the law tends to approach these issues. A number of important research areas are described and several factors are identified that is essential for the evaluator to consider when evaluating a relocation dispute.
AFRIKAANSE OPSOMMING: Oor die afgelope aantal jare het die kwessie van verhuising gereeld onder die soeklig gekom en is dit in howe oor en weer beredeneer. Die kompleksiteit van die kwessies inherent aan verhuisingdispute en die relatiewe gebrek aan navorsing oor die saak, vereis In meer omvattende, koherente en empiries verantwoordbare benadering as wat daar vandag bestaan. Belangrike oorwegings wat ter sake is in verhuisingskwessies en deur gebruik te maak van die beste belange van die kind standaard as In deurlopende verwysingspunt in terme van die beskikbare navorsing en kwessies wat empiriese ondersoek vereis, word bespreek. Dit sluit in die verhouding van die beste belange van die kind standaard in die oorweging van die algemene motiverings vir verhuising, betekenisvolle sielkundige faktore, kultuur, geslag en persoonlike vooroordele; die onlangse samewerking tussen die sielkunde en die reg, asook die proses van sielkundige assessering. In Aantal Suid-Afrikaanse hofuitsprake word bespreek om In oorsig te gee van hoe die reg geneig is om hierdie saak te benader. In Aantal belangrike navorsingsareas word beskryf en verskeie faktore word geïdentifiseer wat van wesenlike belang is om te oorweeg by die evaluering van In verhuisingsdispuut.
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Van, Zyl Lesbury. "Alternative dispute resolution in the best interests of the child." Thesis, Rhodes University, 1995. http://hdl.handle.net/10962/d1003212.
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The development of private divorce mediation appears to offer a friendly and informal alternative to the "hostile" adversarial divorce. A close analysis of its claims, however, shows them to be largely unproven. Urgent attention should therefore be given to the philosophical base of the movement. There is also a need for empirical research and for standardised training. Further unanswered questions relate to the part to be played by different professions, and to professional ethics. It is submitted that the appointment of Family Advocates is a step in the right direction but that the establishment of a full Family Court will best protect children's interests.
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Csortan, Orsolya-Zsuzsanna. "Surrogacy arrangements and the best interests of the child : European Perspective." Thesis, Umeå universitet, Juridiska institutionen, 2020. http://urn.kb.se/resolve?urn=urn:nbn:se:umu:diva-173939.
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Seshibe, Maropene Viniel. "The best interests of the child witness in disciplinary cases of educators." Thesis, Nelson Mandela Metropolitan University, 2014. http://hdl.handle.net/10948/d1021058.
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The South African Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child. This principle emanates from the United Nations Declaration on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC). Accordingly the State and its various departments have adopted and are enforcing legislation and policies in defence of the child’s best interest. The principle of the best interest of the child is seldom observed in most of our schools. Incidents of child abuse are on the increase, especially by educators. This unfortunate situation prevails against the backdrop of legislation which condemns these atrocities. Section 17 of the Employment of Educators Act1 provides that educators must be discharged if they are found guilty of, inter alia, sexual abuse, intimate relationship with a learner and assault with grievous bodily harm. These measures have been taken to combat the vicious cycle of child abuse in schools and to advance children’s-rights agenda and the universal principle of the child’s best interests. For the department to successfully prosecute educator cases against child abuse, the testimony of a child witness is crucial. However, it is shocking to discover that the interests of the child witness are not always served in these disciplinary hearings. Officials are prone to be biased towards their fellow professionals at the expense of the interest of the child witness. This situation normally arises probably as a result of a lack of professional capacity because most of these officials tasked with disciplining educators have a teaching, human-resource or legal qualification. Others may have been recruited from the ranks of the trade-union movement without any formal qualification. Secondly, they may be specialists in the field of labour law which is essentially concerned with the regulating the employer and employee relationship. Thirdly, the disciplinary code and procedures that are used during educator-disciplinary processes are premised on the principles and values of the Labour 1 Act 76 of 1998. Relations Act Code of Good Practice: Dismissal2 and Schedule 2 of the Employment of Educators Act3 which addresses the interest of the child witness to a very limited extend. Finally, the policies regulating workplace discipline are generally biased towards employee rights as espoused in the Labour Relations Act4 and CCMA guidelines on misconduct arbitrations. This study has identified a number of challenges confronting the child witness and also areas of capacity improvement on the side of officials officiating over the disciplinary cases of educators. These challenges form the basis for a comprehensive and consolidated list of aspects in which officials need to be trained to effectively promote and defend the interest of the child witness in a professional manner. The role of the departmental representative in becoming the champions of the democratic Constitution and the vanguard of the child’s best interest cannot be over-emphasised. The question of how best to serve the best interest of the child witness has been addressed. The child witness can be a credible witness provided officials win over his or her confidence to speak out against abuse. The 16 days of activism against women and children abuse has to resonate consciously with departmental officials.
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Sinclair, Thomas Michael. "In the best interests of whom? : child protection and systematically distorted communication." Monash University, School of Humanities, Communications and Social Sciences, 2005. http://arrow.monash.edu.au/hdl/1959.1/9681.
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Nordlund, Alexandra. "Deprivation of Liberty in Light of the Best Interests of the Child." Thesis, Örebro universitet, Institutionen för juridik, psykologi och socialt arbete, 2020. http://urn.kb.se/resolve?urn=urn:nbn:se:oru:diva-86525.
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Miller, Dena Jolie. "Individualism, Privacy, and Poverty in Determining the Best Interests of the Child." Oberlin College Honors Theses / OhioLINK, 2019. http://rave.ohiolink.edu/etdc/view?acc_num=oberlin1559310478706097.
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Abdelmalik, Marie. "Best interests of the child?, contemporary Canadian post-separation custody and access issues." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 1999. http://www.collectionscanada.ca/obj/s4/f2/dsk1/tape10/PQDD_0024/MQ51277.pdf.
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Mackay, Isabel. "Judges' ratings of the best interests of the child custody and access criteria." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 2001. http://www.collectionscanada.ca/obj/s4/f2/dsk3/ftp04/MQ57707.pdf.
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Diver, Alice. "Preventing origin-deprivation : blood-tied kinship and the best interests of the child." Thesis, University of Ulster, 2012. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.558786.
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The thesis asks whether the current legal and policy frameworks surrounding social kinship creation offer a useful means of preventing the harms of origin deprivation, identifies areas that might be in need of reform and evaluates a means by which such reforms might be achieved. It argues chiefly that origin deprivation may result in psycho-social harm: a wide range of research underpins this proposition by highlighting the harmful aspects and adverse consequences of being deemed genetically kinless. Under the 'clean-break' model of created kinship, triad children may also suffer discrimination at the level of domestic law and policies and via court proceedings on information release or kin contact. As 'veto victims' relinquished children may be permanently 'infantilized' by the hierarchy of rights that seem to exist within social kinship triads. Doctrinal analysis of the jurisprudence on genetic identity 'rights', from a variety of jurisdictions (closed and open-record, veto-bound and 'blood-tie as paramount' where social kinship bonds have been overturned) suggests judicial deference for family sanctity, which has blurred the definitions of child welfare paramountcy. Devices such as balancing exercises have frequently favoured parental interests such as privacy or new family autonomy. A revised statutory welfare checklist for decision-makers, aimed at focusing greater attention on the unique, lifelong vulnerabilities of relinquished or removed children. The aim of the checklist is to frame origin deprivation as an exceptional rather than normative event and thereby minimize the frequency with which it occurs.
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Mackay, Isabel (Isabel Marie) Carleton University Dissertation Psychology. "Judges' ratings of the best interests of the child custody and access criteria." Ottawa, 2001.
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Sargent, Sarah. "The best interests of the child in intercountry adoption : a constructivist and comparative account." Thesis, De Montfort University, 2009. http://hdl.handle.net/2086/3535.
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This thesis examines the motivations for states to become involved in intercountry adoption. This includes both states that send children in intercountry adoption and states that receive children. The thesis explores the dynamic cycle of events that lead states to intercountry adoption participation. It then explores the ramifications of those for the application and interpretation of the ‘best interests of the child’ standard. This thesis includes empirical work through data gathered by interviews and analysed by constructivist grounded theory methodology. It also includes a comparative analysis of seven different states involved in intercountry adoption. The comparative analysis is again undertaken with the use of constructivist grounded theory methodology. The thesis presents a theory that explains state motivation to engage in intercountry adoption and the effects that these have on the normative meaning that is given to the ‘best interests of the child’ legal standard when used in intercountry adoption. This thesis makes an original contribution of knowledge by examining the motivation of states to enter into intercountry adoption and providing a theory that traces the pathways of how states become involved. It makes further original contributions to knowledge by examining how these motivations impact the normative meaning given to the standard in domestic, international and transnational settings. Yet another original contribution to knowledge is in providing a theory and network map of the normative meanings that are ascribed to the standard in an intercountry adoption setting.
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Mitták, Tünde. "Unaccompanied Refugee Children in the European Union and “the Best Interests of the Child”." Thesis, Uppsala universitet, Teologiska institutionen, 2020. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-412149.
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Legal rules regarding unaccompanied refugee children in the European Union (EU) are closely related to the refugee crisis and the community’s asylum policy. This study aims to investigate how the best interests of the unaccompanied refugee child is being ensured under EU law. Dworkin’s theory and various methods are used to answer the research question. Firstly, the focus is, with the use of the chosen theoretical framework and international legal method, on the interpretation of the principle of “the best interests of the child”. Secondly, the thesis studies how this principle is reflected in the EU law in relation to unaccompanied refugee children, by applying EU legal method. This study shows, on the one hand, that there are a few anomalies in the EU legislation in the area of asylum that arise with regard to the best interests of the unaccompanied refugee child. It is argued that the European Union’s restrictive asylum legislation leads to conflicts between the international law and the EU law. On the other hand, the thesis demonstrates that the EU law has continuously improved, and the international child rights principle was adopted in it. It will be shown in this study that despite the common asylum policy and the community acquis, the EU Member States’ domestic law enables different assessments of the best interests of the unaccompanied child. The solution of normative conflicts is also in the hands of the EU countries, since the status determination of refugees and the assessment of the child’s best interests are carried out by the EU Member States. This will be confirmed by analysing the most important applicable EU laws, particularly the Proposal for a Regulation establishing a Union Resettlement Framework. The Proposal is chosen for discussion, because this is an essential part of the Common European Asylum System and is consistent with two packages of legislative proposals to reform it. The conclusion of this thesis is that the best interests principle is guaranteed in the EU law, but it is not guaranteed in the spirit of the Convention on the Rights of the Child, and further improvements are needed in the EU legal framework.
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Lanteigne, G. M. "The best interests of the child in relocation disputes : England and Wales, and Canada." Thesis, University College London (University of London), 2015. http://discovery.ucl.ac.uk/1473255/.
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This research project investigates issues arising with regard to ‘the best interests of the child’ in resolving family relocation disputes through courts or settlement in England and Wales, and in Canada. Social science and socio-legal findings, statutes, and leading cases which form the normative background to decisions in this field are reviewed. The main line of enquiry is through a qualitative and comparative study with lawyers and ADR practitioners working with disputing parents. Findings from lawyers’ interviews support findings in other studies: adversarial proceedings, although leading to a resolution are emotionally and financially demanding, and risk exacerbating conflicts with a possible knock-on effect on children. Although ADR such as mediation is presented as an option, litigation is almost inevitable due to parents’ polarised positions. ADR practitioners mention challenges with these disputes due to the distance between parents on the issue of relocation. A majority of mediators report taking a pro-active approach. ADR models incorporating such an approach are reviewed. A secondary line of inquiry is through a comparative case analysis of appellate decisions in the same jurisdictions. Broad-based and open-ended multifactorial court guidelines now operate in England and Wales while in Canada such an approach has been the norm for nearly 20 years. Analyses of provincial appellate cases in Canada reveal variation in approaches on some factors in the Supreme Court of Canada guidelines. This is in line with Canadian critiques which point to the lack of predictability in court decisions. A review of questions and presumptions as guidelines lists advantages of the latter within a statute such as currently exists in British Columbia. A relational approach to the best interests principle is also discussed. It is argued that to support the best interests of the child, both process and substantive law need to be considered in deciding relocation disputes.
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Fogarty, Kathryn Mary. "The best interests of the child : managing stake and constructing identity in the public inquiry into child custody /." Title page, table of contents and abstract only, 2004. http://web4.library.adelaide.edu.au/theses/09ARPS/09arpsf6551.pdf.
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Breen, Claire M. "The standard of the best interests of the child as a tradition of Western inconsistencies." Thesis, University of Nottingham, 1999. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.313202.
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Li, Lu. "FOR THE BEST INTERESTS OF ORPHANS: GENDER, RACE, AND RELIGION IN VIETNAMESE ADOPTION." OpenSIUC, 2019. https://opensiuc.lib.siu.edu/dissertations/1672.
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Situated within the historiography of transnational child adoption, this dissertation explores the history of transnational child adoption from Vietnam by Americans in the Vietnam War. This story of Vietnamese adoption begins with comparing and contrasting representations of American and Vietnamese parenthood during the War. While American servicemen and women were highly praised for their humanitarianism in Vietnam and portrayed as good mothers and fathers to Vietnamese children, Vietnamese women were depicted as prostitutes, bar girls, and potential enemies in American public memory. This dissertation argues that the sexualized representation of Vietnamese women and the focus on American humanitarianism provided justifications for the transnational adoption of Vietnamese children but concealed the violence of the War that led to the displacement of Vietnamese children in the very beginning. It also shows how racial and religious relations in the U.S. complicated the picture of Vietnamese adoption. African American civil rights movement at home motivated black social workers to fight for the rights of black families to adopt black children domestically and transnationally. Meanwhile, American adoptive parents were subject to the scrutiny of Catholic orphanage directors in Vietnam and American social workers who tried to uphold religious matching in adoption. Finally, this dissertation ends with exploring controversies around Operation Babylift, a US government-sponsored evacuation of Vietnamese “orphans” to the US. Labeled as a humanitarian operation, the Babylift invoked criticism over its morality as more than 130 children were killed by an airplane crash and hundreds of children ended up being illegally brought to the US for adoption.
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Kotka, Louise. "Assisterad befruktning för ensamstående kvinnor - Barnets bästa eller en vuxens intresse att bli förälder?" Thesis, Umeå universitet, Juridiska institutionen, 2017. http://urn.kb.se/resolve?urn=urn:nbn:se:umu:diva-131623.
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Iozzo, Alessandra. "In the best interests of the child?, the industrial school system in late nineteenth and early twentieth century Ontario." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 2000. http://www.collectionscanada.ca/obj/s4/f2/dsk2/ftp03/MQ57663.pdf.
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Iozzo, Alessandra (Alessandra Maria) Carleton University Dissertation Law. "In the 'best interests of the child?': the industrial school system in late nineteenth and early twentieth century Ontario." Ottawa, 2000.
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Ibrahim, Kamal Dokurugu. "Exploring the cultural conceptualisations and understandings of child fostering and the concept of the child's best interests among the Dagomba of northern Ghana." Thesis, University of Edinburgh, 2015. http://hdl.handle.net/1842/33296.
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Anthropological and demographic studies show that in sub-Sahara Africa a large proportion of non-orphaned children (up to 1/3 in many communities) live with neither parent but often with relatives for a significant part of their childhood. This practice is referred to as child fostering or fosterage. Child fostering is therefore understood in the literature as the transfer, and/or sharing, of parental responsibility of children and young people or simply the movement of children and young people between and within families. The practice is both an age-old and a modern phenomenon which has implications in the daily and future lives of those children involved including their nutrition, health, education, migration and ultimately their best interests. Depending on the context, culture, rationale and families involved in the fostering of a particular child the practice is carried out differently across geographies and sometimes within geographies as a result of which it deserves academic attention. The overarching aim of this study is therefore to explore the cultural conceptualisations and understandings of child fostering and the concept of the child's best interests among the Dagomba of northern Ghana. The study also examines the challenges of existing legislation and policies in Ghana regarding the practice. The study employed a qualitative research approach and involved children and young people, birth and foster parents and professionals who influence policies about children and young people in Ghana. In total, 42 respondents participated in individual interviews. I also used 'spider diagrams' as a supplementary research instrument for children and young people because I considered these child-friendly, fun and culturally appropriate for their ages (See Appendix IX). The emergent themes are explored and discussed in four findings chapters under part four of the thesis. The majority of respondents demonstrated extensive knowledge about child fostering and the concept of the child's best interests. Respondents' critical views and their recommendations for legislation and policy in Ghana are reflected on in the penultimate chapter. Finally, recommendations are made by way of contribution to theory, policy and practice. The research also suggests areas for future research by way of a reflection.
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Ihua-Maduenyi, Fortune Amezhinim. "Considering the rights and best interests of a child in a multi-cultural civil society with special reference to Nigeria." Thesis, University of Leicester, 2011. http://hdl.handle.net/2381/9632.
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The emergence of the United Nations Convention on the Rights of the Child (UNCRC) 1989 is a welcome development in the international community. However, there is difficulty in understanding the extent to which some of the principles contained therein are manifested, especially where questions as to the universal application of these principles arise. One of such principles is the best interests of the child (BIC). This thesis argues that the way this principle is interpreted and applied by various states will to a large extent, be influenced by pluralistic cultural conditions of those states despite the view that in interpreting the UNCRC consideration should be given to cultural relativism. The thesis shows how cultural, religious, economic and social factors affect the implementation of the BIC principle. It focuses on some factors which influence the definitional process and application of this major concept in the UNCRC with a view to establishing that there is no single meaning for the term ‘best interests’. In the light of the foregoing, the thesis seeks to establish that the standard varies from societies thereby resulting in difficulties in ascertaining the universal definition of the BIC. By way of analysis, the thesis draws examples from other jurisdictions with particular emphasis on Nigeria and demonstrates that the country’s diverse ethnic, cultural and religious inclinations which conflict with the legislative provisions constitute impediments in effectively implementing children‟s rights. One of the problems is the domestication of international treaties into national law. The thesis concludes that there is need to strike a balance to ensure that the BIC is protected globally irrespective of the factors affecting its proper implementation across jurisdictions. This research is intended to provide the necessary insights that would assist policy makers to build children’s best interests into national priorities and policies bearing in mind multi-culturalism.
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Pretorius, Stefan. "Inter-country adoptions and the best interest of the child / by Stefan Pretorius." Thesis, North-West University, 2012. http://hdl.handle.net/10394/9823.
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The concept of inter-country adoptions was reintroduced into the South African legal sphere in The Minister of Social Welfare and Population Development v Fitzpatrick 2000 3 SA 422 (CC), where the constitutionality of section 18(4)(f) of the Child Care Act 74 of 1983, which prohibited inter-country adoptions, was successfully challenged. The decision evoked criticism from all around the world, some in favour of inter-country adoptions and others not.
In considering this decision, one also has to keep in mind section 28(1)(b) of the Constitution of the Republic of South Africa, 1996 which affords every child the right to family care or parental care, or to appropriate alternative care when removed from the family environment.
The aim of this paper is to investigate the inner workings of inter-country adoptions, which are regulated by the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption of 1993 and, nationally, the Children’s Act 38 of 2005. These findings will then be relayed back to the ‘best interests of the child’ principle to determine whether inter-country adoption is in the best interests of the child, or not.Thesis (LLM (Comparative Child Law))--North-West University, Potchefstroom Campus, 2013.
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Grabow, Gisela Bettina Annett. "EU advancement to the detriment of the 'best interests' of the child? : the rules on jurisdiction, recognition and enforcement in Brussels II bis and in two Hague Conventions." Thesis, University of Exeter, 2016. http://hdl.handle.net/10871/27938.
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‘(…) to ensure equality for all children, this Regulation covers all decisions on parental responsibility, including measures for the protection of the child, independently of any link with matrimonial proceedings.' [Recital 5 of Brussels II bis] Brussels II bis (Council Regulation 2201/2003) complements the Hague Convention on Child Abduction, with its well-established set of international rules and the related definitions based on a considerable body of case law. The interrelation has given rise to difficulties of application and issues of interpretation despite the existence of a set of rules supposed to regulate the complementary structures. Besides this interrelation, the Regulation interacts with the Hague Convention on Child Protection. Though Brussels II bis has been analysed with regard to different single aspects, it has not yet been considered which consequences the actual provisions of the Regulation and the ECJ’s decisions have both on the interrelation and its application in the national courts. It has further hitherto not been critically analysed whether the Regulation and the judgments of the ECJ take the right direction to meet the ambitious aim defined in the preamble and throughout the text, respecting the ‘best interests’ of the child. Now that a decade of Brussels II bis has passed and with a series of pioneer cases decided by the ECJ and with an intervention of the ECtHR in Convention and Regulation cases, the Regulation’s effectiveness is worthy of critical consideration. Despite the existence of some specific rules on the interrelation of the Regulation and the Conventions, their very co-existence gave rise to various interacting situations and questions of interpretation. For courts familiar with the rules of the Convention on Child Abduction and with at least their own respective national case law arising under it, the application of the added layer of rules of the Regulation and the interpretation of its different concepts was and still remains a challenge. A comparison of Brussels II bis with the two international instruments with regard to the role of ‘habitual residence’ and the suitability of the other central concepts of the provisions for the particularity of family disputes will demonstrate the differences of cases involving the Regulation and those involving the Conventions. III By governing jurisdiction, recognition and enforcement of judgments and orders relating to parental responsibility, the Regulation has a very wide application covering, for example, custody, access, guardianship and even placement of children in foster or institutional care. Further, Brussels II bis takes up concepts which lie at the very heart of the application of the Convention on Child Abduction and about which there is extensive jurisprudence. This thesis will explore a selection of legal issues arising from the interrelation between these private international law instruments dealing with parental responsibility and child abduction which the national courts applying the Regulation are confronted with. The question whether Brussels II bis is an effective instrument which has strengthened the return mechanism under the Convention on Child Abduction and can work hand in hand with the Convention on Child Protection is also important to critically evaluate. It will be considered if the provisions in the Regulation have been drafted clearly enough and the concepts defined so well that they promote the interests of the children concerned, where the provisions are complementing the Convention on Child Abduction, and has learned from the latter’s flaws so as to enhance the recognition and enforcement processes related to child abduction. It will be concluded whether or not the Regulation is an advancement only in terms of having implemented efficient, intra-Community provisions on jurisdiction, recognition and enforcement or a real advancement supporting the ‘best interests’ of the child(ren), despite the complications of application it has introduced.
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Khan, Muhammad Mumtaz Ali. "Property, Object of Protection or Subject of Rights ? : journey towards the Best Interests of the Child : implementing UN Convention on the Rights ot fhe Child in Pakistan, France and UK." Paris, EHESS, 2015. http://www.theses.fr/2015EHES0059.
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Turauskaitė, Agnė. "Ginčų dėl vaikų gyvenamosios vietos nustatymo su vienu iš tėvų probleminiai aspektai." Master's thesis, Lithuanian Academic Libraries Network (LABT), 2012. http://vddb.laba.lt/obj/LT-eLABa-0001:E.02~2012~D_20120703_143113-46190.
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Šiandien vaikas turi visas universalių žmogaus teisių dokumentų nuostatose įtvirtintas teises kaip suaugęs asmuo, tačiau to nepakanka. Nors vaikas yra kiekvienos visuomenės pagrindas bei ateitis, tačiau kartu jis yra kiekvienos visuomenės silpnoji dalis, priklausoma nuo aplinkos, dažniausiai nesugebanti apginti savo interesų, jo teises galima įgyvendinti tik per kitų asmenų – visų pirma, tėvų, teises ir pareigas. Tačiau daugeliu atvejų vaikų teisių ir teisėtų interesų pažeidimams atsirasti sąlygas sudaro būtent suaugusiųjų asmenų, tarpusavyje nesutariančių tėvų konfliktai. Vaikų, atsidūrusių tėvų konfliktų centre, padėtis yra reikalinga apmąstymų. Oficiali civilinių bylų statistika patvirtina, jog šiandien ginčų dėl vaikų gyvenamosios vietos nustatymo sprendimas teismine tvarka itin aktualus. Šių ginčų gausa įpareigoja valstybę bei visuomenę nebūti abejingais, kadangi adekvatus šių ginčų teisinis reglamentavimas gali kokybiškai užtikrinti vaiko teisių apsaugą.
Darbe siekiama įvertinti, kaip įgyvendinami geriausi vaiko interesai sprendžiant ginčus dėl vaikų gyvenamosios vietos nustatymo, siekiama atskleisti šių ginčų probleminius aspektus, pasiūlyti galimus jų sprendimo būdus. Aptariamas teismo vaidmuo šio pobūdžio ginčuose, valstybinės vaiko teisių apsaugos institucijos dalyvavimas, siekiama įvertinti šių institucijų dalyvavimą geriausių vaiko interesų požiūriu. Analizuojamas pagrindinių principų, kuriais vadovaujantis sprendžiami ginčai dėl vaiko gyvenamosios vietos... [toliau žr. visą tekstą]Today a child is entitled with the same rights enshrined in the provisions of the universal human rights documents as an adult, but it is not enough. Though the child is the foundation and the future of each society, at the same time it is the weakest part of every society, dependent on the environment, often unable to defend its interests; its rights can only be realized through the other personsʼ, in particular, parental rights and responsibilities. However, in many cases, the conditions for infringement of the childrenʼs rights and legitimate interests occur due to the conflicts arising between the adults, arguing parents. The situation of children, who find themselves in the centre of conflict of their parents, is to be considered properly. The official statistics of the civil cases proves that today the question of judicial judgment of the disputes on establishment of the residence place of the child is of particular interest. Multiplicity of such disputes obligates the state and society not to be indifferent, because the adequate legal regulation of these disputes can ensure the quality of protection of the childrenʼs rights. Masterʼs thesis aims to access realization of the best interests of the child in resolution of disputes regarding establishment of the residence place of the child, to determine the problematic aspects of these disputes, to offer possible solutions. Masterʼs thesis discusses the role of the court in such disputes, participation of the state child... [to full text]
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Durrbaum, René. "In the best interests of the child? : a case study of the psychological discourses of the custody decision-making process in a South African context." Thesis, Rhodes University, 2002. http://hdl.handle.net/10962/d1007484.
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This study focuses on the process of custody decision-making in a South African divorce context with the aim of critically examining the operation of the principle of the best interests of the child. A narrative approach is incorporated into Parker and Fairclough's discourse analytic approaches in the context of an instrumental case study. More specifically, the focus falls on moving beyond the understandings of custody embodied within the current psychological literature in order to examine the relationship between theory and practice and to view custody as a dynamic process at both a textual and analytical level. Concepts of dialoguing, context, audience and intertextuality together with a storied approach are central. Further, an attempt is made to provide a disruptive reading of the case through the use of notions of power, ideology and institutional practices embedded within the case and its broader contexts. The analysis demonstrates the need for decision-making to be viewed as a broader process situated across multiple professional, institutional and socio-political texts and contexts. Further, it is argued that in order for the process to uphold the principle of the child's best interests, specialised training must be supplemented with changes at the level of policy, aimed at moving toward a more inclusive, process-oriented approach to custody decision-making.
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Ledger, Matthew. "The best interests of the child and the potential of collaborative family law : a critical analysis of collaborative lawyers' perspectives on important issues in collaborative practice." Thesis, University of British Columbia, 2017. http://hdl.handle.net/2429/61485.
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Children are very important to the future of Canadian society. In addition to being one of the most cherished aspects of parents’ lives, they represent Canada’s future politically, economically and socially. Family conflict, and resulting events such as divorce or separation, can represent a significant challenge to healthy child development. The manner in which family disputes are resolved between parents therefore has an important role to play in ensuring the healthy development of children. To that end, it is incumbent upon those engaged with the topic of family dispute resolution, to further explore family dispute resolution methods that have potential to help achieve these goals.
Collaborative family law, with its emphasis on a more holistic approach to resolving family disputes, appears to be one promising method. The literature review contained herein reveals the potential of collaborative law to help children and families. It also identifies several key issues with the collaborative process that collaborative lawyers should think about when trying to achieve this goal.
The interview study that forms a key part of this thesis is focused on the collaborative family law model practiced in the Vancouver area. The study involved semi-structured interviews of ten collaborative lawyers. A set of standard questions, and flexible follow ups as necessary, were asked of each lawyer, concerning difficult issues with collaborative family law as identified in the literature. The goal of these interviews was to obtain lawyers’ perspectives on important issues facing their practice. Few such studies have been done in Canada.
The result was an in depth exploration and critical analysis of major issues facing those practicing collaborative family law, and how collaborative lawyers in the Vancouver area address these issues. The success of collaborative family law at maximizing its benefit to families is arguably contingent upon suitable families choosing the collaborative process, as well as the proper execution of the process to suit the individual needs of each family. Hopefully, the discussion herein will further the pursuit of these objectives.Law, Peter A. Allard School of
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Baldini, Myung Hwa. "Perceptions from foster care practitioners on the best interest of children and teenagers within the Brazilian strategy for reforming out-of-home care." Thesis, Linköpings universitet, Tema Barn, 2021. http://urn.kb.se/resolve?urn=urn:nbn:se:liu:diva-179783.
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Within the Brazilian strategy to reform out-of-home care services, efforts have been directed to the prioritization of foster care over congregate care. This study draws from the perspective that childhood is socially construed, therefore child protection systems are dependent of notions and ideals of childhood, especially concerning the child deprived of parental care. Interviews with ten professionals involved in the implementation and execution of foster care services in different cities were conducted for this study. Thematic analysis of interviews was triangulated with the contents of National Guidelines for out-of-home care services and legal provisions with the aim of investigating how ideas on children deprived of parental care and their best interests are translated into practice. Three research questions guided the study: (1) how participants perceive the out-of-home care reform and the provisions of rights in different care modalities, especially regarding how children placed in different types of out-of-home care are perceived, (2) how participants view children’s best interests and which practices are believed to secure them and (3) how practitioners’ views relate to the contents of the National Guidelines. Five themes emerged in the analysis: a scientific and legal defense of (1) foster care as the most up to date form of out-of-home care, the prioritization of (2) children’s needs for individualized parental care, that (3) practitioners’ strong discretion is conditioned by foster families’ choices, that (4) institutionalization and group are detrimental to children, and the invocation that (5) children must be onboard. The study concludes that a clearer conceptualization of the rights and bests interests of children deprived of parental is required to better inform the reform of child protection and its practices, where consideration to children’s participation could be extended over acceptance to decisions.
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Svensson, Annika, and Miranda Gunnarsson. ""Hon är ju nästan smartare än mig"." Thesis, Malmö universitet, Fakulteten för hälsa och samhälle (HS), 2019. http://urn.kb.se/resolve?urn=urn:nbn:se:mau:diva-24606.
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Denna studies syfte är att beskriva socialsekreterares upplevelse av utredningsarbetet när en eller båda föräldrarna har en intellektuell funktionsnedsättning. För att svara på studiens syfte har vi intervjuat sex socialsekreterare som arbetar med och har erfarenhet av föräldrar med en intellektuell funktionsnedsättning. Studiens empiriska material bygger på en kvalitativ semistrukturerad intervjuform. Studiens insamlade datamaterial har analyserats med hjälp av tidigare forskning samt socialkonstruktionism och stigma som är studiens två teoretiska perspektiv. Resultatet är uppdelat i två huvudtema, vilka är Föräldraförmåga och Utredningsarbete. Huvudtema A har två underteman och huvudtema B har tre underteman. Studiens resultat visar att samtliga av de intervjuade socialsekreterarna upplever att barnets bästa är ett komplext begrepp, då varje barn är unikt med unika behov. Resultatet visar även att det kan finnas svårigheter för en förälder med en intellektuell funktionsnedsättning att tillgodose sitt barns behov, men att det inte är knutet till den intellektuella funktionsnedsättningen utan alla bedömningar måste göras individuellt.The purpose of this study is to describe the social secretary's experience of investigation work when one or both parents have an intellectual disability. To answer the study's purpose, we interviewed six social secretaries who work with and have experience with parents with an intellectual disability. The empirical material of the study is based on a qualitative semi-structured interview form. The study's collected data has been analyzed using previous research on social constructionism and stigma, which provide the study's two theoretical perspectives. Result are divided into two main themes: parental ability and investigation work. Main theme A has two sub-themes and main theme B has three sub-themes. The study shows that all of the interviewed social secretaries feel that the child's best interests are a complex concept, since each child is unique with unique needs. It may be difficult for a parent with an intellectual disability to meet their child's needs, but that this is not directly linked to the intellectual disability, therefor all assessments must be made individually.
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Betelid, Erika, and Carolina Egestrand. "Barnets bästa : en studie i hur domstolen avgör frågor om umgänge när det har förekommit våld i familjen." Thesis, Linnéuniversitetet, Institutionen för socialt arbete, SA, 2011. http://urn.kb.se/resolve?urn=urn:nbn:se:lnu:diva-13304.
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In many of the disputes concerning custody, residence and visitation determined by the court, some form of violence has been performed. The consequence of a child who has witnessed violence in their homes is a problem that is sometimes overlooked. It is not unusual that the violence will continue even after a separation. The law shows that the child´s need of both parents is to be met. This has according to previous studies resulted in the fact that courts do not always see visitation with a violent parent as a risk for the child. This is the reason why we wanted to investigate this further. The aim of our study was to examine and describe how courts argue for decisions regarding a child's contact with a parent who is suspected of having used violence in the family, based on current laws. The method of the study was document analysis and the material consisted of ten Swedish court cases from the years 2010 and 2011. The starting point of the analysis was the sociology of childhood together with the concepts “child’s perspective” and “the perspective of the child”. The court cases were analyzed on basis of the law, our analytical framework and previous research. Our study shows that the court considers it important for the child with a near and well contact with both parents. The results also show that the will of the child not seems as important to take into account as the child’s best interests or the risk that the child gets hurt.
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Sisilana, Ziphokazi Dimpho. "The best interests of the child : a critical evaluation of how the South Africa court system is failing to use section 7 of the Children's Act accordingly in divorce proceedings." Master's thesis, University of Cape Town, 2016. http://hdl.handle.net/11427/20800.
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South Africa has a history of human rights atrocities that have created an urgency to attend to the previously marginalised and vulnerable groups of society. The Constitution of the state as well as other international treaties have created provisions that entrench the commitment to protect the child. This has been done through the inclusion of the 'best interests of the child' principle in the instruments. This study examines the development of the 'best interests' of the child. Furthermore, it analyses how and why the principle developed in the international and national context. The purpose is to come to the findings that the newly introduced Children's Act has created a better scope of protection than the previous common law precedent. The leading component of the study is criticising the method of the application of the 'best interests' of the child principle in South Africa. The author will specifically focus of section 7 of the Children's Act and prove why the courts should be applying this provision in child-related cases.
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Mia, Shanaaz Christine. "The child's voice in the Hague Convention: Does ascertaining the child's view realise the best interests of the child in legal and related proceedings in terms of the Hague Convention on the Civil Aspects of International Child Abduction." Thesis, University of the Western Cape, 2002. http://etd.uwc.ac.za/index.php?module=etd&.
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Prag, Elin, and Bonikowska Karolina. "Barnets bästa i asylprocessen : En kvalitativ studie om asylhandläggarnas tolkning och tillämpning av barnets bästa gällande barnfamiljer." Thesis, Linnéuniversitetet, Institutionen för socialt arbete (SA), 2015. http://urn.kb.se/resolve?urn=urn:nbn:se:lnu:diva-44098.
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The purpose of this study is to describe and understand how the principle of the child’s best interest in the asylum process for families with children is interpreted and implemented in practice by the asylum bureaucrats at the Swedish Migration Agency. Our questions are: “How is the best interest of the child in families with children interpreted by the asylum bureaucrats at the Swedish Migration Agency?” "How are asylum bureaucrats at the Swedish Migration Agency reasoning about the implementation in practice of the child's best interest in families with children? The essay rests upon semi-structured interviews with eight asylum bureaucrats at three different asylum units. The interviews are based on an interview guide together with a vignette, which purpose was to see how the interviewees are implementing the best interest of the child in a specific case of a potential application. We are analyzing our results by using Lipsky’s theory of street-level bureaucrats and their professional discretion. We are also using Roine Johansson’s (2007) interpretation of Lipsky and Svensson et al., (2008) and their perspectives about professional discretion. Our main findings and conclusions in the study are showing that the asylum bureaucrats interpretations of the best interest of the child are statutory. According to the asylum bureaucrats, the main definition of the principle is related to the importance of talking with the children. These statements in the interviews also reflects how they look upon the implementation in practice of the child's best interest. The asylum bureaucrats felt they have a wide discretion in their everyday work.
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Lidman-Evans, Johanna, and Daiva Vasiliauskaite. "Barnets bästa i skolan." Thesis, Stockholm University, Department of Social Work, 2008. http://urn.kb.se/resolve?urn=urn:nbn:se:su:diva-7543.
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The United Nations Convention on the Rights of the Child (UNCRC) was ratified by Sweden in 1990. Among its principles is devotion to the best interests of the child (article 3). This principle is hard to define, and it is difficult to find studies on how children express themselves about how the convention should be realized. The Swedish government wants local councils to introduce routines that follow the proposed rights. The Swedish school system is an important arena where UNCRC’s rights can be put into practice. This study’s purpose is to discover how the Swedish upper secondary schools follow article 3, using pupils’ description of what is best for them as a starting point. Two pupil focus-group interviews have been used to obtain this description, and the pupils views were divided into four main themes: Security, Reception, Studies and development and Influence. These were converted into questionniares for two schools. The result was analyzed using empowerment and SOC (sense of coherence) as theoretical perspectives. Some answers differed between the schools as to how the principle of article 3 is fulfilled. The majority of the pupils are happy with their schools, in spite of difficulties with structural conditions and that life at school isn’t always on the pupils’ conditions.
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Holgersson, Martina, and Pranvera Vishaj. "Barnperspektivet inom socialtjänsten." Thesis, Linnéuniversitetet, Institutionen för socialt arbete, SA, 2011. http://urn.kb.se/resolve?urn=urn:nbn:se:lnu:diva-13140.
Full textAbstract:
Author: Martina Holgersson och Pranvera VishajSupervisor: Matts MosessonTitle: “A study about how Social Services understand and put child perspective into practice”The purpose of this study is to describe and understand how the child perspective is perceived and put into practice by the Social Services. Our questions were: “How is the child perspective perceived by the Social Services?” and “In what way is the child perspective put into practice in the Social Services’ work?” Our approach to knowledge is based on the hermeneutic tradition of knowledge. The essay rests upon semi-structured interviews with ten Social Services’ workers. We have analysed our results from the theory of actions where we have applied analytical ideas; the five P’s and actor and objective perspective. Our main findings in the study were; the Social Services’ workers regarded the child perspective as a complex and hard to define concept. Furthermore, the Social Services’ workers considered to think the fundamental apprehension of the child perspective; is children’s well-fare and protection from abuse. From which angle they choose to see the child perspective; the child’s, the parents or the professionals vary. The Social Services’ workers experienced the children were being implicated in the work. The reports are written from both angels, children and parents point of view. A special interest and importance from the Social Services’ workers were children being involved through-out the inquiry process as at decision-making. The child perspective doesn’t have to be crucial at a settlement. Based on our findings and our theory we can draw the conclusion that the scope the Social Services’ workers have in their work can influence how the child perspective is perceived and carried out and how it should be applied.
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De, Bruin David Wegeling. "Child participation and representation in legal matters." Thesis, University of Pretoria, 2010. http://hdl.handle.net/2263/27414.
Full textAbstract:
The child’s participation in any legal matter involving him/her is crucial whether received directly or indirectly through a legal representative. The significance of the child’s views in legal matters is accepted internationally and is entrenched in South African law. This is the main feature of the present research. In Roman law the paterfamilias was the complete antithesis of the best interest of the child with his paternal power entirely serving his own interests. The best interests of the child progressively improved his/her participatory rights and the dominance of paternal authority in Roman, Germanic, and Frankish law eventually gave way to parental authority and assistance in Roman-Dutch law. This advanced the child’s participation in legal matters and under Roman-Dutch law, his/her right of participation included legal representation by way of a curator ad litem. The child’s best interests were consistently viewed from an adult’s perspective and resulted in an adult-centred assessment of his/her best interests. Statutory intervention increased the child’s participatory and representation rights, however, the tenor of these items of legislation remained parent-centred. The Appeal Court later dispelled any uncertainty regarding the paramountcy with respect to the best interests of the child. During the 1970s in South Africa, the emphasis began shifting from a parent-centred to a child-centred approach in litigation between parents in cases involving their children. An open-ended list of factors comprising the best interests of the child accentuated this shift. Courts were encouraged to apply the paramountcy rule in legal matters concerning children and to consider the views of children in determining their best interests. The new democratic constitutional dispensation in South Africa, followed by the ratification of the Convention on the Rights of the Child and the African Charter, obligated South Africa to align children’s rights with international law and standards. The South African Law Reform Commission set out to investigate and to formulate a single comprehensive children’s statute. The resultant Children’s Act 38 of 2005 is the most important item of legislation for children in private law in South Africa. The Children’s Act provides for the widest possible form of child participation in legal matters involving the child. It revolutionises child participation requiring no lower age limit as a determining factor when allowing the child, able to form a view, to express that view. The child’s right to access a court and to be assisted in doing so further enhances his/her participatory right. Effective legal representation is the key in ensuring that children enjoy the fundamental right of participation equal to that of adults in legal matters involving children. Comparative research of child laws in Australia, Kenya, New Zealand and United Kingdom confirms that South Africa is well on the way in enhancing children’s participatory and legal representation rights in legal matters concerning them. This illustrates that only the child’s best interests should serve as a requirement for the legal representation of children in legal matters. Continued training is essential to ensure the implementation of the Children’s Act and requires a concerted effort from all role-players.Thesis (LLD)--University of Pretoria, 2010.
Private Law
unrestricted
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Machado, Maria Luís Guerra Mendonça Vieira. "As representações dos magistrados na regulação do exercício das responsabilidades parentais." Master's thesis, [s.n.], 2013. http://hdl.handle.net/10284/4039.
Full textAbstract:
Dissertação apresentada à Universidade Fernando Pessoa como parte dos requisitos para a obtenção do grau de Mestre em Psicologia JurídicaA avaliação psicológica forense no contexto do divórcio e da regulação das responsabilidades parentais pode constituir-se como uma tarefa particularmente complexa e exigente para os profissionais envolvidos na tomada de decisão, podendo esta ser influenciada pelas representações dos magistrados acerca dos conceitos de maternidade ou paternidade, assim como pela presença de crenças e estereótipos que lhes estão muitas vezes associados. Este estudo tem como objetivo principal compreender de que forma alguns conceitos e dimensões relacionados com a parentalidade e o exercício das responsabilidades parentais no âmbito do divórcio, podem influenciar a tomada de decisão judicial e quais os contributos e limitações da avaliação psicológica forense neste contexto. A amostra de conveniência inclui a participação de cinco magistrados com experiência prévia em processos de regulação das responsabilidades parentais. A recolha de dados foi efetuada através de um questionário sócio-demográfico e de uma entrevista semi-estruturada, procedendo-se à gravação das entrevistas em suporte áudio para posterior análise categorial a partir de uma grelha de análise. Os resultados demonstram não se verificar a existência de um critério pré-estabelecido que defina o que é ser-se uma boa mãe ou um bom pai, entendendo-se que estes são conceitos subjetivos, associados à afetividade e prestação de cuidados, que deverão ser concretizados em função das especificidades de cada criança e de cada situação. Relativamente à existência de crenças e estereótipos associados à parentalidade, os magistrados reconhecem-nos e, estando conscientes da sua presença, procuram que a sua decisão não seja por eles influenciada. O critério do superior interesse da criança, à semelhança dos conceitos de maternidade e paternidade é um conceito subjetivo, que deverá ser preenchido em função de cada criança e de uma situação específica, sendo destacada pelos decisores judiciais a importância da interdisciplinaridade para aferir o conceito. Os magistrados consideram a perícia psicológica forense na regulação das responsabilidades parentais essencial para a tomada de decisão judicial, particularmente nas situações mais complexas.
The forensic psychological assessment in divorce and regulation of parental responsibilities context, can constitute itself as a particularly complex and demanding task for professionals involved in decision making, which may be influenced by the representations of the judges about their concepts of maternity or paternity as well as the presence of stereotypes and beliefs that are often associated. This study's main goal is to understand how certain concepts and dimensions related to parenting and the exercise of parental responsibilities in the context of divorce, may influence judicial decision-making as well as to evaluate the contributions and limitations of forensic psychological evaluations in this context. Our convenience sample included the participation of five judges with large experience in regulatory processes of parental responsibilities. Data collection was carried out through a socio-demographic questionnaire and a semi-structured interview, recorded in audio support for further analysis through a categorical analysis grid. The results point out a non-existence of a pre-established criterion that defines a concept of “a good mother” or “a good father”. These are concepts perceived as subjective, associated with affection and care, which should be implemented according to the specificities of each child and each situation. Regarding the existence of beliefs and stereotypes associated with parenting, judges recognize them, and being aware of its presence, they seek that their decision is not influenced by them. The criterion of the child best interests, as well as the concepts of parenthood are perceived as subjective concepts, which must be fulfilled according to each child and her specific situation, being highlighted by judicial decision makers the importance of interdisciplinary to measure the concept. The judges consider forensic psychological expertise in the regulation of parental responsibilities essential to the judicial decision-making, particularly in more complex situations.
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Andrews, Pearl Deidre. "Links between international child abduction and relocation: moving towards likemindedness in relocation disputes internationally - Is it time for a protocol regulating international relocation disputes." Thesis, University of the Western Cape, 2012. http://etd.uwc.ac.za/index.php?module=etd&action=viewtitle&id=gen8Srv25Nme4_3259_1364198101.
Full textAbstract:
This by implication would mean that the best way to prevent child abduction is to desist from international marriages and moving abroad.The modern reality is that
relationships are being formed internationally. In the same breath, relationships are easily un-formed and the family fractured. The emotional impact of any breakup is usually
tense, and it follows by implication that this will be exacerbated if a child is involved. For reasons that will be expounded on in the thesis, many caregivers, usually mothers have
opted to abduct their children. Some have opted to apply formally to relocate. Relocation disputes are widely regarded as one of the most controversial and difficult issues in
family law internationally. These disputes usually arise pursuant to a relational breakdown, when the resident parent (usually the mother) seeks to relocate with the children
either
domestically or internationally. This causes a significant impact
on contact arrangements with the other parent (usually the father). Depending on the country in which they find themselves and the laws applicable to relocation with the child, mothers are faced with the decision to remove the child either lawfully or wrongfully. International family law
jurisprudence has been developed over time to assist with custody and relocation disputes. &lsquo
Much has been written on the Hague Convention &ndash
its flaws and its successes, its
effectiveness and utilization. This thesis aims to look specifically at relocation disputes within the context of international parental child abduction
more specifically, it sets out to
explore whether there is a link between those phenomena, and whether the Hague Convention is sufficient for dealing with relocation disputes. I hope to make a convincing
argument that if there were an international instrument regulating relocation, there would be uniformity and consistency. People&rsquo
s confidence in the legal processes would be
restored, motivating them to apply formally to relocate and, in doing so, the incidence of child abductions would be reduced.
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Sirin, Memduh Cemil. "L'administration de la protection de l'enfance en France et en Turquie." Thesis, Paris 1, 2017. http://www.theses.fr/2017PA01D021.
Full textAbstract:
La France et la Turquie organisent différemment leurs administrations de protection de l'enfance. Les modèles appliqués à l'administration de la protection de l'enfance diffèrent quant à leur partage des compétences entre, d'une part, l'administration et la justice et, d'autre part, l’État central et l’État décentralisé. La France préfère un système décentralisé alors que la Turquie opte pour un système centralisé et déconcentré. En principe, la protection judiciaire en France n'est que subsidiaire par rapport à la protection administrative, tandis qu'en Turquie, en règle générale, la décision judiciaire est obligatoire pour toute mesure de protection. Bien que les différents modèles lui soient appliqués, les administrations respectives de la protection de l'enfance des deux pays portent les mêmes défauts essentiels. Il s'agit de la protection d'un nombre insuffisant d'enfants en danger et de la satisfaction insuffisante des besoins des enfants pris en charge par l'administration. Alors que le modèle administratif de la protection de l'enfance conserve son importance, il faut se concentrer d'abord sur les éléments constitutifs de l'administration qui sont la philosophie, l'infrastructure juridique, les institutions et les politiques de l'administration de la protection de l'enfance. Cette étude analyse les administrations respectives de la protection de l'enfance de la France et de la Turquie en se penchant sur leur conformité à l'intérêt de l'enfant à partir de ces éléments constitutifsFrance and Turkey organize differently their child protection administrations. The models applied to the child protection administration differ in their division of powers between administration and justice on the one hand and the central and decentralized State on the other. France prefers a decentralized system while Turkey opts for a centralization and deconcentration. In principle, judicial protection in France is subsidiary to administrative protection, whereas in Turkey, as a general rule, judicial decision is compulsory for ail protection measures. Although the different models are applied to it, the respective child protection administrations of the two countries share the same basic shortcomings. These are the protection of an insufficient number of children in danger and insufficient satisfaction of the needs of the children in the care of the administration. While the administrative model of child protection retains its importance, it is necessary to focus first on the constituent elements of administration that are the philosophy, legal infrastructure, institutions and policies of the administration of chi Id protection. This study analyzes the respective child protection administrations of France and Turkey by examining their conformity with the interests of the child on the basis of these constituent elements
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Swanepool, Henk Johan. "Developing an optimal psychological assessment procedure for determining primary care and residential placement of children in a divorce dispute." Thesis, University of Limpopo, 2013. http://hdl.handle.net/10386/3029.
Full textAbstract:
Thesis (PhD. (Clinical & Applied Psychology)) --University of Limpopo, 2013This study aims at developing an optimal psychological assessment procedure for determining primary residence allocation for children whose parents are divorcing. The research consisted of two studies: the first study focused on “translating” 13 identified legal constructs formulated by Justice King for safeguarding the best interests of children and the identification of suitable psychometric instruments that can be used to determine how effectively a particular family is functioning. These 13 legal constructs were converted into psychological constructs by three independent clinical psychologists. Following this a psychological assessment procedure for children and parents within a divorce context was developed incorporating the newly developed psychological constructs. The 2nd phase consisted of a sample of 39 families (26 families in the experimental group and 13 families in the control group). Six months later after primary placement the families were followed up in order to determine the psychological “health” of the families concerned using the Rosenberg Self-esteem Scale (RSE); Index of Family Relations (IFR); Eyberg Child Behaviour Inventory (ECBI) and the Family Assessment Device (FAD). The means obtained from both the experimental and control groups were compared using the MANOVA analysis. The results from the RSE concluded that the self-esteem of children in the experimental group, improved significantly to those in the control group. The IFR indicated that families in the experimental group had improved significantly at resolving family problems. According to the ECBI the children in the experimental group with behavioural problems improved significantly after primary placement. In all children in the control group did not improve significantly. The Family Assessment Device therefore indicated significant family cohesion. In summary the results indicate that the families in the experimental group were functioning at a higher level in comparison to the control group six months after primary placement.
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Filander, Tanian. "The enforceability of international surrogacy in South Africa : how would a South African court proceed in determining an international surrogacy case?" University of the Western Cape, 2016. http://hdl.handle.net/11394/5503.
Full textAbstract:
Magister Legum - LLMIn this research, I sought to investigate the extent to which South Africa recognises international surrogacy agreements. I examined Chapter 19 of the Children's Act as the first legislation to afford surrogate motherhood agreements legal recognition in South Africa. Section 292(1)(b)-(e) of the Children's Act sets out the requirements for the validity of a surrogate agreement. The validity of the agreement is governed by South African law if it was concluded in South Africa, and at least one of the commissioning parents and the surrogate mother and her husband or partner must be domiciled in South Africa at the time of entering into the agreement. I explored South African legislation that may be applicable to the children born of commissioning parents (whether the commissioning parents are South Africans or foreign nationals) who entered into international surrogacy agreements. I concluded that the main issue that relates to international surrogacy are the implications that rise from registering a surrogate born child’s birth in South Africa and in other countries. I further concluded that the current position of South African law will result in a surrogate born child being left stateless and parentless. I considered the criminal aspect of international surrogacy agreements as a consequence of a null and void international surrogacy agreement. Furthermore, I referred to the legal difficulties of international surrogacy and potential rights infringed on or denied to the child born of an international surrogacy by examining international case law. I concluded that South African courts do not have precedents, guidelines or legislation governing international surrogacy agreements and thus it is important to examine international case law. I further concluded that, it is important for South African authorities and courts to consider the possibility of international surrogacy occurring in South Africa. I hope that the South African courts take a child-centered approach, building on the views established in the international case law, and that courts do not adopt a strict interpretation of our current laws. Lastly, I suggested recommendations for the appropriate manner in which to legislate international surrogacy agreements in South Africa. I submitted that judicial and administrative authorities could inspect the international surrogacy agreement and ensure that the terms do not harm the child and that the child is recognised as the legal child of the commissioning parents. The courts should first look at the suitability of the commissioning parents and finally consider the best interest of the child as being of paramount importance, before ordering the international surrogacy agreement null and void. I further suggested that a statutory regulation that contemplates international surrogacy should be formulated, as a source of reference, which will assist a court when faced with determining the issue of the parentage of a surrogate born child, and consequently, his or her nationality. I concluded that the South African Parliament should either re-draft or provide clearer guidelines regarding surrogacy and the possibility of international surrogacy agreements.