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Family Law: Parents and children - Essay Example

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Traditionally the debate revolving around children rights centre on the friction that exists amongst concerns over children welfare on one hand and worries over crossing legal borders and encroaching over issues related to family privacy and rights of parents. …
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Family Law: Parents and children
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Download file to see previous pages The very notion of child welfare (where besides close family members’ a third party is involved) and rights for children where they are allowed to take decisions for matters directly concerning themselves is a revolutionary theory that though conceptualised during the 1970s1 was not given a legal sanction until the 1980s. The welfare rights of a child was almost unheard of in UK (and rest of the world) until the middle of the 19th century, and maintaining family privacy and supreme authority of the parents were given greater prominence. In the latter half of the nineteenth century, social activists started various initiatives that aimed at highlighting children welfare.2 These initiatives formed to be the groundwork for the present form of welfare state that accorded protection to children rights as per the provisions outlined within United Nations Convention for child rights and the ECHR. Owing to the growing number of divorces, there has been increasing number of debates between women’s rights activists and father’s rights bodies, where both groups have claimed that a child’s welfare is best compatible with their position only. This has led to the children being treated sometimes as rightful property of their fathers, while sometimes mother’s care is seen as an essential ingredient for the child.3 Until 19th century the fathers received child custodies in case of divorce or separation, however, starting from the early 20th century some states in US shifted towards favouring mothers, in cases pertaining to child access and custody.4 Thus, we find that children traditionally are viewed as rightful possessions of either one of their parents.5 It was for this reason the concept of ‘best interests of the child’ was created, where the courts determined various issues associated with a child’s well-being, in cases of separation or divorces, where both the parents tend to claim the child as their own and for its safekeeping. Recently with growing complaints regarding ambivalence in the nature and standard of the legal statute for best interests of the child,6 a new theory has been conceptualised where it has been derived that a child’s welfare as a different matter separate from (with some links to) parental rights. Presently in most of the developed nations (as in, UK, US and Australia), a new legal provision associated with responsibilty for parents, is slowly being introduced into the arena of family law. Here the most significant issue on child welfare is related to the question on the position and state of a child, after the parents separate or divorce. In this context, this article examines the contentious issue of child custody and shared parenting, and will derive that a child’s welfare is of primary concern and must be addressed even before the rights of parents are ascertained. It will support the recommendation put forth in the 2011 Justice Review that no legislation should be created that may lead to an assumption that parental right translates to equal or shared time parenting for both the partners during a separation or divorce. It will derive that each case must be reviewed separately before a ruling is passed, even though there are no doubts regarding the benefits of joint or shared custody. Discussion In last few decades, there has been growing interest in the concept of shared parenting, where couples who are divorced or are separated and no longer wish to live together, yet want to devote some time towards their children. This shared parenting or shared time varies from what is what is legally viewed as shared responsibility towards the child, and is in addition to the latter. Recently there have been recommendations and demands ...Download file to see next pagesRead More
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