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Family Law

The leading authority on all aspects of family law

21 SEP 2011

Family law and the Human Rights Act 1998: judicial restraint or revolution? [2005] CFLQ 329

This article contends that two key factors were always likely to exert a restraining influence on the use of the Human Rights Act 1998 in family law cases: (i) a strong resistance to rights-based reasoning in the family law context; and (ii) the fact that the legal regulation of family life often gives rise to sensitive questions of public policy, traditionally regarded as the responsibility of Parliament rather than the courts. The article thus reviews the post-implementation case-law to determine how, if at all, these two key factors have influenced judicial reasoning in a number of leading family law cases. It is concluded that, as predicted, a prevailing mistrust of rights among family lawyers and problematic public policy issues in the family law context have made a significant contribution to the emerging overall picture of judicial caution and restraint in the use of the Human Rights Act 1998 in family law cases.

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