Family & Law

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    This article addresses the legal situation of children in stepfamilies focusing on the interdependent rights and duties of the various adult family members towards their children. As soon as a new de facto parent joins a family, he/she finds him-/herself in a multi-person relationship involving his/her partner, the other legal parent and the child. If the family structure is not redefined through successive adoption, the result is a complex web of relationships that poses a number of legal questions.

dr. Elmar Buchstätter
Elmar Buchstätter is a University Assistant at the Department of Private Law and Civil Procedure, Paris Lodron University Salzburg.

    The aim of this article is to provide a comprehensive overview of the representation of the vulnerable adults in Finland and to analyze whether the legal system lives up to the expectations of the UN Convention on the Rights of Persons with Disabilities (CRPD). The Convention lays down that a person with disabilities must have an equal opportunity to make decisions and receive the support they need in exercising their legal capacity. The representation of vulnerable adults in Finland is based on several statutes. Private representation plays a significant role as negotiorum gestio and field-specific statutes are important in health care and social welfare matters. Officially confirmed representation is based on the Act on the Continuing Power of Attorney and the Guardianship Service Act that cover representation both in financial and personal matters, but clearly have an emphasis on financial matters. The article argues that in principle the Finnish adult protection model follows the step-by-step approach required by the CRPD. However, whether and to what extent it respects the will and preferences of an adult depends on the subject matter as the legislation in force is ambiguous. Furthermore, in respect to private representation the issue of safeguards has not been resolved.

dr. Katja Karjalainen
Katja Karjalainen is University Lecturer at Law School, University of Eastern Finland.

Access_open ‘Nesting’ as a legal issue – Polish example with comparison to other jurisdictions?

Trefwoorden Nesting, Independence, Mmaintenance obligation, Adult / Children
Auteurs Daniela Wybrańczyk Ph.D.

    The phenomenon of ‘nesting’, which is of international importance, delays the entry of young people into adulthood. Thus, they start families later, which results in changes in the demographic and sociological structure of the society. Therefore, taking into account that nesting is a legal problem, it should be considered whether reducing the scale of this phenomenon requires changes in the law (both in individual countries and in European law). The article indicates exemplary research areas that may be analyzed in order to assess the current legal situation of adult children living with their parents or one of them. The aim of the article is also to draw attention to the different levels of nesting in individual countries and to reflect on whether the differences appearing in the legal systems of individual countries and the solutions adopted in them affect the scale of nesting.

Daniela Wybrańczyk Ph.D.
Daniela Wybrańczyk is legal adviser and legislation specialist at the Bureau of Research of the Sejm, SWPS University of Social Sciences and Humanities, Chancellery of the Sejm.

Access_open Extremist beliefs and child protection

The considerations of Dutch judges in radicalization cases

Auteurs Lisette Dirksen Msc, Dr. mr. Nadia Ismaïli, Dr. Elanie Rodermond e.a.

    Recently there has been an increase in so-called ‘radicalization cases’, cases that are centered around the possible impact of an extremist ideology of parents on their children, and that ask for a decision on whether child protection measures are needed to prevent children from harm. However, there is a lack of knowledge on the potential harmful effects of growing up with parents who adhere to a specific ideology. Consequently, judges and Child Protection Agencies involved in radicalization cases need to make decisions without much guidance or solid evidence. This study offers an initial exploration based on the analysis of Dutch published case law (n = 37) within the framework of international human rights law, Dutch legislation and available literature to assess when judges consider extremist and strict religious beliefs of parents harmful to their child. The results of the study indicate that judges in these cases take several factors into consideration when deciding whether a child protection measure, and if so, which one is necessary. These factors are the well-being (physical, social or emotional) of the child and the home situation. Our findings show that it follows from the case law that Dutch judges do not consider solely the beliefs of parents to pose a developmental threat (i.e., harm) to the child. Case law rather showed that it were the concrete actions of parents resulting from their beliefs that may constitute harm. Such actions can be traveling to Syria to join IS, keeping children from school, and denying medical treatment. The approach as taken by national courts therewith appears to be in line with international human rights standards.

Lisette Dirksen Msc
Lisette Dirksen is a PhD Candidate at Vrije Universiteit Amsterdam and the Netherlands Institute for the Study of Crime and Law Enforcement.

Dr. mr. Nadia Ismaïli
Nadia Ismaïli is an assistant professor for the department of private law of VU Amsterdam.

Dr. Elanie Rodermond
Elanie Rodermond is an assistant professor in Criminology at Vrije Universiteit Amsterdam and a senior researcher at the Netherlands Institute for the Study of Crime and Law Enforcement.

Prof. dr. mr. Catrien Bijleveld
Catrien Bijleveld is a professor of Research Methods in Empirical Legal Research and Criminology at the Vrije Universiteit Amsterdam, a senior researcher at the Netherlands Institute for the Study of Crime and Law Enforcement and a member of the Netherland.

Prof. dr. mr. Masha Antokolskaia
Masha Antokolskaia is a professor in Dutch Private Law at Vrije Universiteit Amsterdam and a researcher at the Amsterdam Centre for Family Law.

    Over the past 30 years, the European Court of Human Rights (ECtHR) has increasingly applied the best interests of the child (BIC) principle in cases involving children. However, in the absence of a literal reference to the principle in the European Convention on Human Rights (ECHR), the principle’s inherent flexibility paves the way for contestable applications that result in the protection of adults rather than children. This is particularly true in the area of family law, where the interests of the child and those of the parents are closely intertwined. Given these structural and ontological limitations, one should ask to what extent the ECtHR is consistent with a reasonable application of the principle. This article aims to analyse the ECtHR’s application of the BIC principle in the specific area of family law disputes concerning the recognition of parenthood established through adoption and surrogacy. In such cases, the Court faces the challenge of striking a balance in the triangular relationship between the interests of the child, the parents and the State, while operating in an area significantly influenced by the margin-of-appreciation doctrine.

Rachele Zamperini LLM
Rachele Zamperini, is a PhD candidate Law at the University of Pisa.

Access_open Same-sex couples in European private international law – finding a path through the labyrinth

Trefwoorden Same-sex marriage, Registered partnership, Private international law, Right to respect for family life
Auteurs Dr. Máire Ní Shúilleabháin

    This article explores the treatment of same-sex spouses and same-sex registered partners in European private international law (PIL). The discussion encompasses national PIL frameworks in EU and non-EU countries, as well as EU PIL rules. The aim is to identify legal obstacles facing mobile same-sex couples as they move around Europe, and to highlight the inadequacies and anomalies in the existing law. It is argued that the extension of the PIL rules traditionally applied to different-sex marriage may be problematic for same-sex couples. The article also seeks to analyze the PIL responses to domestic laws in transition (in adopting registered partnership – and in progressing from registered partnership to marriage equality). The complex implications (and interactions) of EU PIL instruments are also scrutinised. The discussion concludes with an assessment of how existing problems may be resolved (with a particular focus on human rights jurisprudence and the EU free movement policy).

Dr. Máire Ní Shúilleabháin
Dr. Máire Ní Shúilleabháin is Associate Professor at University College Dublin, specialising in private international law.