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Children's Participation in Court Proceedings when Parents Divorce or Separate: Legal Constructions and Lived Experiences

E. Kay, M. Tisdall, and F. Morrison

in Law and Childhood Studies: Current Legal Issues Volume 14

Children's participation generally — and children's participation in court proceedings when their parents divorce or separate specifically — has gained considerable policy and practice prominence. In ... More

Children's participation generally — and children's participation in court proceedings when their parents divorce or separate specifically — has gained considerable policy and practice prominence. In 1995, the Children (Scotland) Act was passed; it was the most radical, across UK children's legislation, in specifying the requirement for children's participation. The 1995 Act remains the foundation of current Scottish family law, with certain amendments in regards to contested contact. In 1999, the then Scottish Executive commissioned the first study on the relevant provisions. The study analysed all related legislation and guidance, reported case law up until 2001, and undertook a feasibility study on investigating children's experiences of their participation. This chapter explores whether progress has been made since the study was undertaken. After summarizing the relevant legal provisions, an updated review of reported case law is undertaken. It then presents provisional findings from research with children about their participation in the contested area of child contact where there is a history of domestic abuse. The analysis concentrates particularly on the processes of participation and the ‘weight’ given to children's views, with accompanying consideration of how children and childhood are constructed within these.Less

The Administration of Justice

Hiroshi Oda

in Japanese Law

This chapter focuses on the administration of justice in Japan. It begins with a discussion of the history of Japan's system of courts. It then discusses justice system reform, the court system, lay ... More

This chapter focuses on the administration of justice in Japan. It begins with a discussion of the history of Japan's system of courts. It then discusses justice system reform, the court system, lay participation, speeding up of court proceedings, alternative dispute resolution, and international commercial arbitration.Less

The Language of Justice in Northern Iberia Before AD 1000

Wendy Davies

in Power and Place in Europe in the Early Middle Ages

This chapter represents an examination of the nature of the records that describe judicial court procedure in northern Iberia in the 9th and 10th centuries. It reveals that most records do not derive ... More

This chapter represents an examination of the nature of the records that describe judicial court procedure in northern Iberia in the 9th and 10th centuries. It reveals that most records do not derive from court proceedings but from subsequent construction, sometimes for very partial reasons. This allows us a better understanding of process on the ground and some perception of the power relations that derive from controlling the record.Less

Dealing with Losses

Oscar Gelderblom

in Cities of Commerce: The Institutional Foundations of International Trade in the Low Countries, 1250-1650

This chapter examines the various ways in which the merchants of the Low Countries dealt with losses from violent assaults. It shows the importance of urban competition, not only for specific groups ... More

This chapter examines the various ways in which the merchants of the Low Countries dealt with losses from violent assaults. It shows the importance of urban competition, not only for specific groups like the German Hanse, but also for the merchant community at large that used the cities' increasingly sophisticated commodity and financial markets to share, spread, and transfer the commercial risks created by Europe's political and legal fragmentation. The chapter first considers how collective action was used by merchants to discipline rulers, as exemplified by the boycotts of Bruges, mostly by the German Hanse but sometimes also by English and Spanish traders, between 1270 and 1310. It then explores court proceedings and spreading of risks as a means for merchants to deal with losses and to organize compensation.Less

Aspects of the Early Cases

Antonio R. Parra

in The History of ICSID

This chapter focuses on key aspects of the cases brought to ICSID in its first two decades. Section I examines the ways in which successive Secretaries-General handled the registration of requests to ... More

This chapter focuses on key aspects of the cases brought to ICSID in its first two decades. Section I examines the ways in which successive Secretaries-General handled the registration of requests to institute proceedings and, in particular, their ‘screening’ of such requests. Patterns in the constitution of the conciliation commissions and arbitral tribunals are traced in Section II, as are the first experiences of the Centre with the resignation and challenge of arbitrators. Section III discusses the distinctly pragmatic approaches of arbitral tribunals in this period to jurisdictional issues, especially the requirement of consent. There was controversy in the early 1980s as to the availability, in the context of an ICSID case, of court-ordered provisional measures. The controversy is reviewed in Section IV, which also looks at the first instances of arbitral provisional measures under Article 47 of the ICSID Convention. Section V examines the underlying interpretations of Article 42(1) of the Convention. Three ad hoc committee decisions rendered under Article 52 of the Convention are the subject of Section VI. Most of the few court proceedings for the enforcement of ICSID awards took place in these early years; the proceedings are reviewed in the concluding Section VII.Less

* ‘Disgusted, Buckingham Palace…’. Divorce, Indecency and the Press, 1926

STEPHEN CRETNEY

in Law, Law Reform and the Family

The bitterness, distress, and humiliation so often associated with divorce was not entirely attributable to the substantive law. Press publicity—often perhaps just the fear of publicity—was ... More

The bitterness, distress, and humiliation so often associated with divorce was not entirely attributable to the substantive law. Press publicity—often perhaps just the fear of publicity—was distressing; whilst the adversarial tradition of court proceedings in which one party had to prove the guilt of the other made matters worse for husbands and wives sucked into litigation. This chapter deals with the circumstances which led to statutory restrictions being put on press reporting of court cases dealing with divorce. It is clear that the prohibition on publication of indecent matter added little to the law. Secondly, although the Judicial Proceedings (Regulation of Reports) Act 1926—one of the rare examples of peace-time legislation specifically restricting the freedom of the press to publish material lawfully in a reporter's possession—prevented the daily press from giving detailed verbatim accounts of sensational divorce cases, the direct effect of the restrictions on reporting divorce cases was not significant; and the press proved well able to make copy, even in undefended cases.Less

Mediation in Switzerland: A New Approach in a Conciliation-oriented Tradition

Christoph Kumpan

Cathrin Bauer-Bulst (ed.)

in Mediation: Principles and Regulation in Comparative Perspective

While alternative dispute resolution has a long-standing tradition in Switzerland, mediation is a rather new phenomenon that has developed largely outside the legislative sphere. Switzerland–not ... More

While alternative dispute resolution has a long-standing tradition in Switzerland, mediation is a rather new phenomenon that has developed largely outside the legislative sphere. Switzerland–not being a Member State of the European Union–has also remained unaffected by recent EU developments and in particular the new EU directive on mediation. However, the country has recently undertaken the creation of its first Code of Civil Procedure at federal level and, in doing so, has also taken steps towards regulating a few aspects of mediation. While leaving untouched much of the party autonomy that has characterised mediation thus far, the new Code regulates the points of interaction between mediation and court proceedings. In particular, mediation is now available as an alternative to the conciliatory proceeding that is obligatory for parties to most civil lawsuits. The chapter on mediation in Switzerland gives a brief overview of the situation as it now stands under the new legislation, covering federal and cantonal legislation, and the practice of mediation including training and statistics on its use.Less

Mediation in Hungary: Legal Foundations, Recent Reforms, EU Convergence

Christa Jessel-holst

in Mediation: Principles and Regulation in Comparative Perspective

Mediation in Hungary was initially regulated only for specific kinds of mediation (consumer protection, health care). The first general statutory regulation was adopted in the form of Act LV/2002 on ... More

Mediation in Hungary was initially regulated only for specific kinds of mediation (consumer protection, health care). The first general statutory regulation was adopted in the form of Act LV/2002 on Mediation, which even today remains the main legal source for mediation. Directive 2008/52/EC was implemented in Hungary in 2009. Since then, binding rules for the professional education of mediators have to be observed. The enforceability of settlements has been facilitated by allowing for subsequent approval by the court. Cost incentives have been extended. Recent reforms aim at the further strengthening of mediation as an alternative to court proceedings. Mediation may also be performed by way of video-conference.Less

Judicial Delays: Matter Is in the Court, Incompetence Is the Main Reason

Sudhanshu Ranjan

in Justice versus Judiciary: Justice Enthroned or Entangled in India?

Judicial delays garrote justice. A civil case filed in Calcutta (now Kolkata) in 1833 is still hanging fire. India has the record of having witnessed a longest contested lawsuit according to the ... More

Judicial delays garrote justice. A civil case filed in Calcutta (now Kolkata) in 1833 is still hanging fire. India has the record of having witnessed a longest contested lawsuit according to the Guinness Book Of World Records. In Pune, on 28th April 1966, Balasaheb Patloji Thorat received a favourable judgment in a suit filed by his ancestor Maloji Thorat 761 years earlier in 1205 CE. Reasons behind the unconscionable delays have been discussed in detail. It is curable provided there is a will and honesty to do it.Less

The Funds Case, 1941–48

Agnès Maillot

in In the Shadow of History: Sinn Féin 1926-70

In 1941 Sinn Féin President Margaret Buckley took legal action against the State in an attempt to recover the Sinn Féin funds that had been lodged in the Free State Courts two decades earlier. This ... More

In 1941 Sinn Féin President Margaret Buckley took legal action against the State in an attempt to recover the Sinn Féin funds that had been lodged in the Free State Courts two decades earlier. This episode gave an interesting insight into what Sinn Féin had contributed to Irish history, how the past was recorded by those who had played a major part in the Revolutionary period, and who could claim the legacy of the pre-Civil War party.Less

Introduction: Arguing with Tradition in Native America

in Arguing with Tradition: The Language of Law in Hopi Tribal Court

This book analyzes tradition and culture as discourses in and of contemporary tribal law by considering the microdetails of face-to-face communication in one tribal legal context: that of property ... More

This book analyzes tradition and culture as discourses in and of contemporary tribal law by considering the microdetails of face-to-face communication in one tribal legal context: that of property hearings held before the Hopi Tribal Court. It argues that the complex imbrications of language, culture, and law constitute the emergent “edge” of contemporary Hopi tribal jurisprudence and the social meanings and effects generated there. It supports this claim by analyzing how legal actors work up contradictory formulations regarding the kinds of talk that are the proper modes and objects of Hopi Tribe courtroom proceedings; how they call for or challenge courtroom uses of tradition by invoking notions of Hopi cultural difference, tradition, and claims to tribal sovereignty. It thus offers a fresh look into the politics of indigenous tradition and culture. The book focuses on the ways in which the ideologies, metadiscourses, and metapragmatics that constitute the “courtroom talk about courtroom talk” constitute notions of tradition and cultural difference in ways that reveal multiple, contradictory, even paradoxical meanings and consequences as the sequence of Hopi court proceedings unfolds.Less

Legal Practice: the Administration of Maritime Justice

Edda Frankot

in 'Of Laws of Ships and Shipmen': Medieval Maritime Law and its Practice in Urban Northern Europe

This chapter discusses a number of issues concerning the administration of maritime justice. Firstly, it investigates who administered justice in the towns of Aberdeen, Kampen, Lübeck, Danzig and ... More

This chapter discusses a number of issues concerning the administration of maritime justice. Firstly, it investigates who administered justice in the towns of Aberdeen, Kampen, Lübeck, Danzig and Reval, but also which court was competent and which law applied when parties of different ‘nationalities’ were involved in a single case. This was a regular occurrence, but it will be argued here that it rarely caused any problems and did not result in the coming into being of supra-national laws or courts. Secondly, the chapter considers in more detail the courts of Lübeck and Danzig, which functioned as a court of appeal for Reval and as a central maritime court for Prussia and Poland respectively. Finally, direct evidence for the use of the written laws in each of the urban courts is analysed and compared in order to establish whether the available manuscripts were actually used in court proceedings.Less

Epilogue

Laura Nader

in Laura Nader: Letters to and from an Anthropologist

This chapter reviews letters about what have been happening in America over the past sixty years as the Ivory Tower slowly erodes. It elaborates the importance of language in the early 1960s for the ... More

This chapter reviews letters about what have been happening in America over the past sixty years as the Ivory Tower slowly erodes. It elaborates the importance of language in the early 1960s for the understanding of kinship and court users in a bilingual town and for any sophisticated understanding of the style of court proceedings, which is later dubbed as “harmony ideology.” It also discusses the author's interest in Zapotec law that expanded to a comparative interest in dispute resolution movements worldwide after the demise of colonialism and the founding of new states. The chapter describes the movement in the United States to address the failings of the civil justice system. It talks about the push to change the civil justice system in the United States that is referred to as Alternative Dispute Resolution, which is a political movement against the social justice movements of the 1960s.Less

Trustees’ Remuneration, Expenses, and Indemnity

Paolo Panico

in International Trust Laws

The services of trustees in eighteenth- and nineteenth-century Britain were presumed to be gratuitous as the relationships between gentlemen should not be tainted by monetary arrangements. This ... More

The services of trustees in eighteenth- and nineteenth-century Britain were presumed to be gratuitous as the relationships between gentlemen should not be tainted by monetary arrangements. This rule reflected a situation where the trustee’s office was usually accepted out of a moral obligation to one’s family or close friends. The reality of professional trustees has gradually changed this approach and modern legislation has introduced a right for trustees acting in a professional capacity to be remunerated for their services. Less

Suffering into Truth: Hopi Law as Narrative Interaction

in Arguing with Tradition: The Language of Law in Hopi Tribal Court

This chapter explores the details of the Hopi Tribe's courtroom interaction with theories of legal narrativity via recent anthropological studies of narrative interaction. It analyzes a third Hopi ... More

This chapter explores the details of the Hopi Tribe's courtroom interaction with theories of legal narrativity via recent anthropological studies of narrative interaction. It analyzes a third Hopi hearing interaction, examining how the very operations of Hopi Tribal Court proceedings and the whole of tribal law instantiated therein are constituted by Hopi legal actors through narrative interactions that allow for the articulation of both Anglo-style notions of legal process and Hopi notions of tradition. It shows how Hopi litigants work to co-narrate the settings of their dispute claims as informed by “truths” grounded in “relational” notions of Hopi tradition that are “outside” Anglo-style law. In doing so, they are also negotiating the very operations of the Hopi court proceedings with which they are engaged. The result is the production of Hopi hearing narratives, and a macrosociological story of the Hopi law they instantiate, that are informed to their core by a unique admixture of Anglo-style and Hopi traditional norms and processes of property disputes.Less

People’s Republic of China (‘.cn’)

Lian Yunze and Liu Yuping

in Domain Name Law And Practice: An International Handbook

In China, trademarks are governed by the Trademark Law (amended in 2001) and the Regulations for Implementation of the Trademark Law (amended in 2002), which provide that any natural person, legal ... More

In China, trademarks are governed by the Trademark Law (amended in 2001) and the Regulations for Implementation of the Trademark Law (amended in 2002), which provide that any natural person, legal person, or other organization intending to acquire the exclusive right to use a trademark for the goods produced, manufactured, processed, selected, or marketed by him or it, or for the goods provided by him or it, shall file an application for the registration of the trademark with the Trademark Office. The China Trademark Office (CTMO) of the State Administration for Industry and Commerce (SAIC) of the People’s Republic of China is responsible for trademark registration and administration. Less

Individualized Justice in a Criminal Court

Carla J. Barrett

in Courting Kids: Inside an Experimental Youth Court

This chapter illustrates the often paternalistic and maternalistic treatment given to kids by judges and other court actors in the Manhattan Youth Part during court proceedings. By showing the ... More

This chapter illustrates the often paternalistic and maternalistic treatment given to kids by judges and other court actors in the Manhattan Youth Part during court proceedings. By showing the various discursive and dramaturgical strategies employed within the court, it argues that these practices reconceptualize the original parens patriae philosophy, with its emphasis on individualized justice, extralegal factors, and child-saving strategies, updating and reinventing it to fit within the structural constraints of a criminal court. The chapter also provides a detailed comparison of the author's ethnographic findings with Aaron Kupchik's findings published in The Process Is the Punishment: Handling Cases in a Lower Criminal Court (1979) in order to understand both the commonalities and differences between case processing in two courts operating under the same state law.Less

Judicial Decision-Making and Deliberations

Theodor Meron

in Standing Up for Justice: The Challenges of Trying Atrocity Crimes

This chapter assesses judicial decision-making and deliberations. The success of international criminal courts depends in no small part on the transparency of proceedings and reasoning of the ... More

This chapter assesses judicial decision-making and deliberations. The success of international criminal courts depends in no small part on the transparency of proceedings and reasoning of the judgements. Transparency is essential to building public confidence in the fair administration of justice. It also serves as an important safeguard against judicial arbitrariness and helps to ensure not only the fairness of the proceedings but the independence and impartiality of the Bench. This commitment to transparency in court proceedings is not absolute, however. It is limited by other factors, such as the importance of protecting witnesses and victims and the requirement that certain information be kept confidential. The chapter looks at the process of decision-making in the ICTY, ICTR, and the Mechanism. It draws attention to four specific issues: the uniqueness of the tribunals and the impact of their special status on decision-making; the diversity of decision-makers at the tribunals; the diverse backgrounds of the tribunals’ Judges and staff; and the process of decision-making.Less