Elaine Sutherland

Biography

Professor Sutherland researches, publishes and presents papers on child and family law around the world. In addition to her work on the US and Scottish domestic contexts, she has long pursued her interest in the comparative and international aspects of the subject.

She began her career in academia at the University of Edinburgh, Scotland, in 1980, subsequently moving to the University of Glasgow. In 2006, she was recruited by the University of Stirling as its inaugural Professor of Child and Family Law in the, then new, Stirling Law School and is now a Professor Emerita there, having retired from teaching in 2020.

Her relationship with Lewis & Clark Law School began in 1984 and, from 1999 until 2018, she spent six months of the year (July thru December) teaching, researching and writing here, returning to the University of Stirling to do much the same there for the other half of the year. She has now returned to live in Scotland for most of the year and her relationship with Lewis and Clark continues on a less scheduled basis.

Sutherland is currently a part-time Professor at the University of Bergen, Norway, where she is working as part of an international team on a research project: Legitimacy challenges for children’s rights and child protection.

She is sole the author of over 150 articles and book chapters and seven books and the editor or co-editor of nine other volumes. Her comparative and international interests are reflected in two volumes published by Cambridge University Press, The Future of Child and Family Law: International Predictions (2012) and Implementing Article 3 of the United Nations Convention on the Rights of the Child: Best Interests, Welfare and Well-being (2016). Other publications focus on Scots child and family law and, most recently, have included Child and Family Law: Vol. II: Intimate Adult Relationships (2022) and articles on law reform, adult relationships, child-parent relationships, child protection and juvenile justice (see, Bibliography, below). Yet other publications are concerned with more general developments in contemporary Scots law and its history.

In 2012, she founded the United Nations Convention on the Rights of the Child Implementing Project (CRC-IP) to explore implementation of the UNCRC in the international and comparative contexts. To date, the CRC-IP has organized five international colloquia, examining article 12 (participation rights of the child: University of Auckland, New Zealand, 2013), article 6 (child’s right to life, survival and development: University of Stellenbosch, South Africa, 2014), article 3 (primacy of the child’s best interests: Edinburgh, Scotland, 2015). ), article 2 (prohibition of discrimination: Bergen, Norway, 2017) and article 5 (parental guidance and the child’s evolving capacities: Cambridge: England, 2019).

Sutherland is consulted regularly by government agencies, non-governmental organizations and the media, on child and family law and reform thereof, and attends, and presents papers at, national and international conferences. She regards academic life as offering the best of all worlds – opportunities to teach, research, write and travel.

Specialty Areas and Course Descriptions

Academic Credentials

• 1978 LLB (First Class Honors), University of Glasgow, Scotland
• 1985 LLM, University of British Columbia, Canada

Bibliography

BOOKS

• CHILD AND FAMILY LAW: VOL. II: INTIMATE ADULT RELATIONSHIPS (W. Green/Thomson Reuters, 3rd ed, 2022)
• IMPLEMENTING ARTICLE 3 OF THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD: BEST INTERESTS, WELFARE AND WELL-BEING  (Cambridge University Press, 2016) (edited by Elaine E. Sutherland and Lesley-Anne Barnes Macfarlane).

• FAMILY LAW, (W. Green/Thomson Reuters, 3rd ed, 2014) (2nd ed. 2008; 1st ed. 1996).

• PRONOUNCED FOR DOOM: EARLY SCOTS LAW TALES (Avizandum Publishing, 2013), (edited by John P. Grant and Elaine E. Sutherland).

• THE FUTURE OF CHILD AND FAMILY LAW: INTERNATIONAL PREDICTIONS, (Cambridge University Press, 2012) (edited by Sutherland). 

• LAW MAKING AND THE SCOTTISH PARLIAMENT: THE EARLY YEARS, (Edinburgh University Press, hardback edition, 2011, paperback edition, 2014) (edited by Sutherland, Goodall, Little and Davidson).

• SCOTS LAW TALES (Dundee University Press, 2010) (edited by Grant and Sutherland).

• CHILDREN’S RIGHTS IN SCOTLAND, (W. Green/Thomson Reuters, 3rd ed, 2009) (edited by Sutherland and Cleland), (2nd ed, 2001; 1st ed. 1996).

• CHILD AND FAMILY LAW (W. Green/Thomson Reuters, 2nd ed, 2008) (T. & T. Clark, 1st ed. 1999).

• GRANDPARENTS AND THE LAW IN SCOTLAND, (Age Concern, Scotland, 1993).

• FAMILY RIGHTS AND MEDICO-LEGAL ADVANCE, (Edinburgh University Press, 1990) (edited by Sutherland and McCall Smith).

WORKS PUBLISHED AS PART OF A COLLECTION

• An attempt to take child protection to a new level in Scotland, Centre for Research on Discretion and Paternalism Blog, posted August 24, 2021: https://discretion.uib.no/an-attempt-to-take-child-protection-to-a-new-level-in-scotland/
• “Avoid lawsuits beyond all things”, Journal of the Law Society of Scotland online, uploaded July 18, 2021: https://www.lawscot.org.uk/members/journal/issues/vol-66-issue-07/avoid-lawsuits-beyond-all-things/
• Teaming in to Zoom in on Marriage, Journal of the Law Society of Scotland online, uploaded March 8, 2021: https://www.lawscot.org.uk/members/journal/issues/vol-66-issue-03/family-teaming-up-to-zoom-in-on-marriage/
• Making Scotland “the best place in the world to grow up”? in INTERNATIONAL SURVEY OF FAMILY LAW: 2020 EDITION (Margaret Brinig (ed.), Jordans/Family Law, 2020), pp. 215-238.
• Unmarried cohabitation in ROUTLEDGE HANDBOOK OF FAMILY LAW AND POLICY, 2nd (Rob George and John Eekelaar (eds), Routledge, 2020), pp. 61-70.
• Skelping away, Journal of the Law Society of Scotland online, uploaded October 19, 2020: https://www.lawscot.org.uk/members/journal/issues/vol-65-issue-10/skelping-away/
• The Enigma of Article 5 of the United Nations Convention on the Rights of the Child: Central or Peripheral?, 28 International Journal of Children’s Rights (forthcoming 2020).
• Nikah-only marriage: a Scottish remedy?, Journal of the Law Society of Scotland online, uploaded 11 March 2020: https://www.lawscot.org.uk/members/journal/issues/vol-65-issue-03/nikah-only-marriage-a-scottish-remedy/
• Scots Child and Family Law: Liberty, Equality and Protection Revisited, Juridical Review 33 (2019).
• Article 2 of the United Nations Convention on the Rights of the Child: Non-Discrimination and Children’s Rights in CHILD RIGHTS AND INTERNATIONAL DISCRIMINATION LAW: IMPLEMENTING ARTICLE 2 OF THE UN CONVENTION ON THE RIGHTS OF THE CHILD (Marit Skivenes and Karl Harald Søvig (eds), Routledge, 2019), pp. 23-39.

• Child Custody and Cognate Concepts in ROUTLEDGE HANDBOOK OF INTERNATIONAL FAMILY LAW (Jacqueline Heaton and Barbara Stark (eds), Routledge, 2019).
• The Welfare Test: Determining the Indeterminate, in 22 Edinburgh Law Review 94-100 (2018).
• Family Law: still scope for reform, Journal of the Law Society of Scotland online, uploaded 17 July 2017:  http://www.journalonline.co.uk/Magazine/62-7/1023495.aspx
• Scotland: More Proactive Child Protection – A Step Too Far? INTERNATIONAL SURVEY OF FAMILY LAW: 2017 EDITION (Margaret F. Brinig (ed.), Jordans/Family Law, 2017) pp. 287-321.

• Raising the Minimum Age of Criminal Responsibility in Scotland:  Law Reform at Last? 67(3) Northern Ireland Legal Quarterly387-406 (2016).

• Beyond the named person service, Journal of the Law Society of Scotland online, uploaded 19 September 2016: http://www.journalonline.co.uk/Magazine/61-9/1022210.aspx
  
• Introduction, in IMPLEMENTING ARTICLE 3 OF THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD: BEST INTERESTS, WELFARE AND WELL-BEING  (Cambridge University Press, 2016) (edited by Elaine E. Sutherland and Lesley-Anne Barnes Macfarlane).
• Article 3 of the United Nations Convention on the Rights of the Child: The Challenges of Vagueness and Priorities, in IMPLEMENTING ARTICLE 3 OF THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD: BEST INTERESTS, WELFARE AND WELL-BEING  (Cambridge University Press, 2016) (edited by Elaine E. Sutherland and Lesley-Anne Barnes Macfarlane).

• The Child’s Right to Life, Survival and Development: Evolution and Progress, 26 Stellenbosch Law Review, pp. 272-294 (2015).

• Scotland: Win Some, Lose Some, But Never Give Up, in INTERNATIONAL SURVEY OF FAMILY LAW: 2015 EDITION (Bill Atkin (ed.), Jordans/Family Law, 2015), pp. 265-282.

• The Dad and the Undad: Liability for Paternity Fraud, Journal of the Law Society online, uploaded August 16, 2015: http://www.journalonline.co.uk/Magazine/60-8/1020598.aspx

• It is a wise father … , Journal of the Law Society of Scotland online, uploaded 16 June 2014, available at: http://www.journalonline.co.uk/Magazine/59-6/1014070.aspx
• Cohabitation in ROUTELEDGE HANDBOOK OF FAMILY LAW AND POLICY (John Eekelaar and Rob George (eds), Routledge, 2014), pp. 61-69.
• Martyrs to Circumstance: Longworth v Yelverton in PRONOUNCED FOR DOOM: EARLY SCOTS LAW TALES (John P. Grant and Elaine E. Sutherland (eds), Avizandum Publishing, 2013).
• Listening to the Voice of the Child: The Evolution of Participation Rights, 26 New Zealand Law Review 335 (2013).
• Can Family Law Be Rendered More Accessible? in INTERNATIONAL SURVEY OF FAMILY LAW: 2013 EDITION (Bill Atkin (ed.), Jordans/Family Law, 2013), pp. 333-342.
• From ‘Bidie-In’ to ‘Cohabitant’ in Scotland: The Perils of Legislative Compromise, 27(2) International Journal of Law Policy and the Family, 143-175 (2013).
• Giving the state sole jurisdiction over marriage would simplify the law, 58(4) Journal of the Law Society of Scotland 5 (2013) and http://www.journalonline.co.uk/Magazine/58-4/1012446.aspx
• Child Law: respecting the rights of children in PRIVATE LAW AND HUMAN RIGHTS IN SCOTLAND AND SOUTH AFRICA (Danie Visser and Elspeth Reid (eds), Edinburgh University Press, 2013), pp. 91-105.
• Imperatives and challenges in child and family law: commonalities and disparities in THE FUTURE OF CHILD AND FAMILY LAW: INTERNATIONAL PREDICTIONS, (Elaine E. Sutherland (ed), Cambridge University Press, August 2012), pp. 1-48.
• Scotland: the marriage of principle and pragmatism in THE FUTURE OF CHILD AND FAMILY LAW: INTERNATIONAL PREDICTIONS, (Elaine E. Sutherland (ed), Cambridge University Press, 2012), pp. 389-426.
• Scotland: “The easing of certain legal difficulties”: Limited Legal Recognition of Cohabitation Under Scots Law in INTERNATIONAL SURVEY OF FAMILY LAW: 2011 EDITION (Bill Atkin (ed.), Jordans/Family Law, 2011), pp. 335-368.
• A Step Closer To Same-Sex Marriage Throughout Europe (2011) 15 Edinburgh Law Review 97-102.
• Verdict on the Scottish Parliament’s Law-Making Efforts (2011) 56(5) The Journal 22-24.
• Child and Family Law: Progress and Pusillanimity in Elaine E. Sutherland et al, LAW MAKING AND THE SCOTTISH PARLIAMENT: THE EARLY YEARS (Edinburgh University Press, 2011) pp. 58-83.
• Law Making and the Scottish Parliament: The Early Years in Context in Elaine E. Sutherland et al, LAW MAKING AND THE SCOTTISH PARLIAMENT: THE EARLY YEARS (Edinburgh University Press, 2011) pp. 3-8.
• A Knock at the Door: B v Sloan: The Orkney Case in John P. Grant and Elaine E. Sutherland (eds), SCOTS LAW TALES (Dundee University Press, 2010) pp. 1-22.
• Child Law in Scotland: 1989-2009, Family Law Bulletin, 14-17, 2009.
• What Has a Decade of Devolution Done for Scots Family Law? in INTERNATIONAL SURVEY OF FAMILY LAW: 2009 EDITION (Bill Aitken (ed.), Jordans/Family Law, 2009), pp. 389-424.
• Children’s Rights in Scotland: Where Are We Now? (with Alison Cleland) in Elaine E. Sutherland and Alison Cleland (eds), CHILDREN’S RIGHTS IN SCOTLAND, (W. Green/Thomson, 3rd ed. 2009), pp. 1-22.
• International Standards and Scots Law (with John. P. Grant) in Elaine E. Sutherland and Alison Cleland (eds), CHILDREN’S RIGHTS IN SCOTLAND, (W. Green/Thomson, 3rd ed. 2009), pp. 40-61.
• Care of the Child Within the Family in Elaine E. Sutherland and Alison Cleland (eds), CHILDREN’S RIGHTS IN SCOTLAND, (W. Green/Thomson, 3rd ed. 2009), pp. 86-105.
• The Child in Conflict with the Law in Elaine E. Sutherland and Alison Cleland (eds), CHILDREN’S RIGHTS IN SCOTLAND, (W. Green/Thomson, 3rd ed. 2009), pp. 296-319.
• A Veiled Threat to Children’s Rights? Religious Dress in Schools and the Rights of Young People, Juridical Review 143-171 (2008).
• Family Law in Europe: From Mutual Recognition and Enforcement to Harmonisation of Substantive Law? International Family Law Journal 167-169 (2006).
• Undue Deference to Experts Syndrome?, 16 Indiana International and Comparative Law Review, 375-421 (2006).
• Is There a Right Not to Procreate? in FIRST DO NO HARM (festschrift in honor of Professor Emeritus J. Kenyon Mason, Sheila A.M. McLean (ed), 2006) pp. 319-336.
• Scotland: Offending and Offensive Young People: Why Mandatory Parenting Education is Not the Answer, Andrew Bainham(ed), International Survey of Family Law: 2005 Edition, Bristol, Family Law, 2005.
• Child Law section of Child and Family Law in The Laws of Scotland: Stair Memorial Encyclopaedia, 2nd ed (1st ed, 1990), Edinburgh, Butterworths, 2004, pp. 6-39 and 63-253.
• ‘Parenting Orders: A Culturally-Alien Response of Questionable Efficacy’ 49 Juridical Review 105-132 (2004).
• ‘Procreative Freedom and Convicted Criminals in the United States and the United Kingdom: Is Child Welfare Becoming the New Eugenics?’ 82 Oregon Law Review 101-132 (2003).
• Can International Conventions Drive Domestic Law Reform? The Case of Physical Punishment of Children, John Dewar and Stephen Parker (eds), Family Law: Processes, Practices and Pressures, London, Hart Publishing, 2003, pp. 475-489.
• ‘Man Not Included’- singe women, female couples and procreative freedom in the UK, 15 Child and Family Law Quarterly 155 (2003).
• Scotland: Some Dreams Realised, Some Disappointments, Andrew Bainham (ed), International Survey of Family Law: 2003 Edition, Bristol, Family Law, 2003, pp. 379-402.
• Criminal Justice for the Scottish Child?, Andrew Bainham (ed), International Survey of Family Law: 2002 Edition, Bristol, Family Law, 2002.
• The An Age of Reason or The Reasons for An Age? Criminal responsibility in Scots Law Scots Law Times (News) p. 1, 2002.
• Parentage and Parening, in Jane Scoular (ed), Family Dynamics: Contemporary Issues in Family Law, p.49, Edinburgh, Butterworths, 2001.
• How Children Are Faring In The ‘New Scotland’, Andrew Bainham (ed), International Survey of Family Law: 2001 Edition, p. 363, Bristol, Family Law, 2001.
• Can International Conventions Drive Domestic Law Reform? The Case of Physical Punishment of Children, Scottish Law and Practice Quarterly, 6, p. 22, 2001.
• How Real are Children’s Rights in Scotland?, (with Alison Cleland), Alison Cleland and Elaine E. Sutherland (eds), Children Rights in Scotland, p.1, 2nd ed, Edinburgh, W. Green, 2001.
• Children’s Rights and International Instruments, (John P. Grant ), Alison Cleland and Elaine E. Sutherland (eds), Children Rights in Scotland, p. 29, 2nd ed, Edinburgh, W. Green, 2001.
• Care of the Child within the Family, Alison Cleland and Elaine E. Sutherland (eds), Children Rights in Scotland, p. 91, 2nd ed, Edinburgh, W. Green, 2001.
• The Child in Conflict with the Law, Alison Cleland and Elaine E. Sutherland (eds), Children Rights in Scotland, p. 263, 2nd ed, Edinburgh, W. Green, 2001.
• The Future of Family Law Reform, Green’s Family Law Bulletin, 50, p. 2, 2001.
• Scotland: Consolidation and Anticipation, Andrew Bainham (ed), International Survey of Family Law: 2000 Edition, p. 329, Bristol, Family Law, 2000.
• Improving Scottish Family Law?, Journal of the Law Society of Scotland, 44, p. 24, 1999.
• Time to Recognise Diversity in Adult Relationships, Green’s Family Law Bulletin, 38, p. 2, 1999.
• Scotland: From Birth to Death, Andrew Bainham (ed), International Survey of Family Law 1996, p. 383, The Hague, Martinus Nijhoff, 1998.
• Parental Responsibilities and Rights Agreements: Better half a loaf than none at all? Scottish Law and Practice Quarterly, 3, p. 265,1998.
• The Unequal Struggle: Fathers and Children in Scots Law, Child and Family Law Quarterly, 9, p. 191, 1997.
• Roy Breustedt, Brian Kearney, Alex Stevens and Elaine E. Sutherland, Scotland’s Children: The Evolution of the Children’s Hearings System over the last 25 years, Scottish Law and Practice Quarterly 8, p. 73, 1997.
• Scotland: Child Law Reform - at last!, Andrew Bainham (ed), International Survey of Family Law 1995, p. 435, The Hague, Martinus Nijhoff, 1997.
• Another unfounded assumption laid to rest? - T, Petitioner, Juridical Review, 42, p. 373, 1997.
• It is a wise father that knows his own child - Sanderson v McManus, Juridical Review, 42, p. 195, 1997.
• Parental Rights and Adoption: D v Grampian Regional Council, Scottish Law and Practice Quarterly, 1, p. 159, 1996.
• The Convention Comes to Scotland, Alison Cleland and Elaine E. Sutherland (eds), Children Rights in Scotland, p. 21, Edinburgh, W. Green, 1996.
• Care of Children within the Family, Alison Cleland and Elaine E. Sutherland (eds), Children Rights in Scotland, p. 69, Edinburgh, W. Green, 1996.
• The Maternal Preference: Neither a Principle nor a Presumption?, Juridical Review, 41, p. 414, 1996.
• A Voice for the Child: The Children (Scotland) Act 1995, Part I, Journal of the Law Society of Scotland 391, 41, p. 391, 1996.
• The Children (Scotland) Bill - What is in and what is not, Juridical Review, 40, p. 306, 1995.
• Family Law in Scotland, Caroline Yates and Kate Standley (eds), Family Law in Europe, p.399, London, Butterworth and Co., 1995.
• Scotland: Children to the Fore, 33 University of Louisville Journal of Family Law, 33, p. 477, 1994-95.
• Mother Knows Best or, ‘When is a presumption not a presumption?’ Scots Law Times (News), p. 375, 1994.
• Grandparents and the Law, Green’s Family Law Bulletin, 33, p. 3, 1994.
• Adoption: The Child’s View, Scots Law Times (News), p. 37, 1994.
• Scotland: Towards a Child and Family Code, University of Louisville Journal of Family Law, 32, p. 405, 1993-94.
• A Solution to the Traineeship Crisis?, Journal of the Law Society of Scotland, 38, p. 400, 1993.
• Clyde and Beyond: The Report of the Inquiry into the Removal of Children from Orkney in February 1991, Juridical Review, 38, p. 178, 1993.
• The Orkney Case, Juridical Review, 37, p. 93, 1992.
• The Role of Children in the Making of Decisions which Affect Them, in Freeman and Veerman (eds.), The Ideologies of Children’s Rights, p.155, The Hague, Martinus Nijhoff, 1992.
• Parental Rights: Some Recent Developments, Scots Law Times (News), p. 359 and 369, 1992.
• Children’s Charters, Journal of the Law Society of Scotland, 37, p. 435, 1992.
• Child Law: Radical Change or Woeful Neglect?, Scots Law Times (News), p. 447, 1991.
• Child Custody in Context, Journal of the Law Society of Scotland, 36, p. 289, 1991.
• The United Nations Convention on the Rights of the Child: Does Scots Law Measure Up?, Scots Law Times (News), p. 198, 1991.
• Regulating pregnancy: should we and can we?, Family Rights and Medico-Legal Advance, p.100-119, Edinburgh, Edinburgh University Press, 1990.
• Parent and Child, Sir Thomas Smith, Robert Black and J.M. Thomson (eds), The Laws of Scotland: Stair Memorial Encyclopaedia, Volume 10, paras. 1012-1312 , Butterworth and Co. and the Law Society of Scotland, 1990.
• The Law Protecting Children in the United Kingdom, in J.K.Mason (ed), Paediatric Forensic Medicine and Pathology, p. 441, London, Chapman and Hall, 1989.
• Child Protection North and South of the Border, Journal of the Law Society of Scotland, 33, p. 206, 1988.
• Scotland: Financial Provision, The Status of Children and Child Protection, University of Louisville Journal of Family Law, 28, p. 588, 1987-88.
• Scotland: The Reform Process Continues, University of Louisville Journal of Family Law, 26, p. 175, 1987-1988.
• Remedying an Evil? Warrandice of Quality at Common Law in Scotland, Juridical Review, 32, p. 24-37, 1987.
• AB Petitioner, Journal of the Law Society of Scotland 32, p. 274, 1987.
• The Family Law (Scotland) Act 1985, Scots Law Times (News), pp. 85 and 93, 1986.
• Scotland: Developments in Scots Family Law, MDA. Freeman (ed), Annual Survey of Family Law 1984, p. 125, International Society on Family Law, 1985.
• Scotland: Developments in Scots Family Law, University of Louisville Journal of Family Law, 25, p. 211.
• Child Law and Family Law, R.A. McCreadie and I. Willock (eds), You and Your Rights in Scotland, London, 1984.
• Scotland: Developments in Scots Family Law, MDA. Freeman (ed), Annual Survey of Family Law 1983, p. 37, International Society on Family Law, 1984.
• Matrimonial Homes (Family Protection)(Scotland) Bill, Scots Law Times (News), p. 165, 1981.