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].

The Jurisprudence of Making Decisions Affecting Children: An Argument to Prefer Duty to Children’s Rights and Welfare

This chapter embraces the reasons for thinking that children possess children’s rights but suggests that these aims are currently better achieved through a duty-based approach to legal decision-making affecting children. My argument proceeds from the position that we are justified in seeing children as a “special case”, which means that children benefit from additional legal protection and priority beyond fundamental human rights that apply to all individuals alike. In deciding how best to recognise children as a special case, I suggest that three main competing approaches, children’s rights, welfare, and duties owed to children, should be seen as simply tools – language descriptors, ways of framing individual considerations, processes, and frameworks – for working with the same substantive content. Which approach we prefer or emphasise should depend on how well it guides decision-makers towards decisions that lead to or make more likely better outcomes for affected children.   After briefly outlining why current conceptions of children’s rights cannot meet this test, I explain why a welfare or “best interests” approach is no more able to satisfy this objective than the alternatives. The remainder of the chapter is focused on exploring the potential of a duty-based approach. I argue that duty can have three roles: as a tool to give specificity and resolve conflicts in current rights- and welfare-based decision-making; as a theoretical framework of itself, focused on the decision-maker; and as the basis for anchoring a virtue-led view of the aim for legal decision-making affecting children – to enable children to flourish on their own terms. I conclude by exploring the practical implications of a duty-based argument and discuss three key examples, namely the Court of Appeal’s decision in Re A (Conjoined Twins: Surgical Separation) (2001), the United Nations’ Convention on the Rights of the Child, and private law disputes concerning children.

Published in Diduck, Peleg, and Reece, eds, Law in Society: Reflections on Children, Family, Culture and Philosophy (Essays in Honour of Michael Freeman) (Brill, 2015)

The pre-print version is available here.