Gender Perceptions and the Law

Christine R. Barker, Elizabeth A. Kirk, Monica Sah, Christine R. Barker, Elizabeth A. Kirk, Monica Sah

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429849435
• Edition: 1
• Topic: Derecho
• Subtopic: Género y legislación

Published in 1998. This collection of papers, written by leading lawyers and sociologists in the UK, focuses on the relationships between gender and the law in the context of three areas of law: family law, criminal law and equal rights. The papers argue that gender roles within society affect the legal rights of individuals and impact on procedures they go through to enforce their rights or to gain redress for wrongs done to them. By failing to recognize the social and economic situations in which men and women are placed, the law perpetuates inequalities in their positions. Where attempts are made to ensure equality between the sexes, the result is often the exact opposite, because the legal system treats individuals as equals operating in a vacuum, ignoring the argument that equal treatment does not necessarily mean the same treatment, but can mean different treatment to ensure equality of result. Topics include: ¢ Disputes in the area of parental child custody rights ¢ The rights of surviving spouses to their deceased partner's estate ¢ Theories for violent behaviour in women as contrasted with men ¢ Gender bias in criminal sentencing ¢ The role of European law in promoting sex equality in the work place ¢ Pornography and free speech ¢ Homosexuality as a civil right of citizenship

1 Negotiating Parenthood: Bargaining in the Shadow of a New Law

PROFESSOR CAROL SMART, School of Sociology and Social Policy, University of Leeds

My title for this paper is Negotiating Parenthood: Bargaining in the shadow of a new law, and the recent legislation to which I refer is the Children Act 1989 which was enacted in England and Wales in 1992. My interests are in the private law provisions of the Act and I first propose to discuss the background to the development of this legislation because this will provide the foundation for my later remarks based on an ongoing empirical research project.¹ The discussion in the second part of this paper will therefore be drawn from preliminary research findings based on interviews with divorced or separated parents, and in my conclusion I shall give some tentative consideration to issues of social (injustice.

The background to the Children Act 1989

There were two main social developments that foregrounded the emergence of the private law provisions of the Children Act. These two elements were, first, a shift in understanding of what the welfare of the child actually means and how the welfare of children can best be met in cases of divorce and separation. Secondly, there has been a very important shift in the concept of social justice. In referring to social justice I want to focus quite specifically on the question of equal rights between men and women and the related issue of the rise of the men's movement in the UK.

1. The shift in the concept of the welfare of the child

In overviewing the shifts and changes in the concept of the welfare of the child since the early nineteenth century, one can identify four main headings under which changing ideas can be grouped. Broadly speaking one can see a shift from Father Right to The Tender Years Doctrine and then to Maternal Preference.² More recently we have entered a phase one can identify as the Co-Parenting Preference. As this history is fairly familiar I shall deal with it quite briefly.

The concept of the welfare of the child was a very small element of the law on husbands and wives in the nineteenth century. As divorce became more of a possibility for the upper classes, the issue of children did not constitute a major dilemma to policy makers because of the presumption that children were the property of fathers.³ Indeed it was assumed that it was automatically in the welfare of the child to be with the father who was their legal guardian. This premise began gradually to be modified by the Tender Years Doctrine, which arose from the early campaign of Caroline Norton⁴ in which she argued that a mother's love was vital to the welfare of children. In practice this meant that policy ultimately shifted towards accepting the idea that children under seven years of age would be better off staying with their mothers because only mothers could provide the necessary kind of love and affection. Once over the age of seven, it was thought that children were more adequately looked after by fathers.

This doctrine, which lasted from the turn of the century until (approximately) the Second World War, in turn gave way to what has become known as Maternal Preference. After the war and into the early 1970s, a pattern emerged where there was a simple presumption that the welfare of the child was best met by being placed with the mother, unless she could be shown to be a very inadequate mother.

Each of these shifts coincided with other important social and cultural changes. Most significant amongst these changes has been the altered status of women⁵ and the changing nature of childhood ⁶ Shifts in these areas have not been linear nor simple and they have interacted with each other to produce different outcomes at different moments. Thus there have been tensions between women's changing status in the labour market, their status as wives and their identity and role as mothers. At the same time childhood has been extended and the needs of the infant have become more precisely specified whilst the very concept of the adolescent has been created. Naturally these changes could not occur without changes to the status of husbands and fathers - but these changes seem to have lagged behind other changes,⁷ and we may only just now be realising the extent to which these identities and roles have started to change and will need to change further in future.

Arguably it could be said that in the post-war decades men's relationships to families were very one-dimensional. They were expected to be breadwinners and even their role as fathers was overdetermined by the need to be economic providers. If a biological father left his family, it was assumed that the main problem was a financial one. Policy issues addressed the problem of financial support for divorced mothers and their children. The Finer Committee⁸ was set up precisely to address this growing problem in combination with the problem of supporting unwed and widowed mothers. Moreover, legal policy at this time, having identified the key problem as a lack of a financial provider, promoted the solution to divorce as the simple expedient of remarriage.⁹ In other words the solution was to bring in another man or, if the mother had never been married, to get her married. So the solution to an absent father in those days was seen to simply find another economic provider to put in place of the absent biological father. Moreover, family law was tolerant of the practice of changing the surnames of children to that of the new husband and also condoned the adoption of the children by the stepfather. It was generally held to be the best thing if the 'old father' was forgotten and the 'new father' was brought on board to create a reconstituted family. Although it was recognised that the biological father should have access to the children it was not a matter of policy concern if he did not exercise this right (although it may have been a matter of personal concern).

Within these policy debates it was, at that time, assumed that the welfare of the children would be taken care of if they remained with the person who had been the primary carer during the marriage, so long as the mother/child unit was adequately financially supported. Although there were discussions about the problem of one-parent families and delinquency, and also the relationship between divorce and delinquency, these problems were understood in relation to the loss of an authority figure in the family, or to the decline into poverty and insecurity. The welfare of the child was still not, at that time, seen in policy terms as connected to what we might now refer to as the child/father bond. The catalyst for this specific shift in the way in which welfare was conceptualised came largely from research findings that came from the USA. Central to this body of work was the research carried out by Wallerstein and Kelly¹⁰ whose approach was psychoanalytic in orientation and based on a small clinical sample of children from divorced households. This work, which was highly contested,¹¹ nonetheless became very influential in the UK and shifted the focus of the policy gaze towards the newly perceived problem for children of the loss of a specific (biological) father with whom they had bonded (or needed to bond). In this new ideological context fathers became much more than economic providers, indeed they no longer needed to be economic providers to be seen as vital to the emotional and psychological welfare of children. The shift in the perception of the child's need for his/her father altered quite dramatically how divorce and post-divorce parenting was viewed. Whilst it had formerly been argued that it was better for the children for an unhappy couple to divorce, the orthodoxy reverted to the older style idea that the couple should stay together for the sake of the children ¹² Where this was impossible the next best thing became the idea of co-parenting on divorce. Thus it was argued that parents should continue to share the responsibilities of their children even though their marriage was dissolved.¹³ In the context of remarriage it became unacceptable for a mother to change her children's surname to that of her new husband and the whole focus of policy in the 1990s became settled on the issue of how to retain meaningful contact between children and fathers after divorce. It was in this context that the new formulation to safeguard the welfare of children on divorce became the co-parenting preference.

2. Shifting concepts of social justice

The shifts in the concept of the welfare of the child which have been briefly identified above were accompanied by shifts in what was considered to be socially just and fair. In the nineteenth century, prior to the first wave of the Women's Movement, it was not thought at all unfair that married women had no rights in respect of their children, nor was it seen as a matter of injustice that children themselves had few civil rights. This extreme form of patriarchal power was gradually challenged and in the process new concepts of social justice emerged. Central to this development was the concept of equality but shifts in perceptions of what was fair and just did not rest on this idea alone. The idea that mothers should have the same rights as fathers in relation to children was not, for example, based on the idea of equality but on the idea of difference. Mothers were seen to have specific qualities which had no equivalence in fathers, but which deserved legal recognition in the form of legal rights.¹⁴ In the same way rights were extended to children not because they were equal to adults but, initially at least, because they were different and required special protection.

More recently however, the gams made by the second wave of the Women's Movement have been interpreted as creating injustices. Typically it has been argued that women cannot claim equality with men on the basis of sameness whilst also demanding special rights on the basis of difference. Thus it is suggested that it is unfair for women to have equal employment rights whilst simultaneously claiming special rights in respect of their maternal roles. There has grown a sense that men have been left behind in some ways and that they are now the ones who are disadvantaged.¹⁵ In referring to the situation of men after divorce, Beck and Beck-Gernsheim¹⁶ argue:

The woman has an income and she has the chil...