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Penny Booth: Similarities and Differences

Date:21 DEC 2011

Penny BoothI ponder as the sun goes down with the light shining through the gap between two Air France 747s and a large glass covered gantry intermittently filled with silhouettes of travellers, travel facilitators and airport workers. It is late afternoon at Paris, Charles de Gaulle airport and I am sitting at Gate 26 with hours to go before the 20.30 flight to Newcastle upon Tyne. Slumped, filled with thought, and returning from Belgrade (with luggage, I hope), I have spent a week away from home attending the five days of the Kopaonik School of Natural Law held 1700 metres up the highest mountain in Serbia. It remains an adventure and difficult to summarise the days of the conference, entitled ‘Law and Responsibility', and the chances exchanged and captured in talking with other family lawyers of various varieties. To go shopping would seem like disturbing the threads of ideas and trains of thought going through my mind right now. Besides which, there is a ‘strike of the security companies' as the disembodied voice tells me, and I am reluctant to move anywhere amid the throng of travelling business people, families, fraught and worried individuals and the tired children.

The Kopaonik School is an annual - and international - conference held at Mount Kopaonik in southern Serbia, with subject sections that correspond to what is called the hexagon of natural law (right to life, freedom, property, intellectual creation, justice and a state ruled by law), and Family Law fits within the right to freedom of personality, part of the more general right to freedom. There are other sections within which one can find presentations that correspond to aspects of family and child law, like medical law, property and constitutional law.

The presentations in the Family Law field this year included papers on the new civil code of Serbia which manages to attempt what we in this country seem to have found problematic - a definition of cohabitation. Before you leap up to grab a copy, though, be aware - the definition of virtually anything is subject to further discussion and agreement, and in Serbia, the time is not yet right to deal with anything relating to same sex relationships and family law. I applaud the work, though, for it is recognising something for which we desperately need a proper definition.

Other presentations included papers on parenthood and surrogacy; the recognition of parenthood/parenting and the legal implications of this status. It was fascinating to consider that a state should consider some apparently quite forward-thinking conditions that affect the individual players in family law yet be unable to tackle the subject of same sex relationships. Not yet, anyway. One can accept, however, that for now changes are being made and ‘the time is not yet right' for some of these changes - but I think it will be soon. Nowhere is it truer than in the area of family and child law do you have the reflections of the society in which the laws apply, and therefore issues surrounding the readiness to make a legal recognition of relationships that do not fit a very traditional perspective are not surprising.

I found fascinating a presentation on nullity in family law - something of a comparison between nullity in marriage and nullity of adoptions. Neither take up much time in English family law, but it seems they are side-dishes of the family ‘meal' in Serbia, too. Rare, specific but yet more often present in Serbian than in English law, the time limits are longer, the need much like English law, and there are moves afoot to abolish nullity in Serbian marriage, combining its provision with that of a wider divorce law. I wonder whether it is time to consider nullity in English law -although to me, its purpose in protecting those for whom divorce is still unacceptable and for whom the remaining ‘stigma' of divorce is still unacceptable is attractive - so long as the conditions are met, of course.

Contributions from the UK included child removal from the jurisdiction and the thorny issue of whether permission ought to be given for this activity. ‘Leave to leave' is certainly a tough one and there is a strong argument to make the issue of existing connection with the ‘other' country a very significant feature of the decision to give permission to move. Arguably (wanting to test the waters on a difficult suggestion here) if you have children and are wanting to leave the country, and if the decision is a tough one and not clear on the welfare of the children, then the welfare of the children does rather suggest that as a parent you should stay where you are until the children are no longer minors. Being a parent means that you have to make sacrifices, sometimes - you should not impose these onto children or the ‘other' parent unless doing so really is in the children's interests.

The Commission on European Family Law had a presence at this year's conference with a presentation on the harmonisation of parental responsibility. The series of ‘harmonisation' papers (you must have seen the Intersentia books?) was very welcome. Its provision of papers on aspects of family law are illuminating for countries with existing law in the area and those which hope to clarify ‘old' law into accepted principles. It does at least help in deciding family issues stretching across frontiers if we all hum a similar tune even if we can't sing from the same hymn sheet. Issues in family property should prove even more interesting next year as we struggle here to get to grips with the aftermath of the oh-so-tantalisingly-close prenuptial agreements. 

There were papers on the voice of the child (some from Serbia and one from the USA) and where (or how far) this extends in judicial activity, and on the religious identity of the child. Some fascinating thoughts came out of presentations on the teaching of human rights to children and there seemed to be at least a recognition that in many countries, judging from the reaction of the audience, there are confusions and issues with teaching human rights, ‘citizenship' and personal and social education (whatever the title of the field is this year) to children of all ages. Thorny issues are similar all over the world, it seems.

Other papers in the family law section included topics such as adultery, child neglect, joint custody and a rather inviting paper on mutual obligations between the generations in Brazil. I must confess that the idea of reinvigorating the era of the 1948 National Assistance Act, or making the first port of call for the financial upkeep of the elderly in need their more wealthy offspring has a certain attraction in some respects. Mutual obligations sound so much fairer, don't you think?

Too much to tell, too few words available in which to do it.

So many opportunities for action, and for actionable words!

More than four days of conference - a lifetime of thought. Try it for yourself.

Penny sets the questions for Family Law journalCPD, a new way to gain CPD points by answering multiple choice questions based on the content of the journal.

She is an Honorary Research Fellow at Liverpool University Centre for the Study of the Child, the Family and the Law. Click here to follow Penny Booth on Twitter.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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