Family law, and the systems with which families interact, and child law or children’s rights, are typically viewed as separate legal subjects or categories. This essay challenges that separation and its consequences for family issues, arguing that family law and the systems with which families interact would benefit from a stronger infusion of children’s perspectives, interests and rights. One benefit would be a stronger structural or systemic focus to family law, reflecting the responsibilities of the State for children in the form of positive socio-economic supports for systems of health, education, housing and employment that are critical to children’s development. Through the example of immigrant children and their families, the essay explores the potential structural impact of children’s rights and perspectives in order to illustrate how a child rights perspective would affect the content and implementation of law and policy.
This article examines the legal position of children of families allegedly associated with Daesh (ISIL/ISIS) who are currently detained in refugee camps in Syria. The analysis is based on a review of consular legislation, human rights obligations and the rules of the Brussels IIa Regulation as well as the 1996 Hague Child Protection Convention. The analysis suggests that the norms and rules of private international law generate content and substance for the concept of ‘jurisdiction’ in both international human rights conventions and the Finnish constitution. The particular perspective from which the issue is examined concerns the situation of the Finnish children who are currently held being captive in the refugee camp of Al-Hol in Syria. In particular, the article probes the issue of defining the habitual residence of a child who has been taken by his or her parents to the so-called ‘Caliphate’ and later captured and held in the refugee camp. It is concluded that these children are likely to be without a habitual residence and the jurisdiction to take protective measures is thus defined in national law. The article argues that under its human rights obligations as well as national norms, especially those contained within the Finnish Child Welfare Act, Finland has the legal obligation to repatriate the children, and in most cases their mothers too, from Al-Hol.
The uneven speed of family law developments results in the phenomenon of ‘limping family relationships’, which are family relationships legally recognised in one State but not in another. One example of this would be that of a same-sex couple who had validly married in a State with gender-neutral marriage laws. If the couple then moves temporarily or permanently to Poland, will their marriage be recognised, considering the latest landmark decisions of the supranational European courts on cross-border recognition of same-sex formalised relationships? The Private International Law Act of Poland provides that the law of nationality should apply to determine the substantial validity of a marriage. However, even if both of the spouses are nationals of a State that allows a gender-neutral marriage, the issue of incompatibility with the heteronormative concept of marriage in the Constitution of Poland arises. The paper analyses private international law in Poland and the relevant practice in light of the new European human rights standards.
The findings of this paper are twofold. On the one hand, under Polish law, Polish nationals are expected not to enter into same-sex marriages, wherever they live. On the other, several developments regarding European human rights standards have softened the traditional approach to same-sex marriages and same-sex parenthood in Poland, and opened some room for cross-border recognition of family status in Poland.
Oslo Law Review
1-2020, volume 7
Oslo Law Review was established in 2014, and publishes research articles from all areas of legal scholarship, as well as interdisciplinary articles or articles that engage with law from the perspective of other related disciplines (e.g. political science, anthropology, sociology, linguistics and philosophy).
Professor Lee A. Bygrave, Department of Private Law, University of Oslo
Associate Professor Tone Linn Wærstad, Department of Private Law, University of Oslo
Luca Tosoni, Norwegian Research Center for Computers and Law, Department of Private Law, University of Oslo
Professor Vidar Halvorsen, Department of Criminology and Sociology of Law, University of Oslo
Doctoral Research Fellow Anders Narvestad, Department of Public and International Law, University of Oslo
Professor Alla Pozdnakova, Scandinavian Institute of Maritime Law, University of Oslo
Professor Shaheen Sardar Ali, University of Warwick
Professor Bert Jaap Koops, University of Tilburg
Professor Elise Poillot, University of Luxembourg
Professor Giovanni Sartor, European University Institute/University of Bologna
Professor Emeritus Carsten Smith, University of Oslo
Professor Lawrence Solum, Georgetown University
Design and typesetting: Type-it AS, Trondheim
Cover design: Scandinavian University Press, Sissel Tjernstad
ISSN online: 2387-3299
The journal is published by Scandinavian University Press (Universitetsforlaget) on behalf of the Faculty of Law at the University of Oslo.