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Article

Access_open The Child’s Contact with Grandparents

Journal Family & Law, September 2021
Keywords Family life, Best interest of the child, Contact rights, Grandchildren, Grandparents
Authors prof. M. Holdgaard
AbstractAuthor's information

    Grandparents hand down their experiences, knowledge, traditions and values to their grandchildren. As a high level of grandparental involvement may play an important role in a child’s well-being, legal protection of that family relation may be in the best interest of a given child. There is a continuing interaction between family law, cultural and social norms of what constitutes a family and how family life should be, and actual family practices and structures. Due to changing family patterns combined with an increasing number of divorces and cohabiting couples with children splitting up grandparents now play an increasing role in their grandchildren’s lives. Children become members within other types of family structures, e.g. single parents (raising half-siblings), families with yours and/or mine (and joint) children etc. When a child’s family includes a step-parent with children and step-grandparents – as well as the biological parents and grandparents – a potential risk of conflict among the family members is high. Grandparents, therefore, risk losing contact or having less contact than they had previously. At first glance, there might appear to be little reason for society to regulate the practices of grandparents as providers of non-formalized childcare or to protect the rights of children in these relationships. However, due to the changing family practices and social norms, one could argue that the legal protection of contact between grandparents and grandchildren is an important legal topic in domestic law and in academic discussions in the coming years. This article articulates these issues by framing three articles that together create a thematic map in this journal on Spanish and Catalan law, and Scandinavian law as well as the grandparents’ right to maintain contact with their grandchildren under the European Convention on Human Rights seen in a context of the best interest of the child.


prof. M. Holdgaard
Marianne Holdgaard is Professor in family and inheritance law at the School of Law, Faculty of Social Sciences, University of Aalborg

Albert Dzur
Albert Dzur is Distinguished Research Professor, Departments of Political Science and Philosophy, Bowling Green State University, USA. Contact author: awdzur@bgsu.edu.

Jan Tomasek
Jan Tomasek is a researcher at the Institute of Criminology and Social Prevention, Prague, Czech Republic. Contact author: jtomasek@iksp.justice.cz.
Article

Exploring the growth and development of restorative justice in Bangladesh

Journal The International Journal of Restorative Justice, Issue 2 2021
Keywords restorative justice, Bangladesh, salish, village courts, INGOs
Authors Muhammad Asadullah and Brenda Morrison
AbstractAuthor's information

    Although restorative justice is a new concept in Bangladesh (BD), resolving wrongdoing outside the criminal justice system is not a new practice. Community-based mediation, known as salish, has been practised for centuries – withstanding colonisation, adaptation and distortion. Other practices, such as village courts and customary justice, are also prevalent in Bangladesh. Of these, village courts are currently the most widely practised in Bangladesh. Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ Bangladesh) formally introduced restorative justice in 2013 with the support of international non-governmental organisations (INGOs), NGOs, academics and government agencies. Most of the literature on community-based justice practice focuses on village courts; academic, peer-reviewed research on restorative justice in Bangladesh is scarce. This qualitative study explores the growth and development of restorative justice in Bangladesh. Using in-depth qualitative interviews and survey, the study retraces the genesis of restorative justice in Bangladesh. In recent times, GIZ Bangladesh has been key to the development of restorative justice, which was further expanded by UNDP’s Activating Village Courts project, as well as a graduate course on restorative justice at the University of Dhaka. This study also finds contentious themes raised by the key informants, specifically the role of INGOs, government and community.


Muhammad Asadullah
Muhammad Asadullah is Assistant Professor at the Department of Justice Studies, University of Regina, Canada.

Brenda Morrison
Brenda Morrison is Associate Professor at the School of Criminology, Simon Fraser University, Canada. Contact author: Muhammad.Asadullah@uregina.ca.

Ian D. Marder
Ian D. Marder is a Lecturer in Criminology in the Department of Law at Maynooth University, Ireland.

Meredith Rossner
Meredith Rossner is a Professor of Criminology at the Centre for Social Research and Methods at Australia National University, Australia. Contact author: Ian.Marder@mu.ie.

Lisa Merkel-Holguin
Lisa Merkel-Holguin is the Director of the Kempe Center for the Prevention and Treatment of Child Abuse and Neglect, Department of Pediatrics, Aurora, Colorado, and Associate Professor of Pediatrics at the University of Colorado School of Medicine, USA. Contact author: lisa.merkel-holguin@cuanschutz.edu.
Article

Access_open Using restorative justice to rethink the temporality of transition in Chile

Journal The International Journal of Restorative Justice, Issue 2 2021
Keywords temporality, transitional justice, restorative justice, Chile, ongoingness, multilayeredness & multidirectionality
Authors Marit de Haan and Tine Destrooper
AbstractAuthor's information

    Assumptions of linear progress and a clean break with the past have long characterised transitional justice interventions. This notion of temporality has increasingly been problematised in transitional justice scholarship and practice. Scholars have argued that a more complex understanding of temporalities is needed that better accommodates the temporal messiness and complexity of transitions, including their ongoingness, multilayeredness and multidirectionality. Existing critiques, however, have not yet resulted in a new conceptual framework for thinking about transitional temporalities. This article builds on insights from the field of restorative justice to develop such a framework. This framework foregrounds longer timelines, multilayered temporalities and temporal ecologies to better reflect reality on the ground and victims’ lived experiences. We argue that restorative justice is a useful starting point to develop such a temporal framework because of its actor-oriented, flexible and interactive nature and proximity to the field of transitional justice. Throughout this article we use the case of Chile to illustrate some of the complex temporal dynamics of transition and to illustrate what a more context-sensitive temporal lens could mean for such cases of unfinished transition.


Marit de Haan
Marit de Haan is a PhD researcher at the Human Rights Centre of Ghent University, Belgium.

Tine Destrooper
Tine Destrooper is Associate Professor of Transitional Justice at the Human Rights Centre of Ghent University, Belgium. Contact author: marit.dehaan@ugent.be.

Stephan Parmentier
Stephan Parmentier is a Professor of Sociology of Law, Crime and Human Rights at the Faculty of Law, KU Leuven, Belgium. Contact author: stephan.parmentier@kuleuven.be.
Article

Risk, restorative justice and the Crown

a study of the prosecutor and institutionalisation in Canada

Journal The International Journal of Restorative Justice, Issue 2 2021
Keywords restorative justice, institutionalisation, risk, prosecutor, Canada
Authors Brendyn Johnson
AbstractAuthor's information

    In Canada, restorative justice programmes have long been institutionalised in the criminal justice system. In Ontario, specifically, their use in criminal prosecutions is subject to the approval of Crown attorneys (prosecutors) who are motivated in part by risk logics and risk management. Such reliance on state support has been criticised for the ways in which it might subvert the goals of restorative justice. However, neither the functioning of these programmes nor those who refer cases to them have been subject to much empirical study in Canada. Thus, this study asks whether Crown attorneys’ concerns for risk and its management impact their decision to refer cases to restorative justice programmes and with what consequences. Through in-depth interviews with prosecutors in Ontario, I demonstrate how they predicate the use of restorative justice on its ability to reduce the risk of recidivism to the detriment of victims’ needs. The findings suggest that restorative justice becomes a tool for risk management when prosecutors are responsible for case referrals. They also suggest that Crown attorneys bear some responsibility for the dangers of institutionalisation. This work thus contributes to a greater understanding of the functioning of institutionalised restorative justice in Canada.


Brendyn Johnson
Brendyn Johnson is a PhD candidate at the School of Criminology at the University of Montreal, Canada. Contact author: brendyn.johnson@umontreal.ca. Acknowledgement: This research is supported in part by funding from the Social Sciences and Humanities Research Council of Canada. I am grateful for the support of Véronique Strimelle and Françoise Vanhamme for their guidance in the conducting of this research as well as Marianne Quirouette for her thoughtful comments in the writing of this article.
Article

Performing restorative justice: facilitator experience of delivery of the Sycamore Tree ­Programme in a forensic mental health unit

Journal The International Journal of Restorative Justice, Issue Online First 2021
Keywords restorative justice, sycamore tree programme, ethnography, forensic mental health, self-presentation
Authors Joel Harvey and Gerard Drennan
AbstractAuthor's information

    Restorative justice has increasingly been used across the criminal justice system. However, there is limited evidence of its use with service users within forensic mental health settings. This study conducted a focused ethnography in a medium secure unit in the UK to explore the implementation of the Sycamore Tree Programme, a specific restorative justice programme that the Prison Fellowship (PF) facilitates in prisons. This article examines the experience of PF volunteers and National Health Service (NHS) staff who came together to run the programme with the first cohort of eight service users (‘learners’). Focus groups were carried out before and after training with eight facilitators, and six interviews with facilitators were completed after the programme ended. Furthermore, detailed observations were carried over the six-week programme. It was found that the encounter was highly experiential for staff and that the group process generated significant emotion for both the learners and facilitators. A pre-requisite for containing the group’s and the facilitators’ emotions was staff taking a relational and collaborative approach to their work. The findings of this study are discussed within the theoretical framework of ‘the presentation of self in everyday life’ (Goffman, 1959) , looking through the lens of the performative self in social relations.


Joel Harvey
Joel Harvey is Lecturer in Forensic Psychology at the Department of Law and Criminology, Royal Holloway University of London and Registered Clinical and Forensic Psychologist.

Gerard Drennan
Gerard Drennan is Lead Psychologist – Forensic and Offender Health Pathway, South London and Maudsley NHS Foundation Trust.

    Restorative justice has frequently been presented as a new criminal justice paradigm, and as something that is radically different from punishment. I will argue that this ‘oppositioning’ is problematic for two reasons: first, because some cases of restorative justice constitute de facto punishment from the perspectives of some positions on what punishment is; second, because restorative justice could reasonably be more widely adopted as a new form of de jure punishment, which could potentially increase the use of restorative justice for the benefit of victims, offenders and society at large. In connection with the latter, I want to present some preliminary thoughts on how restorative justice could be incorporated into future criminal justice systems as de jure punishment. Furthermore, I will suggest that by insisting that restorative justice is radically different from punishment, restorative justice advocates may − contrary to their intentions − play into the hands of those who want to preserve the status quo rather than developing future criminal justice systems in the direction of restorative justice.


Christian Gade
Christian B. N. Gade is an associate professor of human security and anthropology at Aarhus University and a mediator in the Danish victim-offender mediation programme (Konfliktråd). Corresponding author: gade@cas.au.dk.

    The German Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) has ruled that the user of an online platform (‘crowdworker’) who takes on so-called ‘microjobs’ on the basis of a framework agreement concluded with the platform operator (‘crowdsourcer’) can be an employee of the crowdsourcer. This applies in a case where the framework agreement is aimed at a repeated acceptance of such microjobs. The decisive factor is whether the crowdworker performs work that is subject to instructions and is determined by third parties in the context of the actual performance of the contractual relationship. The name of the contract is irrelevant. One assumes an employment relationship if the crowdsourcer controls the collaboration via an online platform operated by them in such a way that the crowdworker cannot freely shape their activity in terms of place, time and content.


Katharina Gorontzi
Katharina Gorontzi, LLM, is a senior associate at Luther lawfirm in Dusseldorf, Germany.

Jana Voigt
Jana Voigt is a senior associate at Luther lawfirm in Dusseldorf, Germany.

    In a recent case, the Danish Supreme Court addressed the question of what constitutes a comparable permanent employee in relation to discrimination against fixed-term employees. The Supreme Court ruled that even though the two groups of fixed-term and permanent singers at the Royal Opera Chorus of the Royal Danish Theatre performed almost the same tasks, their positions were not comparable as the singers’ qualifications and skills were different and, for this reason, the difference in terms and conditions was not discriminatory.


Christian K. Clasen
Christian K. Clasen is a partner at Norrbom Vinding, Copenhagen.

    In the case of a ‘service provision change’ under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), where a service is outsourced or re-tendered, the Employment Appeal Tribunal (EAT) has ruled that an employee’s contract can be split so they go from working full-time for one employer to working part-time for two or more employers.


Amy Cooper
Amy Cooper is an associate at Lewis Silkin LLP.
Article

Restorative justice in schools: examining participant satisfaction and its correlates

Journal The International Journal of Restorative Justice, Issue Online First 2021
Keywords restorative justice, school-to-prison-pipeline, satisfaction
Authors Ph.D. John Patrick Walsh, Jaclyn Cwick, Patrick Gerkin e.a.
AbstractAuthor's information

    Schools in the United States are implementing restorative justice practices that embrace student responsibility and reintegration to replace the zero-tolerance exclusionary policies popularised in the 1980s and 1990s. However, little is known about what factors are related to these and other restorative outcomes. The present study utilises 2017-2018 survey data (n = 1,313) across five West Michigan schools to determine how participant and restorative circle characteristics contribute to participant satisfaction within ordinary least squares (OLS) regression models. Findings show that several characteristics of restorative circles, including the number of participants, time spent in the restorative circle, number of times respondents have participated in a circle, and whether an agreement was reached, are significantly related to participant satisfaction. In addition, gender and participant role interact to have a significant effect on satisfaction. And models disaggregated by incident type indicate that the interaction between race and participant role has a significant effect on satisfaction, but only among restorative circles involving friendship issues. Suggestions for future research, as well as strategies aimed at improving participant satisfaction within restorative circles, are discussed.


Ph.D. John Patrick Walsh
Dr. John P. Walsh is professor at the School of Criminology, Criminal Justice, and Legal Studies of the Grand Valley State University in Allendale, United States. Contact author: walshj@gvsu.edu.

Jaclyn Cwick
Dr. Jaclyn Cwick is assistant professor at the School of Criminology, Criminal Justice, and Legal Studies of the Grand Valley State University in Allendale, United States.

Patrick Gerkin
Patrick Gerkin, PhD, is professor at the School of Criminology, Criminal Justice, and Legal Studies of the Grand Valley State University in Allendale, United States.

Joshua Sheffer
Joshua Sheffer is assistant professor at the School of Criminology, Criminal Justice, and Legal Studies of the Grand Valley State University in Allendale, United States.
Article

The Reform of Contract Rules in China’s New Civil Code

Successes or Pitfalls

Journal European Journal of Law Reform, Issue 2 2021
Keywords Civil Code of the People’s Republic of China, Contracts of the Civil Code, Chinese legal system, legislative history
Authors Peng Guo and Linxuan Li
AbstractAuthor's information

    The Civil Code of the People’s Republic of China (Civil Code) came into force on 1 January 2021. Book III on Contracts of the Civil Code has adopted significant changes compared to the old Chinese Contract Law (Contract Law). This article provides a comprehensive and systemic analysis of those changes from structure to content, from legislative technics to values underpinning the Civil Code. It evaluates all the factors in the context of the development of Chinese society, Chinese culture and Chinese legal system.
    This article first outlines the historical background of the development of the Contract Law and the Civil Code. It then moves on to compare the Civil Code and the Contract Law, highlighting the changes in structure, the incorporation of new provisions and the amendments to old provisions in light of contemporary Chinese society and culture. Finally, it argues that the Civil Code is a significant milestone in China’s legislative history; that it reflects the legislative experience and judicial practice in China; that it adds provisions which are innovative and of Chinese characteristics to meet the needs of China’s changing society and legal system; and that it keeps pace with the development of the global law reform and harmonization.


Peng Guo
Peng Guo is a Lecturer in Law, Graduate School of Business and Law, RMIT University, Australia.

Linxuan Li
Linxuan Li, LL.M. University of International Business and Economics, LL.B. Shandong University, China.
Article

Compensation for Victims of Disasters

A Comparative Law and Economic Perspective

Journal European Journal of Law Reform, Issue 2 2021
Keywords victim compensation, disaster risk reduction, government relief, insurance, moral hazard, public private partnership
Authors Qihao He and Michael Faure
AbstractAuthor's information

    This article provides a critical analysis of the compensation awarded for victims of disasters. First, general guiding principles of compensation are discussed. Next, various ways of government provided victim compensation, both during the disaster and ex post are critically reviewed. Then the article focuses on ex ante insurance mechanisms for victim compensation, arguing that insurance can play a role in disaster risk reduction. Finally, the article explains how the government can cooperate with insurers in a public-private partnership for victim compensation, thus facilitating the availability of disaster insurance.


Qihao He
Qihao He is Associate Professor of Law, China University of Political Science and Law, College of Comparative Law. Beijing, China. Qihao He acknowledges the financial support of China Ministry of Education Research Program on Climate Change and Insurance (No. 18YJC820024), and Comparative Private Law Innovation Project of CUPL (No. 18CXTD05).

Michael Faure
Michael Faure is Michael G. Faure, Professor of Comparative and International Environmental Law, Maastricht University, and Professor of Comparative Private Law and Economics, Erasmus University Rotterdam, The Netherlands. The authors thank the participants in the symposium of Regulating Disasters through Private and Public Law: Compensation and Policy held in University of Haifa, and the comments from Suha Ballan.
Article

Is Euroscepticism Contagious?

How Mainstream Parties React to Eurosceptic Challengers in Belgian Parliaments

Journal Politics of the Low Countries, Issue Online First 2021
Keywords Euroscepticism, parliaments, party competition, Belgium, federalism
Authors Jordy Weyns and Peter Bursens
AbstractAuthor's information

    Euroscepticism has long been absent among Belgian political parties. However, since the start of the century, some Eurosceptic challengers have risen. This article examines the effect of Eurosceptic competition on the salience other parties give to the EU and on the positions these parties take in parliament. Using a sample of plenary debates in the federal and regional parliaments, we track each party’s evolution from 2000 until 2019. Our findings both contradict and qualify existing theories and findings on Eurosceptic competition. When facing Eurosceptic challengers, all parties raise salience fairly equally, but government and peripheral parties adopted (soft) Euroscepticism more often than other parties.


Jordy Weyns
Jordy Weyns is a recent graduate from Universiteit Antwerpen, and will soon start a PhD program at the European University Institute in Firenze.

Peter Bursens
Peter Bursens is professor of political science at Universiteit Antwerpen, at the research group Politics and Public Governance and the GOVTRUST Centre of Excellence.
Article

Access_open Invisible before the law

The legal position of persons with intellectual disabilities under the Dutch Care and Compulsion Act (Wzd) in light of Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD)

Journal Family & Law, June 2021
Keywords dicrimination, guardianship, incapacitated adults, legal (in)capacity
Authors F. Schuthof LLM
AbstractAuthor's information

    In the Netherlands, the use of involuntary treatment in the mental health care sector is governed by the Dutch Care and Compulsion Act (Wzd). This study examines the legal position of persons with intellectual disabilities under this Act. The Wzd is analyzed in light of the human rights standards of Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD). The findings of this study show that the Wzd does not meet the standards of Article 12 in several cases. The Wzd does not recognize the legal capacity of persons with intellectual disabilities, it continues to allow for substituted decision-making and support measures are not complemented by adequate safeguards. From a theoretical point of view, an imbalance between the protection of and the respect for the autonomy of persons with intellectual disabilities can be observed. This article formulates several recommendations in order to restore this balance.
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    De Nederlandse Wet zorg en dwang (Wzd) ziet toe op de rechten van mensen met een verstandelijke beperking bij onvrijwillige zorg of onvrijwillige opname. Dit artikel onderzoekt de juridische positie van mensen met een verstandelijke beperking ten aanzien van deze wet. De Wzd wordt geanalyseerd in relatie tot artikel 12 van het Verdrag inzake de Rechten van Personen met een Handicap (VRPH). De bevindingen van dit onderzoek laten zien dat de Wzd in verschillende gevallen niet voldoet aan de normen van artikel 12 VRPH. Zo wordt onder andere de handelingsbekwaamheid, ofwel ‘legal capacity’, van mensen met een verstandelijke beperking niet erkend en blijft plaatsvervangende besluitvorming mogelijk. Vanuit theoretisch oogpunt is er sprake van een disbalans tussen de bescherming van en het respect voor de autonomie van mensen met een verstandelijke beperking. Dit artikel doet daarom meerdere aanbevelingen om dit evenwicht te herstellen.


F. Schuthof LLM
Fiore Schuthof conducts research into better empowerment and protection of the elderly as a PhD student at Utrecht University (UU).
Article

Access_open Evaluative Mediation (Part I), an Analysis

Evaluative Mediation, Working Method or Not?

Journal Corporate Mediation Journal, Issue 1 2021
Keywords core values, evaluative mediation, method
Authors Martin Brink
AbstractAuthor's information

    The phenomenon of evaluative mediation has invited much debate among both scholars and mediators. At the heart of that debate is the question of a definition of mediation. Considering all prevailing schools of mediation, the conclusion was that doctrine will not be able to prevent that mediation will continue to occur in all kinds of shapes and forms.


Martin Brink
Martin Brink (Van Benthem & Keulen BV, advocaten en notariaat at Utrecht, the Netherlands), is Editor-in-Chief of this journal.
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