Drafting an International Convention on the Protection of the Rights of All Migrant Workers and Their Families

The open-ended Working Group (WG) completed its 3rd session of the 2nd reading on the Elaboration of an International Convention on the Protection of the Rights of All Migrant Workers and Their Families during September 24-October 3, 1986 in New York. In this session, the WG elaborated a "dictionary" of terms related to the migrant worker and members of the family of the migrant worker that, when ratified, will be viewed as international standards. The WG also approved 8 articles primarily relating to civil and political rights. These included articles regarding the rights of migrant workers and their families to 1) leave any State, including their State of origin; 2) life; 3) be excluded from forced or compulsory labor except under specific conditions; 4) the freedom of thought, conscience, and religion; 5) hold opinions without interference and the freedom of expression, subject only to certain restrictions; and 6) liberty and security of person. The Convention's intention was to ensure the application of human rights to migrant workers. There were nearly 60 participating states in attendance, with 1/3 of them from African states. African and Arab states played a very active role in the discussions. The number of women delegates has increased with each session. Future issues include 1) economic and cultural rights, and 2) the additional rights of migrant workers and their families in a regular situation of lawful status.     

Das polnische Familienrecht im Reformprozeß der staatlichen Ordnung

In view of the political reform in Poland, the ratification of international conventions and Poland’s intention of joining the European Union, a revision of both civil law and family law, which has been codified separately hitherto, is required. The author analyses the proposals made by the commission for the codification of the civil law and presents further possibilities for a solution.As far as the family law reform is concerned, optional civil marriage has been introduced. The same law lays down that a marriage is void in the case of an error regarding the partner and the event that the marriage was concluded under threat. Whereas the principle of irretrievable marriage breakdown remains unchanged, the introduction of divorce on request of one partner without judicial control has been refused. Furthermore, the legal separation is to be introduced.According to the author, the main emphasis of the reformatory efforts is being placed on the matrimonial property law. He reports on the commission’s proposal on the introduction of the community of surplus as a new matrimonial property regime, the introduction of a matrimonial property register and the extension of the spouses’ rights to settle their marital property rights by contract.With regard to the parent and child law the author analyses the impications of new assisted reproduction technologies for the right to challenge paternity and questions of maintenance.Finally the author refers to the status of the child in the new constitution and points out the necessity of hearing the children in the course of divorce proceedings.     

The double victim: The sexually abused child and the judicial system

The American judical system continues to dampen the willingness of juvenile victims of sexual abuse to testify against their alleged abuser. A recent example of this continuing double victimization appears in the U.S. Supreme Court decision ofCoy v. Iowa (1988). The rights of minor sexual abuse victims are explored through case law, statutes, legal literature and historical references as they impact the minor during the judicial process. It is difficult to achieve justice for sexually abused children in a judicial system designed for adults; thus, the sexually abused child remains a double victim in our contemporary judicial system.     

A legal realist view on citizen actions in Hong Kong's umbrella movement

This article considers the legal validity of citizens' actions in civil disobedience as it pertains to the umbrella movement in Hong Kong. It introduces the critical approach of “legal realism” in order to reconsider normative law, such as police enforcement and court interventions, in relation to political struggle. It has been argued that the legal precepts of rights, responsibility, and the rule of law are capable of contingent and contextually appropriate interpretations by different legal actors, including citizens who participate in civil disobedience. In politics, justice, and most importantly law, civil disobedience offers an alternative legal normativity to consider the citizen's right, and even duty, to express dissent. Furthermore, this right or duty is legally persuasive and conducive to guarding democratic principles.     

Social constructions of fatness: legal proceedings in Canada as a case in point

This article uses reports of cases of Canadian legal processes to explore social constructions of fatness as disability, as well as illness, cultural aesthetic, and blame. The review of cases in Canadian human rights, civil, administrative, and employment law suggests that fatness has been constructed as a disability in Canadian law. This has led to favourable outcomes for fat persons seeking redress for discrimination. Illness, cultural aesthetic, and blame also surface as recurrent themes. To consider all four themes, a concept of mythopoeia – myth-making process – is introduced. This adds to models of social construction by focusing on where ‘un-reality’ is constructed in a non-hierarchical view of marginal identities. Fatness constructions/mythopoeia of disability, illness, cultural aesthetic, and blame overlap as well as diverge. This suggests that fatness may be an incomplete fit with current classifications in human rights law.     

Human rights for women: battles of culture and power

In Africa, nongovernmental organizations (NGOs) focussing on human rights have mushroomed during the past 10-15 years, and, with several of these organizations run by and for women, it is possible to find free legal aid for women in almost every capital city. The collapse of the extended family and, thus, the framework for customary law has meant that women are faced with problems of maintenance and widows with problems of inheritance. Customary law and the protection it afforded women and children has also been weakened by a poverty-driven shift in urban areas from a focus on community support to a focus on individual survival. The vacuum left by this change in legal and social structure is being filled by the human rights NGOs. Paradoxically, in the face of such change, a static, communal, and neutral concept of "culture" was held out by African state representatives at the 1993 UN Conference on Human Rights to justify their opposition to the acceptance of the crosscultural legitimacy of human rights, especially for women. While these arguments were being aired at the Conference, African NGOs were vigorously using examples of the marginalization of women to promote the opposite view. The most important aspect of these conflicting views is which group has the most power and resources to voice its interpretation of the situation. With most African countries governed by a dual system of laws, customary law and common or civil law (left over from colonialism), human rights groups are working to instill human rights principles into common law through the ratification of international conventions. Thus, persons in need could be viewed not as victims but as individuals entitled to enforceable and universal rights. Misuse of the term "culture" can marginalize women even as it is being promoted as a protective device for women. A more useful view of culture is as something which transcends traditional boundaries and locates people and institutions in the global community where they are protected by the acknowledgement of their human rights.     

Fundamental Rights and New European Constitutionalism: an Italian Approach

The paper begins with a brief illustration of the problems related to the protection of rights and constitutionalism in the context of European integration. The present-day challenges to European constitutionalism and the protection of rights through an analysis of the sources of law, the concepts of Constitution and sovereignty are then examined. The paper then points out the circularity that exists between State and Community legal systems and the dualism between the various bodies of guarantee. Finally it underlines how fundamental rights and the protection of those rights should operate as an element of intersection and consolidation between the two levels: in particular, on one hand, as a guarantee of harmonisation of the Community's social tissue and, on the other, as a guarantee for the different identities that exist therein     

Index

This article discusses some of the reasons why social workers need to add to their understanding of the law and legal procedures, and to develop legal skills. It also explores several specific areas of the law to be studied: function, sources, concepts, procedures, and skills. A teaching approach to this material in an introductory course on law for social workers is then presented. The article concludes with suggestions for additional curriculum offerings.     

Editorial

This editorial introduces a journal devoted to the issues surrounding women and their rights. As the development debate moves from women's need to their rights and to an understanding of the cultural roots of legal systems and the effects of the mass media in presenting alternative life styles as possibilities, the immense implications of using rights-based language in development emerge. This debate moves women from being the recipients of welfare to a state of empowerment. Women must be afforded individual rights which are linked to community rights. In addition, rights must be granted to women in their public and private domains. The dangers of using a rights-based language to assert women's claims to economic, political, and social equality in economic, political, and social life arise from the reality that the social position of men will usually place men at an advantage with the law. Legal processes which stress dichotomies may fail to improve real social situations. Also, the language of human rights may pit one set of rights (a woman's right to choose abortion) against another (the fetuses' right to live) to women's disadvantage. Areas governed by both customary and civil law pose other difficulties, especially since they require women to understand the law in order to use it. Development efforts which stress rights hope to meet immediate needs and to achieve a strategic end. Nongovernmental organizations can play an important role in asserting and enforcing the freedom of individuals and groups within groups. They can also build capacity at all levels of society and explore linkages between women's economic participation, decision-making within the home, and wider political participation.     

Judicial bias in adjudicating the adoption of minors in Israel

The decision-making process of professionals involved in child placement is prone to judgmental bias, since there is no consensual model for evaluating the key concepts of “child's best interests” and “parental capability.” Several hypotheses regarding judicial bias were assumed, with emphasis on the social marginalization of the parents (operationally measured by three indicators: parents' lack of economic means, parents' social deviance, and a family history of previous adoptions and/or out-of-home placement) affecting the judge's perception of parental dangerousness, the adoption decision and its legal reasoning. Findings from a sample of 231 court decisions of compulsory adoption indicated that operational measurements of “social marginalization of the parents” were correlated and could predict the judge's perception of parental dangerousness, his decision of compulsory adoption and his reference to family rights. The legal disadvantage of socially marginalized parents was discussed from various perspectives.     

Women's legal knowledge: a case study of Mexican urban dwellers

In Mexico, the nongovernmental organization Sevisio, Desarrollo y Paz, A.C. (SEDEPAC) is helping poor women acquire legal knowledge in an economic climate characterized by the increased feminization of poverty brought about by the Structural Adjustment Program. The Mexican legal system is grounded in a patriarchal tradition, and the codified laws continue to favor men. Women were not granted full citizenship until 1953, and discrimination against women was not addressed in Mexican law until 1974 as the country prepared to host the First UN International Women's Conference. However, legal advances are not being applied in the family or in larger society where men remain in power. Mexico also distinguishes between private law and public law. Because domestic violence falls in the realm of private law, authorities are loathe to follow-up on women's complaints in this area. Since its founding in 1983, SEDEPAC has applied a gender perspective to its activities and programs. SEDEPAC held its first women's legal workshop in 1987 and realized that most poor women have no knowledge of existing laws or their rights, that alternative legal services for women are scarce, that existing laws must be changed, and that the authoritarian and conservative legal system helps maintain cultural stereotypes. Since then, SEDEPAC has held annual workshops, follow-up meetings, and training sessions and has provided counseling. The main topics addressed are women's social conditions; violence and the penal code; civil rights, power, and dependency; women's bodies and reproductive rights; and women's organization and leadership. The workshops use techniques of popular education such as group participation and use of gossip as a communication tool. The workshops have changed participants' lives and led to the formation of an independent Popular Defenders' Coordination.     

RELEASING POTENTIAL — THE FUTURE OF SOCIAL WORK AND CAMHS

Several recent UK government initiatives are set to have an impact on child and adolescent mental health services. As a result new primary mental health worker and similar posts are being established. These jobs are proving attractive to social workers seeking to develop their special interest in child and adolescent mental health. This article sets out some of the problems and prospects for social workers undertaking them seeking to develop a modern psycho‐social practice using psychodynamic skills.     

Child Abuse Prevention: The Community as Co-Worker

Much of the literature on community organization describes the efforts of a worker to enable a community to coalesce arouund an external enemy in order to resolve systemic service delivery problems. Based on the mid-point of a federally-funded child abuse prevention project, this article describes the roles of worker and community as colleagues in an effort to enhance the community's capacity to shape its own values and behaviors to reduce child abuse and neglect. This article poses a challenge to the social work education community to be more responsive to the potential of becoming a co-worker with the community, and to enhance the social worker's skills in defining strenghts rather than weakness of communities.     

The Voice of the Child: A Legal Voice?

This article presents a legal analysis of the 'voice of the child' in family proceedings, both public and private. The evaluation is thus confined to civil law and is not concerned with young offenders within the criminal justice system. There have been significant legislative developments in the last decade arising from UK, European, and UN provisions. The article assesses the strengths and weaknesses of the rights to representation of children in these legal proceedings and in particular outlines the weaknesses in the proceedings of 'private' law about children. Making recommendations for future reform, the article argues that consistent implementation of the provisions requires greater attention to be paid to direct representation and advocacy for the child's views, in contrast to adult presentation of their own views about the best interests of the child.     

Unconscious sequences in child protection work: case studies of professionals' experiences of child removal

At a time of increasing calls for a return to relationship‐based practice, this paper presents qualitative research findings regarding the effects of more coercive and less coercive interventions on relationships between social workers and parents. Its context is the use, in England, of investigations of alleged child abuse (more coercive) versus initial assessments (less coercive, and potentially leading to family support services). Methods were based on 23 case studies involving interviews of both parent and social worker. The paper concludes that the less coercive initial assessments, combined with child welfare concerns that were perceived as less serious, provided the context for good working relationships between parent and worker. However, it is suggested that these conditions were not a prerequisite for good relationships. Worker skill was of significant importance, and good relationships were seen to be possible in a variety of procedural contexts. Comparisons are made with accounts of the therapeutic alliance in the counselling and psychotherapy literature.     

Worker skill and client outcome in child protection

The research in child protection and in work with other involuntary clients suggests that the use of certain skills by child protection workers is likely to be related to positive client outcomes. In particular, effective practice involves: helping clients and client families to understand the role of the child protection worker; working through a problem‐solving process which focuses on the client's rather than the worker's definitions of problems; reinforcing the client's pro‐social expression and actions; making appropriate use of confrontation; and using these skills within a collaborative client/worker relationship. This study attempts to identify the extent to which child protection workers make use of these skills and how these skills relate to client outcomes. Data were sought through 50 interviews with child protection workers and 282 interviews with family members. The child protection workers provided information about 247 client families. It was clear that when workers used the skills, their clients had better outcomes—the workers believed their clients showed better progress, the clients were more satisfied with the outcomes and the cases were more likely to have been closed 16 months later. Copyright © 2002 John Wiley & Sons, Ltd.     

Assessing Knowledge of Elder Financial Abuse: A First Step in Enhancing Prosecutions

Financial exploitation by a family member is the most common form of elder mistreatment; yet, it is a difficult crime to detect and prosecute. Psychologists have traditionally assisted prosecutors by assessing decisional capacity and opining in court whether an alleged victim was able to consent to the contested transactions. This article proposes and evaluates a novel form of psychological expertise in financial abuse trials—social framework testimony to reeducate jurors who are misinformed about aspects of this largely hidden crime. Findings suggest that, as in cases of child and spousal abuse, social framework testimony on the general dispositional and situational factors inherent in elder financial abuse may enhance prosecutions.     

Ethical and legal challenges of mandated child abuse reporters

Background

Mandated reporters inconsistently report child abuse cases. Ethical dilemmas and legal challenges to reporting arise creating barriers to assist abused children and their families.

Purpose

The purpose of this study was to describe professionals' ethical dilemmas and legal challenges to reporting child abuse.

Method

A qualitative study was conducted to explore the ethical and legal challenges of mandated reporters when reporting child abuse. Individual interviews between 60 and 100 min were conducted with a purposive sample of 18 mandated reporters including physicians, nurses, social workers, and teachers. Grounded theory methodology was used to develop categorical themes that reflected mandated reporters' experiences and challenges.

Result

Three themes emerged from the data: conflicts, time, and law as refuge. Professionals described challenges in balancing autonomy, beneficence, nonmaleficence, and justice. There was no best solution to do no harm. The associated stigma and pressure of cultural and secular norms of child abuse inhibit professionals' action based on legal and ethical requirements. The theme of time included limited time and an uncertain future. The law provides security and refuge for professionals to find a solution to the challenges of reporting child abuse.

Conclusion

The ethical and legal challenges of reporting child abuse create complex dilemmas for mandated reporters. Ethical principles are in constant opposition when negotiating rights of children and rights of parents. Supportive structures and education are needed to assist professionals in meeting their reporting obligation and solving their dilemmas.     

14 to 18 Year Olds as “Children” by Law?

SUMMARY

The European Union Council Framework Decision 2004/68/JI of 22.12.2003 “on combating the sexual exploitation of children and child pornography” defines as “child” any person below the age of 18. Under Austrian law there are no children between the ages of 7 and 18. The author criticizes that, up to now, the development of age limits in legal history has taken a clearly different way in the various fields of law of the Austrian legal order. The Austrian legislator's tendency, which has evolved in the course of legal history, to grant rights and permits to young people between 14 and 18 years earlier but, at the same time, to impose on them more and more obligations arising from private and public law, to give them the opportunity to grow into adult life with full powers and responsibilities step by step, totally contradicts the Council Framework Decision.

Today, adolescents live in a cultural environment characterized by globalized pop culture and world-wide communication technology. Access to “extreme ideas” is offered everywhere and anytime. It is highly difficult to grow up without any interference and develop one's own personality and sexual orientation according to one's inherent nature under such circumstances of a world society, and this process may be seriously disturbed or even prevented by inappropriate prohibitions imposed by criminal law. However, the aim of any education is to accompany adolescents while they are growing up so that they become self-assured, self-responsible citizens with an understanding of how to work for peace and common welfare who know “how to walk upright” and do so, and who are informed about their civil rights and are able to exercise the same decidedly. We do not need only consumers but also citizens of the world! Repatriarchalization and criminalization are the wrong answers to the urgent questions of world society. The question how to combat child pornography commerce is certainly one of the most important concerns because it is abused children and adolescents for whom it is most difficult to develop their personalities and become citizens of the world.

Legally useful answers can only be expected by those who address precise questions to the law. In this respect Europe failed. Given the fundamental right to respect for one's private life and the prohibition of discrimination on the grounds of age the creation of new offencesinvolving a definition of the child as a person up to the age of 18, which contradicts well established law and is unrealistic-shoots past the mark in the author's opinion. Such provisions miss the target group of potential offenders, and infantilize and criminalize society instead. With the proposed legal means it will not be possible to attain the actual aims, i.e., to finally destroy the market for child pornography, and to punish its organizers, “wire-pullers” and users as offenders, and to eliminate them once and for all. The legal status of adolescents is weakened or at least serious curtailment of their claims arising from the fact that they have fundamental rights depending on personality and age; and the Council Framework Decision contradicts the equality guarantees in primary law of the European Union that they must not be discriminated on the grounds of age.