Women and Justice: Keywords

Domestic Case Law

Dupre v. Dupre Supreme Court of Rhode Island (2004)

Divorce and dissolution of marriage

In this case, the Rhode Island Supreme Court held that a parent seeking to relocate out of the country with children in his or her custody need not make a showing that his or her reasons for relocation are “compelling.” Rather, the court cited the “time-honored axiom that the primary consideration and paramount concern in all matters relating to custody is the best interests of the child.” In determining the child’s best interests, requiring a parent to demonstrate that the reason for moving was compelling would overly burden a parent’s ability to relocate for legitimate reasons. Accordingly, the court held that the family court had incorrectly applied a “compelling reason” test in denying a mother’s motion to relocate with her children, failing to consider the children’s best interests. 



Mabuza v. Shongwe Supreme Court of Appeal of Swaziland (2006)

Gender discrimination, Harmful traditional practices

The appellant was the maternal grandfather of two minor children (the subject of the application). The appellant was appealing a decision of the trial court which ordered that the children be placed the custody of their biological father (the respondent). The children stayed with the appellant for a period of time while the respondent pursued his education in South Africa. Upon the respondent’s return, he fetched the children from the applicant’s residence. One of the appellant’s arguments was that because the marriage between the appellant’s deceased daughter and the respondent was invalid under Swazi law, the custody of the children should be with the maternal family (in accordance with Swazi law and custom). The Court stated that Section 29(4) of the Constitution removes the distinction between legitimate and illegitimate children as it states that children whether born in or out of wedlock shall enjoy the same protection and rights. The Court found that the most important considerations were the welfare, interests and happiness of the children. The Court found that no evidence was adduced to prove that the respondent was not fit to have custody over the children and the appeal was dismissed. 



B 990-11 Supreme Court of Sweden (2011)

Sexual violence and rape

A man who possessed 39 drawn pornographic images in manga style was acquitted from a charge of possession of child pornography on the grounds that holding this possession as illegal would unreasonably limit freedom of expression. Swedish child pornography laws outlaw actual photographic material as well as drawn images. The purpose of this law is to protect children from offensive materials, to avoid anyone using child pornography to snare children into sexual situations, and to protect their likeness being shared in pornographic materials. The court argued, however, that because a conviction would mean a restraint in the defendant’s freedom of expression, the court must present a serious reason for why pornographic manga-styled cartoon images actually have the potential to harm a child in any of these ways. Because the images were not made in any child’s likeness and because manga is an expression of Japanese culture, the court ruled that the restraint on the defendant’s freedom of expression would be too great if he were convicted and the images were held to constitute child pornography.