Debates Flashcards
What is the formal approach to family definition
´ A formalistic definition would depend on the fulfilment of certain formalities to legally establish a family.
´ This approach is linked to the need for certainty in law.
´ It would provide a criteria that can be established as being met through proof.
´ It would be based on an objective criteria.
´ This could include whether a couple is married or in a civil partnership, whether they have children.
´ It would not be focused on the nuances of intimacy or commitment.
´ It could be easily administered by the courts, so it would be simple, clear, and cheap.
What are the issues with a formal approach to defining a family
´ It can be too technical, and thus include those it should not and exclude those that arguably be included.
´ For instance, if the criteria is as simple as marriage or civil partnership then it would exclude a couple who have been cohabiting for decades, or include a couple who are still married but have been separated for decades.
´ Results can be arbitrary and even unjust.
What is the functional approach to a family definition
´ Focus on the social function of families.
´ The formal nature of the relationship does not matter.
´ ‘What they do, rather than what they are.’
´ For instance, a person caring for a child will have a parental and familial role regardless of formal status.
´ David Morgan: it is difficult to define what a family is, but familial practices can be defined.
What are the issues to the functional approach to family definition
´ What then are the key functions?
´ Care is becoming a more prevalent aspect within many family law debates.
´ When something is defined as a key function does this give it a higher value?
´ How do we decide what combination of factors or number of factors will be required? Who is best to decide this?
What is the normal definition of family approach
´ As understood by the ordinary person.
´ Family is a social construct and thus should be socially defined.
´ It is circular and does not depend on objectivity.
´ Will be impacted by social change, and will vary widely based on social groups.
´ Would allow the law to develop in accordance with society.
What are the issues with the normal meaning of family
more sociological, borderline cases will be hard to definitively determine
What is the self definition of family approach
´ A society gradually accepts more variation in family types, then society may be able to accept those who say they are a family as a family.
´ It does not stigmatise people as not being a family if they wish to be considered as a family.
´ It rejects the idea of an ideal family.
Issues with self def on family approach
´ While a good social approach, it is difficult to use in law.
´ Such an approach could not be used in a meaningful way in law, as it would be difficult to attach significance, rights etc. to such a definition.
´ Incompatible with the notion that some family structures are better (as to the security, welfare and care they provide).
What is the concept of care centred family law
´ Traditional family has been defined by sexual relations and contract.
´ This would represent a move towards a ‘sexless’ family law.
´ The focus becomes care and interdependency.
´ Like a functional approach, but the focus is on one function.
Issues with care centred family definition
´ Traditional family has been defined by sexual relations and contract.
´ This would represent a move towards a ‘sexless’ family law.
´ The focus becomes care and interdependency.
´ Like a functional approach, but the focus is on one function.
What is the idea of having no definition of family
´ There is no real agreement, so a legal definition cannot be provided.
´ The law can rely on other concepts and not define family.
´ It can operate without a definition, but that is not desirable.
´ In order to pursue legal aims in relation to the family a definition of family is really needed.
´ Trying to find a perfect definition is likely to be doomed to failure.
Name the approaches to defining family
Functional/normal/self definition/ care centred/no definition
How do the courts approach morality in family law
Previously very willing to make moral judgments. Used to declare best way to raise child/those at fault for breakdown etc. Now less keen to do this, especially due to no fault divorce
How do the courts consider conduct when it comes to granting financial orders
´ Bad conduct would frequently lead to a reduction in the financial order made, and a very good conduct could increase the award.
´ However, conduct became less relevant and was then only considered when it is obvious and gross or when it would be inequitable to disregard it.
´ Therefore, financial orders will now only consider conduct in the most serious cases.
Why are we moving away from morality
´ Society no longer has one shared set of moral values. A diverse society, with various values and nuanced approaches to the same values cannot then result in a uniform law of morals.
´ Otherwise, it would risk favouring the moral values of a certain group.
´ It would also conflict with wider acceptance of self-determinism as to how people lead their lives.
What does Andrew Bainham say about society and values
´ Andrew Bainham uses the example of adultery and the common practice of infidelity, and thus argues that it cannot be concluded as morally wrong within society while people often assert that is morally wrong.
´ There is often an inconsistency between what people say and do. Which then should determine a society’s values?
What does Alison Diduck say regarding individualisation
´ Alison Diduck: individual autonomy is becoming more recognised within law. Both the importance of the family and the individual family members is being asserted within law.
Why would we want morality involved in the law?
M Regan: the law cannot avoid making moral judgments.
The law makes a moral judgment even in deciding that it should not make moral judgments. It is not neutrality but a moral judgment for the law to act in this way.
Although the law no longer makes some moral judgments, it still makes many others.
´The recent changes in family law (especially towards inclusivity and caring) show a moral change within law.
The emphasis on parental responsibility to the child and welfare of the child are also strong moral positions taken within law.
The emphasis on interpersonal obligations involves a moral position being taken by the law.
What are some ideas around making someone a parent
Some arguments have been based on biological or legal parentage.
´ Common law took a biological parentage based approach.
´ Now greater recognition of the desire and intent to be a parent (due to the impact of adoption and IVF). Yet, this can contrast with the ease of unintended conception.
´ Both can be reflected through the notion of responsibility for bringing about the child.
´ However, the social parent then remains unaccounted for.
What does Judith Mason say regarding parenting
´ Judith Mason: parenting by being and parenting by doing.
´ Can be useful for determining if someone is a parent, but not disputes between them.
What does Andrew Bainham argue regarding biology
´ Andrew Bainham noted how parenthood being less based on biology conflicts with the emphasis elsewhere in law on biological truth.
´ He argues that parental responsibility can reflect social parents, while parenthood should reflect biological parents. He argues this even if does not provide parents with the status they want.
What are social parents
´ Recognising someone as a parent, even though they are not genetically related can reflect their wish to be seen as a parent while for donors it can important for them that they are not considered as a parent.
´ It can involve a conception of parent, which is separate from genetics and the biological understanding of mother or father.
What is the idea of nature and nature and how it links to family law
upbringing vs how you are from birth. Understanding of a parent leads to this, importance of care
What is the discussion around genetic origin and if a child should know them
´ Historically illegitimate children and foundlings would struggle to discover their genetic origins.
´ The presumption of marriage may have led to misapprehensions about a child’s true parentage.
´ The development of new reproductive technology has contributed to the debate (especially with how it interacts with parenthood).
´ Art 7 UNCRC provides that a child ‘as far as possible, has the right to know and be cared for by his or her parents.’
´ But then who are the parents?
´ Does that reflect their genetic origins?
´ Does it give higher value to biological parents?
How does cohabitation affect parenthood
The trend towards cohabitation is complicated, because it then requires both parents to be present to register the birth. This means more parents are engaging in joint registration, but those who do not may risk a confusing scenario for their offspring.
What are some questions around recording a father of a BC
´ What is the father’s name is automatically registered in all but exceptional circumstances?
´ This then would rely on paternity testing if there is a dispute.
´ What about misattribution?
´ Should all children be tested?
´ What about the welfare of the mother?
´ She may not want to raise and discuss any exceptional circumstances?
What are the questions around children and genetic testing/rights
What if a child does not want to be tested?
What if they have reasons (e.g. they are happy with their social parents, or do not wish to know about any potential genetic disorders) to not want to know?
If they have a right to know, should they also have the right not to know?
When do you let a child decide?
What if illegitimacy has a social stigma in a community?
Is ‘truth’ always better?
In different situations, welfare and rights may conflict in favour of knowing and not knowing
Should kids have rights?
What is the will theory
´ Can only talk meaningfully about a person having a right if the person can waive, or exercise, enforcement of the right.
´ Respects the will of the person in relation to the right.
´ Very young children will not have the capability to exercise will.
What is the interest theory
´ Rights derive from a person’s interests, so a person will have a right simply if that person’s interest is sufficient ground for holding another to be subject to a duty.
´ Protects interests independent from choices.
´ Neil MacCormick prefers this theory due to its ability to accommodate young children.
What are the 3 catergories of children interests as said by John Eeklaar
´ Basic: general, physical, emotional and intellectual care.
´ Developmental: equal opportunity to maximise the resources available to them.
´ Autonomy: child’s freedom to choose their lifestyle and enter social relations.
´ These categories can then conflict, and it was suggested that they may be reconciled by imagining what the decision would be if the child was more mature (which can involve adult values intruding).
´ The involvement if the child in determining the outcome can demonstrate that the outcome is in their best interests.
What does Katherine Federle say about welfarism
´ Katherine Federle: move beyond will and interest theories due to the issue of welfarism. Having a right is the power to command respect. When it is contingent on a characteristic it is exclusive and exclusionary. For Federle rights are premised on power and powerlessness.
What is Michael freeman view on children and decision making
´ Michael Freeman: posits an approach that involves an objective decision-maker who does not know whether they are a child or not.
´ A contrasting approach to those of Freeman and Eekelar, is that of Tom Campbell who recognises that children at different stages of development will have different interests and thus their rights will change.
What are some academics views on children and their autonomy
´ This has often arisen in law in relation to giving and refusal of consent, especially in relation to medical decisions.
´ Gillick v West Norfolk and Wisbech Area Health Authority: could give consent to something provided they had sufficient understanding and intelligence to know what they involve.
´ Lord Fraser: ‘parental rights to control a child do not exist for the benefit of the parent.’
´ John Eekelar commented on Lord Scarman’s comments in Gillick, which focused on parental rights reducing as a child matures: ‘where a child has reached capacity, there is no room for a parent to impose a contrary view even if this is more in accord with the child’s best interests.’
´ Andrew Bainham considered the decision more conservatively, which did not equate it with ‘a policy of legal autonomy or independence of children.’
´ Stephen Gilmore considers decision as one of children’s welfare, not autonomy.
What are some issues with the welfare principle
Way its enacted can be controversial, elevation of welfare as paramount consideration
What are some views on keeping welfare as a decision making criteria staple
´ Recognises the vulnerability of children and the need to protect them.
´ Jonathan Herring: ‘focuses the court’s attention on the person whose voice may be quietest both literally and metaphorically and who has the least control over whether the issue arrives before the court or in the way it does. The child may also be the person with whom the court is least able to empathise.’
´ Can adapt to social change: it is flexible.
´ Conversely, it is argued to be indeterminate and lacks transparency.
What are some academics views on replacing the welfare principle
´ Rooted in trying to equalise disputing parents.
´ Jon Elster argues if a new principle were being developed, then justice should be considered equally.
´ John Eekelaar: an approach which does not make it paramount, but promotes the child’s wellbeing while taking the least detrimental approach to others (e.g. the parents).
´ Jonathan Herring: reconceptualise it to allow for the respecting of the interests of others, as that is part of mutual respect and development.
´ Choudhry and Fenwick’s parallel analysis: participants to a dispute start from a presumptively equal position, and their rights are weighed against each other to create balance. Welfare is privileged and not automatically determinative.
What is the welfare principle
The principle that, when making a decision in relation to a child’s upbringing, the child’s welfare must be the court’s paramount consideration (Children Act 1989 s 1).
What are the key points for marriage being a contract
´ Consent has long been considered to be at the heart of marriage.
´ Discussions of capacity and duress show this.
´ However, the low level of capacity required has been argued to be due to it being consenting to a status.
´ The requirements to fulfil certain formalities.
What are the key points around marriage being a status
´ Regulated by the state, not the parties.
´ Can be considered challenging for those who value autonomy and privacy.
´ Represents a ‘single socially approved ideal’ (Marjorie Schultz). A more contractual approach could allow marriage to reflect the diversity of relationships better.
´ McLellan argues a more contractual approach would lead to greater inequality.
´ Being a status, provides valuable legal protection.
´ The state could offer more options.
´ Has it done so with civil partnerships?
What are some questions around the role of marriage
´ Is it needed to signify the approval of the community?
´ Does marriage make the commitment more moral or valuable?
´ Does commitment need to publicly recognised? What makes it different from a private commitment?
´ Is marriage for their to be commitment at all?
´ Marriage shows that commitment to the state and other people.
´ Does it reinforce the commitment?
Is marriage still important for community approval
´ Not just legal recognition, but a social status. Both are important in terms of acceptance of the state and community.
´ Societal approval of the relationship.
´ Yet, this approval can limit personal freedom
Is the angle of sexual union important in marriage
´ The introduction of civil partnerships and same sex marriage show how this role is still arguably a part of marriage.
´ The existence of provisions as to consummation indicate the interest of the law in the sexual aspect of relationships.
How can we protect the interests of cohabitees
´ English law has never recognised common law marriage.
´ Should there be an opt out.
´ Some studies find that cohabitees consider themselves as equally committed as married couples.
´ Moral and legal constraints can apply to cohabitees.
´ Cohabitees are less likely to share assets
Should they be expected to rely on existing remedies? Should specific remedies be developed for cohabitees? Should they be granted the same remedies as spouses?
´ Should they have the same or some of the rights of spouses?
´ If the majority of cohabitees believe they are equal to spouses, should the law reflect that?
´ Would it undermine marriage?
´ What do we want law to do for cohabitees? No clear answer has been given.
