Family & Law

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    The Dutch levenstestament allows adults in the Netherlands to make their own provisions for a future period of incapacity. Although this instrument is becoming increasingly popular, the current regulation and application of the levenstestament are not without problems. The levenstestament has been designed and conceptualised by the Dutch notariate within the framework of the existing law. This regulatory framework has not been designed with a setting of future incapacity in mind and compliance with international human rights norms and principles, such as Article 12 UNCRPD, is therefore not sufficiently guaranteed. Moreover, empirical research indicates that the application of the levenstestament, in practice, does not run smoothly in all cases. Across Europe there are countries where the possibility to make instruments, similar to the Dutch levenstestament, has already been in place for quite some time and where such instruments are regulated by law. This article presents the results of a comparative study of the legal regulation and practical application of enduring documents in four European jurisdictions (Belgium, Germany, England and Wales and Switzerland). Recommendation CM/Rec(2009)11 on Principles concerning continuing powers of attorney and advance directives for incapacity has been used as a frame of reference to look at the regulation on the form, content, entry into force, registration and/or certification of each enduring document as well as the appointment and role of attorneys, the preservation of legal capacity, conflicts of interests and supervision. The aim has also been to gain an impression of the law in action. Based on this information best practices have been identified which provide a solution to the problems with the regulation and application of the levenstestament in the Netherlands. The adoption of specific legislation incorporating these best practices in Book 1 of the Dutch Civil Code is recommended.

Rieneke Stelma-Roorda LLM MSc
H.N. Stelma-Roorda LLM MSc is PhD Candidate at Vrije Universiteit Amsterdam.

    The rise in divorce rates around Europe has led to an increase in custody cases before national and international courts. In these challenging and often volatile cases, rights of children and parents are simultaneously at stake, rendering decision-making at the courts a highly delicate balancing act. Debates regarding custody policies have been characterized by changing gender roles and a battle for equality, while gender-based parenting roles have become less distinct. This raises questions with regards to the perceived divide between mothers and fathers in family adjudication. The aim of this article is to identify what European human rights law has to say with regards to parental equality in custody disputes, and to what extent it leaves room for parents to be evaluated by different standards. Two main factors are brought forward: contemporary values and perceptions of parenthood, and the indeterminacy of the best interests of the child. The effects of these two factors are analyzed in the context of case law of the European Court of Human Rights and the Court of Justice of the European Union. The article argues that differing evaluation of mothers and fathers in custody-related disputes is, to a certain degree, allowed by the European human rights regime, whenever such difference is deemed justified by the best interests of the child.

Tapio Pauli Aleksi Koivula LLM
Tapio Pauli Aleksi Koivula is Junior Researcher at the University of Lapland: Lapin Yliopisto.