As assisted reproductive technologies become increasingly popular, debate has intensified over the ethical justification for restricting access to ART based on various medical and non-medical factors. In 2010, the Australian state of Victoria enacted world-first legislation that denies access to ART for all patients with certain criminal or child protection histories. Patients and their partners are identified via a compulsory police and child protection check prior to commencing ART and, if found to have a (...) previous relevant conviction or child protection order, are given a “presumption against treatment.” This article reviews the legislation and identifies arguments that may be used to justify restricting access to ART for various reasons. The arguments reviewed include limitations of reproductive rights, inheriting undesirable genetic traits, distributive justice, and the welfare of the future child. We show that none of these arguments justifies restricting access to ART in the context of past criminal history. We show that a “presumption against treatment” is an unjustified infringement on reproductive freedom and that it creates various inconsistencies in current social, medical, and legal policy. We argue that a state-enforced policy of restricting access to ART based on the non-medical factor of past criminal history is an example of unjust discrimination and cannot be ethically justified, with one important exception: in cases where ART treatment may be considered futile on the basis that the parents are not expected to raise the resulting child. (shrink)

In the summer of 1998, the Wisconsin State legislature amended its child protection laws. Under new child abuse provisions, Wisconsin judges can confine pregnant women who abuse alcohol or drugs for the duration of their pregnancies. South Dakota enacted similar legislation almost simultaneously. The South Dakota statute requires mandatory drug and alcohol treatment for pregnant women who abuse those substances and classifies such activity as child abuse. In addition, the South Dakota legislation gives relatives (...) the power to commit pregnant women involuntarily for two days; a court order can place the pregnant women in custody for up to nine months. These recent legislative “successes” follow scores of failed attempts by legislators in other states to establish fetal protection laws aimed at women who use and abuse drugs and alcohol during pregnancy. (shrink)

In the summer of 1998, the Wisconsin State legislature amended its child protection laws. Under new child abuse provisions, Wisconsin judges can confine pregnant women who abuse alcohol or drugs for the duration of their pregnancies. South Dakota enacted similar legislation almost simultaneously. The South Dakota statute requires mandatory drug and alcohol treatment for pregnant women who abuse those substances and classifies such activity as child abuse. In addition, the South Dakota legislation gives relatives (...) the power to commit pregnant women involuntarily for two days; a court order can place the pregnant women in custody for up to nine months. These recent legislative “successes” follow scores of failed attempts by legislators in other states to establish fetal protection laws aimed at women who use and abuse drugs and alcohol during pregnancy. (shrink)

Over the past few years, over a dozen states have proposed, and almost as many have passed, something referred to as the Pain-Capable Unborn Child Protection Act, a piece of legislation that makes abortion impermissible once fetal pain is possible and that further stipulates the fetus can feel pain at or before 20 weeks of gestation. Some very important questions immediately relevant to the abortion debate, perhaps even to the more complex issue of fetal rights, are raised (...) by this legislation, especially because it would impinge on the second-trimester abortion rights guaranteed by Roe. We first inquire whether the claim of fetal pain perception at or before 20 weeks is true and how such a claim should be substantiated. Next, we inquire whether the fetal capacity to experience pain, at whatever stage of development, reflects on the morality of abortion and whether it should be at all relevant to determining its legality. Finally, we would like to explore the implications that a commitment to a pain-related or sentience criterion of rights might have for a pro-life agenda. (shrink)

This article explores the gender dynamics of ‘causing or allowing a child to die’, contrary to the Domestic Violence, Crime and Victims Act 2004, section 5. This offence was intended to allow for prosecution where a child had been killed and it was uncertain who had killed him/her, but also to allow for prosecution of non-violent defendants who failed to protect him/her. More women than men have been charged and convicted of this offence signifying a reversal of usual (...) patterns of prosecution and conviction. This analysis interrogates how section 5 criminalises women who have experienced domestic abuse. Drawing on a case observation, reported cases and media reports of cases, I suggest this offence derives from and perpetuates patriarchal constructs of motherhood. Grounded in a feminist approach building on women’s concrete experiences of law, I conclude that section 5 should be amended so that it is only used where it cannot be ascertained which defendant actively harmed a child. (shrink)

In Dobbs v. Jackson Women's Health Organization, the Supreme Court eliminated the long‐standing federal constitutional right to abortion. Discussions of Dobbs tend to emphasize the loss of protection for reproductive choice. But Dobbs also eroded protection for a related yet distinctly important interest that served under Roe v. Wade as a check on government regulation of reproduction: the preservation of health. This erasure has opened the door to increasingly restrictive and punitive abortion bans, which are causing providers (...) to deny or delay care that is necessary to prevent harm to both pregnant and nonpregnant patients. Federal regulatory attempts to prevent these harms will have limited impact, partially due to Congress's own history of exceptionalizing abortion in ways that devalue health. Only federal legislation can ensure adequate and enduring protection for the health of women, trans men, and other patients targeted for reproductive control because of their capacity for pregnancy. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Contradiction and Legislation Regarding the Right to LifeKevin L. Flannery, S.J.Unborn Human Life and Fundamental Rights: Leading Constitutional Cases under Scrutiny. Edited by Pilar Zambrano and William Saunders, with concluding reflections by John Finnis. Berlin: Peter Lang, 2019.The most fundamental principle of law is the principle of non-contradiction. This is Thomas Aquinas's position in the seminal article on the natural law, Summa theologiae I-II, question 94, article 2, (...) where, citing Aristotle, he formulates the principle as, "One should not simultaneously affirm and negate." Lafter in the same article, Thomas offers a practical formulation of the same principle, "Good is to be done and pursued and evil avoided"; but in law, since it is contained in propositions (airmations and negations) as distinct from ideas regarding the pursuit of goods, the prior formulation is the more immediately relevant of the two.The book under review is important in that, by going through the legal history regarding abortion and related issues in a number of different countries—the United States, Canada, Italy, Spain, Poland, Ireland (Eire), Costa Rica, Argentina, Chile, Mexico, and Peru—it causes to emerge any number of times the realization that legislation and judicial decisions in favor of abortion "rights" invariably infect a legal system with contradictions and inconsistencies of various sorts. The present essay is, therefore, not your typical book review. Its objective is simply to list some of the legal contradictions and inconsistencies identified by the book's various authors as they describe the legal status of the unborn in their respective nations. [End Page 1323]William Saunders's very clear and comprehensive first chapter is entitled, "Judicial Interference in the Protection of Human Life in the United States: Actions and Consequences." In it, he describes, among other things, the Human Cloning Prohibition Act passed by the U.S. House of Representatives in 2003, which prohibited "any person or entity, public or private" from performing human cloning (23). He speaks also of a bill proposed in the U.S. Senate once the Human Cloning Prohibition Act had passed in the House of Representatives. This Senate bill (which was entitle, "The Human Cloning Ban and Stem Cell Research Protection Act") would have prohibited "any person or other legal entity" from conducting human cloning, even while allowing nuclear transplantation, which it defines as "transferring the nucleus of a human somatic cell into an oocyte from which the nucleus... ha[s] been... removed or rendered inert." The problem here, as Saunders explains, is that this latter definition "is the very definition of cloning" (25). In other words, in the same year, two pieces of legislation were considered in the Congress of the United States, both purporting to ban human cloning, one of which would have permitted what the other described (correctly) as human cloning and so prohibited.In the second chapter, "Whither United States Abortion Law?" by Gerard V. Bradley, discussed, among other things, is the inconsistency between the United States Supreme Court's pro-abortion decision Roe v. Wade and various laws, both state and federal, prohibiting feticide. Bradley says of the 2004 federal Unborn Victims of Violence Act that, "in pertinent part it says that 'whoever' 'causes the death of or bodily injury to,' a 'child who is in utero' is guilty of an offense apart from any accompanying offense against the woman carrying the child." The penalty for such an act is the same as would be imposed if the act were inflicted upon the unborn child's mother: if, for instance, the mother was killed. "A child in utero," reports Bradley, "is defined as a member of the species homo sapiens, at any stage of development, who is carried in the womb'" (37).The problem here is that prosecutable under this law are acts identical with those performed legally by abortionists. Bradley mentions two cases in which a woman's male partner—in one case the woman's husband—effected by stealth the abortion of her child. In one case, the male purchased abortion pills and affixed to their container a pharmacy label indicating that it contained a common antibiotic; in the other, the husband obtained the same type of... (shrink)

Recommender Systems (RS) on digital platforms increasingly influence user behavior, raising ethical concerns, privacy risks, harmful content promotion, and diminished user autonomy. This article examines RS within the framework of regulations and lawsuits in the United States and advocates for legislation that can withstand constitutional scrutiny under First Amendment protections. We propose (re)framing RS-curated content as commercial speech, which is subject to lessened free speech protections. This approach provides a practical path for future legislation that would allow for (...) effective oversight of RS, particularly in areas of substantial public interest like child safety, national security, and misinformation. (shrink)

Arguments about constitutional and personal rights often invoke the concept of privacy. In the United States it has been said that the constitution "embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government". A number of formulae has been invoked in an attempt to define the sphere of constitutional privacy. They include: Fundamental rights of interests; personal decisions and issues; important questions intimately affecting private lives; and decisions affecting education, (...) class='Hi'>child-rearing, marriage and contraception.Canadian and Europian courts have resorted to balancing formulae and to proportionality to set the limits to liberty guarantees. All of them need, however, an implied general theory of liberty such as that propounded by Mill , since privacy is a special sub-category of liberty.Privacy claims are made not only against the State, but in tort law relations between individuals, or between individuals and organisations such as the Press. Proposals for legislation to protect personal privacy encompass two different types of claim. One relates to physical intrusion: the other to proprietary rights over information of certain kinds. It is questionable whether general legislation to establish a statutory tort of breach of privacy is defensible. It may even be dangerous and be exploitable to protect government information. A public interest defence is essential. That throws the balancing role back on the courts, but they cannot rely on any obvious social consensus in weighing the interests at issue. In der Auseinandersetzung über subjektive Rechte, die von einer Verfassung garantiert sind oder deren Verletzung privatrechtliche Ansprüche auslöst, berufen sich viele Stimmen auf das Konzept der Privatsphäre. Nach einer in den Vereinigten Staaten vertretenen These liegt der amerikanischen Verfassung "das Versprechen zugrunde, daß die Privatsphäre, d.i. eine bestimmte Sphäre individueller Freiheit, im großen und ganzen außerhalb des Zugriffs des Staates liegt". Wie läßt sich rechtlich präzisieren, was diese verfassungsrechtlich garantierte Privatsphäre eigentlich einschließt? Eine Reihe von Antworten, die auf diese Frage gegeben werden, bezeichnen als vom Begriff der Privatsphäre erfaßt a) fundamentale Rechte oder Interessen, b) persönliche Probleme oder Entscheidungen, c) wesentliche Fragen, die das Privatleben ganz existenziell berühren, d) Entscheidungen, die die Erziehung und Ausbildung von Kindern, Empfängnisverhütung und Eheschließung betreffen. Einige dieser Formeln enthalten Elemente eines logischen Zirkels, da sie bei dem Versuch, die Privatsphäre näher zu umschreiben, ihrerseits selbst den Ausdruck "privat" benutzen. Andere sind entweder offensichtlich zu weit oder zu eng oder sonst schlechterdings ungenügend. Darüber hinaus ist es nicht klar, wann bei den subjektiven Rechten, die als fundamental bezeichnet werden, Ausnahmen gemacht werden. Ein Beispiel liefert die US-amerikanische Entscheidung Bowers v. Hardwick. (shrink)

The laws concerning driving licences and epilepsy in different countries are very diverse with regard to the criteria for issuance or renewal of licences, and also the methods of evaluating fitness. In 2011, a law was issued in Italy implementing the European directives on driving licences, including provisions for mandatory notification that a driver is epileptic. This was established regardless of the European rules that require compulsory notification only of patients. The Federation of Italian Boards of Physicians has made recommendations (...) against mandated physician reporting, resulting in a current confusion between legal and ethical recommendations to medical doctors. The mandatory notification enacted by Italian law raises ethical concerns about disparities in access to care and possible violations of the right to confidentiality of patient information. Moreover, the law discussed here fails to emphasise the importance of physicians ensuring compliance by the patient, by sharing the correct information about the risks associated with illegal driving and by obtaining information from the patient through regular check-ups. An urgent revision of the law is required to implement the duty of the physician to provide information and to ensure that the rule about mandatory notification should be erased in favour of optional self-reporting by epileptics as the preferred way to notify the licensing authority. The implementation of these measures could correct the dichotomy between the law and the ethical recommendations for medical doctors and protect the rights of people with epilepsy as well as those of any other patients whose pathology or impairment could imply a risk to the community. (shrink)

This qualitative study analysed the agency of eight non-abusing mothers in the Turkish Cypriot Community after disclosure that their child had been sexually abused by someone outside the family. The aim was to discover how, after disclosure, such mothers act to protect their children in the contexts of their family and community. The data were gathered via semi-structured in-depth interviews and analysed using Interpretative Phenomenological Analysis. In the nuclear family context, maternal agency emerged in the form of motherhood skills, (...) including emotionally supporting the abused child, double-checking the child’s safety or limiting the child’s mobility, and controlling the actions of adult sons. In the community context, maternal agency was manifested in efforts to prevent men in the extended family or the abuser’s family from concealing the abuse and to obtain informal support from others such as birth or extended family members. The women were usually successful in hiding their reactions or making decisions in their children’s best interest despite frequently having to cope with the reality of living in a restrictive and patriarchal culture. The results emphasise the need for working with the general public and professionals to change the culture of silence and to improve the social support network for sexually abused children and non-abusing family members, especially mothers. (shrink)

International and UK legislation and policy development in childcare is placing more emphasis on children's participation rights. This continues to present ethical dilemmas for childcare workers who also have the responsibility to ensure the protection and well-being of children. In Wales, the Welsh Assembly Government has made a commitment to the UN Convention on the Rights of the Child in the ?Rights to Action? child welfare policy. In England, the government introduced five aims and outcomes of (...) children's well-being in the ?Every Child Matters? child welfare policy. This paper identifies three barriers to children accessing participation rights, and critically discusses the ethical implications of the English and Welsh child welfare policies for children's participation rights. Family Group Conferences are discussed to highlight dilemmas of participation. (shrink)

To study Judicial determinants of the ordered obstetrical and fertility interventions. Nature, corresponding laws, decisions upon the 37 expounded holdings at the Probate, Trial, District, Appellate, and Supreme Courts are studied in 92 published materials identified through the ACOG, RCOG, SOCG portals, and Legal Scholarship Repository. Hearings are held in the US (83.8 %), Canada (10.8 %) and U.K (5.4 %). Of all the hearings reviewed, 27 % concern mentally impaired, 37.8 %-maternal incompetence, and 21.6 % cases are of criminal (...) nature. The Judicial determinants vary from country to country. In Canada, the ordered medical interventions are effected by the child protection legislation, whereas in the US, by court orders. In majority of cases, orders are obtained by dismissing the patriae petitions for involuntary sterilizations of mentally impaired sui juris adults (57 %); coerced obstetrical interventions (33.3 %), fetal custody (50 %); enforcement of surrogacy contracts (62.5 %) in favor of the Common Humanity Benefit clause; and recognizing the rights to inherit in posthumously conceived children (80 %) pursuant to the Social Security Act, Law of obviousness, Law of inherent anticipation, and Intestacy statute. Current study prioritizes two questions: (1) whether it is justified to override the wishes of a competent patient purportedly in her best interests; and (2) whether the patient’s autonomy and competence is an absolute concept. With the law unsettled as to a woman’s right to assent a treatment and contradict her fetus, parties concerned with fetal rights should consider exercising of screening tools on maternal judgmental fitness jointly developed by medical and legal practitioners. Further, given the advances in gamete conservations, states consider enacting legislation in order to safeguard the orderly administration of estates disrupted by claims from posthumously conceived children. A balance must be struck between the child’s right to inherit, the state’s interest, as well as the interests of prior born children. (shrink)

We observed that despite international declarations on child-rights, outsourced domestic girl-child labour still persists. Raising the question whether outsourced domestic girl-child labour constitutes hermeneutical injustice, we respond affirmatively. Relying on two indigenous victimology-narratives that are newspaper reports, we expose some of the horrors that the victims of outsourced domestic girl-child labour suffer. Comparing these reports with other victimology-narratives of hermeneutical injustice as reported by Miranda Fricker and Hilkje Hänel, we argue that the victims of outsourced domestic (...) girl-child labour suffer a hermeneutical gap and hermeneutical interference; and that the perpetuators of this practice, help to foster what we call ‘hermeneutical obstruction’. We recommend different counteracting measures such as: a radical feminization of educational curricula, which will allow for the introduction of the relevant hermeneutical resources that female children need in making sense of their experiences, into the classrooms and other places of learning; establishing feminist liberation agencies in all schools, religious institutions and hospitals, as ways of increasing the level of awareness about the rights of the girl-child in children and adults; feminizing legislation and legislative processes, to allow for the enactment of laws to protect the rights of the girl-child; and campaigning for a more rigorous enforcement of child-rights laws. (shrink)

In China, neither reproduction and parenthood by lesbian couples nor their marital status are regulated or protected by law. In 2020, the first legal dispute in China involving a lesbian couple over custody of their joint baby was heard in court. This study examines the legal and ethical issues that lesbian couples confront when they decide to give birth to a child of their own. These challenges begin with regulatory restrictions on their lawful access to assisted reproductive technology and (...) extend to gaps in the legal establishment of parenthood. We found that the lack of access to legitimate reproductive assistance for lesbian couples in China has caused them to make efforts to circumvent laws and regulations to have a child. However, the legislative gaps later led to ethical dilemmas when resolving disputes over parenthood. This study discusses different accounts of establishing and determining natural parenthood in China and concludes by pointing out the urgent need for change in legislative and sociocultural attitudes toward both assisted reproductive technology and same‐sex relationships, mapping the way forward for lesbian couples to obtain better protection of procreation and parenthood before their marriage is culturally accepted and finally legalized. (shrink)

The question of whether protective labor legislation is beneficial to female workers has triggered much debate among feminist scholars. Like proponents of laissez-faire, some feminist scholars and activists have argued that such legislation harms the economic interests of women by lowering their wages and diminishing their employment prospects on the free labor market. This article reexamines the arguments made by opponents of protective labor legislation in the light of the historical development of the welfare state in Britain (...) and France. It is shown that the case against gender-specific protective labor legislation does not hold on empirical grounds. A strong body of evidence shows that protective labor legislation historically brought increasing economic returns and expanded opportunities to women in both countries. This has important implications for contemporary debates about the relationship between protective labor legislation and gender discrimination in the European Community, the International Labor Organization, and developing countries. (shrink)

Current law in Victoria, Australia requires that all prospective assisted reproduction patients provide a criminal background check and child protection order check prior to being eligible for treatment. These presumptions against treatment stipulated in the Assisted Reproductive Treatment Act are discriminatory against all people that are infertile. Requiring assistance in founding a family says nothing about whether someone will be a minimally decent parent to their child. The most plausible justifications for this differential treatment of (...) family builders that require assistance are unsound. The wellbeing of the resulting child is something that the prospective patient should be presumed to have at heart, as this is the default assumption with other kinds of family builders that do not require assistance. That assisted reproduction treatment is publicly funded does not mean that the state is thereby justified in putting moral conditions on access to treatment. As we should not accept discriminatory laws, especially about practices that are of fundamental importance to the lives of citizens, the presumptions against treatment stipulated in ARTA should be eradicated. (shrink)

A scientific paradigm typically embraces research norms and values, such as truth-seeking, critical thinking, disinterestedness, and good scientific practice. These values should prevent a paradigm from introducing defective assumptions. But sometimes, scientists who are also physicians develop clinical norms that are in conflict with the scientific enterprise. As an example of such a conflict, we have analyzed the genesis and development of the shaken baby syndrome paradigm. The point of departure of the analysis is a recently conducted systematic literature review, (...) which concluded that there is very low scientific evidence for the basic assumption held by Child Protection Teams: when certain signs are present the infant has been violently shaken. We suggest that such teams have developed more value-based than scientific-based criteria when classifying SBS cases. Further, we suggest that the teams are victims of “groupthink,” aggravating the difficulties in considering critics’ questioning the criteria established by the teams. (shrink)

This article conceptualises theories of ethics relevant to the recognised problem of decision variability in child protection. Within this field, social workers are faced with multiple ethical imperatives when making decisions about children’s care. They must respond to justice principles concerned with duties and consequences, as well as ethical obligations created by the relational and contextual elements of each case. Recent scholarship on decision variability highlights the justice issues that arise when decisions in response to apparently similar cases (...) differ. An ethical imperative is that similar cases should be treated ‘like for like’ so that children’s and family’s rights are upheld consistently. This article contends that ethical concepts relating to both universalist duties such as respect for persons, extended by the concept of interactive universalism, and contextual responses based on an ethic of care, help theorise the complexities of ethical decisions in child protection. These concepts develop a nuanced understanding of the ways social workers resist risk discourses, may make decisions reflecting the participation of service users, and contextual evaluations of risk based on understanding service user’s life histories. Understanding this combination helps explain the reasons behind variability, and evaluate the moral acceptability or otherwise of apparently variable decisions. (shrink)

Interest in children’s agency within the research process has led to a renewed consideration of the relationships between researchers and children. Child protection concerns are sometimes not recognised by researchers, and sometimes ignored. Yet much research on children’s lives, especially in health, has the potential to uncover child abuse. University research guidance should be in place to safeguard both researchers and the populations under scrutiny. The aim of this study was to examine university guidance on protecting children (...) in research contexts. (shrink)

Today, digital piracy remains a growing challenge for both legislators and businesses operating in the entertainment industry. This study explores when and why consumers make trade-offs between illegal and legal streaming services. By drawing on protection motivation theory, we find that consumers' threat and coping appraisals increase their adaptive behavior, i.e., lower intention to consume illegal and higher intention to consume legal streaming services. We also show that the strength of consumers' inherent ethical (relativism) and political (economic liberalism) identities (...) conditions adaptive behavior through social identity theory. We find that low relativism strengthens the adaptive behavior through threat appraisal, while economic liberalism strengthens the adaptive behavior through coping appraisal. Our robustness checks show that these results hold when the model accounts for the level of consumers' digital piracy attitudes. We used a scenario-based approach to test our hypotheses and surveyed 244 consumers who use streaming services. Our study contributes to the literature by showing that consumers' adaptive behavior envisioned through protection motivation theory can be weakened or strengthened by their ethical and political identities. (shrink)

The management of child protection concerns arouses strong emotions and controversies and creates ethical tensions for all concerned. This paper provides a rational analysis of some of the issues involved and suggests responses to them. The ethical and legal duties of health-care professionals are to act in the best interests of the child by safeguarding children and reporting concerns. But this may involve conflicts with parents and produce reluctance of professionals to become involved, especially in controversial types (...) of abuse. Mandatory reporting of concerns might overcome such reluctance, but may be ineffective in the face of diagnostic uncertainties. Assembly of a stronger diagnostic evidence base would seem ethically justified, but organization of the necessary case controlled studies might be problematic. Even with a comprehensive evidence base, individual diagnoses of abuse will always involve value judgements that should be underpinned by effective training and assessment of core competencies of professionals. These manoeuvres are unlikely to prevent both justified and vexatious complaints, often in relation to breaches in professional duties or concerning professional misconduct. The tendency to blame experts may have contributed to a reluctance of other professionals to become involved, despite proposals for reforms in the expert witness and court systems. Current approaches to child protection may neither promote greater understanding nor be in the best interests of children. A revised social contract for the effective protection of children could include: a duty of care that adequately addresses the primacy of the child's welfare; the acquisition of a sound evidence base; professional transparency and accountability (but with protection from malicious and vexatious complaints); and a shift emphasis towards a more inquisitorial system that embraced the principles of truth and reconciliation. (shrink)

The author uses a case history to compare the approaches taken by social care teams in engaging with parents whose care of their children has been called into question. As organising secretary for Parent Aid, a voluntary support service for Essex families who had or were likely to become clients of Social Services, she drew up a list of five keys points that would improve working relations with parents in child protection and court situations and relates them to (...) the ethical framework; write reports that are both factual and objective ; take as much time to build a relationship with the parents as you do with the child; remember to treat gossip with extreme caution; donât back off from parents just because they seem hostile; and try to be as honest and reliable as possible. The examples used to illustrate these points are said to demonstrate the five areas where parents most often take objection to Social Servicesâ approach; the same areas that are most likely to cause parentsâ anxiety and anger to harden into belligerence. The author goes on to show that all of these points can be found embedded in the Code of Practice for Social Workers. (shrink)

Initially found in population studies designed to discover a link between child abuse and population categories, risk has been institutionalized in British Columbia through the use of a risk assessment tool presumed to measure danger to particular children. Recruitment of the risk speech genre reflects a need for government child protection workers to clearly articulate which children are in need of protection from “risks as they really are” while avoiding the accusation of “intervening too much.” Moreover, (...) risk assessment tools are both audit systems and auditable systems connected through an audit chain. Auditors who represent potential blaming procedures track errors in risk valuation to specific decisions. This entrenches a separation between what we want to know about risk from what we want to do about risk. The apparently objective use of numeric values within risk assessments obscures the continuing role of subjective moral values in the practice of child protection. (shrink)

This paper considers the terms used for designating parents in reports dealing with child protection, and explores the pragmatic impact of the reports’ extremely cautious choice of words. I test the hypothesis that, even if words are not argumentative in themselves, they can become argumentative in the context of a particular discourse. To this end, this paper develops a two-pronged analysis, combining lexical description with quantitative as well as qualitative methodologies. The findings suggest that lexis is argumentative not (...) only because of its paradigmatic dimension, but also because of its syntagmatic dimension. The results may find a practical application when training social workers in how to write their reports. (shrink)

Parents and guardians in child protection systems are in unequal power relationships with child protection practitioners. This relationship is experienced as exclusionary or even oppressive by many parents and guardians. For families and communities in the child protection system who experience intersectional discrimination and disadvantage, such as people with intellectual disabilities and First Nations people, this unequal relationship and subsequent potential exclusion and oppression can be even more profound. A growing body of literature indicates (...) that advocacy can assist in addressing unequal relationships in other contexts, such as involuntary mental health. This paper explores the role of representational advocacy in supporting parents in child protection settings through a case study of an advocacy service in Victoria, Australia. Using a human rights framework to guide the analysis, the paper highlights how advocacy can help support rights, but that broader structural change will be required to consistently uphold the rights of parents. (shrink)

Social welfare workers in the protective services field—among them social workers, psychologists, and psychiatrists—are expected to follow the laws of the state in which they practice, but are also bound by their professional code of ethics. Often this does not present a problem, but at times ethical and legal expectations differ. This is particularly problematic where the professionals may be seen as agents of control, reporting possible child abuse, conducting child abuse investigations, inspecting homes, monitoring families, removing children (...) from their homes and the like, often working with or reporting to law enforcement agents where expectations are different and codes of ethics absent. This paper explores the relationship between law and professional ethics, and, in particular, situations in which actions and decisions can be legal yet unethical or ethical but yet illegal. It then analyzes some critical child protective service activities where Child Protective Services (CPS) workers exert significant control over parents and children, and where the legal and ethical requirements may differ. Finally, the paper discusses the problems that CPS professionals face when law and ethics collide, and suggests various steps to resolve some of these conflicts. (shrink)

Using the metaphors body and voice and drawing on critical contributions on biopolitics, this article interrogates children’s participation rights in a knowledge culture of ‘evidencing’. With child welfare and protection practice as an empirical example, I analyse written assessment reports from a Swedish child welfare agency, all exemplifying how social workers evidence needs for protection and reasons for removing children from the home. I discuss how ‘evidencing’ equals a knowledge culture of seeing-believing and predicting-believing and the (...) search for visibly damaged bodies and underdeveloped minds. I furthermore problematise how such conceptualisation of evidencing foregrounds children’s ‘speaking’ bodies while silencing their voices. By showing these manifestations of evidencing, this critical contribution discusses some wider epistemic concerns for fields influenced by the knowledge cultures of ‘the evidence-based’. (shrink)

This study analyzes the questions on aspects of child custody, visitation rights, or child endangerment that judges pose to forensic psychologists in family law proceedings. Before conducting a psychological evaluation, the legal question in the referral has to be translated into case-specific, forensically relevant issues. The only overarching principle guiding this process is the “best interests of the child” criterion. Literature indicates that judges often struggle to define what variables should be specified for a psychological evaluation in (...) their referral questions. This study aims to contribute to a better understanding of the information judges would like to ascertain from psychological evaluators in child custody and child protection proceedings—an understanding allowing a clearer determination of whether forensic psychologists as experts can deliver this information. Latent Dirichlet allocation (LDA) is used to analyze the referral questions that these judges pose to forensic evaluators in terms of (a) underlying topics (latent dimensions) that can be identified within the referral questions and (b) the probability distributions of legal terms and forensic issues contained in the referral questions. This analysis is based on unclassified text data extracted from German court files. Five topics (latent dimensions) were identified within referral questions resembling cases when the issue was as follows: (a) potential child endangerment in the context of visitation contacts, (b) a possibly limited parenting capacity and its potential effects on child well-being, (c) an impairment of the child has already occurred or could occur, (d) a better option concerning custody and residence, and (e) an unclear topic addressing questions on custody, residence, and visitation in which no specific psychological constructs are involved. In four of the five topics, judges utilize their referral questions to ask for case-group-specific psychological information. In one topic addressing questions on custody, residence, and visitation, judges seem to struggle to define criteria that forensic evaluators should assess. Overall, results help to identify and define more clearly the relevant constructs that forensic experts should examine from the perspective of the courts with the goal of making clearer and more accurate recommendations. (shrink)

In this article, the author examines Romanian child protection reforms during European Union accession as a case of externally facilitated modernization aimed at solving acute social problems. The data for this case study came primarily from fifty-three unstructured interviews with civil servants, civil society representatives, and EU officials. The author finds that in a similar manner to other externally driven modernization projects, the belief according to which Western institutions constituted a universal blueprint, applicable regardless of particular contexts and (...) historical legacies, led to unintended consequences. What is more, because the reformers did not envisage that Western institutions might carry their own pathologies, they ended up replicating some of these pathologies. The study suggests that the goal of externally facilitated public policy should not be to create replicas of Western institutions but to spur local innovation that takes advantage of successful Western institutional logics. (shrink)

Times of heightened risk to the physical safety of their citizens inevitably cause democracies to recalibrate their institutions and processes and to reinterpret existing legal norms, with greater emphasis on security, and less on individual liberty, than in "normal" times. This article explores the ways in which the American courts have responded to the tension between civil liberties and national security in times of crises. This history illustrates that courts have rejected both of the two polar positions that characterize public (...) discourse on these issues. Civil libertarians argue that political bodies are too easily gripped by passions, hysteria, and self-interest in these times and that courts therefore ought to play a central role in protecting liberty. Executive unilateralists argue that the qualities that uniquely characterize the executive branch, such as decisiveness, access to information, and efficiency, must become so dominant in these moments that few checks, if any, should constrain executive prerogatives. Oddly, civil libertarians and executive unilateralists find implicit consensus in the view that, in times of war, courts have tended not to play a significant role in overseeing executive power. We argue to the contrary: historically, a significant constitutional tradition of judicial scrutiny in the United States during times of war does exist. But this scrutiny does not take the form of courts making first-order substantive judgments about the content of liberty or other claimed constitutional rights. Nor does it take the form of judicial assessment of how significant or credible the national security claims of the executive branch might be. Instead, judicial oversight has been focused on preserving the institutional structures and processes through which decisionmaking on these issues takes place. The judicial role has centered on the second-order question of whether the right institutional processes have been used to make the decisions at issue, rather than on what the content of the underlying rights ought to be. This approach has historically rejected or resisted most claims of executive unilateralism. When courts have upheld the government's actions, they have done so only after a judgment that Congress, as well as the executive, has endorsed the action. This approach has also rejected the civil libertarian framework. When courts find bilateral institutional endorsement, they have typically accepted the joint political judgment of how liberty and security tradeoffs ought to be made. By focusing on congressional endorsement of emergency measures, the courts have created a broad-based political accountability for the actions taken in the name of national security. We suggest that even if congressional endorsement is more apparent than real in some of these contexts, the judicial maintenance of this structure of rhetorical justifications sustains desirable understandings of political structure. Because the President and Congress draw from different political constituencies in a presidential rather than a parliamentary system, we also raise questions about whether the American judicial approach to these questions should be limited to political systems with separated executive and legislative powers. (shrink)

This study deals with the protection of intellectual property rights in French and Iraqi civil law. This is because the literary and life creativity in Iraq is declining, it is difficult to invest money in new things, and the number of people who comply with the artificial laws made since 2003 is increasing, and secondly, another reason, people's ignorance of the existing laws in Iraq. Iraq, so it is necessary. In each legislation, legal mechanisms are used to promote (...) media and life publishing and help people make money in the process of inventing literary and life works, which can be achieved by granting them a series of intellectual property rights that represent different privileges. From the fundamental rights of people, which are psychologically and morally valid at one or more points in time. This leads us to delve deeper into these rights, which have been incorporated into civil subjects since the creation of some of them through exchanges between authors and publishers or those who own innovative objects. This returns to the ownership model of the target company. In this way, we will mainly discuss the issue of intellectual property rights and carefully discuss the specific rights divided between the French Civil Code and the Civil Code, and then turn our attention to the two themes of law and incentives. The Civil Code collapses. This consists of comparing the independence of intellectual property rights, mainly regulated by French and Iraqi civil laws, and secondly with some provisions of the model. (shrink)

The two traditional justifications for bicameralism are that a second legislative chamber serves a legislative-review function (enhancing the quality of legislation) and a balancing function (checking concentrated power and protecting minorities). I furnish here a third justification for bicameralism, with one elected chamber and the second selected by lot, as an institutional compromise between contradictory imperatives facing representative democracy: elections are a mechanism of people’s political agency and of accountability, but run counter to political equality and impartiality, and are (...) insufficient for satisfactory responsiveness; sortition is a mechanism for equality and impartiality, and of enhancing responsiveness, but not of people’s political agency or of holding representatives accountable. Whereas the two traditional justifications initially grew out of anti-egalitarian premises (about the need for elite wisdom and to protect the elite few against the many), the justification advanced here is grounded in egalitarian premises about the need to protect state institutions from capture by the powerful few and to treat all subjects as political equals. Reflecting the “political” turn in political theory, I embed this general argument within the institutional context of Canadian parliamentary federalism, arguing that Canada’s Senate ought to be reconstituted as a randomly selected citizen assembly. (shrink)

The aim of the present article is to explain the role of the judiciary in forming the family policy in Lithuania. For this purpose in the first part of the article the legal basis for the state family policy formation is discussed. The conclusion is drawn that the judiciary is not separated from the formation of the family policy by any constitutional means. The article further describes how this function is actually implemented by the judiciary. The actual influence of the (...) judiciary is demonstrated by an analysis of the Lithuanian case law in three different areas: dissolution of marriage, child maintenance and the protection of the rights of children born outside marriage. The results of the analysis suggest that the influence of the judiciary on the state family policy works in diverse ways: when filling in legal gaps overlooked by the legislator; determining specific criteria which are important to the state family policy (while the legislator has determined only general principles); introducing international human rights standards in the national legal system, etc. One of the most controversial ways for the case law to influence the state family policy is through the modification of the legal regulation models prescribed by the laws. (shrink)

The risks associated with the techniques of medically assisted procreation (MAP) rapidly became well-known, and in such a short space of time that no biomedical domain remained untouched by the great deal of thinking and the expression of a multitude of opinions it provoked. MAP is evolving between two poles: quality/misuse (even violation) and evidence/fantasy. The ethics will be evoked in the clinical reality from which they spring and where their justification lies. The three objects common to these ethics, the (...) oocyte, the embryo and the child, are illustrated in this context. MAP has as its corollary access to the oocyte, the fertilization of which will take place in vitro. Access to the embryo, on the other hand, enables the clinician, for the purposes of diagnosis [preimplantation genetic diagnosis (PGD), predictive medicine], or even soon for therapeutic purposes (gene therapy) to draw close to a boundary, to trespass beyond which may be seen by humanity to threaten its very origins and integrity: the alienation of the human genome. For the infertile couple, the missing child may take on a dimension of which they would have been unaware, had they not been forced to express their desire. The burden of the imaginary child may, in this way, become a heavier load to bear when, after such desire, he comes into being. MAP puts the goal of normalisation within reach and, in doing so, accentuates the risk of the burden of the attributed representation of the child. On the one hand, MAP offers a tremendous diagnostic and therapeutic potential, while on the other it opens the door to excess and delirium. In this melting pot, ethics, catalysed by this new source of problematics, has discovered a favourite area in which to define and redefine itself. We propose the intervention of ethics on three different levels. Before the elaboration of the law: on first reflection, ethics may influence the responsibilities of the legislator, by taking care that the law does not obscure the biomedical and socioeconomic contexts of MAP and, thereby, also include other related and complementary aspects dealing with the same subject. The secondary discussion of ethics should influence the application of legal protection, by taking into account the rapid technological and social development of MAP, there too, by discussing the whole, rather than the details which will obscure the object. The ethical reflection of the clinician, who is aware of these difficulties, is guided by elements that are specific to his position as a doctor. The cohesion of the team around the clinician and the ethics specialist enables us to develop consensual clinical ethics that are transmissible and therefore teachable. This complex role can, in our view, only be acted out directly in the clinical situation, where the constant, direct relationship with the object of the reflection and the treatment allows ethics to take into account the contingencies of medical practice: we invite the ethics specialist to take part in our clinical activity on a daily basis. (shrink)

This article highlights the lack of human rights recognition for arguably one of the most vulnerable groups in our society, children and young people in the care of the state. Currently under New Zealand legislation and policy frameworks these children do not have their rights upheld, as per New Zealand’s obligations under the United Nations Convention on the Rights of the Child. This is particularly important for the care and protection of children needing state care as the (...) government has the responsibility as a state body to ensure their rights are upheld, alongside their direct responsibilities as the ‘corporate parent’. This article explores the vulnerability of this group and the ways in which their rights under UNCRC are not being met by current legislation and policy. It goes on to recommend changes to the way in which we approach legislative and policy development. (shrink)

Social care responses to extra-familial harm require social workers to work across the binaries of welfare and justice, victim and perpetrator, parent and professional, risk and protection. This paper examines the ethical consequences of working in this manner, through qualitative data (focus groups, interviews, observations, case file analysis and documentary review) from three children's social care organisations in England who trialled new child protection pathways for significant harm outside of family homes/relationships. The extent to which these pathways (...) created five conditions for a welfare response to extra-familial harm are considered, before these results are brought into conversation with Bourdieu’s meta theory of capital, habitus and doxa, and Fenton's practice theory of ethical stress. The challenges identified evidence of the importance foregrounding social work values in the pursuit of welfare-based response to extra-familial harm. They also offer a rationale for studying theories of care ethics in social work in the context of interagency practice. (shrink)

Proceduralists hold that democracy has a non-instrumental value consisting in the ideal of equality incorporated by fair procedures. Yet, proceduralism does not imply that every outcome of a democratic procedure is fair per se. In the non-ideal setting of constitutional democracies, government and legislative decisions may result from factional conflicts, or depend on majoritarian dictatorships. In these circumstances, Supreme Courts provide a guardianship against contested outcomes by enacting mechanisms of checks and balances, constitutional interpretation and judicial review. Yet, in virtue (...) of this role, Supreme Courts exercise a form of epistocratic power, which rests at odds with the ideal of political equality. We analyse this dilemma and propose a solution, arguing that Supreme Courts do not run unrestrained decisions; rather their decisional power is bound to the protective function of fundamental rights, in which their constitutional mandate ultimately consists. (shrink)

Childcare robots are being manufactured and developed with the long term aim of creating surrogate carers. While total childcare is not yet being promoted, there are indications that it is ‘on the cards’. We examine recent research and developments in childcare robots and speculate on progress over the coming years by extrapolating from other ongoing robotics work. Our main aim is to raise ethical questions about the part or full-time replacement of primary carers. The questions are about human rights, privacy, (...) robot use of restraint, deception of children and accountability. But the most pressing ethical issues throughout the paper concern the consequences for the psychological and emotional wellbeing of children. We set these in the context of the child development literature on the pathology and causes of attachment disorders. We then consider the adequacy of current legislation and international ethical guidelines on the protection of children from the overuse of robot care. (shrink)

In September 2003, we released the first results of a national community attitude tracking study about child abuse and child protection. At that time, we concluded that as a community, violence against children was tolerated. The community did not understand or appreciate the seriousness, size and cost of child abuse in Australia. There was evidence that child abuse was not viewed as an important challenge facing children in Australia. A second study conducted in 2006 found (...) that nothing much had changed, indeed community engagement with the issue of child abuse may have even deteriorated. A third study in 2010 found that the community actively avoids the problem of child abuse rating it less concerning than high petrol prices. In 2021, 18 years after the first report was published, we have concluded again that child abuse remains out of sight and out of mind as a community concern. This article describes the findings of this fourth iteration of our survey and analyses the implications for ensuring that individuals are more engaged and committed to taking action to preventing child abuse and/or protecting children from violation. (shrink)

The aim of this paper is to settle the controversy around Kant’s notorious discussion of maternal infanticide in the ‘Doctrine of Right’ of 1797. How should a state punish an unmarried mother who has killed her newborn infant? The text (at DoR VI 335–37) is obscure. Three readings have been defended in the literature: 1. Lenience. Maternal infanticide does not count as murder; so, capital punishment is inappropriate. On this view, the child does not enjoy the full recognition of (...) the law (this is the standard view). 2. Temporary privilege. Lenience should prevail as long as social attitudes are barbaric and treating maternal infanticide like regular cases of murder is perceived to be unjust. The regular punishment for murder will be appropriate once sexual mores have changed. The child will then enjoy the full protection of the law (Hruschka, Varden). 3. No lenience. Capital punishment, though it appears to be unjust, is actually just and ought to be applied. Any child, whether born to married parents or not, enjoys the full protection of the law (Brandt, Uleman). Based on a close examination of the passage and the context of contemporary laws and attitudes, Kant is not, it will be argued, advocating lenience but certain legislative reforms, which are needed to dispel the perception that capital punishment is unjust. Progressive legislation will change social attitudes, not vice versa. Moreover, it will be shown that Kant does not, appearances notwithstanding, endorse the thesis that a child born out of wedlock has been smuggled into the state like ‘prohibited goods’ or ‘contraband merchandise’, which would deprive the child of the protection of the state; that is the view with which Kant saddles Cesare Beccaria. (shrink)

In Child Abuse, Family Rights, and the Child Protective System: A Critical Analysis from Law, Ethics, and Catholic Social Teaching, Stephen M. Krason gathers essays by leading scholars and practitioners to comment through the prism of Catholic social thought, on the plight afflicting American families and the role of the child protective system. Here readers will find critical essays on the deleterious effect of the 1974 passage of the Child Abuse Prevention and Treatment Act; assessments of (...) current American policies on child abuse and neglect and the role of the CPS within the context of prevailing international human rights principles and Catholic social teaching; a survey of the enforcement of CPS policies from a legal and constitutional perspective; research data disputing the CPS principle that all parents are potential abusers and illustrating the greater prevalence of abuse and neglect in broken, “blended,” and “untraditional” families; and arguments for poverty and unemployment as the prime culprits in the mistreatment of children. Also included are the amicus curiae briefs that the Society of Catholic Social Scientists submitted in two U.S. Supreme Court cases on parental rights, the CPS, and state control over the family. (shrink)