Regulating Family Responsibilities

Jo Bridgeman, Heather Keating

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781317068822
• Topic: Law
• Subtopic: Family Law
• Index: Law

This collection brings together some of the most eminent and exciting authors researching family responsibilities to examine understandings of the day to day responsibilities which people undertake within families and the role of the law in the construction of those understandings. The authors explore a range of questions fundamental to our understanding of 'responsibility' in family life: To whom, and to what ends, are family members responsible? Is responsibility primarily a matter of care? Can we fulfil our family responsibilities by paying those to whom we owe responsibility? Or by paying others to fulfil our caring obligations for us? In each of these circumstances the chapters in this collection explore what it means to have family responsibilities, what constitutes an adequate performance of such responsibilities and the point at which the state intervenes. At the heart of this collection is an interest in the way in which the changing family affects people's perception and exercise their family responsibilities, and how the law attempts to regulate (and understand) those responsibilities. The essays range across intact and separated or fragmented families, from lone and shared parenting in single homes to caring across households (and even across international boundaries) to reflect on the actual caring responsibilities of family members and on the fulfilment of financial responsibilities in families. This collection seeks to advance our understanding of the attempts of the law, and its limits, in regulating the responsibilities which family members take for each other.

Chapter 1
Supporting, Fostering and Coercing? The Legal Regulation of the Exercise of Family Responsibilities

Jo Bridgeman, Heather Keating and Craig Lind

This volume is the fourth in a series in which we have been exploring the conceptualization of responsibility in families and family law. In the first, Responsibility, Law and the Family (Bridgeman, Keating and Lind 2008) we set out to explore different conceptualizations of responsibility in family life, law and policy. The second, Children, Family Responsibility and the State (Lind and Keating 2008) focused upon the role of the state in fostering and meeting the responsibilities owed to children. The most recent, Taking Responsibility, Law and the Changing Family (Lind, Keating and Bridgeman 2011a) explored the role of the law in the acceptance, avoidance and allocation of family responsibilities in an era of increasing diversity in family life.

This volume develops our ideas about responsibility in relation to the transforming landscape of family life. It is a companion volume to Taking Responsibility but, whereas in that volume we were interested in the law’s more formal or overarching role in the recognition of the responsibilities that people took for one another outside the bounds of traditional families, in this volume we are interested in the effects that legal regulation (and its absence) have on the day-to-day responsibilities that people in family relationships actually undertake (or wish to avoid). In other words, our focus in this volume is on the legal (or other) regulation of the exercise of family responsibilities. Although the distinctions we have drawn in focusing these volumes are neither firm nor inevitable they are, we believe, useful; they have allowed us to develop ideas about the roles that law plays (or wishes to play) in relation to family responsibilities; they have focused our attention at particular points across a spectrum of concerns that occupy commentators on family law and family life (ranging from law’s recognition of family types to its involvement in regulating the detail of their living arrangements). Whereas in Taking Responsibility we analysed the power of the law to affect family status by allocating formal responsibilities to people in particular relationships with one another, in this volume we explore the effectiveness of law in the regulation of the care people actually take (or should take) of their loved ones.

Perhaps most importantly, the chapters in this volume highlight the limited reach of the law in the regulation of the caring responsibilities family members assume for one another. As Mavis Maclean and John Eekelaar have observed: ‘[W]hen members of a family are living together, the law is strangely reticent in articulating and enforcing the obligations they may owe to one another. That does not mean that they do not have duties to one another. But these duties may be only indirectly recognised or enforced by the law. Indeed, they may not be legal duties at all’ (Maclean and Eekelaar 1997, 1–2; see too Vitor in this volume). The sense of obligation that people feel for one another and the work to which this gives rise may derive not from law but rather from their ethical position in relation to one another: a family ethic instilling a moral obligation of care. And that care is often left to family members to get on with, without legal acknowledgement and with little in the way of practical (or even notional) support (see Newnham in this volume). What legal regulation there is seems, at best, to be peripheral to the actualization of care.

But, of course, the law has both historic and prospective purchase (Cane 2002). People seek to use its power – or rather, its perceived power – when things go wrong; and their aim is to use it to control and police family responsibilities. In this volume we have set out to explore the role of the law in regulating family responsibilities when the people concerned are unable to resolve them (see Cain, Miles, Newnham, George, Lamont, and Manhas in this volume). We are also interested in the impact that legal regulation has on the care that people actually take in family settings when the law has no immediate, material purchase on their day-to-day lives (see Hobson and Fahlén, Collier, Masardo, Attar-Schwartz et al., Vitor, Keating and Bridgeman, Herring, and Kittay in this volume), and in whether or not the law ought to be changed to create a different impact.

Our interest in the concept of responsibility remains at the heart of this volume. But in this volume we focus on the way in which responsibility and regulation interact. Superficially we are minded to think that regulation – when approached by lawyers – implies legal regulation. In the context of family responsibility, particularly given our acceptance of the difficult boundary that exists between ideas of legal and moral or ethical responsibility, we are interested in the extent to which responsibility in families is regulated by law. The chapters in this volume thus explore the extent to which the law attempts to involve itself in the regulation of family responsibilities and its shortcomings and failings in doing so. To what extent are the responsibilities taken within families determined by moral or ethical norms, social expectations, economic regulation, for example, and to what extent does the law reinforce these rather than create them? But our authors are aware that, even where law appears to fail fully to ‘regulate’ responsibility, its attempts have an effect in the regulation of responsibility that emerges. As Paula Vitor (in this volume, 216) says: ‘We might say that the law acts in an indirect way, assuming pre-existing family ethical and social values and rules, and taking advantage of its consequent behaviour, while accepting that there is not a strong enough foundation upon which to base a duty.’

Our focus in this collection is upon the legal regulation of responsibilities within family life. To paraphrase Alison Diduck in her chapter in our first volume, in this collection we ask what shape family law gives to our responsibilities to care for family members (2008, 265). In this introduction we consider the nature and content of responsibilities rather than obligations, duties or rights; the privatization of, and limits of public responsibility for, care; financial and caring responsibilities; the gendered nature of caring responsibilities; and fulfilling responsibilities in separated and fragmented families. We conclude with some thoughts on the role of the law in the regulation of family responsibilities.

Responsibilities, Obligations, Duties and Rights

We have previously explored the concept of responsibility in the context of liberal, communitarian and relational approaches (Bridgeman and Keating 2008, 3–8; Lind, Keating and Bridgeman, 2011b); here we consider, in light of the chapters in this collection, the distinctions between the concepts of responsibility, obligation, and duty.

In relation to their families, people often draw no distinction between the concepts of responsibility, obligation and duty; academics likewise may consider them to be interchangeable. In his detailed analysis of legal and moral responsibilities, Peter Cane advances the view that duties and responsibilities are ‘consistent’; ‘A person under a legal duty has a prospective responsibility to fulfil that duty, and can be held historically responsible for failure to do so’ (Cane 2002, 31). And in Cane’s view, the relationship between responsibility and legal obligation is that ‘[t]he law’s ethic of responsibility is an ethic of obligation, not of aspiration; of acceptable behaviour, not virtuous or supererogatory behaviour’ (Cane 2002, 33–4). For Cane, therefore, responsibility is legally onerous. It has legal consequences that can take the form of sanctions. For John Eekelaar (2006, Chapter 5), on the other hand, the extent to which responsibilities and legal duties or obligations overlap is, at best, partial. For him responsibility necessarily imports an ideal of extra-legal obligation. It is both what people do by virtue of legal obligation and what they do beyond the requirements of the law. In other words, responsibility includes an aspirational element. Our view, expressed in Taking Responsibility, is that ‘whilst family responsibility includes obligations and duties, it is more than the sum of these’ (Lind, Bridgeman and Keating 2011b, 13). The tension between duties and obligations on the one hand, and responsibilities on the other, is central to the analyses offered by many of the authors in this volume. Jo Miles uses the distinction in her analysis of the financial consequences of relationship breakdown to demonstrate the way in which more powerful legal duties and obligations are attached to responsibilities that have more subtle legal consequences. Paula Vitor is concerned with this distinction in her analysis of the way in which we conceptualize the care owed to older people in our societies. In their chapter, Jo Bridgeman and Heather Keating also demonstrate a more tenuous relationship between ideas of responsibility and obligation (in which ‘legal’ obligation or duty seems to be the smallest part of what people do for their loved ones).

The relationship between responsibilities and rights has been at the heart of much social and political debate in recent years. In Taking Responsibilities we made much of the political interest in reasserting the need to counter the move towards rights by reawakening a communal sense of responsibility (Lind, Bridgeman and Keating 2011b, 8–10). In any examination of the way in which people, in their day-to-day care of one another, meet and fail to meet the responsibilities they owe other family members, the issue of rights cannot fail to be near at hand. Recognition of the rights of people has come to be used as a device through which we foster better conduct in others (Zander 1985; Dworkin 1990). In relation to the family that trend has been spelled out most significantly (and successfully) in relation to the rights of children (Freeman 1983; Eekelaar 1986; Fortin 2009). This, of course, could be taken yet further: in their chapter, for example, Shalhevet Attar-Schwartz, Ann Buchanan and Eirini Flouri report on their research finding that grandchildren would like to see their relationship with grandparents supported by a doctrine of rights – in which the right would be seen, not least, as the children’s right to a relationship with their grandparents.

In several chapters in this volume the desire to foster responsible family behaviour by embracing a notion of rights is discussed and analysed. Exploring the promotion of responsibility through rights has led to questions both about possible extension of the contexts in which rights could be used and the success of such endeavours in areas where the rights discourse has already taken hold. The chapters by Paula Vitor, Jonathan Herring, Eva Kittay, and Shalhevet Attar-Schwartz et al. in this volume all, in various ways, consider the way in which rights – and legal rights, in particular – might be used to give recognition to and further foster and/or support responsibilities. Kittay, for example, comments in relation to responsibilities already being undertaken, that ‘it is interesting that caregiving has been viewed primarily as a responsibility and not as a right’ (307). Rather than seeing the relationship between rights and responsibilities as dichotomous, she argues for ‘the right to meet those responsibilities’ which arise from connections with others (304). In a similar vein, Attar-Schwartz, Buchanan and Flouri argue that the responsibilities that grandparents demonstrate they already take for their grandchildren would benefit from better legal recognition in the guise of ‘rights’; once again, something akin to a ‘right to be responsible’.

Other chapters consider areas where the rights discourse has already had an impact and where the emphasis is upon rights to foster or promote family responsibility. The rising importance of ‘fathers’ rights’ discussed by Richard Collier in this volume, and the uses to which the state has put this momentum to re-engage parents in their responsibilities, may be seen to have had a positive impact on the way in which fathers do (increasingly, perhaps) take responsibility for their children. In her chapter, Annika Newnham points out how the advent of claims to rights has affected both the actual and perceived sharing of care when couples separate. The idea of responsibilities being less gendered – of there being a shift to more gender-neutral parental responsibilities – is fostered but without, she argues, a corresponding shift in the real responsibilities to provide actual day-to-day care. She concludes that rights affect responsibilities rhetorically but have less of an impact in the real allocation of care in family relationships. In contrast, Alex Masardo argues that, in cases in which shared residence is negotiated rather than asserted as of right, the responsibilities of parents are more evenly distributed. But it is also clear that rights cannot do all of the work that responsibility does in fostering better family care.

We remain of the view, therefore, that responsibility incorporates more than the duties and obligations that are owed to people; rights cannot account for all the responsible conduct that does and should occur within contemporary family relationships. And they can, therefore, only go some way towards providing the regulatory framework for responsibility. Vesting rights in people will create a minimum level of responsible conduct (as Cane suggests it should), but it will continue to fail to account for our grander ambitions to foster more responsible care, to support responsible caring and to recognize where responsible care has been taken. This is especially true where people accept and actually take responsibility for those to whom they are related and for those to whom they have a ‘lesser’ connection. In either case we, as a society, rely on the fact that people often choose either not to exercise their legal rights or choose to go beyond their legal obligations (Eekelaar 2006, 128) in providing care. There will, therefore, remain an ambit of caring activity that is responsible but that is beyond the scope of any rights discourse. And the questions we should ask ourselves revolve around the extent to which that conduct is beyond (legal or social) regulation.

Some have argued for a reframing of rights in the family context. In this regard the views of Martha Minow and Mary Lyndon Shanley, in their response to critiques of rights as abstract and individualistic, are instructive. They advocate ‘[a] theory of relational rights and responsibilities [which] would encompass not only individual freedoms but also rights to enter and maintain intimate associations consistent with public conceptions of the responsibilities those associations entail, underscoring the connection between families and the larger community’ (Minow and Shanley 1997, 103). The two central features of their conceptualization of relational rights are, first, that rights are ‘claims grounded in and arising from human relationships of varying degrees of intimacy’ and secondly, it ensures that there is recognition of the connection between the family and its social, cultural and political context:

Each intimate relationship is in turn embedded in ties among members of neighbours, religious and ethnic groups, fellow citizens, all of which are deeply affected but not entirely determined by the political system and economic circumstances. Connecting these relationships to a vibrant sense of responsibility would engage wide circles of people, including even public-policy makers and voters, who would need to consider what social and economic structures are necessary to permit continuous, caring human relationships especially responsive to those most dependent on such care. (Minow and Shanley 1997, 102)

Whilst this conceptualization of rights acknowledges the connections between individuals and the impact of social, economic and political contexts upon the fulfilment of their rights, its limitations remain in a focus upon entitlement – what the right-holder can make a claim to – and not upon care and concern for the other which is a normal feature of family relationships.

One of the best warnings against an over-reliance on rights as a mechanism for fostering better interpersonal conduct (and care, in particular) is contained in Onora O’Neill’s critique of children’s rights (O’Neill 1992). In the last third of the twentieth century, a powerful and unstoppable movement towards the legal inscription of children’s rights had taken hold both in the domestic jurisdictions of Western nations and in the international community. O’Neill cautioned against thinking that this trend would foster a world in which children would live better lives in which they were provided with better care and more protection. Central to O’Neill’s argument was the simple observation that ‘children’s fundamental rights are best grounded by embedding them in a wider account of fundamental obligations’ (O’Neill 1992, 24). And although she acknowledged that rights could be the basis upon which obligations were founded, her concern was that only particular ‘perfect’ or ‘complete’ obligations could be derived from a framework of regulation that was based on rights. In other words, a right could only arise if a general obligation to particular individuals or groups was identifiable. Where the object of the obligation was less clear – where it was owed more generally, or where its better quality was something we wished to see fostered – only ‘imperfect’ or ‘incomplete’ obligations could be said to arise. And these, she argued, could have no counterpart in rights. In relation to children’s rights O’Neill says:

If we care about children’s lives, we will have a number of good reasons not to base our arguments on appeals to children’s fundamental rights. Some of these reasons are the theoretical difficulties of theories of fundamental rights. To look at rights is to look at what is ethically required indirectly by looking at what should be received. Constructivist accounts of what should be received are radically indeterminate, hence blurred. All rights-based approaches are incomplete in that they tell us nothing about what should be done when nobody has a right to its being done: they are silent about imperfect obligations. The view we get from the perspective of rights is not merely indirect, but blurred and incomplete. (O’Neill 1992, 39)

This sentiment can, we submit, be expanded to all rights claimed in family relationships. In this volume, therefore, although rights and their perfect obligation counterparts are considered, we are more interested in the impact of law on the imperfect obligations to which O’Neill pays so much attention. For us, responsibility in family life is often about people trying to meet those imperfect obligations and the personal and social discussions that surround their attempts to do so. What requires analysis – the kind of analysis our authors offer here – is the role of law in fostering, supporting or attempting to coerce this kind of responsibility.

Taking Care Within Families

The privatization of care

In her analysis of American law, society and policy which is to a degree, but by no means wholly, applicable to modern Britain, Martha Fineman exposes the extent to which ‘the autonomy myth’ (‘ideas about autonomy and self sufficiency’), the allocation of the primary responsibility for dependency to the family and the institutions which support the privatization of care, operate to mask inevitable dependencies and the derivative dependencies of carers (2004, xiii). She presents a ‘theory of collective responsibility for dependency’ through which the social debt owed to carers would be recognized by the provision of financial and structural supports. In this volume Jonathan Herring echoes that call:

Care work needs to ...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Contents
• List of Figures
• Preface
• Notes on Contributors
• 1 Supporting, Fostering and Coercing? The Legal Regulation of the Exercise of Family Responsibilities
• Part I The Gendered Nature of Family Responsibility
• Part II Regulating Responsibilities in Fragmented Families
• Part III Acknowledging Caring Responsibilities?
• Index