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About this book

This textbook is an ambitious and engaging introduction to the more advanced writings on family law, primarily designed to allow students to ‘get under the skin’ of the topic and begin to build their critical thinking and analysis skills. Each chapter is structured around key questions and debates that provoke deeper thought and, ultimately, a clearer understanding.

The aim of the book is therefore not to present a complete overview of theoretical issues in family law, but rather to illustrate the current debates which are currently going on among those working in shaping the area. The text features summaries of the views of notable experts on key topics and each chapter ends with a list of guided further reading.

Table of Contents

1. The Nature of Families and Family Law

Abstract
At the heart of family law are some very basic questions: what is a family, and how should the rights and responsibilities of family members be regulated by the law? Indeed, one might take this latter question further and ask whether they should be regulated by law at all: one very important current debate, particularly in light of the restrictions on access to legal aid, is just how far families should be expected to resolve their disputes without recourse to law. Assuming that the law is to play some role — at least in establishing what individuals are entitled to, and what they are expected to do — a further question presents itself: what criteria should be used in deciding these points? Should the law make moral judgments about who is a good parent, or a good wife or husband, and use these judgments to determine individuals’ entitlements? And, if so, how do judges decide what makes a good parent or partner?
Jonathan Herring, Rebecca Probert, Stephen Gilmore

2. Parents

Abstract
The question of ‘who or what is a parent?’ is one that has been the subject of much debate in recent years, largely as the result of developments in assisted reproduction that allow the roles of genetic, gestational and social mother to be split in a way previously confined to the pages of science fiction and fantasy. While it has been possible for biological parentage to be decoupled from legal parenthood1 since adoption was first put on a legal footing in 1926, the questions raised by donor insemination, egg donation and surrogacy arrangements are even more complex. A key distinction between them is that the transfer of parenthood in adoption cases rests upon a decision as to the fitness of the individuals concerned, whereas the allocation of parenthood in the context of assisted reproduction depends on strict rules and abstract categories. The allocation — and, perhaps more crucially, the exercise — of parental responsibility in such cases will, however, depend in many cases on judicial evaluation of the family dynamics and the roles played by different individuals.
Jonathan Herring, Rebecca Probert, Stephen Gilmore

3. Children’s Rights

Abstract
There must be few people who would not concede that children must have at least some rights: as persons, children must have the most fundamental of human rights.1 Many perhaps would go further and say that, because of their vulnerability, children should be entitled to some rights which adults may no longer have. Nevertheless, as a matter of theory the issue of children’s rights is hotly debated, both as to the sense in which children can be regarded as rights-holders,2 and the extent to which they should be accorded rights. In practice difficult questions can arise as to the extent to which children’s rights should be recognized in law. This chapter examines some of the theoretical and practical debates surrounding recognition of children’s rights.
Jonathan Herring, Rebecca Probert, Stephen Gilmore

4. Disputes Over Children

Abstract
In this chapter we explore some debates which have arisen in the context of parental disputes about children’s upbringing. One issue that has been very hotly contested over the last two decades and continues to stimulate vigorous debate on law and policy is the courts’ approach to the allocation of parenting time on the breakdown of parents’ relationships.1 Indeed, the law has very recently been the subject of significant and controversial changes effected by the Children and Families Act 2014, which will be a focus of some of the debate in this chapter.
Jonathan Herring, Rebecca Probert, Stephen Gilmore

5. Child Protection

Abstract
A matter which stimulates several strands of debate within family law surrounds the question of how an appropriate balance is to be struck between protecting children from abuse, and avoiding inappropriate interference by the state in the private lives of individuals. This chapter explores some of the arguments surrounding various approaches which could be taken to child protection within a society. English law adopts what is termed a ‘liberal standard’, whereby children are initially placed in the care of their parent(s) and the state only has power to intervene compulsorily to take over a child’s care on passing a threshold for intervention. Such an approach raises difficult questions as to the point at which the threshold is to be set, and how it is expressed and interpreted. In English law, the threshold criteria, as they are known, are contained in section 31(2) of the Children Act 1989, a provision which has thrown up many complex, controversial issues and stimulated much difficult case-law. The chapter examines in detail the difficulties and debates this version of the liberal standard and its interpretation in the case-law has provoked.
Jonathan Herring, Rebecca Probert, Stephen Gilmore

6. Adoption and Special Guardianship

Abstract
When parents are unable to look after their child or the child has become an orphan a number of options are available to a local authority or others seeking long-term carers for the child. These include finding a relative who will be able to look after the child; placing the child with long-term foster carers; special guardianship; and adoption. It is this last option, adoption, which is the subject of the first debate.
Jonathan Herring, Rebecca Probert, Stephen Gilmore

7. Marriage and Civil Partnerships

Abstract
In recent years the nature of marriage has been debated more passionately than ever before. The proposal to extend marriage to same-sex couples generated considerable discussion, and new issues have arisen in the wake of the passage of the Marriage (Same Sex Couples) Act 2013. In the light of these debates we will consider first whether marriage should be described as a status or a contract, and the extent of choice accorded to couples over both the rites of marriage and the rights that flow from marriage. This leads on to the second debate as to whether we need marriage — either as a social institution, a legal relationship or a sexual union. One alternative that has been suggested is that the legal institution of marriage should be relabelled as ‘civil partnership’, and the third debate considers this, along with the less radical option of simply making civil partnerships available to opposite-sex couples.
Jonathan Herring, Rebecca Probert, Stephen Gilmore

8. Cohabitation

Abstract
Although marriage remains the most popular family form,1 it is nonetheless clear that since the late 1970s there has been a significant rise in the number of couples who are cohabiting outside marriage.2 By 2013 there were 2.9 million such couples, and 1.9 million children were living in families headed by a cohabiting couple.3 Yet the legal response to this change has been patchy. While the process of extending rights to cohabiting couples began back in the 1970s, there are still areas in which they are, as Auchmuty noted, simply left ‘out in the cold’.4 So, for example, cohabitants have no obligations to support each other financially, either during their relationship or upon its end, and the courts have no power to transfer assets between them. Instead, their rights are governed by the rules of property law.5 If they have children, however, the court does have the power to order periodical payments, a lump sum, the settlement of property, or a transfer of property, either directly to the child or to the applicant for the benefit of the child;6 in addition, an allowance for the child’s carer may be included within periodical payments for the child.7 And if the relationship ends in death then the surviving cohabitant may make a claim for financial provision from the estate of the deceased,8 although they do not at present9 enjoy the automatic rights under the intestacy rules that spouses and civil partners possess. In short, while cohabiting couples have some legal rights, this is far from the full package seemingly promised by the common but misleading term ‘common-law marriage’.10
Jonathan Herring, Rebecca Probert, Stephen Gilmore

9. Divorce

Abstract
In recent years the actual basis for divorce — as opposed to the consequences of relationship breakdown — has attracted relatively little academic debate. Yet in numerical terms the granting of a divorce is probably the aspect of family law that affects more couples than any other — save only marriage itself, and few couples think of seeking legal advice when entering into marriage. While both the number of divorces and the divorce rate1 have fallen in recent years (both having peaked in 1993, when there were over 165,000 divorces in England and Wales, a rate of 14.3 divorces per thousand married persons2), there were still 118, 140 divorces in 2012, the most recent year for which statistics are available.3 And divorce is very much perceived as a legal act: indeed, in one survey of access to justice it was found that those affected by divorce were more likely to seek legal advice than in the case of any other problem.4 Moreover, the current law has been widely criticized for many years, and its problems have not lessened over time. There is thus good reason for revisiting the debates about what the law of divorce should be.
Jonathan Herring, Rebecca Probert, Stephen Gilmore

10. Domestic Violence

Abstract
Traditionally the family has been seen as a site of safety in a frightening world: a haven where we lay down our masks and can be ourselves.1 Domestic violence threatens such a vision of family life. The statistics on domestic violence indicate that for many families domestic violence is a central part of life. It is estimated that 31 per cent of women and 18 per cent of men have experienced some form of domestic abuse since the age of 16. These figures are equivalent to an estimated 5.0 million female victims of domestic abuse and 2.9 million male victims between the ages of 16 and 59.2 An incident of killing, stabbing or beating takes place on average every six minutes in a home in Britain.3 A recent survey of disadvantaged youth found over half of girls reported being the victim of physical violence from their partners.4
Jonathan Herring, Rebecca Probert, Stephen Gilmore

11. Division of Assets on Separation

Abstract
One issue that has dominated the family law reports for the last decade is how the assets of divorcing couples should be divided. The short answer is simple: the assets should be divided in a fair way. However, that is only the start of the debate, because fairness is a hotly contested notion in this context. One answer might be that each couple should decide this for themselves, in line with the emphasis on private ordering. However, doing so may lead to a contract which is not regarded generally as fair. Before considering whether individuals should be able to specify and limit the extent of their obligations towards each other, we should consider why the law intervenes in this area at all.
Jonathan Herring, Rebecca Probert, Stephen Gilmore
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