FAMILY LAW: ISSUES, DEBATES, POLICY by Jonathan Herring (Editor). Collompton, United Kingdom: Willan
Publishing Co., 2001. Cloth $64.95. ISBN: 1-903240-20-4.
Reviewed by Francis Regan, Department of Legal Studies, Flinders University, Australia.
Family laws continue to develop in fascinating ways in contemporary societies. The rapid change in family forms
means that legislators, judges and academics are almost continuously faced with new and complex issues in family
law. This small book of long essays examines a number of issues in the ways that families are regulated under
contemporary English law. As the title suggests the authors focus upon debates about particular legal issues and
policies rather than for example, also considering social science research literature or data. It will be a useful
source for graduate students or higher level undergraduate students who are already familiar with existing English
family law.
The strength of this book is the approach taken by the authors, mainly English academics from Cambridge University.
Each essay carefully dissects the competing views in relation to a particular aspect of the legal regulation of
families in England. The issues include marriage and divorce, children and parents, and domestic violence. The
chapters begin with a broad overview of the problem, followed by an exhaustive discussion of the current law and
an evaluation of its strengths and weaknesses. This approach makes for thoughtful, refreshingly non-ideological
reading rather than what could easily be a fairly dry discussion of laws and policies. Each chapter also examines
the arguments for and against alternative policies and laws. Finally, the essays conclude with a useful list of
suggestions for further reading. Although this comprehensive approach makes for a valuable source book the approach
might, however, irritate some readers as I explain below. First
however, I will sketch the contents of the essays.
After a short introduction to the main themes of the book the first substantive chapter by Stuart Bridge is a wide-ranging
examination of English law relating to marriage and divorce. The chapter examines the right to marry, the consequences
of marriage, evaluates the arguments for and against marriage contracts, and the future of divorce. Instead of
concluding by longing for a traditional view of marriage or denouncing marriage in toto, Bridge highlights what
he sees as the main trend for the future of marriage in the twentieth century. That is, he argues that there is
likely to be an increasing emphasis upon equality between the two parties to a heterosexual marriage. This is
unlikely however to include equality between other types of couples who want to marry, such as same-sex couples.
The second chapter analyses the "intractable" issue of the division of property after the breakdown of
long-term relationships. As it deals with the messy and evolving law of property division for cohabitants as and
divorcing couples in England, this is probably the most difficult chapter from the reader's point of view. Louise
Tee accurately articulates the
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difficulties involved in reaching agreement about the competing and changing views of the purposes of property
division laws. It is a challenge to write an interesting discussion of different forms of "constructive trusts"
and other features of family law but this chapter is very readable.
Domestic violence law and policy is the focus of the following chapter by Joanna Miles. This chapter includes a
wealth of legal and related material that is used to explore domestic violence in terms of the "public/private"
debate. To do this the chapter examines the range of competing theories that attempt to explain this form of violence,
contemporary legal responses to such violence and their weaknesses, the problematic role of the state intervention
in domestic violence, and the vexed question of state responsibility versus individual freedom from state interference
in such cases. Miles concludes that the public/private distinction is unhelpful because it "discourages flexible
solutions to domestic violence." This form of violence will only disappear, according to Miles, if criminal
and civil law can be used to respond to it and if "social structures and ideologies" allow it to continue.
Children and the possible impact of the Human Rights Act 1998 are the focus of the final three essays. First,
Jonathan Herring examines what he refers to as "the tensions running through the law of children and parents."
These include some of the more obvious tensions such as between protecting children and recognising that they have
rights, and some of the emerging tensions such as that between protecting the interests of genetic and social parents.
The strength of the chapter lies in recognising that these tensions are present whenever courts and others attempt
to apply such principles as the "welfare of the child." Indeed, the chapter is refreshing in the way
that it recognises that the welfare of the child might be interpreted in a number of ways, including focussing
on the interests of all the members of the child's
family as way of ensuring the welfare of the child.
The following multi-authored essay discusses public law cases involving children, or cases involving allegations
of abuse. The essay is a careful investigation of the responsibilities of the various parties involved in making
decisions in relation to the care of children. The situation is more complex than it sometimes appears. In fact
different laws mean that, depending on the situation in question, decision making may rest with the parents, the
children themselves, the courts, and the local authorities. This mix of parties is desirable in many ways but
it also leads to complications, children falling through gaps, and of course the re are clashes between the
responsibilities and rights of the different parties. Meanwhile the Human Rights Act 1998 has yet to be tested
in courts in cases involving public law relating to children. It will be interesting to see how the case law develops
in this area in the future.
In the final essay Carolyn Bridge examines English adoption law. The chapter is comprehensive discussion of the
recent developments in this area of English law, including the Adoption Act 1976, the Children Act 1989, the Blair
government's White Paper in 2000, and issues such as law relating to inter-country adoption. The possible impact
of the Human Rights Act 1998 is also considered because of its emphasis on the rights of the child. The essay
offers a valuable discussion of the competing views that need to be considered in this complex area including
contact or non-contact between the child and their birth parents. Nevertheless, although it is an
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interesting essay, it also raises the larger question of selection of issues for inclusion in the book. As Bridge
acknowledges the empirical evidence suggests that adoption, if you will excuse the pun, is in the scheme of things
a relatively minor issue. Few children are adopted in England either from within the society or by inter-country
adoption. It is curious therefore that other issues, which affect large numbers of children, are not considered
in the book. For example, one curious omission is the Child Support Scheme. The scheme is mentioned in a number
of chapters and pejorative comments made about it, but the book does not analyse its
operation or discuss alternatives.
There are also, however, some unsatisfying aspects of this collection. In particular, apart from a few mentions,
law and policies from other societies are not considered in detail in most of the chapters. This is a curious
omission in view of the globalisation of law and the fact that the essays make a point of considering alternatives
to the existing English laws. The essays would have been richer and more interesting if developments in other societies
had been examined even if only in passing. The chapter on marriage, for example, did not consider the same-sex
marriage law that came into effect on April 1, 2001, in the Netherlands despite the fact that the absence of gay
marriage was identified as a problem in England. The Dutch law had been widely discussed in the international
press and its implementation was a foregone conclusion in the period during which this book was prepared. Similarly
the chapter on domestic violence did not consider compulsory treatment orders that are common in a number of societies
including the U. S. A. Registered partnerships are also common in a number of societies
including Scandinavia and the Netherlands but they are also almost entirely absent from this collection. The second
quibble relates to the length of the essays. At
an average of about 16,000 words some readers will think that the cover age is excessively detailed. Shorter pieces
with a strong clear argument are generally preferable in an edited collected.
In sum, these essays are a useful survey of recent government, academic and judicial debates about some issues
in English family law. It will be a useful sourcebook for readers who require a detailed analysis of the debates
and literature in that society.
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Copyright 2002 by the author, Francis Regan.