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International Journal of Law, Policy and The Family, 2019, 0, 1–3
doi: 10.1093/lawfam/ebz008
Book Review

Book Review
Family Law and Family Realities, edited by Carol Rogerson, Masha
Antokolskaia, Joanna Miles, Patrick Parkinson, and Machteld Vonk, The
Hague: Eleven International Publishing, 2019, 577pp (no index), ISBNs 978-
94-6236-927-6 and 978-94-6274-420-2 (e-book).

The International Society of Family Law, founded in 1973, has since then held 16
world conferences and many regional conferences. The world conferences have all
resulted in the publication of a volume bringing together selected edited papers
delivered at the conference. Many of these will be known to readers of this journal.
In addition, the society produces an annual survey, the International Survey of Family
Law, giving updates on aspects of family law in a wide range of jurisdictions.
The contribution of this Society to the cross-fertilization of knowledge about fam-
ily law has therefore been immense, and this has included its teaching. From the be-
ginning, the topics chosen for the world conferences have highlighted issues that
were only then emerging as matters of growing importance, such as child law (in the
opening conference in West Berlin in 1975), family violence (Montreal in 1977),
marriage and cohabitation (Uppsala in 1979), alternative dispute resolution
(Harvard University in 1982), economic security (Brussels in 1985), and ageing
(Tokyo in 1988); the list goes on. Some of them were less issue-specific, allowing a
wider range of topics, but following a broader theme. This volume, following the
16th world conference in Amsterdam on 17 July 2017 on ‘Family Law and Family
Realities’, falls into the latter group. What are the ‘realities’ in question? The answer
given by Masha Antokolskaia, the convenor of the conference, is: ‘the rapidly
changing realities of modern family life’. These changing ‘realities’ include unmarried
cohabitation, same-sex marriage, high divorce, high-conflict divorce, ‘problematic
post-divorce parenting’, new reproductive techniques, surrogate motherhood, and
the rights of transgender and intersex persons, with growing awareness of domestic
abuse and child abuse and ageing. There are 37 papers in all.
This amounts to a very eclectic menu. In her perceptive Introduction,
Antokolskaia identifies overarching ideological themes, for example, between ‘pro-
gressive’ and ‘conservative’ positions, the tension between the goals of personal au-
tonomy and pursuit of happiness and responsibility for others, and the relationship
between secularism and religion. It is very important to keep this in mind when read-
ing the individual papers, because, inevitably, they are mostly country reports which
do not in themselves seek to present a comparative picture. There are notable excep-
tions, such as Kirsten Scheiwe’s revealing analysis of different models for the exercise

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of joint parental responsibility, a largely regional analysis of laws on reproductive

technologies by Gordana Kovocek Stanic and Sandra Samardzic, a California–
Sweden comparison of child support policies by Elizabeth Perry, an extremely useful
examination of approaches towards responding to children ‘affected by atypical gen-
der identity organisation’ by Elena Falletti, and Isabella Ferrari’s look at policies con-
cerning regulation of surnames. Velina Todorova also describes how various
continental European countries have (or have not) adapted guardianship law to
apply to unaccompanied child migrants. It is a pity that the Scottish Guardianship
Service is not given a mention.
The collection of the material into discrete sections (Relationship Recognition;
New Model of Parenthood; Financial Obligations; Parent-Child Relationships when
Parents Live Apart; Protecting Children’s Rights and Interests; Care for
Dependants) helps to keep those overarching themes to the fore. Within those sec-
tions, readers will have their own preferences among the 37 papers, reflecting their
own current interests, and I can only give something of a ‘taster’. Nina Dethloff’s ac-
count of recent developments regarding sexual and gender diversity in Germany,
including a recent holding by the Federal Constitutional Court concerning birth
registration which shatters the binary divide, is of particular interest to those con-
cerned with identity issues. The contrast with Japan, where surgery, including steril-
ization, is required for recognition of transgender status, described by Mi Ishijima, is
very striking. Ishijima calls for the removal of these conditions, but, finding it unlikely
that the binary divide will be abandoned, provides an acute analysis of how, if the
conditions were removed, maternal and paternal relationships could be established
under the present binary system. Contributions from the USA (Linda Elrod, Lynn
Wardle, Crystal Welch, and Melissa Roger) express in different ways high anxiety in
the USA regarding the effect on children of family instability and of legal uncertainty
with regard to new types of family.
An Israeli contribution (Philip Marcus) delves into the highly fraught area of
what he usefully calls ‘contact failure’, suggesting an approach modelled on preventa-
tive medicine. Whether or not newly introduced divorce procedures in Croatia can
be described as going that far, Branka Resetar reports how they have resulted in an
increase of divorces where the parties have agreed all matters concerning property,
finances, and child arrangements from 18.3 per cent of all divorces in the year before
the procedures were introduced to 33.2 per cent in their first year of operation. An
argument for a legal basis for recognizing ‘parallel’ and ‘polyamorous’ families comes
from Brazil (Hannetie Sato), though it is unclear how far the law actually goes in this
respect, but support in principle seems to be given in a reflective piece on the rela-
tionship between the (secular) state and the Church by fellow Brazilian, Isabella
Drumond. The need to protect children from abuse within families is, of course, uni-
versally accepted, but how jurisdictions go about doing this varies, so the opportunity
to compare new legislation in China (described by Ran Qiyu and Peng Wanran) and
New Zealand (described by Bill Atkin) could provide a good starting point for fur-
ther investigation. On the matter of surrogacy, however, it could be said that legal
systems are in total disarray, ranging from those totally forbidding it to those reluc-
tantly permitting it and those actively regulating it. But whatever they do, it seems
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hard to prevent it, leading to creative judicial responses, as appears to be the case in
China (Lei Shi) and Argentina (Mercedes Ales).
The theme of the relationship between family law and ‘family realities’ is particu-
larly well illustrated by examples where the law appears to be providing some kind of
bridge between more traditional family structures and newer social practices. In this
respect, two reports from Italy describing the 2016 Civil Partnership Act and the way
some courts have used the institution of ‘adoption in particular cases’ (APC) (by
Denise Amram and Alessandra Pera, respectively) provide fascinating reading. As in
other countries, civil partnerships recognize relationships that fall outside the strict
model of marriage (including, where this is not allowed for marriage, same-sex rela-
tionships), but do so by affording them similar but not exactly the same legal conse-
quences as marriage. It does look like (and in many cases has been) a transition
towards full recognition of same-sex marriage, though it can also survive as a separate
legal relationship in itself. APC is even more interesting, as it allows for a ‘weaker’
form of adoption in circumstances where the strict requirements of full adoption
(including that the adopters must be married to one another) are not met. Although
it seems this was not intended by those legislating the Civil Partnership Act, Pera
instances decisions by the Italian Constitutional Court and Corte di Cassazione
approving the use of APC where the adopters are of the same sex. Not all courts
have taken this approach, but Pera emphasizes its consistency with the child’s best
interests and right to family life. This evolutionary approach of the law, tracking the
changing realities of family life, is, of course, also a feature of the way the European
Court of Human Rights has treated the European Convention as a ‘living instru-
ment’, as is lucidly described by Dafni Lima’s account of the Court’s milestone judg-
ments on same-sex couples.
These glimpses into the interior of this publication will give some idea of the
riches that can be found within it.

John Eekelaar
University of Oxford