Publication of the week: Professor Susan Edwards

Edwards, Susan S.M., “The Claims of Culture: The Occident and the Orient in Child Custody”, Journal of Comparative Law  JCL 9.1 (2014), 271-295

This article considers the application and interpretation of the principle of the “welfare of the child” as it is imagined and mediated by competing claims of culture, parentage, and international human rights law in the context of child custody disputes arising from relocation and asylum applications, especially across the frontiers of West to East.  Since the meaning of “welfare of the child” is indeterminate, it has been construed differently in time and place when considering inter-jurisdictional claims, leaving outcomes fluid and the future of children born to parents originating from different jurisdictions uncertain.

Professor Edwards shows the difficulties which have been experienced by judges making decisions about the custody of children in international custody disputes.  Such decisions have sometimes been criticised for being paternal, patriarchal, heteronormative or Orientalist.  Judges have to balance the European Convention on Human Rights and the Hague Abduction Convention with sensitivity to the values of countries which have not signed those conventions, and awareness that an area such as the Middle East is not homogeneous in its cultural practices.  She argues that “the attachment and bonding of parent to child, child to parent must never be eclipsed, subordinated or compromised in this balancing act.”