Vol. 14 No. 8 (August 2004), pp.652-654

FRONTIERS OF FAMILY LAW, by Gareth Miller (ed.). Aldershot, England / Burlington, VT: Ashgate Publishing, 2003.  152pp. Hardback.  $79.95 / £45.00. ISBN: 0-75-462274-6.

Reviewed by Deborah E. Sulzbach, Drake University Law Library, Drake University.  Email: Deborah.Sulzbach@drake.edu    

This third collection of papers, most of which were presented at the Centre for Family Law and Policy at the University of East Anglia, aims, as editor Gareth Miller writes in the Introduction, “to explore issues lying at the various frontiers of the subject we have become used to call ‘Family Law’” (p. [1]). Each of the book’s eight contributors addresses key issues in family law, covering diverse topics and jurisdictions, from Scottish children’s law to Aboriginal inheritance in Australia.  Family law is a subject that stretches beyond the confines of national borders and this work describes some of the problems encountered due to the growing mobility of the world’s population.

In the first chapter, Caroline Ball focuses on the United Kingdom’s changed world of adoption.  Ball presents the history of the first 50 years of adoption within the UK, looks at reforms made between the introduction of legal adoption in 1926 and prior to the Adoption Act 1976, and presents a detailed introduction to the new Adoption and Children Act 2002, which should be fully implemented in 2004.  Although the Adoption and Children Act 2002 has opened up the adoption process and has allowed individuals to easily search for their “roots,” Ball makes it clear that such legislation cannot provide all answers to the complexities of adoption. 

In Chapter Two Liz Trinder discusses two major trends in the law of contact orders.  The first is the shift to the resolution of family disputes by parents rather than the courts, and the second is the belief in the importance of contact by the non-custodial parent with a child after divorce.  Trinder presents data from The Contact Project, a two-year study funded by the Joseph Rowntree Foundation, which examined how contact was negotiated and how individual family members (mother, child, and father) experienced contact.  In general, the study found that contact negotiated between parents, without interference of the law, was preferable and worked exceedingly well. There was a role for the law, particularly in disputed contact cases; however, it is clear that family disputes are best resolved when the parents, rather that the courts, decide upon the arrangements.

William Duncan’s chapter presents some of the problems inherent in cross-frontier contact orders and offers suggestions for the rectification of such problems.  As stated in The United Nations Convention on the Rights of the Child, “a child whose parents reside in different States shall have the right to maintain on a regular basis . . . personal relations and direct contact with both parents.” This right has proven to be challenging since each State may have different jurisdictional standards.  Duncan [*653] suggests that the law should offer a contact framework within which agreed standards between States is encouraged.  Uniform rules would alleviate challenges encountered in international contact orders, thereby allowing a child to easily maintain personal relationships with both parents who may reside across international borders.

Alastair Bissett-Johnson addresses recent developments in Scottish children’s law in the next chapter.  Bissett-Johnson reveals that under state law, a Scottish child aged 12 and above has the ability to hire a lawyer to represent her desires in custody cases, can make a will and can consent to adoption.  At age 16, a child has reached the age of majority, allowing her to enter into legally binding transactions. Scotland recognizes a child’s views and strives to conform to The United Nations Convention on the Rights of the Child.  Bissett-Johnson also presents a detailed discussion of the 40 years of the Scottish Children’s Hearing system.  The principal role of the system is to deal with children up to age 16 who have been charged with criminal offenses. It appears that Scottish children have greater independence than their English counterparts. 

Brigitte Clark discusses new developments in South African child maintenance and rights.  With the HIV/AIDS crisis within the country, the number of children orphaned by this modern day plague is astronomical. It is believed that by 2010 the disease will affect 2 million children under the age of 16. On top of this, nearly one-third of South Africans are living below the poverty line. Current statistics estimate that 72% of children aged 0-18 live in poverty.  The lack of resources to address these problems is a key concern for South Africa.  Although the South African Constitution provides that everyone has the right to social security and social assistance, little help is provided to the children orphaned by HIV/AIDs or living in poverty. While supplying universal social security will have large-scale financial implications for South Africa, every effort must be made to provide for those in need.  As Clark states, South Africa must find a way to provide services particularly to affected children, and they need to ensure that “the South African Constitution is based on real and not merely paper rights” (p.86).  

Judge David Pearl’s chapter addresses the Care Standards Tribunal of England and Wales, which came into existence in April 2002, and the human rights issues raised by this new legislation.  The Tribunal hears appeals from those who banned from working with children due to inappropriate conduct. Prior to the enactment of the Tribunal, measures that barred individuals from interaction with children were inadequate. Inconsistency between judges and jurisdictions allowed for conflicting policy considerations. Although a child’s safety and welfare must be paramount in the minds of social workers, teachers, or those who interact with them, the rights of those charged with misconduct towards a child must also be considered. The Tribunal has gone a long way in establishing consistency of standards in this sensitive area.

Prue Vines delves into the specifics germane to Australian Aboriginal inheritance law and sorts out the facts from the fiction.  She begins her essay [*654] by identifying five common misconceptions, with a detailed rebuttal of each. She also presents an explanation of after-death rituals and the distribution of property, and a detailed Aboriginal kinship graph.  Customary law determines Aboriginal inheritance. Although certain states have set up inheritance regimes for the Aborigines, Australian law fails to recognize the different cultures and the important role they play in inheritance law and intestacy. Every effort must be made not to destroy these customs, although it could prove to be complex and costly.  The recognition of Aboriginal customs by the Australian government is necessary to make certain that customary inheritance law is protected and enforced.

In the final chapter, editor Gareth Miller explains various aspects of pre-nuptial agreements and financial provisions.  Although pre-nuptial contracts are an integral part of marriage in many countries, such agreements are not legally enforceable within England and many other commonwealth countries. Even so, there have been cases in which they have proven to be an important factor.  In property rights issues, the court has recognized the agreement as a guide for determining final distributions. Upon the death of a spouse, prenuptial agreements made in other jurisdictions have been recognized in England. Such exceptions are rare; the consensus in England is that pre-nuptial agreements pose a threat to marriage.  They could leave a spouse without adequate means of support or the parties may not have been in an equal bargaining position when the agreement was constructed.  Although pre-nuptial agreements are unlikely to have a worldwide appeal, Miller stresses that they can play a role in cases “where a desire for certainty in the light of existing assets and responsibilities is not unreasonable” (p.140).   

FRONTIERS OF FAMILY LAW is a clear and concise summary of current developments in family law.  It details the challenges faced by the modern family in light of continually changing living arrangements and offers new perspectives on family issues in a wide variety of jurisdictions.  Each chapter covers major fundamental reforms in international law.  This book is a useful contribution to the field and an informative presentation of current family law issues that should appeal not only to students and academics but also to anyone interested in the field of family law, human rights and welfare.

*****************************************************

Copyright 2004 by the author, Deborah E. Sulzbach.