Taking Responsibility, Law and the Changing Family

Heather Keating, Craig Lind

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317047049
• Edition: 1
• Topic: Law
• Subtopic: Family Law
• Index: Law

This volume considers the impact that changing family norms have had on the responsibilities that the law allocates to people in family relationships. Contributions are drawn from a wide variety of jurisdictions in which scholars, lawyers, judges and policy-makers have been trying to discern what the appropriate correlation should be between the responsibilities that people undertake in family settings and the law that regulates family responsibilities. Part I looks at the changes that have occurred in adult relationships and what they have done for our sense of the family responsibilities that adults take for one another. Part II reflects on the changing nature of the parental relationship in order to reconsider the way in which changing family structures affect the responsibilities we think people raising children should have. The third part brings the rights discourse that has dominated jurisprudence for much of the last fifty years into the discussion of family transformation and the responsibilities to which it gives rise. In the final section the authors reflect on the difficulties of trying to resolve the meaning of responsibility in a world of changing families. The collection brings together some of the most eminent and imaginative scholars and judges working in this area. It will be a valuable resource for all those interested in the legal regulation of the transforming family.

Chapter 1 Taking Family Responsibility or Having it Imposed?

Craig Lind Heather Keating and Jo Bridgeman

DOI: 10.4324/9781315611761-1

The Changing Nature of the Family

This volume explores the relationship between law and the family responsibilities that people take and avoid. As we did in an earlier volume (Bridgeman et al. 2008), we use ‘family’ here as an overarching term to encapsulate the whole range of personal relationships in which people live and which, it will become clear, are the concerns of the authors in this collection (Bridgeman and Keating 2008: 3). ‘Family’, therefore, encompasses relationships of responsibility-taking in which there are elements of love, affection, friendship, companionship, intimacy, care, shared experiences and memories (Diduck 2008a: 254). These are of fundamental importance to most people.

It should come as no surprise that the analyses in this collection range across so broad a canvass of family life. A vast and increasingly rich literature on the nature of family life in the twenty-first century has emerged. Statistical data and empirical research tell us a great deal about trends in personal relationships (see, for example, Brower in this volume). We know that in this jurisdiction, as in most western societies, the rate of marriage has declined¹ but that it remains the relationship to which most people aspire² – evidenced not least by the increasing number of second and third marriages³ and the alacrity with which the marriage-like civil partnership was embraced by same-sex couples.⁴ Yet while the proportion of the population who are married is projected to fall from 49 per cent of the population in 2007 to 41 per cent in 2031, the proportion of the population who cohabit without marrying is projected to rise from 10 per cent to 14 per cent over the same period (ONS 2009b). For some cohabitation may be a prelude to marriage, but for others the idea of marriage is an irrelevance; the strength of their commitment to one another is unrelated to the status of their relationship (Duncan et al. 2005). Furthermore, ‘living apart together’ has become a recognized demographic concept. As Diduck has noted, ‘unlike cohabitation and civil partnership, both of which remain marriage-like, “living apart together” challenges one of the markers of marriage/coupledom by disassociating it from common residence’ (Diduck 2008b: xv).

1 In 1998 the marriage rate for men aged 16 or over was 31.1 per 1,000 of the population and 26.6 per 1,000 for women. By 2008 the corresponding figures had fallen to 21.8 for men and 19.6 for women (ONS 2010). 2 In 2008 a poll conducted by IPSOS/Mori for Civitas found that 70 per cent of the respondents wanted to marry (de Waal 2008). 3 Remarriages (where at least one of parties had been previously married) now account for 37 per cent of all marriages (ONS 2010). 4 Since December 2005 (when the Civil Partnership Act 2004 came into force) 33,956 same-sex couples have entered into civil partnerships. However, figures have fallen year on year from the peak in 2006 (ONS 2009a).

While firm evidence relating to the rate of breakdown of cohabiting relationships is unavailable,⁵ we know that approximately 40 per cent of marriages will end in divorce. Only partly as a consequence of this, 25 per cent of households with dependent children are now headed by lone parents (ONS 2008). But there has also been a significant rise in the number of children living in a household with a parent and a step-parent.⁶ And in those households there are often siblings, step-siblings and half-siblings. Parental relationships – which now include parents, step-parents and non-resident parents – are, almost inevitably, complicated but often managed by the various family members to make them work in the best possible way.

5 It is often asserted that such relationships are less durable than marriage but the reliability of the comparison is highly questionable: those who cohabit tend to be younger than those who marry and this may be the key to understanding differences in breakdown rates (in the same way that marriages between younger people are more likely to end in divorce). The fact that cohabitation is often a prelude to marriage may also impact upon our ideas about the prevalence of the breakdown of unmarried relationships. 6 The 2001 Census revealed that there were 700,000 such families.

Aside from these deviations from the traditions of parenting and of adult relationship formation there have also been changes associated with technologies that have arisen in the context of childlessness. Despite the steady increase in the British birth rate⁷ statistics reveal that about 20 per cent of women of child-bearing age are childless (Portanti and Whitworth 2009). While for some this is the result of a choice made not to parent, many others are left bereft by their childlessness. Whereas historically these people would have looked to adoption to compensate for their inability to have children, the past few decades has seen a decline in the number of babies available for adoption (Harris-Short and Miles 2007: 993; for a critical analysis of the responsibilities of the state and the individual in intercountry adoption see King in this volume). Whereas adoption law was designed in the early twentieth century to cater for the adoption of babies (Lowe 1997), only two per cent of children adopted in 2008–09 were under one year old.⁸ However, significant progress in clinical treatment for infertility has provided an alternative for those who wish to raise children. However, treatment often requires the use of donor gametes, which brings a new measure of complexity to family relationships and the law’s engagement with them (fully explored by Caroline Jones in this volume).

7 The birth rate is currently increasing year on year: in 2001 594,634 babies were born; by 2008 the figure had risen to 708,711. In 2008, 55 per cent of babies were born outside marriage (ONS 2009c). 8 This statistic is taken from the British Association for Adoption and Fostering (BAAF) website at: http://www.baaf.org.uk/info/stats/england.shtml (accessed on 9 May 2010).

In short, not only have people diversified the ways in which they establish and maintain their adult relationships but also the ways in which they have and raise children have also altered dramatically. As Finch has commented, ‘all recent empirical work on contemporary families emphasizes the essential diversity of family composition and the fluidity of family relationships’ (2007: 67).

These changes in family life have, of course, occurred as a result of dramatic changes in the way in which our society lives more generally. We are less religious and our communities are more culturally diverse (Munby 2005). We marry (or simply live together) across faiths and within and across gender divisions. And we do all this in bigger or smaller family units that range from single person households to multi-family, multi-generational households. We share our lives with friends, partners or spouses, ex-partners or ex-spouses, parents, children, step-children, siblings, half-siblings, step-siblings, grandparents and great-grandparents. We have, in essence, begun to tolerate a vast matrix of relationships that brings together various adults and children in one household, or collections of people who consider themselves to be intimately related although they do not share a common household. Despite these vast changes in family life, what people do in these new family settings does not simply challenge family norms. Their living arrangements often borrow from the patterns of traditional family life and write those patterns into new family relationships (Smart 2000: 50; Diduck 2008a: 253), although these things are rarely done uniformly (Dewar 1998; Smart 2000; Diduck 2008a).

The clear statistical evidence of altered family norms is not, of course, analysed by commentators uniformly. Not everyone sees these transformations as dramatic (Silva and Smart 1999: 3; Parker 1987). There are also very different views on the extent to which changes in family life are a cause for celebration or for concern (Morgan 1999: 13). Gillies identifies three dominant approaches adopted within sociological research to intimate, personal, family relationships. She characterizes these as ‘breakdown and demoralization, democratization and egalitarianism, [and] continuity and enduring power relations’ (Gillies 2003: 15). The first sees a breakdown in family relationships that is the result of increased individualization and the pursuit of self-interest. Because these more selfish pursuits replace responsibility and obligation to others, this analysis presents a ‘gloomy picture of the future of human relations and society as a whole, suggesting that we are moving towards a dangerous, atomised, amoral existence’ (Gillies 2003: 15). The focus of the second approach is upon ‘democratic values of respect and negotiation’ (Gillies 2003: 15). Here, greater individualization enables people to create more fulfilling relationships: ‘With roles and identities no longer fixed, individuals generate their own relationship rules, leading to a wide diversity in the way intimate associations are expressed and lived’ (Gillies 2003: 15; Kennedy in this volume). The third approach claims that the evidence supports neither of these positions; changes in family life are neither radically dangerous, nor positively transformative. Instead this analysis stresses the continuity and enduring gendered and other power relations that still manifest themselves in family life (Gillies 2003: 16; Smart 2000). Gillies goes on to show that, whilst sociologists have identified the changes in post-industrialization that have involved the ‘de-traditionalisation and individualisation of social life’ (which have ‘caused’ either breakdown and disintegration or the ‘democratisation of personal relationships’), data indicates both a diversification in family form and the ‘enduring continuity of traditional ties’ (Gillies 2003: 2; Smart 2000).

Clearly then, the family is changing. But it is also staying the same. The real families with which we are actually entangled (which Diduck (2003) characterizes as the ‘family we live with’) may be changing. And, as Diduck suggests, these may be messy and complicated and they may let us down from time to time. But the ‘families we live by’ (those family norms we idealize) continue to ‘provide us with a needed sense of continuity and shared history’. These are relatively stable, supported by law and never ‘let us down’. Importantly, this ‘family we live by’ ‘sets up the standard by which to judge the more complicated families we live with’ (Diduck 2003: 20; Gillis 1997). And just as individuals negotiate their lives through the families they live with, reflecting on the normative families they live by, so too does the state. Part of the state’s apparatus in doing so is law and the way in which law allocates (and then regulates) or declines to allocate responsibility.

It is this relationship between the responsibilities that people in their families, reflecting on idealized family norms, undertake and the law’s allocation and regulation of family responsibility that is at the heart of this volume. There are many examples of recent reforms of family law which recognize that people take responsibility for each other in a range of circumstances which the law has previously failed to acknowledge: same-sex partners accepting marriage-like responsibilities are recognized in the UK in the Civil Partnership Act 2004 (and in other states in a variety of different ways) (Boshoff, Brower, Jackie Jones, all in this volume; Lind 2008); unmarried fathers who would traditionally have had no parental power in relation to their children can now acquire parental responsibility automatically (in the UK) under the Children Act 1989 (section 4, as amended by the Adoption and Children Act 2002, s. 111); step-parents taking parental responsibility for children for whom they have traditionally had no responsibility are recognized (in the UK again) in the Matrimonial Causes Act 1973 (sections 21, 23 and 24), the Adoption and Children Act 2002 (section 112) and the Civil Partnership Act 2004 (section 75). In other states, again, there are other ways in which this is done (Kennedy in this volume); children born as a result of assisted conception and reared by people (including same-sex couples) who are not genetically related to them can have parental responsibilities towards those children (Children Act 1989, s. 4ZA inserted by the Human Fertilisation and Embryology Act 2008, s. 56) in the UK (Caroline Jones in this volume; Lind and Hewitt 2009). The responsibilities that unmarried partners take for one another have been acknowledged in statutes such as the Inheritance (Provision for Family and Dependants) Act 1995, and the responsibilities they take for children have been brought into law (Adoption and Children Act 2002). Of course many of these changes were pre-empted by judicial pronouncements that recognized the legal status of those who took responsibility for others (such as, for example, J v C [1970] AC 668 (in which parental responsibility undertaken by non-parents gained an enhanced legal position) and Gissing v Gissing [1971] AC 886 (in which, perhaps too gingerly, the responsibilities of unmarried partners were acknowledged in relation to the acquisition of property rights).

These are, of course, just some of the examples of the legal changes that have taken place. Before many of them had even materialized Dewar (1998) had described the encroachment of law into the ever-expanding realm of family responsibilities as chaotic. He contrasted functionalists – those who, in their analysis of the role of family law, focus upon family practices (what families actually do) – with constructionalists – those who set out to expose ‘the way legal discourse privileges certain family forms, individual behaviours or orientations, or more generally “constructs” sexuality, or our subjective sense of ourselves’ (1998: 467–468). Both the functionalist and constructionist models, Dewar argued, ascribe to family law much more coherence than it really has. They do this, he argued, in order to de...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Table of Contents
• Notes on Contributors
• Foreword by Albie Sachs
• 1 Taking Family Responsibility or Having it Imposed?
• PArt I Conceptualizing Responsibility in An Era Of Changing Families
• Part II The Intimate Relationships of Adults
• Part III Responsibilities in the Changing Families of Children
• Part IV Rights to Family Responsibility
• Index