European Family Law Volume III

European Family Law Volume III

Family Law in a European Perspective

Edited by Jens M. Scherpe

This four-volume set maps the emerging European family law. It is intended to serve as a resource for anyone interested in this area of law, as well as a basis for teaching on comparative and international family law courses. The first volume examines the impact of institutions and organisations on European family law. While there is no European body that could actually legislate definitively on family law, there are some institutions that have a direct impact on European family law, while the impact of others is more indirect. In the second volume the changing concept of ‘family’ and challenges for domestic family law are analysed in 21 different jurisdictions, in 16 chapters. All contributions look at ‘horizontal’ family law (the law concerning the relationships between adults), ‘vertical’ family law (the law concerning the relationships of adults and children) as well an ‘individual’ family law (the law on names and gender identity). In the third volume the contributions take a comparative view on specific issues from a European perspective. The fourth volume, which works as a stand-alone monograph, draws on all of the previous chapters, and discusses the present and future of European family law. It establishes areas where ‘institutional’ European family law exists – in the sense that there are binding legal rules for all European jurisdictions – for example, as a result of a decision by the European Court of Human Rights. It also identifies areas where, as a result of common legal and social developments for ‘horizontal’, ‘vertical’ and ‘individual’ family law, an ‘organic’ European family law is emerging and suggests how family laws in Europe are going to develop in the future.

Chapter 6: The child’s welfare in a European perspective

Rob George

Subjects: law - academic, european law, family law

Extract

Family law in domestic legal systems across Europe gives special prominence to the welfare or best interests of children in disputes concerning their upbringing. These domestic provisions receive support from the United Nations Convention on the Rights of the Child 1989, which provides that, in all actions concerning children, ‘the best interests of the child shall be a primary consideration’. The same language has, more recently, been used in the Charter of Fundamental Rights of the European Union. While domestic provisions often use slightly different language from these international documents, the idea that the child’s welfare amounts to a special consideration in decisions regarding their upbringing is widespread. However, despite the dominance of this welfare approach across Europe, there is a long-standing question about whether an approach to child law focused on the child’s welfare is compatible with the requirements of the European Convention on Human Rights (ECHR) as interpreted by the European Court of Human Rights (ECtHR). The details will vary from jurisdiction to jurisdiction, but the widespread use of the welfare approach means that the core of the discussion is relevant across Europe. However, the question has been particularly well discussed by academics and judges in England, and so this chapter focuses on this debate as seen in the English context.

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