International Journal of Law, Policy and the Family - current issue

Law, Pluralism and the Family In Kenya: Beyond Bifurcation of Formal Law and Custom

Kamau, W. — 2009-05-05

Family law in Africa has been is characterized by pluralism where customary, religious and state laws co-exist within the same social context. However, this plurality is marked by a false dichotomization of formal law and custom. Under the law/custom dichotomy, people are deemed to be governed by one system of law to the exclusion of all others and to order their family lives within the boundaries of that system. However, this bifurcation runs counter to the reality on the ground, as people's family lives in Africa constantly traverse the boundaries of legal systems. This is particularly true of cohabitation relationships, which defy conventional categorizations of family law systems. This article examines the ways in which prevailing legal policies and judicial attitudes in Kenya have impacted on women's claims to property and maintenance upon breakdown of the cohabitation relationship. The article argues that the bifurcatory approach stems from an erroneous conceptualization of customary law, manifested in a weak form of legal pluralism that does not give effect to people's experience of the intersection of legal orders. In thinking about reform of family law in the African context, there is need for an approach to legal pluralism that pays attention to people's perception of their normative context and how such perception shapes their attitudes and actions. This would help in developing a legal framework that is more in tune with people's lived reality, particularly that of women.

From Angelina (To Madonna) to Zoe's ark: What are the 'A-Z' Lessons for Intercountry Adoptions in Africa?

Mezmur, B. D. — 2009-05-05

Between 2005 and 2007, three relatively highly publicized intercountry adoption-related cases revitalized Africa's concern over the rights of children in intercountry adoption. These cases are the Angelina case in Ethiopia, the Madonna case in Malawi, and the Zoe's Ark case in Chad. The thesis of this article is that there are systemic vulnerabilities and gaps in the current intercountry adoption systems in Africa that make adoption irregularities and scandals, such as the ones in the three cases under consideration, to an extent predictable. Therefore, an investigation of some of the lessons that can be drawn from the three cases is embarked upon. The article concludes by highlighting that, although the three cases do not hint at the full picture of complications that may arise as a result of intercountry adoptions in Africa, they offer critical lessons – and we ignore these lessons at the cost of our children's well-being.

Donor-Conceived People's Access to Genetic and Biographical History: An Analysis of Provisions in Different Jurisdictions Permitting Disclosure of Donor Identity

Blyth, E., Frith, L. — 2009-05-05

Donor conception has been practised for many years, initially as a means of bypassing male fertility problems through the use of donated semen. More recently, semen donation has provided a means by which a single woman and women in same sex relationships may build a family without engaging in penetrative heterosexual intercourse, while embryo and egg donation have provided new family-building opportunities for other groups, such as post-menopausal women. A key topic of debate, policy formulation, and regulation has been the extent to which donor-conceived people should be enabled to ascertain information about their genetic and biographical history. Currently, a minority of jurisdictions allow donor-conceived individuals to learn the identity of their donor. This article examines relevant provisions in these jurisdictions, identifying their similarities and differences, and outlines further measures that can be taken to promote the ability of donor-conceived people to learn about their genetic and biographical history.

Comity, Family Finances, Autonomy, and Transnational Legal Regimes

Rosettenstein, D. S. — 2009-05-05

The doctrine of comity in Anglo-American private international law jurisprudence requires a court to justify a refusal to recognize family financial arrangements arising from activities in a foreign country. The justification usually advanced is public policy. This article examines the contours of the interface between the demands of comity and the justifications of public policy, against the backdrop of a case in which an American state court declined to recognize a strict title property regime flowing from a marriage contract entered into by a Muslim couple in the course of an arranged marriage in Pakistan. In particular, the article focuses on three key concerns of public policy – the ‘fairness’ of the foreign process; the actor's ‘choice’; and the ‘content’ of the foreign arrangement. With the parties’ autonomy increasingly respected in domestic financial arrangements – particularly in the context of prenuptial agreements – the article argues that such respect ought to be extended to foreign arrangements as well, except to the extent that the foreign regime adversely impacts the state's own interests, as distinct from the domestic jurisdiction's perception of the parties' interests.

Mothers and the Child Protection System

Douglas, H., Walsh, T. — 2009-05-05

Child protection intervention has increased dramatically in Australia and elsewhere over recent years. The increased intervention has left many parents, especially mothers, feeling bewildered, confused, and distrustful of the legal system. There has been limited research conducted about the experience of mothers involved in legal processes associated with child protection intervention. Drawing on information gathered from focus group discussions with workers who support mothers in child protection interventions, this article explores the role of parent advocates in the child protection sphere. The article concludes that parents should be supported by an advocate at all levels of the child protection intervention process and where this is not possible, strong information sharing protocols should be developed.

Child Abuse: Law and Policy Across Boundaries

George, R. H. — 2009-05-05