Family Law, Herring, Chapter 1 Reading PDF

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Family Law Family Law, Herring, 9th Edition – Chapter 1 Huang v Secretary of State for the Home Department - emphasised the importance of families to individuals: ‘Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. ‘ Family test, introduced 2014 – must assess impact of proposed reforms on families. ‘Strong and stable families…’ Definition of a Family  Traditionally people have a stereotypical image of what the ‘ideal family’ is like.  Only 25 per cent of families in 2015 consisted of a couple with dependent children  Different families types caterogried, e.g. nuclear family, extended, kinships  David Archard suggests a family is ‘that group of individuals whose adults take primary custodial roles in respect of its dependent children’. (Archard (2012 and 2018).  However note that his definition of a family must include children. Does a family cease to exist when the children leave the home?  Children have been known to describe family as those who are close to them, including friends and pets Formalistic Definition Formalistic approach would see definitions focusing on whether the group of individuals observe traits that can be objectively proved. 

E.g. criteria such as marriage or children

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Pros – provide clarify and ease of proof

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Cons – technical approach - If the group of people failed to meet the formal requirements of the definition even though they functioned as a family, should they be denied the status of family?

Function Based Definition Suggests that if a group of people perform certain functions then the law can term them a family. In other words, the approach focuses on what they do, rather than what they are 

David Morgan’s approach – says we can’t define family but we can define family practices.

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If such an approach were to be adopted, the law might describe the functions of a family as: providing security and care for its members; producing children; socialising and raising of children; and providing eco nomically for its members.

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Alison Diduck has written: ‘family’ is one way to describe forms or expressions of intimate or private living based upon care and interdependence. And so, family could include a couple, of the same or different sexes with or without children, cohabiting with or without legal formality, or, indeed not cohabiting at all. Family also means an adult caring for a child or other dependent relative. What makes relationship familial to me then is not necessarily a biological, legal, or conjugal connection, rather it is what people do in it, it is a relationship characterized by some degree of intimacy, interdependence, and care’ Diduck (2011)

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Those against this definition believe it presupposes a particular role for a family but not everyone will agree on hat that role is

Idealised Definition Approach suggests that a workable definition of what a family is does not exist, but that a definition of an idealised family can be provided. In our society traditionally this would be seen as a married couple with children (Morgan, 2007) 

Issue is that this idealised picture has been tarnished due to domestic violence and abuse to children within the home.

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Approach assumes ideal family for one is the same for all. Maybe families should work out what is best for them.

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Cultural diversity

Self-definition Approach Approach would state ‘you are a family if you say you are 

Eekelaar and Nhlapo (1998) have suggested that societies are gradually accepting an increasing variety of family forms and are reaching the position that a family is any group of people who regard themselves as a family.

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Doesn’t stigmatise people

How the Law Defines the Family 

Legal definition ever changing

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1950, Gammans v Ekins. Approach presented no longer present in law.

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Leading case, Fitzpatrick v Sterling Housing Association Ltd - Although their Lordships were careful to explain that they were just considering the meaning of family in the Rent Act 1977, the decision will be highly influential in defining family in other contexts.

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Mendoza v Ghaidan - held that a same sex couple were living ‘as husband or wife’ for the purposes of para 2(2) of Sched. 1 to the Rent Act 1977, which lists those entitled to succeed to a statutory tenancy

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Joram Developments Ltd v Sharrat - a 24yearold man and a 75yearold woman shared a flat, enjoying each other’s company and living communally, although there were no sexual relations. The House of Lords was willing to say they shared a household, but not that they were members of a family.

In defining a family, the law does not restrict the definition of family life to those who are married or those who are related by blood. It is willing to accept that other less formal relations can be family if they can demonstrate a sharing of lives and degree of intimacy and stability. However, it would be wrong to say that the law takes a pure function based approach because if a couple are married they will be regarded as a family, even if their relation ship is not a loving, committed, or stable one. New Families 

Beanpole families – Julia Brennan

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Dench and Ogg – shift from the traditional model to one based on mothergrandmother-child, due to fathers becoming irrelevant to children.

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Increased childcare undertaken by grandparents

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Contrary to the views of Dench and Ogg, others have argued we are witnessing a significant change in family life because fathers are seeking to play an increasing role in the lives of their children (Collier (2010); Fatherhood Institute (2008)

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Significant steps being taken by Government to facilitate ‘working motherhood’: improvements in the provision of childcare, increase in provision for maternity leave, encourage lone parents to take up employment, development by companies of ‘family friendly policies’ for their staff. Still large pressures

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Syliva Hewlett – battle for motherhood. Tension between maintaining a career and to have children.

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59% of Britian’s top female executives do not have children.

Should Family Life Be Encouraged? 

Families regarded as beneficial

Advantages of Family Life 

Emotional security

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Family can also be supported as an institution which protects people from powerful organisations within the state

Disadvantages of Family Life 

Level of abuse that takes place against the weakest members

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Reinforce social inequality – Daniel Engster

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Encourages selfishness – Barrett and MacIntosh

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Major social costs – collapse of family relationships cost £48 billion

Approaches to Family Law What is Family Law? No accepted definition of family law. Family law is usually seen as the law governing the relationships between children and parents, and between adults in close emotional relationships.

Examining Family Law 1) Functionalist approach 

Regards family law as having a series of goals to be fulfilled

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Can assess family law by judging how well it succeeds in reaching goals – e.g. if the aim is to increase number of couples who marry, would look at rate of marriages

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Eeklaar – protective, adjustive, supportive

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Cons of approach – the law is only one of the influences on the way people act in their family life, danger of not questioning whether the aims of the law are the correct ones to pursue, overlooks what the law does not try to do

2) Feminist approach 

Consideration of how law impacts men and women, particularly how the law has enabled men to exercise power over women

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McKie and Callan

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Indirect discrimination

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Challenge the norms that form the foundations of law – terms such as family and work that are social constructs

3) Public/Private divide – linked with autonomy (principle that people should make their own decisions about how to live their lives, as long as not to harm others (Joseph Raz))

4) Autopoietic Theory Current Issues in Family Law How the State Interacts with Families 

Fox Harding – 7 ways the state interact with families 1) Authoritarian model 2) Enforcement of responsibilities in specific areas 3) Manipulation of incentives 4) Working within constraining assumptions 5) Substituting for and supporting families 6) Responding to needs and demands 7) Laissez-faire model

Privatisation of Family Law 

Government encourage couples to use mediation to resolve issues rather than lawyers and courts

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Dewar – experiencing deregulation, law is focusing resources on cases where there is a need for legal intervention...