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John Eekelaar

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Retired. Formerly Co-Director, Oxford Centre for Family Law and Policy (OXFLAP)

John Eekelaar (LL.B. (London) 1963; B.C.L. (Oxon) 1965; M.A. (Oxon) 1967, held a Rhodes Scholarship from 1963-5, and was awarded the Vinerian Scholarship in 1965. He was called to the Bar in 1968 at the Inner Temple. He was a Tutorial Fellow at Pembroke College from 1965 to 2005; he held a CUF Lecturership from 1966-91, and was Reader in Law until 2005. He was elected to a Fellowship of the British Academy in July 2001. He retired from teaching in 2005. From 2005 to 2009 he was Academic Director at Pembroke College. He continues research as Co-Director of the Oxford Centre for Family Law and Policy (OXFLAP).



Publications

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Journal Articles

2015

J M Eekelaar, 'The role of the best interests principle in decisions affecting children and decisions about children ' (2015) 23 International Journal of Children’s Rights 3 [...]

In this paper I examine how courts, and some other decision-makers, go about deciding what the best interests of children (BIC) (or ‘welfare’) principle actually are. In making this examination, I draw mainly on English legal decisions, supplemented by those of Scottish courts, the European Court of Human Rights and some other jurisdictions. I also put forward an hypothesis proposing a structure for applying the principle that seems best to reflect its purpose.The hypothesis argues that the answer is that where decisions are not about specific children, but affect children indirectly, the focus of the decision-maker should be on reaching the ‘best’ solution to the issue to be decided. It is not to determine what is in the best interests of the children affected. Those interests are part of the agenda, so must be taken into account, alongside other relevant matters, and must be given ‘primary’ attention among those other matters (though certain other matters may be given similar ‘primary’ attention). However, they will only be considered in order to ascertain the effect any proposed solution to the issue has on such interests, not as part of the process of deciding what is best for the child in its current circumstances. In contrast, in the case of direct measures concerning a child or children, the hypothesis argues that the focus of the decision-maker should be on discovering a solution that has the best outcome for the child, or children. But while it is common for certain assumptions to be held about what such an outcome looks like, this process goes beyond routine applications of such assumptions by examining a range of possible outcomes. In doing this, the decision-maker demonstrates acceptance of the possibility that conformity to accepted social arrangements may not be best for this child in these circumstances, and therefore that a child’s best interests are to be assessed by criteria other than mere social conformity. Indeed, the effect of such conformity is itself subject to evaluation.


2014

J M Eekelaar, 'Family Justice on Trial - re A' (2014) 44 Family Law [...]

The article analyses the decision of the Court of Appeal which describes the process of a contact case as one of system failure, and suggests an alternative reading of the reported facts.


J M Eekelaar, 'Perceptions of Equality: the Road to Same-Sex Marriage in England' (2014) 28 International Journal of Law, Policy and the Family 1 [...]

DOI: 10.1093/lawfam/ebt013

The article examines the backgroubnd to the treatment of same-sex relationships in English law and the progression to the enactment of the Marriage (Same Sex Couples) Act 2013, analysing the positions advanced by participants in the debate.


2013

J M Eekelaar, 'Marriage - a modest proposal' (2013) 43 Family Law 82 [...]

A critical account of ther law in England and Wales governing entry into marriage and suggestions for reform


ISBN: 0014-728

J M Eekelaar, 'Then and Now: Family Law's Direction of Travel' (2013) 35 Journal of Social Welfare and Family Law 415 [...]

By comparing reported cases from 1959-60 with those in 2011, the article reveals the way family law has changed over this period, becoming much more attuned to people's real problems. This has however thrown up difficulties in its application; some of the responses to these difficulties are considered.


ISBN: 0964-9069

2012

J M Eekelaar, 'Positivism and Plural Legal Systems' (2012) 25 Ratio Juris 513 [...]

This paper considers whether the positivist account of law is useful in guiding states in how they should deal with religious or customary legal orders followed by minority groups within their jurisdiction. It argues, first, that such orders can be said to exist despite the prevalence of disagreement about the grounds of law. It then argues, contrary to views advanced by Scott Shapiro and Joseph Raz, that there are good reasons for perceiving that the resolution of legal disputes by reference to moral principle involves the application of pre-existing law. However, the paper concludes by arguing that the Social Thesis has an important role in supplying the basis upon which the application of law can be deemed to be legitimate, and that this has relevance to the way states might respond to minority legal orders.


J M Eekelaar, 'Self-Restraint: Social Norms, Individualism and the Family' (2012) 13 Theoretical Inquiries in Law 75 [...]

The paper argues that claims that individualism has overcome normative behaviour within families are incorrect, but also that state's should be cautious about translating social norms that operate within families into legal norms. Three types of approach to the relationship between legal and social norms within families are sketched, and it is suggested that one, styled "purposive abstention",should normally be preferred.


2011

J M Eekelaar, 'Evaluating Legal Regulation of Family Behaviour' (2011) 1 17 [...]

This paper centres on the distinction between norms related to family behaviour expressed through state law and practice and such behaviour itself. Such expression requires justification because it prescribes rather than describes social behaviour. It is maintained that a necessary condition for justification should be that the family-related norm enhances the well-being of individuals in the family, and that the application of this condition requires careful evaluation of empirical evidence, in particular, an appreciation of the relative effects of legal events and of social behaviour. The paper examines such evidence in regard to a number of issues.


J M Eekelaar, 'Naturalism or Pragmatism? Towards an Expansive View of Human Rights' (2011) 10 Journal of Human Rights 230 [...]

DOI: 10.1080/14754835.2011.569300

This article compares the naturalistic account of human rights in James Griffin's On Human Rights (2009) with the practical account by Charles R. Beitz in The Idea of Human Rights (2009). Taking Griffin's own examples, the analysis suggests that Griffin's account of human rights with regard to children, divorce, or marriage is unconvincing. However, while the practical approach is preferred, this leaves the basis for any universal duty to take state action for human rights violations uncertain. The article concludes by proposing an analysis of human rights that retains the advantages of the practical conception but accounts for the justification of international action through the principle of universalizability of moral obligations


J M Eekelaar, 'Not of the Highest Importance: Family Justice under Threat' (2011) 33 Journal of Social Welfare and Family Law 311 [...]

The articles considers the reasons given by policy-makers for reducing legal aid for family matters and argues that they reflect a diminished sense of the role of justice in family relationships, and blindness to the role of lawyers in resolving family conflicts.


J M Eekelaar, 'The Arbitration and Mediation Services (Equality) Bill' (2011) 41 Family Law 1209 [...]

An analysis of the Arbitration and Mediation Services (Equality) Bill 2011


ISBN: 0014-7281

2010

J M Eekelaar, 'Evaluating Legal Regulation of Family Behaviour' (2010) 1 International Journal of the Jurisprudence of the Family 17 [...]

This paper centres on the distinction between norms related to family behaviour expressed through state law and practice and such behaviour itself. Such expression requires justification because it prescribes rather than describes social behaviour. It is maintained that a necessary condition for justification should be that the family-related norm enhances the well-being of individuals in the family, and that the application of this condition requires careful evaluation of empirical evidence, in particular, an appreciation of the relative effects of legal events and of social behaviour.


J M Eekelaar, 'Legal Events and Social Behaviour' (2010) 40 Family Law 1094 [...]

A description of empirical evidence about the effects of family law on social behaviour


2007

J M Eekelaar, 'Why People Marry: the Many Faces of an Institution' (2007) 41 Family Law Quarterly [...]

Accepted for the special issue on the Future of Marriage by this US publication in the Fall of 2007, the article draws on the author's research and UK legal developments to contribute to the debate over marriage in the USA.


ISBN: 0014-729X

2005

J M Eekelaar, 'Deciding for children' (2005) 7 Australian Journal of Professional and Applied Ethics 66 [...]

Discussion of the relationship between deciding issues about children on the basis ofrights and on the basis of welfare


ISBN: 1328-4576

J M Eekelaar, 'Miller v Miller: the Descent into Chaos' (2005) 35 Jordans/Family Law 870 [...]

Criticism of Court of Appeal decision on allocation of assets on divorce


ISBN: 0014-7281

J M Eekelaar and Mavis Maclean, 'The Significance of Mariage: Contrasts between White British and Ethnic Minority Groups in England' (2005) 27 Law & Policy 379 [...]

Report of data from empirical study on the understanding of the purpose of marriage and obligations arising in domestic relationships, demonstrating differences between white British and ethnic minority respondents.


ISBN: 0265-8240

2004

J M Eekelaar, 'Children between Cultures' (2004) 18 International Journal of Law, Policy & the Family 178 [...]

Discussion oflaw and policy when children are subjected to competing claims from cultural groups


J M Eekelaar and M Maclean, 'Marriage and the Moral Bases of Personal Relationships' (2004) 31(4) Journal of Law and Society 510

2003

J M Eekelaar, 'Asset Distribution on Divorce - Time and Property' (2003) 33 Family Law 828

J M Eekelaar, 'The End of an Era?' (2003) 28 Journal of Family History 108 [...]

Describing historical trends in family law


2002

J M Eekelaar, 'Beyond the Welfare Principle' (2002) 12 Child and Family Law Quarterly 237 [...]

Critique of the welfare principle


J M Eekelaar, 'Contact - Over the limit' (2002) 32 Family Law 271 [...]

Assessment of policy initiative on contact


J M Eekelaar, 'Judges and Citizens: Two Conceptions of Law' (2002) 22(3) Oxford Journal of Legal Studies 497

J M Eekelaar, 'Personal Rights and Human Rights' (2002) 2 Human Rights Law Review 181 [...]

Theorising human rights, especially in the personal domain


2001

J M Eekelaar, 'Back to Basics and Forward into the Unknown' (2001) 31 Family Law 30 [...]

Case analysis


J M Eekelaar, 'Rethinking Parental Responsibility' (2001) 31 Family Law 426 [...]

Re-analysis of concept of parental responsibility


J M Eekelaar, 'The Politics of Pragmatism: Family Law Reform in England' (2001) 3 European Journal of Law Reform 297 [...]

Survey of recent developments


Books

2013

J M Eekelaar and Mavis Maclean, Family Justice: The Work of Family Judges in Uncertain Times (Hart Publishing 2013) [...]

Based on observations of court proceedings the book analyses the nature of activities in the lower family courts in England and Wales, showing them to be very different from the way they are commonly perceived by policy-makers. It sets these findings within an account of the place of justice in the resolution of family conflicts.


2006

J M Eekelaar, Family Law and Personal Life (OUP 2006)

Chapters

2013

J M Eekelaar, 'Law and Community Practices' in Mavis Maclean and John Eekelaar (eds), Managing Family Justice in Diverse Societies (Hart Publishing 2013) [...]

Proposes a strategy for state law when interacting with norms of minority communities within the state which reconciles the values of respecting cultural identity with commitment to individual human rights.


ISBN: 978-1-84946-400-0

2012

J M Eekelaar, 'Family Law - What Family Law?' in Fifty Years in Family Law: Essays for Stephen Cretney (Intersentia 2012) [...]

A discussion of the issue of recognition of the family law of minority communities, with special reference to sharia law in England and Wales


ISBN: 978-1-78068-052-1

2006

J M Eekelaar, 'Empowerment and Responsibility: The Balance Sheet Approach in the Principles and English Law' in Robin Fretwell Wilson (ed), Reconceiving the Family: Critique on the American Law Institute's Principles on the Law of Family Dissolution (Cambridge University Press 2006)

J M Eekelaar, 'Invoking Human Rights' in Timothy Endicott, Joshua Getzler and Edwin Peel (eds), Properties of Law: Essays in Honour of Jim Harris (OUP 2006) [...]

Analysis of the nature of human rights invocations, with special reference to the work of Jim Harris


ISBN: 0-19-929096-2

2005

J M Eekelaar, 'Personal Obligations' in Mavis Maclean (ed), Family Law and Family Values (Hart Publishing 2005) [...]

A theoretical discussion of the nature of obligations in the family context, designed as providing a theoretical backgrounbd to an empirical research project


ISBN: 1-841113-547-X

2003

J M Eekelaar, 'Contact and Adoption Reform' in Andrew Bainham, Bridget Lindley, Martin Richards (eds), CHILDREN AND THEIR FAMILIES: CONTACT, RIGHTS AND WELFARE (Hart Publishing 2003) [...]

Analysis of recent adoption reforms.


ISBN: 1-84113-253-5

2002

J M Eekelaar, 'Child Endangerment and Child Protection in England and Wales' in Margaret K. Rosenheim, Franklin E. Zimring, David S. Tanenhaus and Bernadine Dohrn (eds), A Century of Juvenile Justice (University of Chicago Press 2002) [...]

Overview of child protection law and policy in England


Case Notes

2005

J M Eekelaar, 'Shared Income after Divorce: A Step too Far' (2005) 121 Sweet & Maxwell/Law Quarterly Review '1 [...]

Discussion of Court of Appeal Decisions in Macfarlane v M. and Parlour v P.


ISBN: 0023-933X

2001

J M Eekelaar, 'Asset Distribution on Divorce - the Durational Element' (2001) 117 Law Quarterly Review 552 [...]

Discussion of methods of allocating property on divorce


Reviews

2004

J M Eekelaar, 'Helen Reece, Divorcing Responsibly' (2004) 31 Journal of Law and Society 272 [...]

Review of Helen Reece, Divorcing Responsibly


Reports

2004

J M Eekelaar and Mavis Maclean, 'Personal Relationships, Marriage and Morals' (Department of Social Policy and Social Work, University of Oxford 2004) [...]

Full account of rsearch project into perception of personal obligations by married and unmarried people


ISBN: 0-9541 703-5-0


Interests

Research: Family Law, Constitutional Law, Socio-Legal Studies, Jurisprudence

Other details

Correspondence address:

Pembroke College
St Aldates, Oxford, OX1 1DW




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