Research Papers

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

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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.

The Denial of Opposite-Sex Couples’ Access to Civil Partnership as Discrimination?

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As a result of the extension of marriage via the Marriage (Same Sex Couples) Act 2013, same-sex couples can choose whether to secure formal legal recognition of their relationship via marriage or civil partnership.  In Steinfeld and Keidan v Secretary of State for Education [2016] EWHC 128 (Admin), the claimant couple argued that sections 1 and 3(1)(a) of the Civil Partnership Act 2004, which restrict eligibility to enter into civil partnership to same-sex couples, were incompatible with Article 14 of the European Convention on Human Rights taken together with Article 8, and sought a declaration of incompatibility under section 4 of the Human Rights Act 1998.

Andrews J dismissed their application for judicial review, reasoning on alternative grounds.  Firstly, the claim did not fall within Article 14 read together with Article 8.  Secondly, were the couples’ claim seen to fall within the ambit of Article 14 read together with Article 8, differential treatment of same-sex and opposite-sex couples in terms of their access to civil partnership was objectively justified (para. 86).  The High Court judgment in Steinfeld is important in four respects: first, it highlights the importance of seeing the couple’s discrimination claim as equality-based, which means it is properly addressed by the courts, rather than Parliament; second, it demonstrates the impact of the uncertainty over the relationship between domestic and ECtHR jurisprudence; third, it underlines the difficulties of relying on the Court of Appeal’s earlier decision in Wilkinson v Kitzinger and another (No 2) [2006] EWHC 2022 (Fam) in this context; fourth, it evidences significant assumptions made in this context about both the immutability and flexibility in the meaning of civil partnership and marriage, as well as the nature and relevance of the public interest to any reform of civil partnership.

This paper will be published in the (2016) Journal of Social Welfare and Family Law.  The pre-print version is available here.

The “Best Interests” of the Child Principle: Looking Beyond the Aspirations of Universal Embrace

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Introduction

Whilst the child population of the People’s Republic of China has been declining in recent years,[1] it still has the largest population of children in the world.[2]  The size of the child population, combined with factors such as its vast, varying geography and its economic development, means that children’s lives vary enormously within China.  Thinking about how the law should regulate decisions affecting children’s lives within a Chinese context highlights the difficulties of being able to generalise even for a single jurisdiction, let alone globally.  Yet, that is ostensibly what the United Nations’ Convention on the Rights of the Child, the CRC, purports to do.

But what does this mean?  Imagine a common situation:

A married couple have young children, say a two-year-old boy and a five-year-old girl.  The wife had worked prior to the first child but, after the birth of the first child, she stayed home to raise them.  The husband has a good job, but he works long hours to provide financially for the family.  For this reason, he does not have much of a relationship with the children, but it is clear that he loves them.  Their marriage breaks down and they divorce. 

Does the universality of the CRC mean that the answer as to how the children should be raised now needs to be the same in every country?  If so, what is the right answer?  Or do local considerations matter?  And, if so, how?  What if the absence of a strong welfare state means that the financial means of the household raising the children are critical to those children’s life opportunities?  Does this suggest that the father alone should raise the children?  If we focus on the emotional bond the children have developed with their mother, are we punishing the father for showing his love and commitment to the children through paid work?  What if, when he was working those long hours, he viewed it as a short-term sacrifice of time with his children in order to be able to provide them a better future, when he would be able to spend more time with them?

Whilst simply dividing the children’s time evenly between both parents might appear to do what is in the children’s “best interests”, might this be more about parents’ rights than children’s “best interests”?  Of course, there will be many cases where parents will be able to decide themselves to divide their children’s time between their two homes but those cases in which the law, via a court order, has to step in, are the very cases in which such division is least likely to be successful.  Hong Kong is in the midst of considering this issue again, with proposals to move from the language of ‘custody’ to ‘parental responsibility’ and from ‘residence’ and ‘contact’ to ‘child arrangements orders’ as in England and Wales.  But much of the potential for the success of such reform will turn on the availability of state services to support non-intact families in working together.  What if a court knows that state resources are inadequate for this purpose in any particular jurisdiction?  Can that serve as an argument against such an order?  Or should they make it anyway because of the children’s (or parent’s) entitlements?

The ‘best interests’ of the child is now a universal principle globally applicable to the treatment of children, whether as a result of a particular state’s domestic law or international legal obligations.  All countries except the United States have ratified the United Nations’ Convention on the Rights of the Child, hence owe obligations under it.  Numerous countries have further entrenched their obligations by incorporation and even constitutionalisation.  This relationship to international law is often further complicated by earlier or independent (non-incorporating) use of the ‘best interests’ principle directly in domestic law, as in the English ‘welfare principle’.  Yet, the principle is also commonly subject to significant criticism such as that it is ‘indeterminate’ and has too narrow a focus.

Outline for the Lecture

In this lecture, I will draw on recent court decisions to examine the value of the ‘best interests’ principle in practice beyond the aspiration expressed by its adoption.  Whilst the ‘best interests’ principle has been universally embraced, to what extent can it offer a universal understanding of what is ‘best’ for children?  Should individual countries contextualise universal concerns or should there be truly local approaches to ‘best interests’?  Does it matter whether any particular country’s obligations under the ‘best interests’ principle are grounded in international law, domestic law, or both?  This issue turns at least in part on how courts in any particular jurisdiction understand the relationship between ‘best interests’ and children’s rights.  In individual cases, how can and should we determine by which criteria to determine the ‘best’ outcome for any child involved in a legal dispute?  In particular, how do children’s ‘best interests’ relate to parents’ interests?  What is the appropriate role for well-being indicators?  Could or even must a court be free to determine that it is ‘best’ for a child to cry in a BMW car, rather than laugh on the back of a bicycle?

Whilst the following discussion asks general questions, I necessarily cannot draw on the full range of jurisdictions in my discussion.  I include examples from English, Canadian, and European law to demonstrate contrasting perspectives on similar issues in different jurisdictions.  In the discussion that will follow my presentation, I look forward to audience members sharing their perspectives on the Chinese approach, as well as how the Chinese approach compares to that in other jurisdictions.

[1] The China Internet Information Center reports that the 2000 census found that there were 290 million children under 14 years old (22.89 percent of the population), which was 4.8 percent less than in 1990.  See China Internet Information Center, ‘China Has 290 Million Children’, online: <http://www.china.org.cn/english/SO-e/33644.htm> (18 March 2016).  Evidencing a further decline, Naftali reports that the Sixth National Census in 2010 found that there were 279 million children under the age of 18 years (21 percent of the population).  See Orna Naftali, Children in China (Polity Press, 2016) 1.

[2] Naftali, ibid.

 

A copy of the powerpoint presentation is available here.

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

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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.

Elusive or Illusive? Fairness, the Family, and Family Law

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Presentation to the International Academy of Matrimonial Lawyers’ 2015 annual conference.  (Full paper forthcoming):

The Commission on European Family Law grounds its 2013 Principles Regarding Property Relations[1] most fundamentally in equality,[2] expressed in terms of ‘equal rights and duties’.[3]  In terms of the underlying normative basis of the principles, Boele-Woelki, the Chair of the CEFL’s Organising Committee reasons:

In addition to equality between the spouses, the principles of sharing and fairness, solidarity, flexibility, legal certainty, protection of the weaker spouse, and the promotion of party autonomy are likewise of fundamental importance in this area of the law.[4]

Whilst recognising that the principles relate to matrimonial property, rather than also maintenance, pension sharing, and so forth, it is nevertheless noteworthy that Boele-Woelki positions ‘fairness’ as no more foundational than the other principles and sitting alongside concerns such as legal certainty.  But is this right?  Perhaps more critically as lawyers, (why) does it matter whether this posited hierarchy is correct or not?  Should we concern ourselves whether ‘equality’ or ‘fairness’ is the singular fundamental principle?

Answers to such questions turn on a better understanding of the concept of ‘fairness’ itself.  Yet, are any answers readily to be found?  The CEFL notes the need for ‘fairness’, amongst other aims, in relation to both of its proposed default regimes, participation in acquisitions and community of acquisitions.[5]  No definition of ‘fairness’ is provided.  In 1989, the Council of Europe placed economic independence at the core of the financial consequences of relationship breakdown.  The first way in which this was to be achieved was by using matrimonial property regimes to ‘grant[.] to a former spouse the right to obtain a fair share in the property of the other’.[6]  This itself is question-begging as ‘fairness’ is here proposed as a means to upholding respect for autonomy.  Is it ‘fair’ to impose autonomy on weaker spouse, particularly at the cost of another, who is also more commonly in straightened rather than prosperous circumstances?

There is a sense in which both the CEFL and the Council of Europe treat the concept of ‘fairness’ as self-explanatory.  In struggling to either refute or substantiate such proposals for the place and purpose of ‘fairness’, however, we may well ask if it has any conceptual core.  What does the reference to ‘fairness’ achieve or seek to achieve in this context?  Doubts over its usefulness might be heightened by noting that a number of IAML fellows’ responses to the circulated conference questionnaire indicated that their understanding of ‘fairness’ in practice differed from the law as expressed in their jurisdictions.[7]

 

Argument and Outline

In what follows, I examine from a comparative perspective the strategies adopted in various jurisdictions to embody ‘fairness’.

I begin by discussing strategies systems make about how to incorporate ‘fairness’ – whether to crystallise in legislation or judicial pronouncement; and what evidence, if ‘fairness’ is not explicitly incorporated, we may draw to suggest ‘fairness’ may nevertheless have been incorporated.  I discuss how ‘fairness’ relates to default matrimonial property regimes and how that compares to its place in the common law (non-)regime.

I disagree with the recent trend of drawing on outcomes alone to argue that the “pillarised”[8] civil law approach is not so dissimilar from the “holistic”[9], discretionary, and fact-based common law approach.  Central to this argument is the suggestion that ‘fairness’ is intimately connected to understanding ‘family law’ in an attitudinal sense, rather than in the conventional sense of the substantive legal domain covered.  I argue that a ‘family law’ attitude means treating the relationship under consideration as special.  Specialness necessitates that the relationship itself or aspects thereof ground a response that would be unavailable in the general law.  The uniqueness of the response may relate to the process of reasoning or the outcome reached, whether in terms of the outcome having a unique normative basis or being a substantive outcome otherwise unavailable.  This attitudinal understanding of ‘family law’ has consequences for which relationships should be viewed through the lens of ‘fairness’.

After discussing four facets of ‘fairness’ – rhetoric, process, outcomes, and institutional ‘fairness’ – I proceed to examine how we might evaluate the ‘fairness’ of individual systems.  This entails brief consideration of three values which inform ‘fairness’ – equality, autonomy, and vulnerability.  I conclude that responding to vulnerability via provision for ‘needs’ represents a baseline for the content of ‘fairness’, though I raise doubts about the implication that all jurisdictions that theoretically allow provision for ‘needs’, no matter how limited, should be seen as adopting a ‘fair’ approach.

I conclude by highlighting that the search for ‘fairness’ is fundamentally concerned with how we conceptualise disputes, such that there may be a ‘right’ cluster of values to guide decision-making, but no ‘right’ answer, no single better weighting of those values in practice.  Jurisdictional context is critical, and entails fit with underlying social, cultural, political, and economic norms.

[1] Katharina Boele-Woelki et al, Principles of European Family Law Regarding Property Relations between Spouses (Cambridge, UK: Intersentia, 2013).

[2] Katharina Boele-Woelki, ‘General Rights and Duties in the CEFL Principles on Property Relations between Spouses’ in Katharina Boele-Woelki, Nina Dethloff, and Werner Gephart, eds, Family Law and Culture in Europe: Developments, Challenges and Opportunities (Cambridge, UK: Intersentia, 2014) 3-12, 6.

[3] Boele-Woelki et al (n 1) Principle 4.2.

[4] ibid 6.

[5] ibid 147 (Principle 4.17) and 220 (Principle 4.34).

[6] Council of Europe, Recommendation No R (89) 1 (18 January 1989), Principle 1.

[7] Personal communications from IAML fellows in response to the ‘Fair is foul’ survey, circulated July 2015.

[8] Dutta, cited in Jens M Scherpe, ‘Towards a Matrimonial Property Regime for England and Wales’ in Rebecca Probert and Chris Barton, eds, Fifty Years in Family Law: Essays for Stephen Cretney (Cambridge, UK: Intersentia, 2012) 133-146, 138.  In addition to matrimonial property, the other critical ‘pillars’ are maintenance and pension-sharing.  Scherpe also mentions the allocation of the use of the matrimonial home.

[9] Scherpe, ibid 138.

 

A copy of the powerpoint presentation is available here.

Wyatt v Vince: The Reality of Individualised Justice – Financial Orders, Forensic Delay, and Access to Justice

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In Wyatt v Vince, the Supreme Court was called upon to consider the correct interpretation of rule 4.4 of the Family Procedure Rules 2010, which governs the court’s power to strike out a statement of case. The Court of Appeal’s 2013 decision, from which the wife appealed, was the first reported decision on the interpretation of rule 4.4. This case commentary examines the Supreme Court’s unanimous judgment in detail. Whilst the judicial interpretation of rule 4.4 resolves the matter before the court, Lord Wilson’s judgment contains critical analysis of the nature of ‘needs’ and ‘contributions’ within the Matrimonial Causes Act 1973, section 25 exercise, both independently and as they relate to delay. The court responds to the ‘forensic delay’ on the facts by narrowing its construction of ‘needs’ to those generated by the relationship and treating delay as a countervailing consideration to weigh against ‘contributions.’ The former reasoning raises the possibility of a more coherent, interpersonal theoretical basis for financial provision upon relationship breakdown more generally. The latter arguably constructs delay as a substantive consideration, which strengthens the social obligation basis for financial provision.

This paper is published in (2015) 27: 2 Child and Family Law Quarterly 195-208, and also available here.

School Exclusion and the Law: A Literature Review and Scoping Survey of Practice

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(co-authored with Naomi Webber, University of Oxford)

Non-lawyers implement the law on permanent exclusion, particularly school management teams, with the support and guidance of local authority (LA) officers.

In this review, we evaluate the contents of, and relationship between law and practice to examine to what extent they are coherent. Divergence between law and practice is not of itself a basis for criticising the actions of non-lawyers, but instead suggests that the law might not be fit for purpose. The law should support ‘best practices’ and restrain practice that is not in the “best interests” of either the individual child at risk of exclusion and/or of other children and staff in the school.

Our discussion focuses on recent research and secondary literature, as well as our own scoping survey of permanent exclusion in schools across four LAs in the same Department for Education (DfE) Statistical First Release (SFR) region. The second section outlines the current law, presents statistical changes in the rate of exclusions and appeals lodged over time and analyses how reforms to the law and legal framework may have affected the statistics. The third section evaluates the values that underpin the legal framework, particularly autonomy, equality, “best interests”, and participation and procedural rights. The fourth section examines current knowledge of the way in which the law is understood by various groups of non-lawyers in the exclusion process. This section also draws on findings from our scoping survey, conducted between July and September 2014. Our scoping survey highlights the potential significance of school and LA culture within this legal discretionary framework in determining the likelihood that a pupil will be excluded. In particular, analysis of individual schools’ responses regarding exclusions against publicly available data on their pupil-level risk factors and indicators of school culture suggest that school culture and disposition toward the governing law has a role to play in determining the likelihood that a pupil will be excluded. This role has not been examined to date, and our scoping survey results reveal it is a complex one, which may also be interwoven with the LA culture and disposition towards the governing law. The work of LA inclusion and exclusion officers is central to this latter issue. Finally, we highlight a number of more discrete matters for further research.

Note: Our review has been updated to include discussion of reforms introduced by the DfE’s 2015 statutory guidance on exclusion.

This paper is published by the University of Oxford (2015), and also available here.

Arbitral Awards: A Magnetic Factor of Determinative Importance – Yet Not to Be Rubber-Stamped?

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The High Court’s decision in S v S [2014] EWHC 7 (Fam) (S) is the first to give judicial endorsement to the Institute of Family Law Arbitrators’ (IFLA) scheme for parties to use arbitration to resolve the financial consequences of marriage and civil partnership breakdown. The significance of the decision extends beyond the case itself. Sir James Munby P’s judgment is important in four respects: first, he guides courts as to the process to adopt when considering applications made in the context of arbitral awards; second, he makes critical suggestions for future procedural innovations and rule changes; third, he directs courts as to how to weigh the substantive content of arbitral awards against section 25 of the Matrimonial Causes Act 1973 when hearing applications for consent orders and attempts to resile from the arbitral award; fourth, he comments on autonomy as the underlying theoretical basis for this substantive approach to arbitral awards.

This paper is published in (2015) 37 Journal of Social Welfare and Family Law 99-101, and available here.

Law Society Gazette: Letter to Editor – ‘Final and binding’ awards in family law

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Setting the record straight: family law arbitration is not binding

Dennis Sheridan’s article (13 March) on family law arbitration sets out the key benefits of the new IFLA scheme but risks being dangerously misleading in one respect, namely that ‘awards’ made under the scheme are ‘final and binding’.  More worryingly, he makes this claim in relating what an appointed IFLA scheme arbitrator said to clients in the early stages of proceedings.

Just because Article 13.3 of the IFLA scheme Rules describes the ‘award’ as ‘final and binding’ subject to limited grounds of challenge and appeal, does not make it so.  Indeed, Article 13.4 of the Rules recognises that it may be necessary for the parties to apply to the courts to get an order in the same or similar terms as the award/part thereof.

It is technically incorrect to say that these ‘awards’ are binding.  Trite as it is, jurisdiction to make final financial awards is the court’s alone.  Nuptial agreements are not binding, and arbitration is not a special case.  Section 81(1)(a) of the Arbitration Act 1996 makes clear that the court’s jurisdiction is unaffected here and s25 of the Matrimonial Causes Act 1973 applies.  Even if arbitrated awards were treated as akin to s34(1) MCA 1973 maintenance agreements, so as to withstand s81(1)(a) AA 1996, s81(1)(c) entitles a court to refuse to recognise and/or enforce an ‘award’ on public policy grounds.   Any case in which a judge would reach a different result under s25 than under the ‘award’ should satisfy s81(1)(c).

Second, even if a judge would be unlikely to override an arbitrated ‘award’, it is misleading to describe that factual reality with the legal terminology of bindingness.  We do not pretend that the agreement that forms the basis of a Consent Order is binding before the order is made, so why would we do so for arbitrated ‘awards’?  Talking about ‘awards’ that are unlikely to be overridden – ‘as good as binding’? – as ‘binding’ is liable to confuse the public.  Why risk litigants misunderstanding their own legal right to apply to court for a binding order?   Further, religiously-based arbitrators understand their limits; why risk the public misunderstanding the nature of religious tribunals’ work?  The current law is based on the concern that only the court can sufficiently protect the parties’ interests in these disputes, hence only it can make binding decisions.  If we no longer think this is the case, we need to have that debate, not pretend we have already had it.

Family law arbitration may have many benefits for the right type of parties in the right type of dispute.  But a ‘final and binding’ decision is not one of them.

Arbitration in Financial Dispute Resolution: The Final Step to Reconstructing the Default(s) and Exception(s)?

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In this article, I argue for caution in embracing family arbitration as a new form of private ordering for resolving parties’ financial disputes. I explain that family arbitration may be more successful than other forms of private ordering and final court hearings in enabling certain types of parties to resolve certain types of disputes. Given that lawyer-led negotiations remain the most common form of out-of-court resolution, however, family arbitration’s impact may not be numerically significant. But family arbitration may be much more important in normative terms. Together with the transformation in approach to nuptial agreements, we may soon reach the position where it is no longer accurate to say that we are bargaining in the shadow of the default regime – the factual default of private ordering may become the autonomy-based normative default. I question whether this is a desirable step for family law, at least before we have resolved the underlying policy debate.

This paper is published in (2013) 35: 1 Journal of Social Welfare and Family Law 115-138, and available here.