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  1. Home
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Browsing by Author "Sloth-Nielsen, Julia"

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    2 + 2 = 5? Exploring the domestication of the CRC in South African jurisprudence (2002-2006)
    (Brill Academic Publishers, 2008) Sloth-Nielsen, Julia; Mezmur, Benyam Dawit
    South Africa commenced transition to a constitutional democracy with the adoption of an interim constitution in 1994, followed by national elections based, for the fi rst time, on universal adult suffrage. A justiciable Bill of Rights, containing some rights accorded to children, was at the core of our new society based on values of dignity, equality and respect for the freedom and security of the person, in sharp contrast to the violence and legalised discrimination that had characterised the apartheid regime. T e two years that followed the adoption of the Interim Constitution were a period of intense negotiations by a multi-party constitutional assembly to fi nalise the text of a fi nal constitution, in accordance with the principles set out in the Interim Constitution. As has previously been pointed out (Sloth-Nielsen, 1996, p.326), there was a high degree of consensus amongst political parties about the children’s rights to be included, to the extent that four of the six party submissions supported the extension of the children’s rights clause, and indeed a number of additional rights were fashioned and ultimately adopted.
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    The African charter on the rights and welfare of the child
    (University of the Western Cape, 2002) Gose, Michael; Sloth-Nielsen, Julia
    So far little is known about the first comprehensive regional children's rights charter, the 1990 OA1J African Charter on the Rights and Welfare of the Child.' Th" Charter has been mentioned occasionally by documents and authors in different contexts. This happens mostly in the form of an addendum in the context of the 1989 UN Convention on the Rights of the Child, the universal children's rights instrument. This limited use of the Charter's provisions has created the impression that it is not, and cannot, be used as a document in its own. The confusion around the Charter is further complicated when it is quoted under a wrong name, ‘when dates and numbers get confused,3 or when it seems to be nearly impossible to get a copy of the original draft of the Charter. The situation gets worse if one tries to find reliable data on dates of ratification, numbers of States Parties and exact date of entry into force of the instrument.5 Only very scarce literature can be found on the subject. Very few authors6 have written (brief) articles on the Charter in legal journals or contributions for books specializing in the field of children's rights. These authors, however, mainly concentrate on selected points of the Charter and its historical background. In fact most of them wrote on the topic before the Charter came into force on 29 November 1999
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    The African children’s charter at 30: What implications for child and family law?
    (Intersentia, 2021) Sloth-Nielsen, Julia
    This chapter examines the progress made and the difficulties encountered in the implementation of the African Charter on the Rights and Welfare of the Child (hereinafter the Charter) in the areas of children's rights and family. This analysis will cover some of the major developments in the rights of the child and the family following the first 30 years of the Charter, including legislative reforms, the development of specialized institutions, domestic violence and other forms of violence, child marriage, international adoption and surrogacy, as well as corporal punishment inflicted by parents.
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    An analytical study of South African prison reform after 1994
    (University of the Western Cape, 2012) Muntingh, Lukas M.; Sloth-Nielsen, Julia
    The history of prison reform after 1994 was shaped by the relationship between governance and human rights standards; the requirements for both are set out in the Constitution and elaborated on in the Correctional Services Act. Good governance and human rights converge in five dimensions of a constitutional democracy: legitimacy, transparency, accountability, the rule of law; and resource utilisation. The new constitutional order established a set of governance and rights requirements for the prison system demanding fundamental reform. It de-legitimised the existing prison system and thus placed it in a crisis. This required its reinvention to establish a system compatible with constitutional demands. The thesis investigates whether constitutionalism provided the necessary transformative basis for prison reform in South Africa after 1994. The Department of Correctional Services (DCS) senior management failed to anticipate this in the period 1990 to 1994. In the five years after 1994 senior management equally failed to initiate a fundamental reform process. This lack of vision, as well as a number of external factors relating to the state of the public service in the period 1994 to 2000, gave rise to a second crisis: the collapse of order and discipline in the DCS. By the late 1990s the state had lost control of the DCS and its internal workings can be described as a mess – a highly interactive set of problems in causal relationships. In many regards the problems beleaguering the prison system were created in the period 1994 – 1999. The leadership at the time did not recognize that the prison system was in crisis or that the crisis presented an opportunity for fundamental reform. The new democratic order demanded constitutional and political imagination, but this failed to materialise. Consequently, the role and function of imprisonment within the criminal justice system has remained fundamentally unchanged and there has not been a critical re-examination of its purpose, save that the criminal justice system has become more punitive. Several investigations (1998-2006) into the DCS found widespread corruption and rights violations. Organised labour understood transformation primarily as the racial transformation of the staff corps and embarked on an organised campaign to seize control of management and key positions. This introduced a culture of lawlessness, enabling widespread corruption. Under new leadership by 2001 and facing pressure from the national government, the DCS responded to the situation by focusing on corruption and on regaining control of the Department. A number of gains have been made since then, especially after 2004. Regaining control of the Department focused on addressing systemic weaknesses, enforcing the disciplinary code and defining a new employer-employee relationship. This has been a slow process with notable setbacks, but it continues to form part of the Department’s strategic direction. It is concluded that the DCS has engaged with and developed a deeper understanding of its constitutional obligations insofar as they pertain to governance requirements in the Constitution. However, compliance with human rights standards had not received the same attention and areas of substantial non-compliance remain in violation of the Constitution and subordinate legislation. Overcrowding, violations of personal safety, poor services and/or lack of access to services persist. Despite the detailed rights standards set out in the Correctional Services Act, there is little to indicate that legislative compliance is an overt focus for the DCS. While meeting the minimum standards of humane detention, as required by the Constitution, should have been the strategic focus of the DCS in relation to the prison population, the 2004 White Paper defines “offender rehabilitation” as the core business of the DCS. In many regards the DCS has assigned more prominence and weight to the White Paper than to its obligations under the Correctional Services Act. In an attempt to legitimise the prison system, the DCS defined for itself a goal that is required neither by the Constitution nor the Correctional Services Act. Compliance with the minimum standards of humane detention must be regarded as a prerequisite for successful interventions to reduce future criminality. After seven years, delivery results on the rehabilitation objective have been minimal and not objectively measurable. The noble and over-ambitious focus on rehabilitation at policy level distracted the DCS from its primary constitutional obligation, namely to ensure safe and humane custody under conditions of human dignity. Throughout the period (1994 to 2012) the DCS has been suspicious if not dismissive of advice, guidance and at times orders (including court orders) offered or given by external stakeholders. Its relationship with civil society organisations remain strained and there is no formal structure for interaction. Since 2004 Parliament has reasserted its authority over the DCS, not hesitating to criticise poor decisions and sub-standard performance. Civil society organisations have increasingly used Parliament as a platform for raising concerns about prison reform. Litigation by civil society and prisoners has also been used on a growing scale to ensure legislative compliance. It is concluded that prison reform efforts needs to refocus on the rights requirements set out in the Correctional Services Act and approach this task in an inclusive, transparent and accountable manner.
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    An analytical study of South African prison reform after 1994
    (University of the Western Cape, 2012) Muntingh, Lukas M.; Sloth-Nielsen, Julia; NULL
    The history of prison reform after 1994 was shaped by the relationship between governance and human rights standards; the requirements for both are set out in the Constitution and elaborated on in the Correctional Services Act. Good governance and human rights converge in five dimensions of a constitutional democracy: legitimacy, transparency, accountability, the rule of law; and resource utilisation. The new constitutional order established a set of governance and rights requirements for the prison system demanding fundamental reform. It de-legitimised the existing prison system and thus placed it in a crisis. This required its reinvention to establish a system compatible with constitutional demands. The thesis investigates whether constitutionalism provided the necessary transformative basis for prison reform in South Africa after 1994. The Department of Correctional Services (DCS) senior management failed to anticipate this in the period 1990 to 1994. In the five years after 1994 senior management equally failed to initiate a fundamental reform process. This lack of vision, as well as a number of external factors relating to the state of the public service in the period 1994 to 2000, gave rise to a second crisis: the collapse of order and discipline in the DCS. By the late 1990s the state had lost control of the DCS and its internal workings can be described as a mess – a highly interactive set of problems in causal relationships. In many regards the problems beleaguering the prison system were created in the period 1994 – 1999. The leadership at the time did not recognize that the prison system was in crisis or that the crisis presented an opportunity for fundamental reform. The new democratic order demanded constitutional and political imagination, but this failed to materialise. Consequently, the role and function of imprisonment within the criminal justice system has remained fundamentally unchanged and there has not been a critical re-examination of its purpose, save that the criminal justice system has become more punitive. Several investigations (1998-2006) into the DCS found widespread corruption and rights violations. Organised labour understood transformation primarily as the racial transformation of the staff corps and embarked on an organised campaign to seize control of management and key positions. This introduced a culture of lawlessness, enabling widespread corruption. w leadership by 2001 and facing pressure from the national government, the DCS responded to the situation by focusing on corruption and on regaining control of the Department. A number of gains have been made since then, especially after 2004. Regaining control of the Department focused on addressing systemic weaknesses, enforcing the disciplinary code and defining a new employer-employee relationship. This has been a slow process with notable setbacks, but it continues to form part of the Department’s strategic direction. It is concluded that the DCS has engaged with and developed a deeper understanding of its constitutional obligations insofar as they pertain to governance requirements in the Constitution. However, compliance with human rights standards had not received the same attention and areas of substantial non-compliance remain in violation of the Constitution and subordinate legislation. Overcrowding, violations of personal safety, poor services and/or lack of access to services persist. Despite the detailed rights standards set out in the Correctional Services Act, there is little to indicate that legislative compliance is an overt focus for the DCS. While meeting the minimum standards of humane detention, as required by the Constitution, should have been the strategic focus of the DCS in relation to the prison population, the 2004 White Paper defines “offender rehabilitation” as the core business of the DCS. In many regards the DCS has assigned more prominence and weight to the White Paper than to its obligations under the Correctional Services Act. In an attempt to legitimise the prison system, the DCS defined for itself a goal that is required neither by the Constitution nor the Correctional Services Act. Compliance with the minimum standards of humane detention must be regarded as a prerequisite for successful interventions to reduce future criminality. After seven years, delivery results on the rehabilitation objective have been minimal and not objectively measurable. The noble and over-ambitious focus on rehabilitation at policy level distracted the DCS from its primary constitutional obligation, namely to ensure safe and humane custody under conditions of human dignity Throughout the period (1994 to 2012) the DCS has been suspicious if not dismissive of advice, guidance and at times orders (including court orders) offered or given by external stakeholders. Its relationship with civil society organisations remain strained and there is no formal structure for interaction. Since 2004 Parliament has reasserted its authority over the DCS, not hesitating to criticise poor decisions and sub-standard performance. Civil society organisations have increasingly used Parliament as a platform for raising concerns about prison reform. Litigation by civil society and prisoners has also been used on a growing scale to ensure legislative compliance. It is concluded that prison reform efforts needs to refocus on he rights requirements set out in the Correctional Services Act and approach this task in an inclusive, transparent and accountable manner.
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    Application of prescribed minimum sentencing legislation on juvenile offenders in South Africa
    (University of the Western Cape, 2005) Momoti, Bafobekhaya Victor Lizalise; Sloth-Nielsen, Julia; NULL; Faculty of Law
    The detention of juvenile offenders is not encouraged by both the Constitution and a number of international instruments. This right is entrenched in the South African Constitution (section 28(1)(g) ) which provides that every child has the right not to be detained except as a measure of last resort in which case, in addition to the rights a child enjoys under section s12 and 35, the child may be detained only for the shortest appropriate period of time. This Constitutional provision, in clear terms, views the incarceration of juvenile offenders in a serious light as it provides that the detention of juvenile offenders should be a measure of last resort. One of the important international instruments, the United Nations Convention on the Rights of the Child, (Article 37(b) provides that children may be arrested, detained or imprisoned "only as a measure of last resort and for the shortest possible period of time". This thesis examines the impact of the Constitution and some international instruments on the Criminal Law Amendment Act, 105 of 1997 with regard to juvenile offenders. It also sets out the current legal position in South Africa with regard to sentencing of juvenile offenders.
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    Assessing the impact: Mandatory and minimum sentences in South Africa
    (Institute for Security Studies (ISS), 2005) Sloth-Nielsen, Julia; Ehlers, Louise
    The legislation passed in 1997 that provides for mandatory minimum sentences for serious crimes was recently extended for another two years. At the time, the aim was to reduce serious and violent crime, achieve consistency in sentencing, and satisfy the public that sentences were sufficiently severe. This article argues that the legislation has achieved little or no significant impact with regard to these goals. Instead, many agree that the provisions have exacerbated the problem of overcrowding in South African prisons.
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    Assessing the implementation of the Convention on the Rights of the Child in Lusophone Africa (Angola and Mozambique)
    (University of the Western Cape, 2012) Mandlate, Aquinaldo Célio Tomás Samissone; Sloth-Nielsen, Julia
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    Benign accommodation? Ukuthwala, ‘forced marriage’ and the South African Children’s Act
    (Centre for Family Law and Practice, London Metropolitan University, 2011) Mwambene, Lea; Sloth-Nielsen, Julia
    In this article, we evaluate the implications of the Children’s Act 38 of 2005 for ukuthwala. Ukuthwala is a practice whereby, as a preliminary procedure to a customary marriage, a young man forcibly takes a girl to his home. In recent times, the practice has taken on other dimensions, including very young girls being married to older men and charges of abduction being laid. Questions arise relating to the impact of constitutional principles upon this customary law and practice. It is suggested that instead of adopting an a priori prohibitionist stance towards customs that seem to violate human rights norms, benign accommodation of aspects that promote the positive aspects of culture be sought. This approach leads to a conclusion that South African law should recognise those forms of ukuthwala where the requirement of the consent of the ‘bride’ is met. The implications of the prohibition on social and cultural practices detrimental to child well-being in the Children’s Act 38 of 2005 are framed in this context.
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    The challenges that unmarried fathers face in respect of the right to contact and care of their children: can amendments to the current law make enforcement of these rights more practical?
    (University of the Western Cape., 2016) Adams, Delecia Leigh; Sloth-Nielsen, Julia
    Historically, unmarried fathers had no rights in respect of their children born out of wedlock. “Until 1998, the unmarried father had obligations to his child under common law, but did not have any inherent rights with regard to the child.” This position changed when they were awarded limited rights in terms of the Natural Fathers of Children Born out of Wedlock Act 86 of 1997.This position has further been developed by the Children’s Act 38 of 2005. Section 21 of the Children’s Act (hereafter the Act) now provides for the acquisition parental rights and responsibilities in respect of unmarried fathers if certain requirements are met.
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    The challenges that unmarried fathers face in respect of the right to contact and care of their children: can amendments to the current law make enforcement of these rights more practical?
    (University of the Western Cape., 2016) Adams, Delecia Leigh; Sloth-Nielsen, Julia
    Historically, unmarried fathers had no rights in respect of their children born out of wedlock. “Until 1998, the unmarried father had obligations to his child under common law, but did not have any inherent rights with regard to the child.” This position changed when they were awarded limited rights in terms of the Natural Fathers of Children Born out of Wedlock Act 86 of 1997.This position has further been developed by the Children’s Act 38 of 2005. Section 21 of the Children’s Act (hereafter the Act) now provides for the acquisition parental rights and responsibilities in respect of unmarried fathers if certain requirements are met.
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    Children's experiences and views on domestic violence
    (University of the Western Cape, 2012) Ntebe, Ntombenani Primrose; Sloth-Nielsen, Julia
    In a country in which human rights feature prominently in our discourse about who we are, as well as in the South African constitutional and legal framework, so many wrongs continue to be perpetrated on women and children. However, children seem to be particularly affected by domestic violence, either physically, emotionally or socially. In order to adequately address these diverse experiences and understand what children say, an in-depth investigation into how children experience domestic violence, and what their views are, is required. The study will focus on those children who had been affected emotionally and socially in their homes. This study will make an attempt to expand on how children experience domestic violence, what the general reaction of a selected group of children, who have observed domestic violence, is and what their views of domestic violence are. Attention was given to the relevant literature as well to legislative and policy frameworks. The study employed a qualitative research method in order to obtain in-depth data from the children. Children were selected from three schools in a small Northern Cape town, which participated in the study and the schools were grouped as follows: one school from each area, which are Nonzwakazi, Sunrise and De Aar (town). Each high school had five participants. The participants‟ ages were between 12 and 17. All the participants reside at De Aar which is situated in Prixley kaSeme District about 300 kilometres from Kimberley, Northern Cape Province. Data was coded according to the themes that emerged from the study and were analysed. The results indicated that children are able to share their experiences when given the opportunity. It is further shown in the results that children view domestic violence as a wrong and that men are the sole abusers. It further indicated that children do not have confidence in the courts; they are of the view that the courts are being too lenient on the abusers and they further said that more protection orders should be issued in order to prevent domestic violence. They blame this on non-responsiveness of the police when they are called and the kind of punishments the courts impose when the abuser is brought before court.The majority of children expressed their wish to see justice being done. The study found that children are of the view that there is little support from the police and the courts. The study concluded that children, acting voluntarily and with appropriate ethical safeguards, can make a significant contribution to both describing their experiences of domestic violence, and to indicating the standard of services and other interventions that they can trust and use.
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    Children’s rights and parental authority: African perspectives
    (Routledge, 2021) Sloth-Nielsen, Julia
    Traditionally, children in African societies were raised communally, with extended family members playing a vital role in child rearing and care. Social reality is playing a formative role in relation to family law and policy, including in respect of children’s rights. Most African children still grow up under conditions of extreme poverty, which is exacerbated by urbanization, conflict, adverse climatic conditions and economic disparity which leaves large numbers of people unemployed or underemployed. Characteristic of the African human rights conception is a unique provision for the responsibilities of the child. Children’s rights feature prominently in African constitutions, and commonly include protection for the family, education rights and rights relating to special protection.
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    Cluster foster care: a panacea for the care of children in the era of HIV/Aids or an MCQ?
    (Stellenbosch University (SUNJournals), 2010) Gallinetti, Jacqui; Sloth-Nielsen, Julia
    The ravages wrought by HIV/AIDS on child-care arrangements in the African context are well documented (Richter & Sherr, 2009; Sloth-Nielsen & Mezmur, 2008; Tsegaye, 2007; sources cited there). Notably, these constitute the breakdown of traditional kinship structures which would ordinarily have accommodated orphans and other vulnerable children, a decrease in the capacity of existing extended family structures to care for the numbers of children requiring alternative care, and the emergence of child-headed households. The topic of child-headed households, too, has emerged as a key concept in international child rights law (Couzens & Zaal, 2009; Sloth-Nielsen, 2004; Sloth-Nielsen in Skelton & Davel, 2010; UN Committee on the Rights of the Child (UNCROC), General Comment No. 3 on HIV/ AIDS and the rights of the child, 2003), and this phenomenon has been directly related to the onset of the pandemic.
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    Community service in Uganda as an alternative to imprisonment: a case study of Masaka and Mukono districts
    (University of the Western Cape, 2005) Birungi, Charles; Lees, Marion Keim; Sloth-Nielsen, Julia; Institute for Social Development; Faculty of Arts
    Community service as an alternative to imprisonment at its inception was taken up very strongly by the judiciary as part of the reform of the criminal justice system in Uganda. The successful enactment of the Community Service Act, Act no: 5/2000, was an achievement towards the implementation of the programme in the country. However, its implementation as an alternative sentence is currently proceeding at a slow pace. The Ugandan law still allows courts to exercise their discretionary powers with regard to either using prison sentences or community service. Courts still seem to prefer to use imprisonment irrespective of the nature of the offence, thus leading to unwarranted government expenditure and prison overcrowding. An additional problem is that some offenders come out of prison having been negatively affected by their interaction with even more serious offenders. This study was undertaken to establish whether community service as an alternative to imprisonment can be effective with regard to reducing recidivism and to accelerating reconciliation and reintegration of minor offenders back into their communities.
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    The constitutional family: developments in South African family law and jurisprudence under the 1996 Constitution
    (Oxford University Press, 2003) Sloth-Nielsen, Julia; Van Heerden, Belinda
    The article reviews the process of liberalization of child and family law that has occurred since the adoption of South Africa's 1996 Constitution. Although the Constitution does not expressly protect the right to family life, the principles of dignity, equality and concern for the vulnerability of marginalized groups in society have heralded a wide‐ranging revision of the legal meaning of family, of how the law should protect family members, and is reshaping the understanding of relationships between family members (including children). Developments in areas such as domestic violence, custody allocation upon divorce, the growing recognition of same sex partnerships, religious and customary marriages, and the rights and status of illegitimate children in both civil and customary law are discussed. The article suggests that these piecemeal judicial and statutory reforms may result in a potentially dangerous proliferation of legally recognized family forms. At the same time, the difficulties of multiculturalism and religious diversity in the family law arena in South Africa are highlighted.
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    Cross border recovery of child maintenance : should South Africa ratify and implement the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance?
    (University of the Western Cape, 2016) Brown, Amy Lauren; Sloth-Nielsen, Julia
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    Cross border recovery of child maintenance : should South Africa ratify and implement the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance?
    (University of the Western Cape, 2016) Brown, Amy Lauren; Sloth-Nielsen, Julia
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    Deprivation of children's liberty 'as last resort' and 'for the shortest period of time': how far have we come? And can we do better?
    (Juta Law, 2013) Sloth-Nielsen, Julia
    Commencing with a brief historical overview of detention of children in South Africa, and legislative attempts to curb its use, this article reviews all forms of deprivation of liberty under the Child Justice Act 75 of 2008 and attempts to assess at a practical level whether - or not - progress is being made in the quest for the minimal use of deprivation of liberty.
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    The determinants of the child’s best interests in relocation disputes
    (University of the Western Cape, 2015) Boyd, Miche Theresa; Sloth-Nielsen, Julia; Albertus, Latiefa
    This thesis explores the factors that our courts take into account in determining what would constitute the best interests of the child in granting or refusing relocation applications. This study deals with the formulation and interpretation of the best interests standard by South African courts in relocation cases. The courts are considering reported cases to determine which issues to take into account in determining the best interests of the child, due to the fact that the Children’s Act does not have a set list of criteria. Therefore I will focus on case law in determining what factors are taken into account in order to determine what would be in the best interests of the child with regard to the relocation application. The aim is to determine whether there is any consistent principle or policy which can act as a guideline to practitioners and our courts to direct jurisprudence in this area. The objective is to determine whether the Children’s Act provides sufficient guidelines to assist the court in determining relocation disputes. Furthermore the thesis examines what the approach of our courts is and what constitutional dimensions may arise in relocation disputes. The research aims to explore whether relocation applications (and parenting roles) are disadvantaging women (primary-caregivers). The research investigates whether the courts are gender neutral and acutely sensitive to gender in relocation applications.
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