Rights, Gender and Family Law

Julie Wallbank, Shazia Choudhry, Jonathan Herring

• Publisher: Routledge-Cavendish
• Year: 2009
• Print ISBN: 9780415589581
• eBook ISBN: 9781135262020
• Edition: 1
• Topic: Law
• Subtopic: Family Law
• Index: Law

There has been a widespread resurgence of rights talk in social and legal discourses pertaining to the regulation of family life, as well as an increase in the use of rights in family law cases, in the UK, the US, Canada and Australia. Rights, Gender and Family Law addresses the implications of these developments– and, in particular, the impact of rights-based approaches upon the idea of welfare and its practical application. There are now many areas of family law in which rights and welfare based approaches have been forced together. But whilst, to many, they are premised upon different ethics– respectively, of justice and of care– for others, they can nevertheless be reconciled. In this respect, a central concern is the 'gender-blind' character of rights-based approaches, and the ontological and practical consequences of their employment in the gendered context of the family. Rights, Gender and Family Law explores the tensions between rights-based and welfare-based approaches: explaining their differences and connections; considering whether, if at all, they are reconcilable; and addressing the extent to which they can advantage or disadvantage the interests of women, children and men. It may be that rights-based discourses will dominate family law, at least in the way that social policy and legislation respond to calls of equality of rights between mothers and fathers. This collection, however, argues that rights cannot be given centre-stage without thinking through the ramifications for gendered power-relations, and the welfare of children. It will be of interest to researchers and scholars working in the fields of family law, gender studies and social welfare.

Chapter 1
Welfare, rights, care and gender in family law

Shazia Choudhry, Jonathan Herring and Julie Wallbank

INTRODUCTION

This book is concerned with critically examining the various approaches which have been adopted in family law, understood herein as an institution, a set of practices but also as an academic and theoretical endeavour. The aim of this chapter is to assess some of the broad themes which will run through this book. We will focus on approaches to family law based on welfare, rights and an ethic of care and evaluate the various merits and demerits of each approach. Throughout our analysis we place gender centrally and draw upon the rich body of feminist contributions to the study of family law. What we are concerned with here is the shifting social and legal constructions of gendered power relations and with how the various case studies examined in this book offer important insights into the discursive constitution of masculinity and femininity in relation to the main themes covered, i.e. rights, responsibilities, welfare and care.¹

This collection of essays therefore adopts a case-study approach to the use and usefulness of rights in family law. The effects of rights and the associated gendered discourses upon the power relations between parents and between children is a central focus of the book. The contextual analysis adopted herein is particularly useful for understanding how rights can have important ontological and practical consequences for the balance of power between women as mothers and men as fathers and for children’s welfare. As such, the book offers some critical reflections on the increasing significance of the relationships between rights, responsibility and welfare in family law and social policy.

The case-study approach to gender is important precisely because it allows for an in-depth understanding of the workings of gendered power in small-scale studies. We are therefore concerned with the interplay between socially and legally constructed gender identities and the interrelationship between the production of gender sameness/difference and the construction and relative power effects on gender of the adoption of and weight given to the values of rights, responsibilities, welfare and care in the elected contexts. In addition, other cultural categories of analysis have been drawn upon, including class, ethnicity, sexuality, age, disability. Fortunately, we have available to us a wide range of theoretical commentary on the various approaches to family law. Not all this work emanates from within feminism but it offers critical and important insights into the various approaches, both in a theoretical and practical sense. It is not the aim of the chapter to come down on the side of one approach over another. Rather, our chapter seeks to offer some justification for the book’s subject matter by flagging up the importance of keeping a critical eye on the potential and actual gendered impacts of the adoption of each of the approaches. Before looking at these theoretical approaches, the basic legal principles will briefly be introduced.

An introduction to key legal principles

The welfare principle

The Children Act 1989 opens in s. 1 with one of the central principles of English family law:²

When a court determines any question with respect to—

(a) the upbringing of a child; or

(b) the administration of a child’s property or the application of any income arising from it the child’s welfare shall be the court’s paramount consideration.

When a judge is considering what is in the welfare of the child s 1(3) provides a checklist of factors to consider. There has been considerable debate over the meaning of the word ‘paramount’ in s 1(1). The accepted interpretation is that it means that the welfare of child is the sole consideration.³ The interests of adults and other children are only relevant in so far as they may impact on the welfare of the child.⁴

The Human Rights Act 1998

The implementation of the 1998 Human Rights Act has added a new layer of analysis to family law cases. It is designed to ensure the protection of individuals’ rights under the European Convention on Human Rights (ECHR) in two main ways. First, s 3 requires judges to interpret domestic legislation in a way which complies ‘so far as is possible’ with the ECHR. If the court is unable to interpret a statute in line with the Convention rights, then it must apply the statute as it stands and issue a declaration of incompatibility in order that Parliament can consider whether the legislation needs amending.⁵

Second, s 6 requires public authorities to act in a way which is compatible with the Convention rights. Failure to do so gives a cause of action under s 7 of the Human Rights Act 1998 which provides a wide range of remedies.

Family law cases often involve a clash between competing rights of the children and adults. The European Court on Human Rights (ECtHR) and English and Welsh courts are still developing the jurisprudence on how to deal with such clashes but some clarification is emerging. As Shazia Choudhry and Helen Fenwick point out, one way in which the welfare principle could be interpreted compatibly with Convention rights is to interpret ‘paramount’ to mean ‘primary’.⁶ In other words, the interests of the child will be the most important consideration for the court but will not inevitably determine the outcome, particularly where there are weighty countervailing interests.⁷ On this interpretation, the welfare principle can be read compatibly with the approach of the ECHR which requires a balancing exercise between all of the rights involved, but with particular importance given to the rights and interests of the child.⁸

The nature of this balancing exercise in cases where rights of individuals conflict has produced some complex jurisprudence. A popular view is that the courts must undertake a ‘parallel analysis’⁹ of the rights involved. The starting point is to look at the interests of each individual and consider whether they engage a right under the ECHR. The point being that not every interest an individual has is necessarily protected by a right under the ECHR. If the interest does engage a right, then the court will need to consider whether an infringement of that right is justified. So, a parent may have a right under Art 8(1) to have contact with a child, but under Art 8(2) it may be permissible to interfere with that right if necessary in the interests of the child. It would be necessary to consider the right of each party involved (each parent and the child) and consider in each case whether the rights and interests of others are sufficiently strong to justify an interference with that right. This process will provide the solution, if there is only one person’s right which cannot be justifiably interfered with.¹⁰

However, the above process may produce a clash between two rights for neither of which can justifiably be infringed. The ECtHR, to date, has offered little guidance on how to resolve such a stalemate. We will mention a couple of options.

One is to privilege the rights of children. According to the ECtHR when considering the competing rights of adults and children the rights of children should be regarded as being of crucial importance.¹¹ Although the ECtHR has referred to the child’s interests as being paramount, it has only done so very rarely¹² and usually describes children’s interests as being of crucial importance.¹³ Shazia Choudhry and Helen Fenwick¹⁴ have suggested that, in accordance with the ECtHR’s approach, once the competing rights of all concerned have been considered, the rights of children should be ‘privileged’ even if that means going against the interests of either of the adult parties. However, Jane Fortin¹⁵ complains that this is too vague and believes that it needs to be explained how the interests of children are privileged. However, in Choudhry and Fenwick’s article the authors do, in fact, go into some detail as to how in a contact dispute their analysis would apply and have suggested that in a case of clashing rights the court should look at the values underpinning the right. For example, in the case of Art 8, which is the most common right used in family cases, the underlying value may be that of autonomy: the right to pursue your vision of the ‘good life’.¹⁶ A judge could consider the extent to which the proposed order would constitute a blight on each of the party’s opportunities to live the good life and make the order which causes the least blight.

As will be clear from this discussion, the exact relationship between the welfare principle and the Human Rights Act is still being worked out. Under the welfare principle it is only the interests of children which count.¹⁷ The welfare principle is capable of restricting any parental right in order to maximise the welfare of the child, no matter how small increase in welfare.¹⁸ While under a human rights analysis a balancing between the different rights of the parties is required. Despite these differences, the English courts have denied that there is any difference between an approach based on the welfare principle and one based on rights. For example, in Payne v Payne¹⁹ Lord Justice Thorpe considered that:

[the HRA] requires no re-evaluation of the judge’s primary task to evaluate and uphold the welfare of the child as the paramount consideration, despite its inevitable conflict with adult rights.²⁰

Lord Justice Thorpe went on to deny any conflict between the welfare principle and an approach based on the ECHR. That view has received little, if any, support from academics.²¹ There are two key differences between the welfare principle and the ECHR approach. First, the ECtHR has clearly stated that in cases involving conflicting interests it is engaged in an exercise balancing the rights of the parties. The welfare principle does not involve a balancing exercise as parental interests are only relevant if they affect the welfare of the child. There is no balancing because all that matters is the welfare of the child. Second, the ECHR approach implies that the interests of the child will not always override those of the parent.

The welfare-based approach to family law has been well entrenched since the Children Act 1989 and this may explain the reluctance to accept that it may be challenged under an HRA analysis.²² As well as the practical issues of how the tests should be used in particular cases, questions have been raised about the theoretical relationship between the two approaches, which can be said to contain two different sets of ethics.²³ There are now many areas of family law in which the two strands of rights and utility have been forced together and the chapters of Julie Wallbank and Jo Bridgeman, for example, examine the ways in which the courts have reco...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• The Contributors
• Chapter 1: Welfare, Rights, Care and Gender In Family Law
• Chapter 2: Gender, Rights, Responsibilities and Social Policy
• Chapter 3: Child Protection, Gender and Rights
• Chapter 4: Rights and Responsibility: Girls and Boys Who Behave Badly
• Chapter 5: (En)Gendering the Fusion of Rights and Responsibilities In the Law of Contact
• Chapter 6: Fatherhood, Law and Fathers’ Rights: Rethinking the Relationship Between Gender and Welfare
• Chapter 7: Mandatory Prosecution and Arrest As a Form of Compliance With Due Diligence Duties In Domestic Violence – The Gender Implications
• Chapter 8: The Limitations of Equality Discourses On the Contours of Intimate Obligations
• Chapter 9: Public Norms and Private Lives: Rights, Fairness and Family Law
• Chapter 10: The Identification of ‘Parents’ and ‘Siblings’: New Possibilities Under the Reformed Human Fertilisation and Embryology Act
• Chapter 11: Children With Exceptional Needs: Welfare, Rights and Caring Responsibilities
• Chapter 12: Relational Autonomy and Family Law
• Chapter 13: Concluding Thoughts: The Enduring Chaos of Family Law