An Argument for Treating Children as a ‘Special Case’

This chapter’s argument stems from the premise that legal language should speak for itself. The ‘paramountcy’ principle suggests the prioritization of children’s interests, and ‘children’s rights’ suggests some aspect of distinctiveness to children’s interests. But there is academic consensus in respect of both that children’s interests cannot and should not be prioritized over those of others. This chapter examines the justification for the contrary perspective, and for treating children as a prioritized ‘special case’ in all legal decisions affecting them.

Four key counter-arguments frame the discussion. First, the ‘social-construct’ objection: as a social construct, childhood cannot sustain the prioritization of children’s interests over those of others. Second, the ‘vulnerability’ objection: children’s vulnerability is either not unique or suggests dependency or interdependency, not prioritization. Third, the ‘family autonomy’ objection: parents’ rights and the family unit justify deference of children’s interests. Fourth, the ‘equality’ objection: equal moral consideration makes prioritization unjustifiable.

[This chapter is published in Elizabeth Brake and Lucinda Ferguson (eds), Philosophical Foundations of Children’s and Family Law (OUP 2018).  A pre-edited version is available here.]

Introduction: The Importance of Theory to Children’s and Family Law

What defines family law? Is it an area of law with clean boundaries and unified distinguishing characteristics, or an untidy grouping of disparate rules and doctrines? What values or principles should guide it – and how could it be improved? Indeed, even the scope of family law is contested. Whilst some law schools and textbooks separate family law from children’s law, this is invariably effected without asking what might be gained or lost from treating them together or separately. Should family law and children’s law be distinguished or treated together?

One would expect disagreement on these questions in any context. In bringing together theorists from multiple jurisdictions and at least two primary disciplines, we should not be surprised to find deep differences in approach reflecting different methodologies and foundational questions. The tension between them, we hope, can illuminate and enrich discussion on all sides. Further, through combining insights from law and philosophy, we also intend to add another layer to the current trend to focus on the empirical in family law research, and highlight how critical debates in children’s and family law are at once theoretical and empirical in nature. Understanding the nature and content of a child’s “best interests” as contained in multiple jurisdictions’ legal frameworks regulating private and/or public law concerning children, for example, requires us to approach the matter both conceptually – in order to adjudicate between frameworks – and in terms of fit with evidence from research. This immediately makes any satisfactory resolution more uncertain, contested, and subject to criticism. It is in this context that we hope that the conversations between law and philosophy, their points of agreement and divergence, can advance stalled debates.

International differences correspond, of course, to differences in law, policy, and procedure. Contrast, for example, England and Wales’ ‘single pot’ approach to the distribution of property and maintenance upon marriage breakdown to the more common, “pillarised” treatment of matrimonial property, pensions, and maintenance. The difference in system design necessarily affects the available potential justifications. As a more nuanced aspect of the impact of system design, one might consider the normative difficulties created by the variation in default regimes adopted in relation to matrimonial (or marital) property between US states. Facing jurisdictional differences – like considering historical changes within one’s own jurisdiction – can yield an awareness of the context-specificity of one’s own starting points. And awareness of how things are done differently can lead us to call into question our own ways of doing things. Such awareness might alert us to unintended consequences of legislation or to innovative solutions. And, more fundamentally, it might cause us to interrogate what we take as the core, the normal, or even the natural. This is where philosophical investigation becomes indispensable.

In Section II, we outline a number of respects in which the approaches taken by (academic) lawyers and philosophers writing in this field tend to differ, as well as how the structure of this collection seeks to cut across and highlight both these divergences and shared accounts. In Section III, we introduce the key themes that underpin the collection, which demonstrate the potential for cross-fertilisation between legal contexts as well as between legal and philosophical perspectives. When we refer to ‘lawyers’ and ‘philosophers’, we have in mind those working in family law and children’s law in particular.

[This chapter is co-authored by Lucinda Ferguson and Elizabeth Brake, and is being published in Elizabeth Brake and Lucinda Ferguson (eds), Philosophical Foundations of Children’s and Family Law (OUP 2018).  A pre-editing version of this chapter is available here].

Brexit, non-court dispute resolution, and family justice

As representatives from each legal field put forward their most pressing concerns for the Government’s consideration in responding to Brexit, family lawyers have principally focused on matters relating to cross-border children (parental responsibility), divorce, and finance disputes. Consideration of the consequences for non-court dispute resolution (N-CDR) has been relatively absent.

Perhaps this is because of the difference in nature between Regulations and Directives. Regulations govern the three substantive issues that have been the subject of most discussion, namely the revised Brussels II Regulation (Council Regulation (EC) No 2201/2003) (‘Brussels IIa’) and the Maintenance Regulation (Council Regulation (EC) No 4/2009). In relation to N-CDR in the familial context, however, it is the Directive 2008/52/EC of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters (the ‘Mediation Directive’) that is centre stage. Whilst Regulations are directly applicable in Member States, Directives state objectives for Member States to transpose into national law. It is for Member States to choose the most appropriate form for any implementing national legislation. Or perhaps, relatedly, the lack of attention may also be due to a belief that the Mediation Directive, as the sole piece of applicable EU law on N-CDR and with the status of a Directive, is of limited practical significance in the UK so that little of consequence in this respect will flow from Brexit. Whilst any discussion is necessarily speculative, the following analysis suggests that N-CDR may be one – perhaps, the only – significant area of family law that may benefit from Brexit.

There are three respects in which the potential impact on N-CDR is distinctive. First, in the shorter term at least, the uncertainty created by Brexit may be more likely to increase the use of N-CDR as a means of achieving certainty, whether of process, outcome, or both. Secondly, in the longer term, the available space for, and drivers towards N-CDR are at least in part consequential upon the rules that apply to determine the appropriate forum or jurisdiction. This is particularly so in relation to the future of lis pendens, as adopted in Art 19 of Brussels IIa. Thirdly, whilst the impact on the substantive matters of divorce, parental responsibility, and maintenance necessarily relates to ‘cross-border’ disputes, there may be significant consequences for N-CDR domestically, not least in terms of the attitude toward its use. For this reason, Brexit may have more impact than one might expect on the work of those family solicitors, arbitrators, and mediators whose practice does not tend to have any international elements. In what follows, I will focus on mediation and arbitration, though implications for private ordering via nuptial agreements and negotiations between lawyers will also be briefly considered.

This article will be published in the October issue of (2017) Family Law.  A pre-editing version of the article is available here.

Education law update: Decisions of the OSA and LGO (April-June 2017)

This is my third quarterly update to the Education Law Journal on the decisions of the Office of the Schools Adjudicator and the Local Government Ombudsman (to the extent they concern schools).  In this contribution, I consider decisions made from April to June 2017.

A link to the pre-editing version can be found here.

Education law update: Decisions of the OSA and LGO (Jan-Mar 2017)

This is my second quarterly update to Education Law Journal on the decisions of the Office of the Schools Adjudicator and the Local Government Ombudsman (to the extent they concern schools).  In this contribution, I consider decisions made from January to March 2017.


A link to the pre-editing version can be found here.

Hard Divorces Make Bad Law

This case comment considers the decision in Owens v Owens [2017] EWCA Civ 182 in which the wife’s appeal against the decision to refuse to grant her a decree nisi was rejected on the basis that she had not proven the s1(2)(b) Matrimonial Causes Act 1973 ‘behaviour’ requirement. In his judgment in the Court of Appeal, Munby P poses the ‘profoundly important point of principle and public policy at stake:  ought the decision whether or not a marriage should be dissolved to be one for the parties which the State is not in a position to question?’  (para. 90). That the Owens’ case is before the court, however, suggests a different question: where a marriage has broken down as a matter of fact, ought one party’s experience of the marriage to be sufficient to hold that it has also broken down as a matter of law, without the significance of that experience being vulnerable to challenge by either the other party or the State?

It will be published in the (2017) 39 Journal of Social Welfare and Family Law.  A pre-editing version of this case comment is available here.

Education law update: Decisions of the OSA and LGO (Sep-Dec 2016)

In my new role as contributing editor to the excellent Education Law Journal, I am providing quarterly updates on the decisions of the Office of the Schools Adjudicator and the Local Government Ombudsman (to the extent they concern schools).  In this contribution, I consider decisions made from September to December 2016.

A link to the pre-editing version can be found here.

Complicating the ‘Holy Grail’, Simplifying the Search: A Critique of the Conventional Problematisation of Social Immobility in Elite Legal Education and the Profession

This article challenges the conventional problematisation of and response to insufficient socio-economic diversity in elite legal education and the legal profession.  I contend that the entrenched socio-economic stratification of admissions, the undergraduate experience, final degree classification, and career trajectories turns on elite institutions’ failure to recognise that education and educational proxies neither explain the core of socio-economic inequality nor are they the linchpin for improving social mobility.  I draw on a case study of an elite UK university’s undergraduate Law programme.  My argument proceeds in three parts.  Firstly, I contend that justifiable commitment to ‘meritocracy’ continues to be unjustifiably implemented via the indeterminate critical values of ‘potential’ and ‘talent’, which undermines the meritocratic aim.  Secondly, I explain how the inadequacy of the educational proxies employed for socio-economic disadvantage undermines the ability of targeted responses to achieve real improvements, and I call for the adoption of poverty-based proxies.  Thirdly, I suggest that the search for mechanisms to increase diversity proceeds on the mistaken assumption that complex problems require complex solutions, which overlooks the transformative potential of ‘micro-adjustments’ or ‘nudges’.  I propose both universal and targeted micro-adjustments, which focus on fostering a universal diversity of excellence; bringing disadvantaged students within the ‘community of practice’ to become expert in critical learning methods and assessment criteria; and enhancing disadvantaged students’ social and cultural capital.

This article will be published in (2017) 51 The Law Teacher.  The pre-print version is available here.

Commentary on Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)

This chapter comprises a commentary on a rewritten judgment of the Supreme Court of Canada in Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) 2004 SCC 4. That decision concerned the constitutionality of the ‘reasonable punishment’ defence to the physical punishment of children.  After outlining the original judgment, I critique the rewritten judgment, and ask whether reframing the legal issue in terms of children’s rights might be more likely to invert the premise of the s43 debate than a human rights perspective.  It will be published in Helen Stalford, Kathryn Hollingsworth, and Stephen Gilmore, eds, Children’s Rights Judgments (Hart, 2017).

A pre-editing version of my chapter can be found here.

The Curious Case of Civil Partnership: The Extension of Marriage to Same-Sex Couples and the Status-Altering Consequences of a Wait-and-See Approach

In this article, I argue that, if civil partnership is to persist and marriage remain unchanged, civil partnership must be extended to include opposite-sex couples.  I develop my case through an analysis of Andrews J’s decision in the High Court in Steinfeld and Keidan v Secretary of State for Education.  Firstly, I demonstrate why it matters whether any specific discrimination claim is equality-based or liberty-based.  Secondly, I consider immutability or flexibility in meaning of particular status relationships – both civil partnership and marriage.  Thirdly, to determine the correctness of the decision in Steinfeld, I examine the ongoing relevance and value of the High Court’s earlier decision in Wilkinson v Kitzinger and another (No 2), particularly in light of the ECHR’s developing jurisprudence.  Fourthly, given its notable absence from Andrews J’s judgment, I consider the significance of the nature and justifiability of the public interest in status relationships.  I conclude that, whilst an equality-based discrimination claim demands that entitlement to enter into civil partnership be extended to opposite-sex couples, a liberty-based perspective reveals that revisiting the meaning of civil marriage may yet justify denying demands for extending entitlement to entry into civil partnership.  Preferring the equality-based approach depends on seeing it as justifiable for the courts, not Parliament, to pursue reform here.  Favouring the liberty-based view turns on believing in the transformation of the meaning of marriage by the modernising role for civil marriage.

This paper will be published in the (2016) Child and Family Law Quarterly.  The pre-print version is available here.