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This chapter considers the connection between “arbitrariness” and harm, positing that the “arbitrariness” of arbitrary detention results in harms that can, in certain circumstances, amount to torture or other prohibited ill-treatment. To arrive at this conclusion, the chapter reviews the findings of scientific studies of harms experienced by current and former detainees in arbitrary situations of detention undertaken by psychologists and others. By attaching arbitrary detention to the torture taboo, the chapter undermines the argument that the industrial-scale arbitrary detentions that have become commonplace in the name of controlling borders and strengthening national security are somehow justifiable, because some of these detentions may constitute torture, and torture is never justifiable.

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This chapter focuses on the interviews with relationship professionals working with or for separated parents and their children outside of the mediation context, outlining whether, in principle, they believed that young people ought to be given a voice in the decision-making when parents separate and the psychological, wellbeing and agency benefits (and risks) of doing so. It also explores their views on child-inclusive mediation’s role in giving young people a voice. Its analysis compares these views with those of young people in focus groups on these questions.

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The Right to Be Heard
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ePDF and ePUB available Open Access under CC-BY-NC-ND licence.

Recent legislative changes in England and Wales have eroded children’s ability to exercise their article 12 UNCRC rights to information, consultation and representation when parents separate. However, children’s voices may be heard through child-inclusive mediation (CIM).

Considered from a children’s rights perspective, this book provides a critical socio-legal account of CIM practice. It draws on in-depth interviews with relationship professionals, mediators, parents and children, to consider the experiences, risks and benefits of CIM. It investigates obstacles to greater uptake of CIM and its role in improving children’s wellbeing and agency.

Exploring the culture and practice changes necessary for a more routine application of CIM, the book demonstrates how reconceptualising CIM through a children’s rights framework could help to address barriers and improve outcomes for children.

Open access
Power, Punishment and Control
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Available Open Access digitally under CC-BY-NC-ND licence

This book examines what happens when states and other authorities use detention to abuse their power, deter dissent and maintain social hierarchies.

Written by an author with decades of practical experience in the human rights field, the book examines a variety of scenarios where individuals are unlawfully detained in violation of their most basic rights to personal liberty and exposes the many fallacies associated with arbitrary detention.

Proposing solutions for future policy to scrutinise processes, this is a call for greater respect for the rule of law and human rights.

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This chapter provides the overall conclusions for the book.

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This chapter draws together the themes and arguments made in the preceding chapters to consider the conceptual, legal and practical changes needed to build a family justice system that has mediation at its centre but which is fully compliant with article 12 of the United Nations Convention on the Rights of the Child (UNCRC). Its primary conclusion based on the Healthy Relationship Transitions study is that there are compelling arguments for moving towards a family justice system that fully respects children’s voices when parents separate in line with their article 12 rights, if only to improve their wellbeing and mental health. Whislt incorporation of the UNCRC into domestic law must be the long term goal, it considers how child-inclusive mediation can be used to change the culture to accept children’s rights and test how a system can in practice take children’s information, consultation and participation rights seriously, ensuring young people exercise appropriate agency. Alongside statutory and practice reforms, it concludes such a move towards a relational family approach can, in the short to medium term, achieve a rights balance between children and parents, not present within the prevailing parental autonomy discourse.

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This chapter considers the circumstances of persons deprived of their liberty in the context of epidemics, pandemics and other major health emergencies.

The chapter analyses how governments, specialist agencies and courts have grappled with the legal, ethical and public health consequences associated with detention and infectious disease, looking particularly at the recent experience of COVID-19. Despite the heightened health risks for detainees associated with pandemics, often those who are most vulnerable because they have the least agency and voice are placed at even greater risk of harm. The chapter also considers whether the experience of pandemics has helped to clarify understandings of “arbitrariness”.

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This chapter considers the phenomenon of states arbitrarily detaining dual or foreign nationals with a view to exerting pressure on their (other) state of nationality. It provides an overview of these detentions, focusing on some of the countries that have been most involved. It explains why the phenomenon constitutes not only arbitrary detention, but also the crime of hostage-taking. As the detaining state is seeking to obtain some kind of leverage from the state of nationality, the act also constitutes unlawful coercion, which breaches the fundamental international law principle of non-intervention.

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The chapter considers the different contexts in which arbitrary detention is used to suppress dissent, identifying and analysing trends and patterns. It then considers the main gaps in the law that fuel the practice. At times the law simply accommodates and upholds governments’ efforts to criminalise, securitise or pathologise dissent, whereas occasionally, even if rarely, the law shows that it is capable to help “de-securitise” issues back to a more normal status.

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This chapter explores the role of detention as a method to enforce hostility and social control. It focuses on three routes to detention: criminalisation, pathologisation and deterrence. These methods are probed in relation to how they impact on different typologies of marginalisation: (1) the “unseen” (those marginalised in neoliberal societies on account of their destitution and/or extreme social needs); (2) the “reviled and resented” (the recipients of racist, xenophobic and/or discriminatory attacks); and (3) the “undeserving” (refugees and other migrants). The chapter considers the efficacy of the legal strategies adopted to combat the arbitrary detention these groups experience and identifies the need for more systemic approaches.

Open access