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Introduction Notes

BCL Law Notes > Children, Families & the State Notes

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1: INTRODUCTION (i) CHILDREN'S LAW AND FAMILY LAW Barlow: Solidarity, autonomy and equality - mixed messages for the family?
Argument: autonomy is not suitable as a driving principle of family regulation; we have yet to become a society of equal individuals within family life which no longer need the supporting solidarity of the institution of family; there remains an important role for family law to play in regulating family life that should involve placing a positive modernized reconceptualization of family solidarity as a norm at the heart of family law
? Suitability of liberal concepts such as autonomy and equality to family regulation is open to question
? Family life is not just about the interests of a collection of autonomous individuals but is intrinsically about something more, involving a joint enterprise centred around an ethos of what might be termed solidarity
? Family solidarity: a concept which encapsulates the joint enterprise, mutual support and obligation which modern family life encompasses from a moral and economic perspective (cf. individualistic notions of autonomy) recognising the altruism which is often required to fulfill demands
? Developing autonomy discourse ? contract can replace the role of family law and it is arguably unnecessary for family law to regulate families bc this is seen as protective or paternalistic
? The basis for this thinking is that couples in the 21st century are equal partners and are therefore equally autonomous and free to negotiate their roles and financial positions within the relationship and wider family
? However, given recent data on employment and caregiving practices, it is clear that we have not yet achieved that state and we should question whether it is one that should be regarded as ideal
? It is important to question how universally appropriate the public sphere principles are to the regulation of family life, given the dominance of different norms and values which in practice operate within the private sphere of the family
? Different idealized values of love, care, emotional and financial support, altruism and collective enterprise
? These can be seen to serve not only the collective family good but also the wider interests of society as a whole which depends on the family in many ways
? Values are inherently antithetical to free, autonomous individual action and decisionmaking by individual family members acting in their own selfish interests
? Whilst there is usually formal equality between partners, can there be substantive equality between members of a couple if structural factors and gendered social norms are still influencing couple behaviours?
? Recent developments reveal private family law principles are increasingly taking a proautonomy stance with a proportionately diminishing protective role (eg. enforceable pre-nuptial agreements in Radmacher v Granatino - judgment couched in autonomy discourse)
? This discourse assumes that each party to a pre-nuptial agreement holds equal power and autonomy over the process and will continue to do so throughout the marriage, thus not needing family law protection which is often not the case ? even if power is equally held at point of marriage, it may be difficult to act in accordance with one's own interests under the agreement in the face of competing needs to act in the wider family's interests
? The change in rhetoric from individualism to autonomy has removed the association of individualism with the negativity of selfishness and coupled it with the positive discourses of freedom, choice and equality
? Autonomy and formal equality have combined effectively to become the acceptable and attractive face of individualism, reducing the visibility of a lack of substantive equality and enabling the concept of vulnerability, like dependency before it, to be easily cast as an unfortunate, unavoidable state

? Where there are legal and practical caring responsibilities, they in reality, make it impossible to be truly autonomous (either financially or as a matter of personal liberty)
? Social norms and feelings of moral obligation pull against free choice and the autonomy to act with individual self interest
? A positive concept of a modernized family solidarity, which recognizes the benefits of such solidarity for both the family and the wider society is needed as the new centerpiece of family law
? Mixed messages are currently being sent by family law
? Social norm notions of family obligation will inevitably clash with the exercise of individual autonomy and will also often be unequally shared along gendered lines
? The idea of family solidarity in the family law context encapsulates the mutual support and obligations which family life encompasses from a moral and economic perspective but which is often reflected and reinforced in legal regulation ? unspoken, loose rules of expected behaviours which are embedded as social norms around the joint enterprise of family life which combine to form an invisible but societally understood glue which holds family life together and which demarcates the expected behaviours of those in a family relationship from those of unconnected individuals
? We have yet to become a society of substantively equal individuals which no longer needs the supporting solidarity of the institution of family and this will remain the cases whilst caregiving work is largely devolved to the private family with economic consequences for primary carers/homemakers
? Often it makes financial sense for one partner to undertake the childcare which will often be based on which partner is the highest earner
? Structural issues beyond the individual family's control will therefore come into play but are seen as matters of free choice, in line with the autonomy discourse, rather than a constrained course
? We also as a society still expect mothers more than fathers to control the private sphere of family life
? Therefore, a reframing of the concept of family solidarity is needed, moving away from paternalism and sacrifice, but positively valuing interdependence rather than individual autonomy and explicitly recognizes as equal the different contributions and sacrifices which the joint enterprise of family life entails
? By adopting a positive approach to the value of family solidarity, both breadwinning and caregiving, we can hope to get away from the negativity which surrounds the discourses of vulnerability, dependence and even relationship-geared disadvantage, all based on the female-centred ethics of care discourse Eekelaar: Family law and personal life pp.22-30 (on the argument to move from family law to personal law) Argument: huge changes are occurring within the makeup of families (eg. rising divorce rate; increased rate of cohabitation before marriage; getting married later in life etc.) and therefore there should be a change from family law to personal law
? Changes in behaviour are being accompanied by changes in attitudes: o EG. A change in the disapproval of cohabitation before marriage
? Attitudes about personal relationships are difficult to pin down: o Some writers have suggested individuals pursue goals of self-fulfilment and the quest for pure relationships at the expense of commitment to others o Others suggest a more nuanced picture where relationships are provisionally accepted and then continually renegotiated on a basis of reciprocity o Implication that negotiations are taking place between self-interested individuals isolated from social and moral expectations appears implausible ?
studies suggest attention being paid to interests outside of the immediate agent; evidence of one study shows that married and cohabitating people shared many values o Argues that these findings should remind us that even though outwardly people may appear to be different, at a deeper level they share values
? The fact remains that now many people are not willing to allow the way they behave in

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