Dr Brigitte Clark

This article focuses on the problems confronting a variety of jurisdictions when one parent wishes to relocate internationally after divorce or separation, with the children and, as a result, the ‘left-behind’ parent will be deprived of access to his or her children. The article examines relocation in the context, not only of its frequently gendered nature, but also of the inconclusive and controversial social science research about its effects on children. As a result of this examination, the article suggests that national statutory guidance should be drafted, directing the courts to consider (inter alia) the wishes and feelings of the children; the current care-giving responsibilities, the relocating parent’s reasons for wishing to relocate, the non-relocating parent’s reasons for opposing the relocation, and the presence of any domestic violence.  The author contends that an internationally collaborative strategy leading to the establishment of national statutory guidance would appear to be the most effective way in which the law can operate in this area.   This would strengthen the impact of the provisions of the United Nations Convention on the Rights of the Child, and greater legal certainty could be achieved by the framing of such guidelines, whilst preserving the ultimate discretionary power of the courts to act in the child’s best interests.

This article examines the uncertainties in the jurisprudence of the European Court of Human Rights (ECtHR) relating to religious minorities, particularly case law involving families, and particularly children. In view of the increasingly religiously diverse and pluralist societies of the European Union, the ECtHR is required to ensure that, in terms of the European Convention on Human Rights (ECHR), both individuals and collective religious or non-religious minorities are afforded religious freedom against so-called secular values which pursue majority interests, although there may be genuine cases where minority rights to freedom of religion need to be limited. This article argues that, in several cases, the ECtHR, with respect, appears to have allowed some secular laws of various States which restrict the freedom of religious minorities, to prevail without the need to adequately justify such limitations. Furthermore, the margin of appreciation doctrine has been widely used by the ECtHR, and has permitted States Parties to interpret religious rights and freedoms within the broader context of their national cultures, values and traditions. However, the argument that a lack of consensus between the laws of Contracting States allows a wide margin of appreciation may risk jeopardising the protection of minority religious rights, including those of children. Although the margin of appreciation doctrine is integral and essential to the Convention’s system of constitutional-interpretive principles, it should be confined within acceptable limits, mainly by appreciating its subordination to the Convention’s primary constitutional principles and also its relationship with other secondary principles, particularly proportionality. The ECtHR is urged to follow a careful and considered process of balancing of interests in the application of Article 9.2 to ensure that the legitimate interests of families of religious (and non-religious) minorities are protected, and to avoid a mechanistic or over-deferential application of the margin of appreciation doctrine.

“Better Late than Never” was the title of a one-day symposium held to mark, reflect on and celebrate the 25th Anniversary of the UK Ratification of the CRC.   Speakers were invited from government, judiciary, academia, NGOs and a child advocate.  Delegates came from NGOs, from the many Universities around the country, the Rd Cross and Government. This symposium was organized by Dr. Brigitte Clark and Dr. Mariya Ali of the School of Law of Oxford Brookes University and held on Wednesday 21 January 2015, at Oxford Brookes University.

Internationally, donor-conceived children" s rights to know their biological origins have been recognised to some extent by the jurisprudence of the European Court of Human Rights (ECHR). With the drafting of the Article 7 (1) of the United Nations Convention on the Rights of the Child (UNCRC), as supplemented by Article 8, such children" s rights to know their biological origins whist they are children, and not only later as adults, were acknowledged for the first time, though not explicitly. Anonymous sperm donation is now banned in eleven jurisdictions, including Sweden and England and Wales. By contrast, France still does not expressly protect the right to know, and grants mothers, who have given birth anonymously, the right not to consent to the later release of identifying data, whereas the Federal Government of the United States adopts a non-regulatory approach to this issue with both anonymous and open sperm donation available in the clinics and sperm banks. This paper focuses on the extent to which arguments in favour of and against the recognition and the scope of this right differ from or accord with international and constitutional legal norms, examining specifically the position of children conceived by the contribution of donor sperm. The paper supports its argument by reference to the approach of comparative and differing legislatures to this issue, in particular, the jurisprudence of the European Court of Human Rights and that of France, Sweden, England and the United states. After analysing various factors affecting this right from the various perspectives of the parties involved, the paper concludes that this right should be recognised only after careful balancing of competing rights of the would-be parents, the donor and the child. Although the research on open adoption is appealing, some scepticism is called for, not only of the merits of a transfer of the lessons from adoption policy to the position of donor-conceived children, but also of arguments grounded on disclosure as being in the best interests of children, on which topic there has been inadequate research.

This article follows on from my previous article entitled"Pre-Nuptial Contracts in English Law: Capricious Outcomes or Legislative Clarification?" which, after examining the decisions in MacLeod ([2009] 1 FLR 64) and the Court of Appeal in Radmacher v Granatino (2009 2 FLR 1181), concluded that the unpredictability of the law in this area required legislative clarification. The present article discusses the Radmacher appeal to the Supreme Court in the light of these previous comments. The majority decision in this case, which in effect shifts the onus of proof in such contracts on to the party who is (usually) weaker economically, constitutes a creative step for the judiciary, diminishing to some extent the distinction in English and Welsh law between the duties of support of married parties on breakdown of their relationship as compared with that of cohabiting partners. The article submits that this controversial and potentially divisive step requires legislation sanction, especially in view of the fact that the Law Commission is already engaged in investigating possible reform and concludes, with respect, that constitutionally and democratically, Lady Hale" s dissenting judgment is correct.

This article examines the weight currently given to pre-nuptial contracts in English law, focusing particularly on three recent cases heard in the Court of Appeal and Privy Council. The article first explores the Court of Appeal's use of the words"magnetic importance" to give weight to certain pre-nuptial contracts in Crossley (2008 1 FLR 1467); second, the more orthodox distinction drawn between pre and postnuptial contracts in MacLeod (2009 1 FLR 64) and finally the implications of the decision in Radmacher v. Granatino (2009 2 FLR 1181). The article examines various critical factors which affect the assessment of such contracts in English and Welsh law and concludes that the current uncertainty and unpredictability of the law requires legislative clarification by means of the creation of a statutory presumption of enforceability of such contracts, subject to some legislative direction and guidelines.