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This book is the fifth in a series by the Cambridge Socio-Legal Group and is a
product of a three day workshop held in Cambridge in September 2005. It con-
cerns the evolving notions and practices of kinship in contemporary Britain and
the interrelationship of kinship, law and social policy. Assembling contributions
from scholars in a range of disciplines, it examines social, legal, cultural and
psychological questions related to kinship. Rising rates of divorce and alterna-
tive modes of partnership have raised questions about the care and well-being
of children, while increasing longevity and mobility, together with lower birth
rates and changes in our economic circumstances, have led to a reconsideration
of duties and responsibilities towards the care of elderly people. In addition,
globalisation trends and international flows of migrants and refugees have con-
fronted us with alternative constructions of kinship and challenges of maintain-
ing kinship ties transnationally. Finally, new developments in genetics research
and the growing use of assisted reproductive technologies may raise questions
about our notions of kinship and of kin rights and responsibilities.
The chapters in this book explore these changes and continuities from vari-
ous disciplinary perspectives and draw on theoretical and empirical data to
describe understandings and practices of kinship over time and across social
groups in contemporary Britain. As will be evident throughout the book, mean-
ings of kinship are multiple, contingent, and contested. Folk, institutional and
disciplinary understandings constitute kinship in different ways, and these
understandings shift with time and place.
(A) Ebtehaj et al Prelims 31/8/06 13:17 Page ii
(A) Ebtehaj et al Prelims 31/8/06 13:17 Page iii

Kinship Matters

Edited by
For the Cambridge Socio-Legal Group


(A) Ebtehaj et al Prelims 31/8/06 13:17 Page iv

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(A) Ebtehaj et al Prelims 31/8/06 13:17 Page v

In memory of Alison Richards

(A) Ebtehaj et al Prelims 31/8/06 13:17 Page vi
(A) Ebtehaj et al Prelims 31/8/06 13:17 Page vii

This book is the fifth in a series by the Cambridge Sociolegal Group and is a
product of a three day workshop held in Cambridge in September 2005.
It is dedicated to our colleague, Alison Richards, who was involved in early
discussions about the theme of the book and was to be a chapter author. Her
work concerned care for children who were not able to live with their parents.
Tragically, she died of cancer in September 2005.
We are grateful for grants in support of two workshops from the British
Academy and the John Hall Fund of the Faculty of Law, University of
Cambridge. We would like to thank Michael Lamb who co-edited some of the
chapters in this book, the discussants whose comments enriched the final chap-
ters, Frances Murton who carefully subedited all the manuscript and Jill Brown
for her support throughout the project.
The Editors
Cambridge, June 2006
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(A) Ebtehaj et al Prelims 31/8/06 13:17 Page ix

Preface vii
Notes on Contributors xi
1. Introduction: Regulating Relationships? 1

Part 1: Who is Kin and What Does it Mean to be Kin in Contemporary

British Society?
2. ‘Close Marriage’ in the Nineteenth and Twentieth Century
Middle Strata 19
3. Status Anxiety? The Rush for Family Recognition 47
4. DNA Testing and Kinship: Paternity, Genealogy and the Search for the
‘Truth’ of Genetic Origins 67

Part 2: Kin Care of Children and Adolescents

5. Children and Their Changing Families: Obligations, Responsibilities,
and Benefits 99
6. Substitute Care of Children by Members of Their Extended Families
and Social Networks: An Overview 115
7. Recognising Carers for What They Do—Legal Problems and Solutions
for the Kinship Care of Children 135
8. Restorative Practices: Repairing Harm through Kith and Kin 155

Part 3: Kin Contact and Care of Elderly People

9. Gender and Kinship in Contemporary Britain 175
10. Kin Availability, Contact and Support Exchanges Between Adult
Children and their Parents in Great Britain 195
(A) Ebtehaj et al Prelims 31/8/06 13:17 Page x

x Contents

11. Maintenance of the Elderly and Legal Signalling—Kinship and State 217

Part 4: Migrant Communities and Transnational Kinship

12. The Impact of Migration on Care: The Iranian Experience 239
13. Family Care and Transnational Kinship: British-Pakistani Experiences 259
14. Kinship, Infertility and New Reproductive Technologies:
A British-Pakistani Muslim Perspective 275

15. Kinship as ‘Family’ in Contemporary Britain 293

Index 307
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Notes on Contributors
Andrew Bainham is Reader in Family Law and Policy at the University of
Cambridge and a Fellow of Christ’s College. He has been Editor of the
International Survey of Family Law since 1994, an annual publication which
reviews developments in Family Law across the world. He is author of a leading
textbook on the law affecting children, Children: The Modern Law (3rd edition,
Jordans, 2005). He recently co-authored with Clem Henricson, The Child and
Family Policy Divide: Tensions, Convergence and Rights (Joseph Rowntree
Foundation, 2005) which examines the relationship between policies affecting
families and those directed specifically at children.

Leonore Davidoff is a Research Professor in the Department of Sociology at the

University of Essex. Her research interests have included domesticity, family
and kinship in the English middle class in the nineteenth and early twentieth cen-
turies. She was the founder editor of the journal, Gender and History. Her pub-
lications include (with Catherine Hall), Family Fortunes: Men and Women of
the English Middle Class 1780–1850 (Routledge, 2002 [2nd edition]); Worlds
Between: Historical Perspectives on Gender and Class (Polity Press, 1995) and
(with M. Doolittle, J. Fink, K. Holden) The Family Story: Blood, Contract and
Intimacy 1860–1960(Longman’s, 1999).

Fatemeh Ebtehaj is an associate member of the Centre for Family Research,

University of Cambridge. Her research focuses on Iranian migrants and exiles,
with a particular interest in issues related to gender, self and identity, narrative
and discourse analysis. Her current research highlights the impact of migration
on ageing and on the care of the elderly.

Janet Finch is Vice-Chancellor of Keele University and a sociologist who spe-

cialises in studies of family relationships, particularly relationships across gen-
erations. She has published widely on these issues including their social policy
implications. Her publications include Family Obligations and Social Change
(Polity Press, 1989), Negotiating Family Responsibilities (Routledge, 1993),
Wills, Inheritance and Families (Oxford University Press, 1996) and Passing On
(Routledge, 2000). The last three have been co-authored with Jennifer Mason.

Tabitha Freeman is a Research Associate at the Centre for Family Research,

University of Cambridge, and a Research Fellow of St. Edmund’s College,
Cambridge. Her main field of research is gender, reproduction and the family. She
obtained a PhD in Sociology from the University of Essex for interdisciplinary
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xii Notes on Contributors

research on cultural and theoretical concepts of fatherhood. Her current research

interests include psychosocial and cultural aspects of new genetic and reproduc-
tive technologies. She has recently started work on a study of adolescents con-
ceived by donor insemination, funded by the Nuffield Foundation.

Loraine Gelsthorpe is Reader in Criminology and Criminal Justice at the

Institute of Criminology, University of Cambridge, and a Fellow of Pembroke
College, Cambridge. Her research largely revolves around discretion and
discrimination in the conception and delivery of criminal justice, and youth jus-
tice. Current work includes an edited book about probation and community
penalties, women offenders and resettlement, and constructions of morality in
pre-sentence and psychiatric reports. Recent books include: Community
Penalties: Change and Challenges (with A E Bottoms and S Rex; Willan, 2001),
Exercising Discretion: decision-making in the criminal justice system and
beyond (with N. Padfield; Willan, 2003) and Sexuality Repositioned: Diversity
and the Law (with B. Brooks-Gordon, M. Johnson and A. Bainham; Hart,
2004). Dr Gelsthorpe is the current Chair of the Cambridge Socio-legal Group.

Emily Grundy is Professor of Demographic Gerontology at the London School

of Hygiene and Tropical Medicine. Emily’s main research interests are families,
households, kin and social networks in later life, especially in relationship to
health, and trends and differentials in health at older ages. Currently she is
researching links between partnership parenting histories and later life health
and is involved in collaborative European projects on family support for older
people. Her teaching includes running a short course on Ageing, Health and
Well-being in Later Life. Emily has published over 100 journal articles, book
chapters and monographs.

Kaveri Harriss is a research student at the London School of Hygiene and

Tropical Medicine. She is working towards a PhD on the relationships between
long-term illness, disability and poverty in British Pakistani communities,
using an ethnographic approach supported by secondary analysis of national
survey data. Her research focuses on intra-household relationships and allo-
cation, gender, transnationalism, mental health and ageing.

Joan Hunt is Senior Research Fellow in the Centre for Family Law and Policy,
part of the Department of Social Policy and Social Work at the University of
Oxford. Her research interests are the law relating to children and families, the
operation of the family justice system and the interface between legal institu-
tions, families and social welfare agencies. She is currently conducting research
for the DFES into outcomes for children removed from their birth parents and
cared for long term by members of their extended families or social networks.
She is the author of a scoping paper on family and friends care commissioned
by the Department of Health (2003) to inform policy development and a
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Notes on Contributors xiii

briefing paper for social work practitioners and managers commissioned by

Research in Practice (forthcoming).

Nazalie Iqbal is a temporary lecturer at the University of Durham. She is cur-

rently finishing her PhD thesis, which focuses on kinship and transnationalism
among British Pakistanis. Her next research is a major ESRC funded project
which explores infertility and the take-up of new reproductive technologies
among British Pakistani Muslems.

Bridget Lindley has been a solicitor since 1986 and a family mediator since 1998.
She was a senior Research Associate at the Centre for Family Research,
University of Cambridge from 1997–2002 and is currently vice chair of the
Socio-legal Group. Bridget has also been the Legal Adviser at Family Rights
Group (FRG) on and off since 1988 and is currently deputy chief executive of
FRG. She has a particular interest in public law children’s cases with a long-
standing involvement in campaigning for effective information, advice and sup-
port for vulnerable families whose children are in need of statutory services.

Mika Oldham is a lecturer in Law at Cambridge University and a Fellow of

Jesus College. She teaches and writes on family law, property law, criminal law
and succession. She is involved in various inter-country reform projects and also
teaches common law courses in a number of civil law jurisdictions.

Judith Masson is Professor of Socio-legal Studies at Bristol University, specialis-

ing in child law and socio-legal research in adoption, child care and child protec-
tion practice. She is co-author of a number of books on child and family law
including The Children Act Manual (1992), Out of Hearing (1999) and Principles
of Family Law (7th Ed, 2003), and is currently writing a book on Emergency Child
Protection. Judith teaches courses on Family Law, Child Law and International
Child Law to law students, social workers and doctors. She has undertaken con-
sultancies and research for various government departments, for the Legal
Services Commission and for NGOs including Voice for the Child in Care, Family
Rights Group and British Agencies for Adoption and Fostering. She is a member
of the Judicial Studies Board and the Family Justice Council.

Michael Murphy is Professor of Demography at the London School of

Economics. He is a Fellow of the British Academy and Research Secretary of the
Population Investigation Committee. His main areas of research include: fam-
ily, kinship and household demography; ageing; social and genetic mechanisms
for the inheritance of behaviour. Recent publications include Forecasting British
Families into the 21st Century with D Wang in (McRae (ed), 1999) and, with
L Knudsen, The Intergenerational Transmission of Fertility in Contemporary
Denmark: the Effects of Number of Siblings (full and half), Birth order, and
Whether Male or Female in Population Studies (2002).
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xiv Notes on Contributors

Jane Nolan is a Research Associate in the Faculty of Social and Political Sciences
at the University of Cambridge and is Director of Studies at Magdalene College.
Her research focuses on gender, employment and family and she has published
on the themes of work orientation, job insecurity and work intensification. Her
publications include ‘The Intensification of Everyday Life’ in B Burchell,
D Ladipo. and F Wilkinson (eds), Job Insecurity and Work Intensification
(Routledge 2002) and ‘Job insecurity, psychological well-being, work orienta-
tion and family life’ (with Brendan Burchell and Ines Wichert) in E Heery (ed),
The Insecure Workforce (Routledge, 2001)

Jan Pryor is an Associate Professor at Victoria University of Wellington, New

Zealand, and is Director of the McKenzie Centre for the Study of Families. In
2001 she co-authored, with Dr Bryan Rodgers, the book Children in Changing
Families: Life After Parental Separation’ (Oxford, Blackwells, 2001). Her
research focuses on family transitions and their impact on children. As well as
research, she contributes to educational programmes for professionals working
in the New Zealand Family Court, and is involved in the establishment of a new
longitudinal study of New Zealand children.

Martin Richards is Emeritus Professor of Family Research at the Centre for

Family Research, University of Cambridge. His research is focused on psy-
chosocial aspects of new genetic and reproductive technologies. He has been a
member of the Human Genetic Commission and the Law and Ethics Committee
of the Human Fertilization and Embryology Authority. He has been a contrib-
utor and co-editor of earlier Socio-Legal Group volumes, What is a Parent?
(1999), Body Lore and Laws (2002) and Children and their Families (2003). He
co-edited The Troubled Helix (Cambridge, 1996) with Théresa Marteau. He
also has historical interests in this field. ‘Perfecting People: Selective Breeding at
the Oneida Community 1869–1879 and the Eugenic movement’ (2004) 23 New
Genetics and Society 49.

Jacqueline Scott is Professor of Empirical Sociology at the University of

Cambridge and Fellow of Queens’ College. She directs the ESRC Research
Priority Network on Gender Inequalities in Production and Reproduction. She
was responsible for the initial design and launch of the British Household Panel
Study—a longitudinal, prospective study that follows 5000 households in
Britain. She is editor (with Martin Richards and Judith Treas, 2004) of The
Blackwell Companion to the Sociology of Families. She has published widely on
family and household change and changing family values, including articles in
Sociology, the Sociological Review, the European Journal of Sociology and the
British Journal of Sociology.

Alison Shaw is Senior Research Fellow at the University of Oxford, in Oxford’s

Centre for Ethics and Communication in Health (Ethox). She was previously a
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Notes on Contributors xv

lecturer in Social Anthropology at Brunel University, where she taught on

aspects of medical anthropology and ethnicity in the UK. Her research focuses
on health and ethnicity, Pakistani marriage trends, consanguinity, genetic risk
and social aspects of genetics. Her publications include Kinship and Continuity:
Pakistani Families in Britain (Routledge, 2000), ‘Immigrant Families in the UK’
in J Scott and M Richards (eds.), Blackwell Companion to the Sociology of
Families (Blackwell, 2003), ‘Attitudes to Genetic Diagnosis and to the Use of
Medical Technologies in Pregnancy: Some British Pakistani Perspectives’ in
Unnithan-Kumar (ed), Reproductive Agency, Medicine and the State (Berghahn,
2004) and Changing Sex and Bending Gender (with S. Ardener, Berghahn, 2005).

Bob Simpson is a Reader in Anthropology at the University of Durham. His

main interests centre upon kinship, new reproductive and genetic technologies
and comparative bioethics. He has carried out a wide range of research both in
the UK and in Sri Lanka and has published widely on topics relating to family,
divorce, kinship and the new technologies. He held a Wellcome Trust
Fellowship in Bioethics between 2002–03.

Layla Skinns completed her Ph.D. on interagency aspects of local authority crime
prevention following the Crime and Disorder Act 1998, at the Institute of
Criminology, University of Cambridge in 2005. She is a currently a Research
Fellow at the Institute for Criminal Policy Research, King’s College, London. She
will be the Adrian Research Fellow at Darwin College, University of Cambridge,
from the Autumn of 2006.
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Introduction: Regulating

HIS BOOK IS about evolving notions and practices of kinship in con-
temporary Britain and the interrelationship of kinship, law and social
policy. By assembling contributions from scholars in a range of dis-
ciplines, we examine social, legal, cultural and psychological questions related
to kinship: Who is kin and what does it mean to be kin in contemporary British
society? What are the obligations, responsibilities and benefits that may accrue
from kin? How are these implemented in the arrangements for care, decision-
making and financial responsibility by and for kin? And how do law and public
policy recognise kin relationships?
Recent demographic, economic, and cultural changes have led many to voice
concerns about the ‘weakening’ of kin relationships and family ties. Rising rates
of divorce and of sequential and alternative modes of partnership, including
cohabitation and same-sex relationships, have raised questions about the care
and well-being of children, while increasing longevity and mobility, together
with lower birth rates and changes in our economic circumstances, have led to
a reconsideration of duties and responsibilities towards the care of elderly
people. In addition, globalisation trends and international flows of migrants and
refugees have confronted us with alternative constructions of kinship and with
the challenges of maintaining kinship ties transnationally. Finally, new devel-
opments in genetics research and the growing use of assisted reproductive tech-
nologies may raise questions about our notions of kinship and of kin rights and
responsibilities. As law and policy have shaped, and are shaped by, these
changes in social relations, they codify and regulate kin relationships, support-
ing some constructions of kinship and excluding others.
The chapters in this book explore these changes and continuities from vari-
ous disciplinary perspectives and draw on theoretical and empirical data to
describe our understandings and practices of kinship over time and across social

1 With thanks to Martin Richards, Bridget Lindley, Frances Murton, Gudrun Klein, and Hamid

Hakimzadeh for their helpful comments and editorial support.

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2 Fatemeh Ebtehaj

groups in contemporary Britain. As will be evident throughout the book, mean-

ings of kinship are multiple, contingent, and contested. Folk, institutional and
disciplinary understandings constitute kinship in different ways2, and these
understandings shift with time and place3. As individuals negotiate their respon-
sibilities, duties and obligations towards kin situationally, they strategically
define and redefine kinship to assess relationships, to stake claims on them, to
ground their identities, and to establish moral accountability (Finch, 1989; Finch
and Mason, 1993; Brannen, Moss and Mooney, 2004).
Here I review some recent developments in approaches to kinship and fami-
lies in the social sciences before going on to outline the contents of the book.


Kinship has long been central to anthropology, yet a reader today will inevitably
encounter, in any discussion of kinship, a reference to Schneider’s seminal study
of ‘American kinship’ (1980) and to his subsequent ‘Critique of the study of
kinship’ (1984). The first study shifted the analysis of kinship from structure to
cultural meanings, and the subsequent critique exposed Western tendencies to
naturalise kinship and to construct it in terms of biology and reproduction.
Schneider argued that anthropologists had transposed their own folk notions of
kinship to other social groups. He specifically disputed what he disparagingly
called ‘the Doctrine of the Genealogical Unity of Mankind’ (1984, p198) which
he attributed to anthropologists’ ethnocentric assumptions rather than to
empirical evidence. Schneider showed that the Yapese, for instance, did not
operate on the basis of genealogy, but rather valued interaction and exchange.

We can see that the relationship is more one of doing rather than of being. It is based
largely on the interaction, the doing, of the exchange and less on the state of being, of
having some substance, quality, or attribute. (1984, p75)

As a result, Schneider reminded his colleagues that anthropology’s central task

was to attend to indigenous meanings and practices and to treat kinship ‘as an
empirical question, not as a universal fact’ (1984, p200).
The deconstruction of the ‘natural’ basis of kinship, together with the rise of
feminism, contributed to an increasing awareness of the interdependence of kin-
ship and gender (Collier and Yanagisako, 1987; Yanagisako and Delaney, 1995).

2 At the September 2005 conference that brought the authors of this book together, Grundy com-

mented that kinship ‘flags’ anthropology while sociology refers to ‘families’. Moreover, while fam-
ily law deals with familial relations such as marriage or parenthood, neither ‘kinship’ nor ‘family’
have legal definitions (Herring, 2004).
3 See, for instance, Rapp (1987) for a brief overview, Goody (1983) and Davidoff, Doolittle, Fink

and Holden (1999) for more thorough discussions of some historical and cultural shifts in definitions
of ‘family’. Also see Davidoff, this volume.
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Introduction: Regulating Relationships? 3

Here too, social constructions and understandings were laid bare and the work-
ings of power exposed. And in another challenge to kinship studies, Borneman
(2001) charted the history of anthropological categories of analysis from sexu-
ality to marriage to kinship to gender to power, and argued that while each gen-
eration subsumed the prior object of analysis into the new one, the initial object
was never called into question. Borneman observed that a ‘global ideology’ of
‘marriage and the family’ led to the ‘social and legal protection of a particular
form of sociation: heterosexual marriage and family’ (p 30). Instead of priv-
ileging ‘forms of communal reproduction’, Borneman advocated attending to
‘caring and being cared for as processes of non-coercive, voluntary affiliation’
(p 31).
In response to these critiques, many anthropologists have tried to be more
sensitive to indigenous categories of meaning and to question polarities such as
‘nature/culture’, ‘social/biological’, and ‘public/private’. Some carefully refrain
from any claims to generalisation and stress that ‘notions of kinship are under-
stood to be rooted in time, space and position within society’ (Maynes, Waltner
and Solan, 1996 p5); others prefer to speak of ‘relatedness’ instead of, or in par-
allel to, kinship (Carsten, 2000, 2004).
These new developments notwithstanding, Franklin and Ragone (1998, p3)
observe that ‘assumptions about the biological basis of reproduction have
proven difficult to displace’. Their contribution aims to re-examine reproduc-
tion in the light of new developments in reproductive technologies and genetics
research. Ironically, however, Franklin and Ragone find that the new reproduc-
tive technologies both challenge and reinforce biological or ‘natural’ under-
standings of kinship, appealing, for instance, to ‘the naturalness of the desire to
procreate’ (p 9)4.


Moving to sociology, we find similar attempts to move away from the reifica-
tion of ‘the family’. Social constructionist approaches deconstruct folk and
institutional notions of family by focusing on language and discursive strategies.
‘What is family?’ ask Gubrium and Holstein (1990, p6), and ‘what does the
absence of the simple modifier ‘the’ make?’ The authors note that the ‘thing’
implied when we speak of ‘the’ family has fuzzy boundaries and that its mean-
ings and referents vary across individuals and contexts. They note in particular
that ‘family is a way of thinking about social relations’ that is ‘organisationally
embedded’ (p 116) and explore instances when two sets of institutional dis-
courses and procedures collide. In a case of involuntary mental hospitalisation,

For similar findings, see Franklin and McKinnon (2001), Strathern (1992, 2005), and Freeman
and Richards, this volume.
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4 Fatemeh Ebtehaj

for instance, the judge may evaluate the capability of a family member to take
responsibility to ‘contain and control’ (p 128) the individual in question, while
a therapist’s concerns rest on the family member’s ability to take care of the indi-
vidual and to convey feelings of belonging and security5.
The familial discourse has been analysed in other contexts. Finch (1989), for
instance, describes the shifting boundaries between private and public respon-
sibilities for the care of kin. She notes that the State draws on a naturalising
discourse of family ties and obligations to relegate the care of kin to family
members, creating ‘a particular moral order’ where family duties are confused
with ‘natural feelings’ (p7). The State’s view of family condones a very particu-
lar set of relationships within which women tend to be framed as the primary
providers of ‘the unpaid-labour which secures the reproduction of the popula-
tion and the care of the sick and elderly’ (p11)6.


Are kin relationships ‘special’? In response to this question, Finch (1989, p113)
begins with a review of theories that refute the distinctiveness of kin relation-
ships and view kinship merely ‘as a variation on other types of social relation-
ship, not as special or different in a qualitative sense’. This stance is exemplified
by views that stress the material conditions under which people live or that
centre on a notion of self-interest. Finch then reviews some theories that do view
kin relationships as special. These may draw on biology (sharing genes, ‘blood
is thicker than water’), on the economics of family altruism (family as ‘haven’),
on emotional ties arising from bonds formed early in life (psychoanalytic theo-
ries), and finally on theories that focus on the social organisation of societies.
Finch herself considers kin relationships to be special on the basis of social
rather than ‘natural’ understandings. She defines kin as people ‘related through
blood or marriage’, but also includes ‘others whom people treat as relatives’
such as adoptees and cohabitees, and she distinguishes between kin relation-
ships that are regulated by law, such as marriage and parenting, and those that
are not.
While kinship in Britain is characterised by its flexibility, research shows that
‘the inner circle of intimate kin almost always includes “biological” parents and
children, however warm or difficult the actual relationships between the parties’
(Finch and Mason, 2000, pp 10–11). Our location in our family of origin is
‘automatic’, ‘irrevocable’, and ‘lifelong’ (Finch, 1989, p 240), thereby marking
our relationships within that family as distinctive and different from all others.

5 See Harriss & Shaw, this volume, for a discussion of British Pakistanis’ and immigration offi-

cers’ conflicting definitions of kin.

6 See also Nolan and Scott, this volume.
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Introduction: Regulating Relationships? 5

What characterises these relationships consists of our sense of obligation, a

‘matter of morality’ that ‘does not operate on the basis of fixed rules’ but rather
operates ‘on the basis of normative guidelines or principles’ (Finch, 1989, p241)
which include the principle of reciprocity, some need for individual indepen-
dence, and the notion that interpersonal support is negotiated and fluctuates
over time and situations7. Furthermore, kinship ties are central in the acqui-
sition and circulation of material and symbolic resources, and in their trans-
mission to future generations8. Such resources include names, identity and
cultural affiliation, property, and social status (Maynes, Waltner, Soland and
Strasser, 1996, p17).
In an insightful study, Finch and Mason (2000) examine inheritance as a site
for the construction of kinship. English law, in contrast to many other countries,
grants full testamentary freedom9. Via an analysis of wills, the authors examine
some of the ways in which individuals ‘define the contours of their own kin rela-
tionships (and) confirm who “counts” and what value is placed on each rela-
tionship’ (p11). As Finch and Mason observe, legacies have not only material,
but also symbolic value; they embody and communicate notions of closeness
and intimacy, of time and continuity. They can produce family solidarity or lead
to family feuds. In the case of migrants and exiles, the symbolic and material
aspects of inheritance are further affected by differences between the laws of the
host and home countries, heightening some migrants’ psychological experience
of displacement and dislocation10.


As Brannen, Moss and Mooney (2004, p150) observe,

Family responsibilities typically involve the negotiation of the ethic of care in relation
to the needs of those needing care, the availability of others to offer care and so on.

An ethic of care is often identified with feminist moral theories, especially fol-
lowing Gilligan’s (1982) seminal analysis of women’s moral development. The
economy of care is undoubtedly gendered but we must bear in mind that it is
also ‘classed’11 and ‘raced’ (Tronto, 1994, p112). Despite the material social and
human value of the work of kin care, carers enjoy little social status and respect

See Pryor, this volume, for further discussion of the notion obligations, and Grundy and
Murphy for variations in contact between adult children and their parents.
See Davidoff, this volume, for a discussion of cousin marriages in 19th century England as a
means to acquire and control financial resources.
See chapter by Oldham, this volume.
See chapters on migrants by Ebtehaj and by Harriss and Shaw, this volume.
For empirical studies on the power and the interaction of class and gender, see Maynes,
Waltner, Soland and Strasser (1996).
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6 Fatemeh Ebtehaj

in society, and the financial rewards for their care reflect as much12. It is no won-
der that some women actively reject the State’s attempts to push the responsi-
bilities of kin care back onto families after having fought so hard for equal
gender rights and opportunities13.
While we tend to speak positively of kinship, care and community, position-
ing these concepts and related practices as morally superior to ‘selfish’ individ-
ualistic trends, it is essential that we also recognise the power inequalities and
tensions that are often embedded in them14. On the one hand, families and kin
groups can be sites for the accumulation of power15; on the other hand, families
can foster power, inequalities and conflict16. Moreover, just as some researchers
(e.g. Finch and Mason, 1993, 2000) highlight our ability to choose kin and to
negotiate care, we must bear in mind that family ties are essential to our con-
struction of self, status and identity, and that they can strengthen and empower
us but also add to our vulnerability.

Kinship supplies among the most pervasive, and pervasively entrenched, of the vari-
ous motifs and formulas of life-narration.. . . . A system of subjectivation, after all,
kinship can devolve into sheer oppression, an oppression all the more severe when
(as is virtually always the case) it is imbricated with class, or caste, or race, or nation-
ality. . . . Among its many attributes, the body of kinship very often delimits the arena
in which the self garners its primary legitimation . . . . Yet the body can reject those
members it deems unworthy or corrupt, leaving the outcast either to cope with the
intolerabilities of exile or to search out more sympathetic judges. (Faubion, 2001,

Similar concerns have been voiced regarding power imbalances in a legal con-
text. In a chapter concerned with informal disputes, for instance, Edelman and
Cahill (1998) claim that these are increasingly ‘handled in the shadow of the
courts, where formal rules operate only at the margins’ (p 18). The authors
argue that, in such cases, an ‘ideology of community’, based on notions of social
solidarity and harmony, displaces the law’s ideology of universal rights. While
critical of both frameworks in terms of their failure to compensate for power
imbalances, and with the observation that ‘liberal legal ideology reifies rights’
while ‘the ideology of community reifies relationships’ (p 22), the authors assert
that an emphasis on harmony and compromise may clash with some public

12 See Tronto (2004) for further discussion of the moral, social and political implications of

devaluing care and carers. For a discussion of ‘respect’ in contemporary Euro-American societies,
see Sennett (2004).
13 Commenting on Japanese feminists successful efforts to thwart the implementation of the

German kin care model in Japan, Campbell (2002, p 181) writes that their goal was ‘to finish off fam-
ily caregiving, not to prop it up’.
14 In that light, Edwards & Strathern (2000, p 152) critique the ‘sentimental’ Euro-American view

of kinship as community and the ‘romantic view of connections as benign and community as har-
15 See Davidoff, this volume.
16 See, for instance, the case studies in the chapters on migrants, this volume.
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Introduction: Regulating Relationships? 7

values, such as civil rights, environmental preservation, and gender equality

which ‘tend to involve non-negotiable positions’ (p29). The ensuing shift from
public values to private interests may be of particular concern in family media-
tion where it is less noticeable due to the traditional framing of family matters
as ‘private’. Edelman and Cahill further argue that it would be extremely diffi-
cult for mediators to compensate for power differences and that they might be
swayed by their interest in settlement.
Distinctions between ethics of justice and care are widely discussed in moral
philosophy. Some theorists set them up as incompatible, others attempt to inte-
grate them, and some, like Held (2006) for instance, take a middle position and
recommend that we view justice and care as ‘conceptually distinct’ and that we
‘delineate the domains in which they should have priority’ (p17). Thus, the law,
for instance, would prioritise justice and rights but also attend to ‘the humane
considerations of care’; correspondingly, care would take precedence in per-
sonal relationships but the ‘basic requirements of justice’ must also be met
While no easy solutions may be offered to the justice-care debate, a careful
consideration of the complexities and power relations involved must be present
in our discussion of kinship understandings and practices.


Another question that we must address17 relates to the extent to which the State
should regulate relationships. As illustrated in the previous discussion of inher-
itance laws, law and social practices interact and influence each other in power-
ful ways and this continuous interaction shapes our social construction of
reality and our individual lives and experiences18.
In that context, Butler (2004) invites us to consider State legislation of kinship
critically. In a discussion of the tensions between public opinion, normative
behaviours, and the law, Butler questions the ‘always already heterosexual’
understandings of kinship. She observes that kinship in public opinion generally
does not ‘qualify as kinship, unless it assumes a recognizable family form’
(p 102) and is conferred legal status through marriage. In practice, however,
kinship relations often do not submit to the nuclear family model and exceed
‘the reach of current juridical conceptions’ (p 102). In that context, Butler
acknowledges the practical and psychological cost to individuals and to
relationships when a relationship lacks State legitimation. Beyond the practical

See Bainham, this volume, for an extensive discussion of these matters.
When the law lags behind social practices, individuals may resort to subterfuge in order to fit
their relationships into legally acceptable definitions. Borneman (2001), for instance, documents a
1995 case in Germany when two men disguised their relationship as lovers and resorted to adoption
in order to leave property to each other.
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8 Fatemeh Ebtehaj

difficulties that individuals may face when dealing with courts, hospitals or
other institutions in times of crisis, the relationship itself becomes harder to
sustain and ‘the absence of State legitimation can emerge within the psyche as a
pervasive, if not fatal, sense of self-doubt’ (p 114). Nevertheless, Butler observes
that such legitimation is ‘double-edged’ (p116). While she supports same-sex
couples’ demands for State recognition, she also points out that this may under-
mine claims for ‘the viability of alternative kinship arrangements’ and ‘signal
the end of a radical sexual culture’ (p 105). Therefore, Butler adds,

It is crucial that, politically, we lay claim to intelligibility and recognisability; and it is

crucial, politically, that we maintain a critical and transformative relation to the
norms that govern what will and will not count as intelligible and recognizable
alliance and kinship (p 117).

Keeping these cautionary remarks in mind, let us turn to the individual chap-
ters and review how they variously deal, theoretically and empirically, with the
themes raised so far.


This book comprises four parts. The chapters in Part 1 examine historical,
social and legal shifts in the construction of kinship. They address some of the
most significant constitutive and instrumental dimensions of kinship, notably
kinship as an economic resource and kinship as a source of status and recogni-
tion. They also raise questions about the tension between social and biological
constructions of kinship, and about the legal regulation of kin relationships.
In Chapter 2, Davidoff discusses ‘close marriage’—unions between kin
related by blood or marriage—in 19th and early 20th century England. Within
the context of economic growth, such unions reinforced kinship ties and thereby
facilitated access to capital, pools of skills and other resources. Davidoff notes
that in the absence of legal regulations, economic partnerships relied heavily on
the trust derived from family ties, and her examples include the Wedgwood and
Darwin families. As Davidoff points out, one prerequisite for close marriage
consists of a sufficient number of relatives, and the decline in fertility rates in the
early 20th century contributed to diminishing numbers of close marriages.
Furthermore, new institutions were designed to regulate commercial, profes-
sional and financial affairs, and these led to partnerships shifting the basis of
trust from kinship ties to contractual ones. For these and other reasons, close
marriages became increasingly rare by the end of the 20th century.
In Chapter 3, Bainham addresses the interdependence of family status,
socially and legally. Using same-sex partnerships as his example, he demon-
strates that English law, in contrast to some other countries, persists in treating
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Introduction: Regulating Relationships? 9

same-sex and heterosexual relationships differently. The Civil Partnership Act

2004 conveys almost all the legal effects of marriage, but it is exclusively avail-
able to same-sex couples while marriage remains available only to heterosexu-
als. Another important distinction lies in the inability of civil partners to acquire
legal parentage of a child who is the biological child of one of them. Bainham
concludes by formulating poignant questions for policy makers, most notably
about the creation and transmission of legal kinship, its importance, and how
far the law should continue to regulate relationships.
In Chapter 4, Freeman and Richards explore the impact of recent develop-
ments in genetics and reproductive technology on legal and social constructions
of paternity and kinship. DNA testing allows individuals, for the first time, to
confirm biological kinship, and it is increasingly used in courts when paternity
is contested or in cases of unknown parentage. Such tests are primarily used by
the State in order to enforce child support liability or to regulate immigration,
but they are also increasingly available as ‘DIY’ home-testing kits designed to
ensure ‘peace of mind’. DNA testing can also be used to trace individual ances-
try. Freeman and Richards note that this renewed emphasis on biological kin-
ship and ‘genetic essentialism’ competes with social trends that stress the social
and care-based aspects of kinship. The authors observe that this ‘paradox’ only
highlights tensions that have always been part of Western kinship ideology. In
that context, they want to hold on to the social-biological distinction as it con-
tinues to prevail in popular and legal discourse.
Parts 2 and 3 explore variations in kin contact and support in Britain and
discuss the extent to which the State enables and assists family cohesion and
care. The chapters in these sections stress the lack of consistent help from gov-
ernmental institutions, the complexity of the system and the need for more
transparency and clearer guidance through it. They also show how the State’s
construction of kinship shifts historically, at one time transferring responsibil-
ity from families to society at large, now advocating and promoting kinship
care, primarily for economic reasons.
Part 2 centres on kin care in relation to children and adolescents. The chap-
ters in this section explore children’s understandings of kinship, the experiences
of kin who care for them in the absence of parents, and the introduction of ‘com-
munities of care’ in juvenile crime or civil dispute situations.
In Chapter 5, Pryor addresses the impact of ‘transitions’ such as parental sep-
aration or remarriage on children’s lives. Looking at diverse family forms
including stepfamilies and families formed by artificial reproductive technolo-
gies, Pryor reviews children’s experience of these transitions and their changing
views of who is kin, as well as the adults’ obligations and responsibilities
towards these children, in light of three conceptual frameworks: ‘felt obligation’
(personal belief), ‘relational commitment’ (commitment to a relationship rather
than to an individual), and ‘ambivalence’ (in response to changing roles and
feelings). Pryor reports that children adapt to their changing circumstances in a
predominantly flexible and pragmatic manner, although younger children
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10 Fatemeh Ebtehaj

appear to be more accepting of step-families. Their understanding of kinship is

predicated on affective bonds rather than on biological or legal ties, and they
also feel obligations towards the adults who take care of them. As Pryor
observes, whether family changes impact on children’s lives positively or nega-
tively depends to a large extent on the willingness of the adults and authorities
involved to demonstrate flexibility and commitment.
Chapter 6 focuses on families in which children are being cared for full-time
by members of their extended families or social networks. Hunt focuses on the
carers’ motivation, on the impact of caregiving on their lives, and on the services
and support they need to carry out their work. She finds ‘felt obligation’ (see
previous chapter by Pryor) to be key in carers taking on the responsibility and
commitment required, and while affective bonds with the children or their par-
ents may not be necessary at first, the carers’ relationship with the children
becomes crucial when they encounter difficulties. For some ethnic minorities,
the wish to preserve and transmit cultural identity is also an incentive. In this
context, Hunt claims there is insufficient research measuring the relative merits
of kin versus non-kin care. She observes that arguments for kin care tend to be
based on social values emphasising family cohesion rather than on direct evid-
ence related to the well-being of the children. She therefore calls for further
research while also making policy recommendations designed to recognise the
value of kin care and to support it meaningfully.
The kin care of children is also the theme for Chapter 7, with a focus on the
ways in which the law can better assist carers. Masson and Lindley observe that
while the number of children who are cared for by relatives is estimated at a
quarter of a million, these carers do not automatically benefit from legal recog-
nition and status, nor do they receive assistance from social services when they
encounter difficulties with the child’s parents. The authors note that carers can
obtain court orders which give them the rights and status similar to those of par-
ents, but reliance on the courts presents several disadvantages: it may aggravate
disputes between parents and carers, and carers may be reluctant, or lack the
resources necessary, to apply to the court. Masson and Lindley call for less for-
mal approaches, such as automatic recognition or private ordering. Further ways
to support parents and carers more effectively include the provision of compre-
hensive information about their rights and responsibilities, mediators to assist
them in sorting out their disagreements, and practical and financial support.
In Chapter 8, Gelsthorpe (with Layla Skinns) discusses the introduction of
New Zealand’s concept of restorative justice in British criminal justice and civil
practices. Restorative justice aims to repair and ‘restore’ social bonds that have
been disrupted by crime or conflict by locating the relationships between the
various parties involved within a wider ‘community of care’, thereby emphasis-
ing collective responsibility and support. Family Group Conferencing (FGC) is
one practice that derives from this approach and seeks to draw in members of
the wider kin group to assist in the resolution of the concern at hand.
Gelsthorpe’s review of FGCs practices and their impact on the juvenile justice
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Introduction: Regulating Relationships? 11

and child protection spheres shows mixed results. The author highlights the dif-
ficulties related to the transfer of the culturally informed notions of justice and
community from New Zealand to Britain, showing, for instance, how the con-
cept of a community of care becomes translated as a geographical community.
While restorative justice appears to produce some improvement in criminal
cases, the mixed findings in the civil context may also be related to inadequate
follow-up services.
Part 3 focuses on relationships between adults, with a particular interest in
issues related to elderly kin.
The gendered dimension of kin relations and care is a central component of
kinship. In Chapter 9, Nolan and Scott review the impact of recent demo-
graphic, social and economic changes on gender equality and the organisation
of care. The authors’ research on inter-generational relations finds that women
continue to be the principal ‘kin-keepers’. The authors do report some decline
in contact with relatives due to women’s increasing involvement in the labour
force and to geographical mobility, but overall, family ties in Britain, especially
mother-daughter ties, remain strong and the authors report no substantive
decline over the 15 year period under study. In agreement with other
researchers, Nolan and Scott also find that intergenerational exchanges tend to
flow downward, and grandparents, particularly grandmothers, are an impor-
tant source of childcare. In terms of financial help, men are more likely to pro-
vide financial support to adult children. The authors question the reality of
‘choice’ for women and increasingly for grandparents, and their findings chal-
lenge the notion that modernity has led to egalitarian gender roles.
Chapter 10 centres on contact and support exchanges between adult children
and their parents. Grundy and Murphy address current concerns about the
impact of demographic changes on the support of older people and aim to iden-
tify groups most likely to lack intergenerational support. Arguing that demo-
graphic research must extend beyond the household, the authors draw on a
nationally representative survey to examine the impact of marital status and
socio-economic variations on intergenerational contact and support. Their find-
ings show continuing high levels of contact and interaction assisted by modern
means of communication between the two generations, with less proximity and
contact among respondents with higher levels of education and socio-economic
status. They also note that the number of siblings is inversely correlated with
intergenerational contact, suggesting a greater commitment by only children. In
terms of intergenerational exchange, Grundy and Murphy find large differences
both by socio-economic status and by marital characteristics. While divorce
does not necessarily disrupt interactions, there is some negative impact on
exchanges between fathers and their adult children. Addressing future concerns
for policy-makers, the authors note that while higher education is associated
with reduced interaction and a higher proportion of childless women, it
also enables individuals to widen their network beyond the sphere of close
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12 Fatemeh Ebtehaj

In Chapter 11, Oldham discusses the maintenance and care needs of elderly
people in the light of the trend towards individualism. Unlike most other coun-
tries, English law exempts individuals from the duty to provide for parents and
grandparents, and grants full testamentary freedom. Thus, the reciprocity
encoded in the law of countries where care for parents and inheritance rights are
regulated does not exist in Britain, and in terms of ‘legal signalling’, the older
generation is excluded from family law and relegated to social welfare law.
With the establishment of the welfare state, responsibilities for the maintenance
and care of elderly people were moved from the family sphere into the public
domain. While this move assures a minimum level of care and autonomy for the
older generation, Oldham is concerned that it does not support family cohesion.
Within the context of the State’s efforts to contain public expenditure, Oldham
recommends the promotion of voluntary and private support by providing
tax incentives, by introducing a reciprocity dimension in inheritance law, and by
re-emphasising the familial ties of grandparents with a right to apply for
The chapters in Part 4 concentrate on the experiences of Iranian and British
Pakistani migrants living in Britain and show that kinship ties remain central in
their lives, but also illustrate the difficulties involved in caring for kin when fam-
ily members and friends are dispersed over several countries. Additionally, all
migrants must face the host country’s immigration legislation, the restrictions it
imposes on qualifications for citizenship and its construction of kinship ties.
While the similarities are many, these chapters also point to significant dif-
ferences between groups of migrants due to the distinctive circumstances of
migration and to the specifics of the historical relationship between home and
host countries. The main difference between the Iranians and British Pakistanis
relates to their different position as exiles versus transmigrants. For Iranian
exiles, visiting kin in Iran can entail personal risks that many are reluctant to
consider; British Pakistanis, on the other hand, are restricted by economic rather
than political concerns.
Ebtehaj focuses on Iranian exiles’ care of elderly parents and spouses, both in
Iran and in Britain in Chapter 12. She reports that her research participants’
experience is predominantly one of dislocation and loss due to the fragmenta-
tion of their kinship network. Within this context, Ebtehaj distinguishes
between the challenges related to caring for elderly kin in the UK and caring for
them in Iran. Despite the exiles’ ongoing emphasis on kinship ties, Ebtehaj notes
the prevalence of intra-familial disputes and uses two case studies to highlight
both personal and circumstantial differences in her research participants’
accounts. Among other findings, she illustrates the different stance that her
research participants take towards legal authorities in Iran and in the UK.
Ebtehaj argues that the challenges involved in caring for elderly kin are height-
ened by the stress, vulnerability and multiple losses of exile, and that these must
be viewed within the context of the social, political and historical specificities of
home and host countries.
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Introduction: Regulating Relationships? 13

In Chapter 13, Harriss and Shaw highlight the transnational links of British
Pakistanis. The British Pakistani community continues to be shaped by norma-
tive notions of kinship, and care remains a family affair. Displaced communities
generally have an interest in promoting solidarity19 and holding on to tradi-
tional values. As British Pakistanis endeavour to fulfil their duties and responsi-
bilities towards transnational kin, however, they encounter difficulties due to
the mismatch between their views and those of British immigration officers.
Harriss and Shaw argue that care, in Britain, tends to be relegated to the public
sphere and to professionals. Moreover, the cultural understanding of families as
primarily nuclear units extends to immigration laws and policy. In addition, the
efforts of British Pakistanis to bring over extended kin are thwarted by mistrust
on the part of immigration officers, coupled with their reliance on simplistic
cultural stereotypes about Pakistani kinship customs and practices. Several case
studies illustrate individual and circumstantial variations and show how short-
term migration and marriage can be strategically used to assure care for kin in
a transnational context.
Chapter 14 also explores transnational kinship notions and practices among
British Pakistanis, with a focus on infertility and the use of new reproductive
technologies. The authors note that British Pakistani kinship continues to be
embedded in traditional notions of ‘blood’ and ‘honour’, and that having chil-
dren and family life are highly valued. In that context, concerns about a couple’s
infertility become a family matter that extends beyond the couple to involve
wider networks of transnational kin and community. It is not just the couple’s
desire for a child that is of significance here, but also the wider community’s
stake in the maintenance and transmission of cultural values and identity. While
polygamy and informal adoption have traditionally been used to resolve a cou-
ple’s childlessness, the new reproductive technologies offer new ways to attain
parenthood. Drawing on three case-studies, Iqbal and Simpson demonstrate
how their research participants draw on the various options available to them
and how they strategically deploy the notion of ‘blood’ to locate their choices
within a normative framework consistent with their cultural heritage.
Nonetheless, the recourse to IVF treatment moves couples towards more indi-
vidualistic understandings and management of their predicament, thereby min-
imising their reliance on, and participation in, the sense of solidarity and
co-responsibility shared by extended kin.
The book concludes with an afterword from Finch which returns to key
issues of family and kin.
The chapters in this book lead us to ask some fundamental questions: How
do we recognise human interdependency? How do we value and recognise care?
How should individual and collective responsibilities be assigned, and to what
extent do we want the state to regulate care?
19 While this is generally true, some migrant populations are known to differ in their efforts to

promote solidarity. See Bozorgmehr (2000), for instance, for a discussion of the lack of solidarity
among Iranians migrants.
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14 Fatemeh Ebtehaj

As various groups, including same-sex couples, grand-parents and kin carers,

lobby for legal rights and recognition, we are reminded that we live in the
‘shadow’ of the law (Mnookin and Kornhauser, 1979) and that law and policy
impact on our notions and experiences of family and of gender equality, and
thus shape in important ways our sense of identity and our stance as moral


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and Sexuality’ in J D Faubion (ed), The Ethics of Kinship: Ethnographic Inquiries
(Oxford, Rowman and Littlefield, 2001) p 29.
BOZORGMEHR, M, ‘Does Host Hostility Create Ethnic Solidarity? The Experience of
Iranians in the United States’ (2000) 1 Bulletin of the Royal Institute for Inter-Faith
Studies p 159.
BRANNEN, J, MOSS, P and MOONEY, A (eds) Working and Caring over the
Twentieth Century: Change and Continuity in Four Generation Families
(Basingstoke, Palgrave Macmillan, 2004).
BUTLER, J, Undoing Gender (London, Routledge, 2004).
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Germany’ in H Conrad and R Lutzeler (eds.), Aging and Social Policy—A German-
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COLLIER, J F, and YANAGISAKO, S Y (eds), Gender and Kinship: Essays Towards a
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CARSTEN, J, (ed) Cultures of Relatedness: New Approaches to the Study of Kinship
(Cambridge, Cambridge University Press, 2000).
—— After Kinship (Cambridge, Cambridge University Press, 2004).
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EDWARDS, J and STRATHERN, M, ‘Including Our Own’ in J Carsten (ed), Cultures
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FAUBION, JD (ed), The Ethics of Kinship: Ethnographic Inquiries (Oxford, Rowman
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FINCH, J, Family Obligations and Social Change. (Cambridge, Polity Press, 1989).
—— and Mason, J, Negotiating Family Responsibilities (London, Routledge, 1993).
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—— and MCKINNON, S (eds), Relative Values: Reconfiguring Kinship Studies
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Introduction: Regulating Relationships? 15

GILLIGAN, C, In a Different Voice: Psychological Theory and Women’s Development

(Cambridge, MA, Harvard University Press, 1982).
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(C) Ebtehaj et al Ch2 7/9/06 15:28 Page 17

Part 1

Who is Kin and What Does it Mean to be

Kin in Contemporary British Society?
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‘Close Marriage’ in the Nineteenth and
Twentieth Century Middle Strata

‘It was the family that married, and one married a family’
Pierre Bourdieu

N 13 NOVEMBER 1838, the physician Robert Darwin wrote to his
wife’s brother, Josiah Wedgwood, the pottery owner whose own
parents had been cousins. The occasion was the engagement of his
son, Charles, to his cousin, Emma, Josiah’s youngest daughter. This was the sec-
ond time these two fathers of large broods had exchanged felicitations on the
marriage between two of their offspring for only a year earlier, Robert Darwin’s
elder daughter, Caroline, had married Josiah’s eldest son (also Josiah, usually
called Jos). Thus Emma and Charles were united not only as first cousins but
also in an exchange of siblings. In addition, Jos’ and Emma’s brother, Henry,
had already married Jessie Wedgwood, a double cousin through both his
mother’s and father’s side. Two years later, their younger brother, Hensleigh
Wedgwood, had married his maternal first cousin, Frances MacIntosh.
Thus four out of the six of Josiah Senior and Bessy’s nine children who married
had chosen first cousins as their spouses (Wedgwood and Wedgwood, 1980:
The Wedgwood and Darwin pattern of marriage, far from being some anom-
aly, was a typical, if somewhat more extreme, example of a widespread pattern
among the middle strata occurring across Europe, North America, and their
colonies in the late eighteenth and nineteenth centuries. Far from confirming the
usual received wisdom about the decline of the extended family, that period is
beginning to emerge as a time of rich and dense kinship relations. Steven
Ruggles has maintained that ‘the frequency of extended families in England and
the USA roughly doubled between 1750 and 1900’ (Ruggles, 1987: xvii) and
according to Martine Segalen, kinship relations that had supposedly been over-
stretched by the effects of industrialization were, in fact, maintained and certain
forms even strengthened (Segalen, 1986: 5). David Sabean and his colleagues
have pinpointed the growing incidence of marriage among kin from the
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20 Leonore Davidoff
Josiah I Wedgwood of Etruria
Sarah Wedgwood

Susannah John Richard Josiah II of Maer

(1765) (1766) (1767) (1769)
m. Robert Waring m. Lousia Jane m. Elizabeth (Bessy)
Darwin (Jane) Allen
(1766) Allen (1764)

Sarah Elizabeth John Allen Thomas Josiah Caroline Charles Jessie Robert
(Eliza) (Allen) (Tom) Louisa Jane (1800) (1804) (1806)
(1795) (1796) (1797) (1799) m.
Henry Allen

Sarah Elizabeth Josiah III (Jos) Mary Anne Charlotte Henry Allen
(Elizabeth) of LeithHill Place (1796) (1797) (1799)
(1793) (1795) m. Charles m.
m. Langton Jessie
2nd wife Wedgwood
Caroline Sarah Emily Darwin (dau. of John W.)

Sophy Marianne Katherine Mararet Susan Lucy Caroline

(1838) Elizabeth Sophy (1843) (1846)

Lousia Frances Caroline John Darwin Anne Jane Arthur Rowland

(1834) (1836) (1840) (1841) (1843) (1847)

Marianne Caroline Sarah Sarah Elizabeth Erasmus Charles Emily Catherine

(1798) (1800) (1803) (1804) (1809) (1810)
m. m. m. Charles
Josiah III Emma Langton,
Wedgwood (Jos) Wedgwood her double

Chart I: Wedgewood-Darwin Genealogy

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‘Close Marriage’ in Nineteenth and Twentieth Century Middle Strata 21

Thomas Catherine Sarah Elizabeth Mary Ann

(1771) (1774) (1776) (1778)

Francis Hensleigh Frances (Fanny) Emma

(1800) (1803) (1806) (1808)
m. m.
Frances Charles Robert Darwin
Mackintosh (1809)

Frances James Ernest Katherine Alfred Hope Elizabeth

Julia Mackintosh Hensleigh Euphemia Allen (1844)
(Snow) (1834) (1838) (Effie) (1842) m.
(1833) (1839) Godfrey Wedgwood
(see family of
Francis W.)

Godfrey Amy Cicely Mary Clement Lawrence Constance Mabel Frances

(1833) (1835) (1837) (1840) (1844) Rose (1852)
1st Mary Hawkshaw
2nd Hope Elizabeth
(dau. of 1st cousins marriage (each partner highlighted within box, to
Hensleigh W.) avoid impression that there were double number of marriages)
Double 1st cousins marriage (each partner highlighted within
box, to avoid impression that there were double the number of
Double sibling or sibling exchange marriage
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22 Leonore Davidoff

mid-eighteenth to late nineteenth century in Europe.1 In relation to cousin mar-

riage in particular, for example in Italy, from a seventeenth-century low their
frequency had begun to build and rapidly increased during the nineteenth cen-
tury.2 In Sweden, although cousin marriage was illegal until 1844, exemptions
could be bought and the practice among factory owners especially appears to
have been relatively widespread (Goransson, 1993). What evidence there is con-
firms the rise and twentieth-century decline of these unions across Europe,
including Catholic societies where they were nominally prohibited (Smith,
However, these scattered observations do not yet seem to have been generally
appreciated as an integral part of the history of modern societies. For example,
in discussing the commercial organization of nineteenth-century Parisian
merchants, David Garrioch comments that the ‘surprising’ spate of first cousin
marriages he noted had been rare before 1789, but fails to query the significance
of this shift (Garrioch, 1996: 223). Nor do Garrioch and most others note
another, even more obscure, aspect of these dense kinship networks, that of
double sibling and sibling exchange marriage; that is where two brothers marry
two sisters or a brother and sister from one family marry a sister and brother
from another as in the Wedgwood-Darwin connection. This practice flourished
among bourgeois families generally across Europe at this time, including the
marriage of Sigmund Freud whose eldest sister, Anna, married Eli Bernays, the
brother of Freud’s wife, Martha Bernays (Davidoff, 2004).


A major change in the regulation of sexual relations was the shift from the
authority of the Church to the State, a long and uneven process in which incest
and inbreeding became central issues (Kuper, 2002: 160). Old Testament prohi-
bitions about who could marry had been the basis of regulation, enforced
through Church law. Because in the Bible marriage was believed to literally cre-
ate ‘one flesh’ between husband and wife, all in-laws were included in incestu-
ous relations. Thus if it was wrong for a brother and sister to marry it must be
equally wrong to marry a wife’s sister, the particular relationship which was
transferred into state legislation from 1835 in England and that created the
controversy over ‘Deceased Wife’s Sister’ (Cretney, 2003; Anderson, 1982).
However, although Canon Law had also forbidden marriage between
cousins, this was legalized by Henry VIII to suit his own purposes. Prohibited
degrees were then set within the Levitical restrictions, which did not include

1 Borrowing from anthropologists, what he called close marriage (Sabean, 1998: 444). See also

Davidoff and Hall (2002 [1987]); Tadmor (2001); Perry (2004).

2 A. Moroni, cited in Roberts, (1974: 680).
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‘Close Marriage’ in Nineteenth and Twentieth Century Middle Strata 23

cousins (Anderson, 1986: 285). Thus Catholics were left to follow the Law but
with generous dispensations, while Jews, following Leviticus, have always
allowed cousins to marry; given their often-small communities, it was many
times encouraged.
The position of Quakers on this issue is intriguing here. Quakers, like Jews,
were at the forefront of capitalist enterprise in finance and manufacture and
built much of their success on extensive kin networks. Nevertheless, in the late
seventeenth century the founders of the Society of Friends were particularly
strict in building prohibition of cousin marriage into their regulations (Milligan,
1994; Lloyd, 1950: 58). However their small, scattered communities and the
intensity of their commercial activities made close kin marriages attractive.3
The issue obviously created tensions within both the Meetings and families. In
1807, John Gurney, from the banking family of Norfolk, married his cousin,
Elizabeth Gurney from Keswick. Richard Gurney, father of the bride ‘had to
walk away during the marriage ceremony so as to be seen to disapprove of the
match’ (Rose, 1980: 55).
By the 1840s, there was a growing feeling among Quakers against a prohibi-
tion that could not be justified by Scripture or by the terms of civil marriage
introduced in England in 1836 (Hodgkin, n.d.). As one campaigner wrote:
‘Legislate as we will, we cannot create between cousins that instinctive horror
of matrimonial connections . . . or to compel such parties not to love’ (S.W.,
1843: 8). It was pointed out that many who had contracted such marriages and
been forced to leave the Meetings were often later quietly reinstated thus bring-
ing the authority of the Society into disrepute. The rumblings continued until,
at the Yearly Meeting in 1883, with reluctance it was decided to rescind the
regulations on cousin unions.4
Confusion and unease about close kin marriage were not confined to
Quakers. Nevertheless, they remained a popular option until the end of the
nineteenth century. What was it that made this period so ‘rich’ in cousin mar-
riage as well as sibling exchange and double sibling marriage? In Europe, these
marriage forms are found in a wide variety of places and strata, from peasants,
to groups of émigrés, to the gentry and aristocracy, although hard evidence only
comes from isolated studies. For example, while Scottish clans had not been par-
ticularly prone to these marriage practices before the Clearances, they became
much more common when these families were forced to emigrate to the New
World and Antipodes where they formed up to a quarter of all marriages. In
these often hostile surroundings, it ensured that ‘strangers who married became
“family” with strong multiple bonds’ (Molloy, 1986: 240).The pattern of close
marriage within emigrant communities is well demonstrated within the waves
of Jews seeking refuge in North America where it seems to have lasted well into
the twentieth century. Many of these were artisans or set up small businesses as

3 In America, William Penn actually advised Quakers to ‘marry within themselves’ (S. W., 1843).
4 Extracts From the Minutes and Proceedings of the Yearly Meeting of Friends, (1883: 23).
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24 Leonore Davidoff

did, for example, a brother and sister, Becky and Abe, who went to Canada
(where cousin marriages remained legal) around 1900. Both married in the New
World and of Becky’s two sons, Frank married Abe’s daughter, Estelle, and
Davy married Abe’s other daughter, Gertie.5 In this family, we have two first
cousins who were also a pair of brothers and sisters marrying in the 1920s, fol-
lowed by another double sibling marriage in the 1930s.
We may accept that isolated or emigrant communities might have indulged in
such outlandish practices but often do not recognize that ‘between our own
systems [of marriage] and those operating in exotic societies there is a difference
of degree, but not of kind’ (Segalen, 1996: 123). In fact, the historical record
indicates that it was among the more articulate and culturally sophisticated
bourgeoisie that these kin related marriages were especially prevalent and
increased rapidly over the nineteenth century (Emher, 2002: 296).6
Thus, while the practice may have been protective for groups under some
kind of threat or pressure, it may also have been advantageous in the use and
retention of resources, as in the ownership of land, capital, education, and
access to office or occupations. As Peter Dobkin Hall said in relation to eigh-
teenth and early nineteenth-century Massachusetts merchants, there were two
basic forms of marital selection that favoured concentration of resources; one
involving first-cousin marriage, the other sibling exchange (Hall, 1972: 42). For
those whose capital—cultural as well as financial—was spread over long dis-
tances, such marriages were crucial in creating ties of trust.
No family illustrates this as well as that of the Rothschilds, who from the late
eighteenth century used close marriages and cousin alliances strategically placed
all over the capital cities of Europe.7 It was the Rothschild generation born
around the turn of the nineteenth century who began to practice close marriage
in earnest. Of the 21 marriages between 1824 and 1877 involving descendants of
the family firm’s founder, Mayer Amschel Rothschild, no fewer than 15 were of
this type including first and second cousins, sibling exchange, double sibling and
uncle with niece (Ferguson, 1999: 184). After the death of the senior grandchild,
Lionel, in 1879, a ‘conclave of cousins’ was convened consisting of the twelve
partners in four European banking houses who were all related through cousin
and sibling marriage (Weintraub, 2003: 28).
In England, Noel Annan noted as early as 1955 the links of mutual obligation,
patronage and emotional involvement between those in what he labels the
‘intellectual aristocracy’; that is the public school educated, Oxbridge civil ser-
vants, scientists, educators, and writers. Although friendships between the men
laid down at school and, for some, at university, were important, it was mainly
through kinship ties established through marriage that such relationships were

5 My thanks to R.S. for this information from personal family history.

6 It is significant that in Russia, Eastern Europe and parts of the Balkans, cousin marriage con-
tinued to be prohibited.
7 There was even a word for marrying within the family: ‘mischpocheh’.
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‘Close Marriage’ in Nineteenth and Twentieth Century Middle Strata 25

created and maintained (Annan, 1955: 244).8 It is thus paradoxical that these
dense kin linkages seem to have been increasing in the mid to late-nineteenth
century, just when reforms towards meritocracy were being instituted: Civil
Service examinations were being introduced, officer class positions in the armed
services were no longer open to purchase and more managers in larger com-
mercial firms had begun to be recruited outside the family (Pollard, 1968). Yet
by the mid-twentieth century, within only three or so generations, more general
and individual recruitment to office, to jobs and other positions had increased
and the use of kinship ties became negatively defined as nepotism.


In investigating these phenomena it should be kept in mind that a basic prereq-

uisite for their presence on any scale is simply possessing enough relatives.
Throughout the mid-nineteenth century, despite high mortality levels, high fer-
tility meant that many people had large networks of siblings, aunts, uncles, and
cousins. One estimate puts this as high as around twenty five for each person in
the general adult population (Zhongwei, 1996: 255). This abundance would
even have increased after that period when child mortality started to fall around
mid-century, a decline more prevalent among the more affluent. Families of six
or seven and up to fifteen children meant there simply were more siblings to
exchange marriage partners with; more aunts and uncles to produce more
cousins to choose from.
Unfortunately, it is impossible to give any exact figures for the incidence of
close marriages. They can only be reconstructed from family trees or internal
evidence from family papers such as diaries and letters. Cousin marriages
through the maternal line are particularly difficult to chart since women
changed their name on marriage while sibling exchange or double sibling mar-
riage has to be plotted for each case. Obviously, the more literate and those
committed to their family history will be over-represented in what sources we
However, even a cursory trawl through a sample of local English records
reveals a steady, if small, incidence of close marriage. Almost every family
examined had at least one case of these marriage forms. Take the Essex farmer’s
daughters, Maria and Lucy Wyncoll, seventh and ninth children of the 1800s
generation, who married the farmer brothers, Nathan and George Mortlock. In
the next generation, Thomas Wyncoll and his wife Sarah had five children and
of these, two sons, Thomas and Francis Henry, born in the 1860s, both married
their Page cousins. In the same generation, Emily Jane Wyncoll took as her

8 What Annan had called ‘the intellectual aristocracy’, sociologists might refer to as ‘opinion

leaders’, but significantly the latter are unrelated individuals.

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26 Leonore Davidoff

second husband her first cousin John William Wyncoll (Wyncoll, c.1927).
Among artisans, Isaac Gale, heel and patternmaker, and Mary Bostock of
Whitby were married in 1791. Of their eleven children, six survived, and among
them, two of their daughters married brothers who were also their first cousins,
despite the fact that this was a Quaker family.9
Through the nineteenth century, a sample of records for Essex and Suffolk
brings up close marriage in families among preachers, farmers, publicans, physi-
cians, shopkeepers and attorneys. These included marriage between an uncle
and niece as well as to a deceased wife’s cousin (or to move from the inevitable
male centred form, when a woman married her dead cousin’s widowed hus-
band) (Higgs, 1906; Fidgett, 1991; Barlow, n.d.).10
The instances of these marriage patterns nationally can also be traced among
many well known nineteenth century names. For example, Josephine Butler’s
third son, Stanley, married his maternal cousin, Edith. Elizabeth Gaskell’s
daughter, Marianne, married her first cousin, Thurstan Holland, who was not
only Mrs. Gaskell’s nephew and son-in-law but also her legal adviser (Jordan,
2001; Gerin, 1980). Nancy Anderson calls up a list of notable cousin marriages
but this hardly touches on the most obvious, never mind the even more com-
mon, sibling exchange and double sibling mode (Anderson, 1986: 290).
These marriages were not necessarily arranged by elders; there is little sug-
gestion of the partners coming together under duress. Nevertheless, ‘free choice’
of spouse was set in a carefully controlled context of mutual values and religious
concerns. Such alliances created a dense matrix of overlapping and doubling of
in-laws as well as aunts, uncles, cousins, grandparents at a time when there was
a dearth of economic and financial infrastructure so that familial relations
became a touchstone of probity and trustworthiness (Davidoff and Hall, 2002
[1987]: Part II). The basic form of commercial and manufacturing enterprise,
the partnership, was not recognised in law but regarded more as a ‘personality’
that rested on the reputation of the partners, the most common forms being
fathers and sons, brothers, uncle and nephew or male in-laws. Farmers and pro-
fessionals might not have even this level of formality but they often joined forces
in similar arrangements. In any case, all families might benefit from the skills
and contacts of their kinfolk.
Thus what was seen as a profoundly non-market institution, the family, came
to bear the ‘contextual morality’ for the amoral workings of markets (Rose,
1994: 82). The very survival of the mass of individual proprietor firms—the vast
majority at this time—was ‘conditioned by their capacity to call on informal
support and assistance from family members’ (Nenadic, 1994: 93). A further
reason for favouring close marriage in the strata below the English gentry was
as a counter to the centrifugal tendencies of their usual practice of partible

9 Gale Family Tree compiled by Rosamond Porter (1981).

10Keer Family Tree compiled by John A. Keer (1976), by permission of his cousin, David
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‘Close Marriage’ in Nineteenth and Twentieth Century Middle Strata 27

inheritance.11 In a variety of ways, intra-marriage played a key role in the web

of kinship that provided a form of security in binding together not only families,
but also members of the middle strata in local, regional and national networks
(Davidoff and Hall, 2002 [1987]).12
These points are illustrated in the case of the manufacturing Unitarian family
of Courtauld. In the late eighteenth century, George Courtauld I and William
Taylor, who had been apprenticed together, formed a partnership in a silk
milling enterprise. George’s sister, Catherine Courtauld I, then married William
Taylor, thus representing the common pattern where in-laws became business
partners or business partners became in-laws. George had been engaged to
William’s sister, Anna, a potential sibling exchange marriage, but the engage-
ment was broken.
In the next twenty years, William Taylor and Catherine Courtauld I Taylor
produced 14 children, of whom 10 survived. Ties between the families were
renewed when a son, Alfred Peter Taylor married Catherine Courtauld II, the
daughter of George Courtauld and his wife Ruth Minton, while their daughter,
Ellen Taylor married George and Ruth’s son, Samuel Courtauld. As with the
Wedgwoods and Darwins, we have here a sibling exchange marriage between
people who are also first cousins. However, in this case, there was a further
fusion for Alfred Peter Taylor became a partner in the mill with Catherine II’s
brothers, namely his cousins and brothers-in-law, Samuel, George II and John
Minton Courtauld.13
In setting up the Essex silk mills, William Taylor and George Courtauld had
entrusted their legal business to a London attorney, William Bromley. This rela-
tionship was strengthened when William Taylor and Catherine Courtauld
Taylor’s daughter, Catherine III, married William Bromley’s son, also William.
Two of this couple’s daughters, Sarah Bromley and, after her death, Elizabeth,
married John Minton Courtauld, youngest son of George I and Ruth Minton,
that is marriages between second cousins. These sequential marriages of John
Minton Courtauld to his second cousins, the Bromley sisters (technically an ille-
gal deceased wife’s sister alliance), again illustrate the overlap of generations in
these large families. George I and Ruth Minton Courtauld’s eight children
matched William and Catherine II Courtauld Taylor’s brood of 10. John
Minton had been the youngest end of his family and Sarah Taylor Bromley at
the elder end of hers for he was born in 1807 only seven years before his first
cousin, Catherine Taylor Bromley, gave birth to his future wife, Sarah in 1814.
These ties were renewed in the next generation when Alfred Peter Taylor’s
Similar to the use of sibling marriage among peasants: In Poland ‘Of course it is best to hold
on to your women and your land. But if you have to lose one, it is better to lose your women and
keep your land. In nafimak (sibling exchange) marriage, it is the woman who moves while the land
stays still’ (Pine 2004).
For similar factors in the Swedish case, see Goransson (1993).
Another of George I and Ruth Minton’s daughters, Elizabeth, had married Joseph Ash, the res-
ident manager at the mill. Her younger sister, Sophia, only decided to reject the offer of marriage
from his brother, George Ash, because of her persistent ill health (Courtauld, 1975).
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28 Leonore Davidoff
Samuel Courtauld
m. Louisa Ogier

Augustine Samuel Sophia Louisa Esther Catherine I

(1750) (1752) (1763) (1754) (1757) (1760)
m. William

Catherine Anna Sophia Alfred m. Catherine II Ellen m. Samuel and

(1797) (1793) Peter Coultauld Taylor Courtauld others
m. William m. Philip Talor (1795) (1801) (1793)
Bromley Walleson

William m. Catherine Henry 3 others George III

Taylor Ellen (1831) (1830)
Walleson (1829) m.
1st Mina Bromley

2nd cousins

2nd cousins

and Sarah Elizabeth Minna and 9 others

others (1814) (1829) (1832)
m. m. m.
John Minton John Minton George III
Courtauld Courtauld Courtauld

Chart II: Courtauld-Taylor Genealogy

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‘Close Marriage’ in Nineteenth and Twentieth Century Middle Strata 29

George I
(engaged to Anna Taylor,
William Taylor’s sister)
m. Ruth Minton

Son Louisa Samuel Catherine II Elizabeth Sophia George II John Minton

(1790) (1791) (1793) (1795) (1797) (1799) (1802) (1807)
m. m. m. engaged to 1st m.
Ellen A. P. Taylor Joseph George Sarah Bromley

Taylor Ash Ash (1814)

2nd m.
Elizabeth Bromley

Samuel Louis Susanna Sydney

Augustine (1834) (1838) (1840)
(1833) m. Sarah Sharp

Katherine George IV
(1856) (1859)

William Sydney
(1870) (1873)
Constance Cicely

1913 to William
Juilen Courtauld
Cousin marriages (each partner highlighted
separately within boxes, to avoid impression
that there were double the number of marriages)
Double sibling or sibling exchange marriage
Business partnership
Sibling exchange engagement, not marriage
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30 Leonore Davidoff

niece, Mina Bromley, married George II’s son, George Courtauld III—that is
her double first cousin, already a partner and brother-in-law of Sarah’s uncle,
Alfred Peter Taylor. Almost a century after the eighteenth century Taylor-
Courtauld alliance began, their families were again joined by yet another first
cousin marriage (Courtauld, 1975; Coleman, 1969; Taylor, 1875; see Courtauld-
Taylor chart).
A similar pattern of interlocking personal and commercial relations but with
more fraught results, was followed in Birmingham, where the originator of a
prosperous buckle making business, Archibald Kenrick, took his nephew,
Samuel, into the business in the period when his own sons were too young and
Samuel became a partner in 1811. Close proximity and daily interaction with the
Kenrick family resulted in Samuel soon becoming engaged to his cousin,
Marianne. After their marriage, a later disagreement led Samuel to leave the
buckle business and go into direct competition. Not surprisingly this produced
tensions and unpleasantness between Samuel and his uncle and male cousins,
now also in business with their father. This situation was particularly acute for
Marianne Kenrick, torn between her husband, on the one hand, and her father
and brothers on the other. Rebecca Kenrick, Marianne’s sister found herself
wishing that the increasingly miserable Samuel had a male friend he could talk
to but his friends up to then had been precisely those cousins—and brothers-in-
law—with whom he was now at loggerheads (Davidoff and Hall, 2002 [1987]:
Even when business relations were not involved, close marriage could have
reverberations for the social standing of a family. In 1877, Blanche Potter, the
‘difficult one’ among the nine daughters of a cotton magnate married William
Cripps, a struggling surgeon, an occupation regarded by her parents and elder
sisters as ‘not quite the thing’ so that the Cripps family received a frosty wel-
come. But when Theresa, the ‘family jewel’ among the Potter sisters, became
engaged to William’s brother Charles, a more acceptable successful advocate,
an elder Potter sister wrote to a younger ‘there is the whole Cripps family to be
re-embraced . . . We must not make such a fist of it this time. They are worthy
people, quite as good as we are.’14
These examples point to possible negative effects of dense kinship networks
especially when interacting with commercial or professional relationships.
Despite the advantages, there were times when relatives could tear families
apart or become a burden on resources by extracting commitments that might
not have been in the best interests of an enterprise or professional practice.

14 Quoted in Caine, (1986: 74).

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‘Close Marriage’ in Nineteenth and Twentieth Century Middle Strata 31


As well as having consequences for the economic and social position of

these intertwined families, there was a further emotional dimension. A prime
example from this group that well illustrates the interplay of emotional and
professional interaction overlaying kinship ties is in the case of Charles Darwin
and his cousin Hensleigh Wedgwood [see chart p. 21]. These two men, of
similar age and upbringing were also, as we have seen, not only first cousins
themselves but in-laws for Charles was married to Hensleigh’s sister, Emma,
whilst Hensleigh’s wife, Fanny, was not only his maternal first cousin but also
Emma Wedgwood Darwin’s.
After Charles and Emma’s marriage in 1837, they settled in London in Gower
Street, four doors down from Hensleigh and Fanny Wedgwood who had mar-
ried five years earlier, a household including Fanny’s older, unmarried and
deeply religious half-sister. There was continual interaction between the two
households. As Emma wrote ‘we find it a constant pleasure having them [the
Hensleighs] so near . . . They often walk in to drink tea with us and vice versa’.
The Hensleighs already had four children, ending up with seven, while the
young Darwins quickly overtook them with their eventual ten. This next gener-
ation grew up together, continuing contact with long visits after the Darwins
moved to Kent, for the two families ‘shared the same social life, had the same
friends and read the same books’ as well as having ties and obligations to the
same sets of parents and other siblings (Wedgwood and Wedgwood, 1980:
Biographers have been aware how important both Charles’ elder brother
Erasmus and his cousin Hensleigh were to the development of his ideas.
Hensleigh himself was working on a major project, The Dictionary of English
Etymology, that was eventually published the same year as Charles’ similarly
long gestated Origin of the Species. The cousins/brothers-in-law had been able
to discuss the progress of their mutual projects and Charles found Hensleigh a
crucial listener with whom to ponder his doubts about Biblical authority. What
is missing in these biographical accounts is the embracing kinship milieu which
he had known since childhood, in which a man like Charles Darwin was mired;
not only his own wife and quiverful of children but the web of relations who
were almost as close to him emotionally. Fanny Wedgwood, even more than his
wife, Emma, was deeply Christian, much under the influence of her resident
half-sister’s almost mystical beliefs. Charles Darwin’s torment over the implica-
tions of his scientific research has to be understood within this context where he,
Hensleigh and his brother, Erasmus, took a variety of liberal views whilst the
women closest to them held fast to their religious faith.
Unlike some other societies, for instance in the Middle East or South West
Asia, close marriages were not prescribed or arranged. The idea of ‘being in
love’ had permeated well down the social scale although for men love often
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32 Leonore Davidoff

came only when they felt in a position to support a wife. In those groups where
young women were kept protected within the home wherever possible, one of
the prime methods of meeting a spouse was through friends of brothers and sis-
ters or sometimes in the homes of uncles and aunts. Propinquity, compatible
religious views, the comfort and trust of having grown up in close touch, know-
ledge of the future spouses’ financial and social position as well as personality,
were the crucial mechanisms involved, since often these people had been
playmates and friends from childhood. The sheer amount of interaction
between relatives encouraged emotional closeness that could eventually spill
over into erotic attachment and possible marriage.
Charles Darwin had spent much of his time as a boy and young man at the
home of his Wedgwood uncle and aunt for his mother had died when he was
only nine years old. When soon after his return from the voyage of The Beagle
he began to weigh up the pros and cons of marriage, his thoughts turned natu-
rally to the Wedgwood cousins nearest to him in age, among one of whom his
elder sister, Caroline, had already found a spouse. Further down the social scale,
the common practice of sending adolescents and young adults to the households
of aunts and uncles as apprentices or household helps resulted in many cousin
marriages. For example, around 1801 Margaret Cock was sent from London as
helper and companion to her Aunt Catherine, wife of John Thomas Ruskin, an
Edinburgh small time merchant. Catherine, who had no daughters, came to
regard Margaret as ‘the half of myself’. While in their household Margaret fell
in love with her cousin, John James, then 16 years old, and they eventually mar-
ried, producing the eminent John Ruskin whose genius as well as madness have
subsequently been attributed to his parents’ cousin marriage (Hunt, 1982).
A substitute for a child who was either dead or for some reason unsatisfac-
tory could also be brought into the family through a cousin marriage. Take the
case of John Dickinson, a paper manufacturer whose nephew, John Dickinson
Evans, was also his godson. Young John Evans had come to work in the mill at
age 17 in lieu of John and Ann Dickinson’s own disappointing son who refused
all interest in the business. The nephew stayed on to become a partner and
marry the daughter of the house, his cousin, Harriet. Uncle and nephew, who
were also father-in-law and son-in-law, godfather and godson, worked together
harmoniously for many years (Evans, 1955).


We have seen how tensions between incompatible personalities as well as strug-

gles over resources could sour relations within the rubric of accepted types of
marriage. Despite the legality of cousin and sibling exchange marriage, they
could undoubtedly have disturbing psychological overtones. These intimate ties
with their feelings of duty and obligation overlying the emotional reverberation
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‘Close Marriage’ in Nineteenth and Twentieth Century Middle Strata 33

of childhood jealousies could make relations intensely hostile, as was the case
with Sigmund Freud’s relationship with his wife’s, brother, Eli Bernays, perma-
nently part of the family as husband of Sigmund’s sister, Anna. Sigmund had
described Eli as his most dangerous rival during his prolonged courtship of
Martha and cordial relations were never re-established. These feelings were
inextricably mixed with Sigmund’s attitude towards his sister Anna, Eli’s wife,
the surviving sibling nearest to him in age and whose birth had displaced his spe-
cial position within his family as ‘Golden Siggy’, oldest beloved child (Davidoff,
2004: 40).
In the nineteenth century in particular, sibling relations attracted a vibrant lit-
erary and symbolic significance from high Romanticism to a major theme in
pornographic representations. In the middle strata, siblings spent much of their
early youth at home with each other so that intense relationships developed
among same sex pairs as well as brothers and sisters. Analysts have suggested
that much of the furore about marriage to Deceased Wife’s Sister was actually
displaced attraction to a real sister. In literature a cousin could become a stand-
in for the forbidden attraction to a brother. Even more deeply hidden erotic
bonds between same sex siblings or in-laws could be channelled through a third
person (Brown, 2003: 114; Sanders, 2002). All these ramifications represent the
underlying drive to fuse several, even contradictory, parts of the ‘Self’ into a uni-
fied whole. Through the century a thicket of cross-gender, good sibling–bad sib-
ling, strong sibling-weak sibling and many other contrasts were explored around
these emotive ties, redolent of unspoken incestuous feelings (Davidoff, 2006).
On a more rational level, the particular belief that cousin marriage was wrong
and might lead to defective offspring, had been widespread since antiquity.
However, this had then been based not on biological arguments but on the belief
that this was retribution for disobeying some divine law (Wolfram, 1987: 45).
From the late eighteenth century unease about cousin marriage was more pub-
licly expressed in scientific literature. In the first half of the nineteenth century
while some agriculturalists recommended the rewards of inter-breeding, others
advocated breeding stock ‘in and in’. However medical men, in particular, high-
lighted fears about individual ‘blood lines’, especially connected to hereditary
diseases afflicting the European nobility. General concern over moral as well as
physical attributes favoured marriage between opposite temperaments and con-
stitutions (Hilts, 1982: 66). These ideas were well publicized and ‘virtually all
commentators on the issue of hereditary disease condemned cousin marriage
with particular fervour’ (Waller, 2001: 464).
Given these preoccupations, the striking fact about attitudes to actual cases
of close marriage is the almost complete absence of comment by individual fam-
ily members. Such ties seem to have been simply taken for granted as a natural
and eminently practical way of obtaining a trustworthy spouse of known qual-
ity. In regard to sibling exchange, in Jane Austen’s novel, Emma, the heroine’s
mentor and eventual husband, George Knightly, is introduced as ‘not only a
very old and intimate friend of the family, but particularly connected with it as
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34 Leonore Davidoff

the elder brother of Isabella’s (Emma’s sister) husband.’ (Austen, 1963: 5). When
at the denouement of the novel, Mr. Knightly and Emma are engaged to be
married, both his brother, John Knightly, and Isabella, are enthusiastic and ‘in
general it was a very well approved match’ (Ibid.: 413).
The response to Charles Darwin’s and Emma Wedgwood’s (already in-laws
as well as cousins) decision to marry was also enthusiastic. Charles’ father wrote
that ‘Emma having accepted Charles gives me as great happiness as Jos having
married Caroline’.15 When Emma told the news to her various relatives she
reported that ‘they were very full of joy and sympathy’.16 Emma’s favourite
maternal aunt, exclaimed:

I knew you would be a Mrs. Darwin from your hands; and seeing Charles did not
come on . . . I began to fear it was Erasmus (Charles’ indolent elder brother).
Everything I have ever heard of C. Darwin I have particularly liked, and have long
wished for what has now taken place, that he would woo and win you.17

Where there was hesitation or even opposition to such unions, it was usually
in terms of doubts about one of the pair’s financial security, social position or
personal qualities. The gap of almost two decades between the pledge of love
and the actual marriage of John James Ruskin and his cousin Margaret was due
to his father’s unease about her mother’s—his own sister’s—social standing: she
and her husband kept a pub (Hunt, 1982). In 1840, the daughter of an attorney
was sent off to Germany to separate her from her first cousin, a clergyman to
whom she had become attached. The father’s strong objection to the match was
because the clerical nephew was the son of his wife’s brother, a man with whom
he had a long and bitter quarrel.18
If anything, close marriage increased through the third quarter of the nine-
teenth century and continued to be an accepted, if not always welcome, form of
alliance between families. Yet within two or three generations it had come to be
regarded as abhorrent and unnatural. This shift from positive acceptance to
revulsion at the very idea of marriage with relatives has to be seen in the context
of general changes around marriage and the status of women. Throughout the
second half of the nineteenth century there had been intense debate about the
middle class tendency to postpone marriage for economic reasons as the ideal of
the husband being the sole provider became a central tenet of masculinity
(Robson, 1995; Southall and Gilbert, 1966). Meanwhile, feminists’ campaigns
had raised consciousness about married women’s property as well as more
general inequities imposed on women by indissoluble marriage particularly
with regard to authority over their children.

15 Quoted in Litchfield, (1915, Vol II: 2).

16 Quoted in Litchfield, (1915, Vol 1: 278).
17 Quoted in Browne, (1995, Vol I: 391).
18 She finally did marry her cousin. ‘The family of Rebecca Shaen Solly’, private communication

from GH Wicksteed.
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‘Close Marriage’ in Nineteenth and Twentieth Century Middle Strata 35

By the 1880s, with the continued but ineffectual efforts to win the vote, cam-
paigns became more explicitly focused on both prostitution and women’s bod-
ily integrity within marriage. These had raised central issues around sexuality in
scientific, medical, and clerical circles as well as among the general public. This
deep anxiety about sexual issues, especially homosexuality, culminated in the
Oscar Wilde trials followed by a spate of regulatory legislation (Weeks, 1989;
Levine, 1989: 151). Such discussions undoubtedly found an audience among the
upper and middle classes, where concern to regulate their own fertility was evid-
ent in the significant fall in their birth rates at this time (McLaren, 1992; Szreter,
1996; Bland and Doan, 1998). A similar disquiet about sexuality combined with
the rapid decline in births within marriage was occurring in other European
countries (Smith, 2001; McLaren, 1997: 513).
Within this emotive atmosphere the discussion of marriage partners had been
brought to attention by dissatisfaction with the Deceased Wife’s Sister law. In
the campaign to have the law rescinded, the anomaly of allowing cousins to
marry while marriage to in-laws was banned as incestuous was repeatedly
pointed out, for during this period of open questioning, the spectre of incest con-
stantly surfaced (Anderson, 1982). It is often assumed that by the close of the
nineteenth century it was the dawning of scientific knowledge about the nega-
tive effects on offspring of unions with close relatives that caused the decline in
cousin marriage. However, as we have seen, these were not new concerns
among the scientific and intellectual community and opinions were far from
definite on the topic. It is true that from around the 1870s there had been a
growing unease about the topic of ‘inbreeding’ and its effect on the general con-
dition at a national level.
For Darwin himself, an undercurrent of worried self-interest ran through his
researches into plants and animals, for he was never sure if reproduction between
close relatives might inadvertently bequeath to the offspring a series of innate
weaknesses, infertility, or a tendency towards disease (Browne, 1995: Vol II,
279). In 1870, Charles’ friend and neighbour, the M.P. and anthropologist, Sir
John Lubbock, convinced that inbreeding was harmful, introduced a Bill to have
a question concerning cousin marriage put in the 1871 census. Although almost
all who had spoken on the Bill, including several doctors, were in favour, it was
rejected by the majority (amidst hilarity) on the grounds that it would stigmatize
certain marriages. A few years later Charles’ son, George Darwin, carried out the
first statistical enquiry into incidence of cousin marriage (only of the upper and
middle classes), and he supported arguments for race improvement through
selective breeding as advocated by Francis Galton, his father’s second cousin,
coiner of the word ‘eugenics’ (Anderson, 1986: 294; Darwin, 1875).
However, from the sparse evidence available to him, George Darwin could
not prove any deleterious effects and he felt that the evil ‘has been often much
exaggerated’. Francis Galton agreed for, in fact, this position fitted well that of
many turn-of-the-century eugenicists since for them cousin marriage rep-
resented merely the most intense purity of bloodlines and was favoured as a
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36 Leonore Davidoff

means of ‘race improvement’. This position had been set out in 1877 with the
publication of Alfred Henry Huth’s influential book, The Marriage of Near Kin,
a work whose impetus, no doubt, related to his own cousin marriage. For him
marrying outside one’s own group was a form of miscegenation and produced
‘half breeds’ that were nearly always inferior to their parents (Anderson, 1986:
Whatever the outcome of these deliberations, the issue of cousin marriage
was undoubtedly beginning to spark off anxieties at this time across Europe and
the USA (Wolfram, 1987: 139). Significantly, the influential American anthro-
pologist, Lewis Henry Morgan, who, like Darwin, had married his first cousin
in the mid-nineteenth century, was drawn into the emerging evolutionary
framework which was becoming widely accepted; for him, cousin marriage
began to seem ‘animal-like behaviour’ (Ottenheimer, 1990: 329). But Morgan’s
unambiguously hostile stance was in the context of a republic without hierarchy
of ‘blood and semen’. In Britain, ambivalence may have been connected to the
knowledge that cousin marriage was practised by much of the aristocracy and
nobility, not least Queen Victoria’s marriage to her beloved first cousin, Albert.
Thus although uncertainty remained, by the second decade of the twentieth cen-
tury there was more general as well as scientific acceptance that cousin marriage
was to be avoided now on the grounds that it would lead to morally as well as
physically defective children (Kevles, 1985: 177). In John Galsworthy’s popular
trilogy, The Forsyte Saga, (1906–1922) the hero and his antagonist are first
cousins. When two of their descendants unite the family in marriage,’ being
cousins they decided . . . to have no children’ (Galsworthy, 1928: 843).
Meanwhile, the debates around issues of sexuality had resulted in the intro-
duction of the first Punishment of Incest Bill that became law in 1908 when sex-
ual union between full and half siblings as well as father and daughter, whether
inside or outside marriage, was made criminal. At the same time, marriage to a
Deceased Wife’s Sister at last became legal again. In all these debates the focus
was less on eugenic anxieties but more centrally on fears of incest among the
poor. This is not surprising at a time of economic distress, labour unrest, and an
increasing gap between the continued large working class families and the
markedly fewer children among the middle and upper classes (Soloway, 1995).
Over the next few decades, it was clear that moral as well as scientific views
highlighted ‘blood’ or physiological relationships as the significant factor in the
forbidden. Concerns around marriage increasingly centred on themes of racial
and ethnic ‘interbreeding’ (Stone, 2002). In 1934 the Genetics Committee of the
Medical Research Council organized a large survey of hospital patients asking
for information about consanguineous marriage among their parents but with
few conclusive results (Bell, 1940). As one doctor noted, ‘clearly social and cul-
tural considerations are more important than the possible biological ill-effects
of these unions’ and with the general fall in early mortality and incidence of ill-
health, ‘these cases might simply appear more obvious’ (Roberts, 1974: 676,
680). Anthropologists, who by then had achieved more of a professional status,
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‘Close Marriage’ in Nineteenth and Twentieth Century Middle Strata 37

were especially concerned with forms of cousin marriage considered an exotic

practice irrelevant to Western society.19 After the experience of fascism and the
Second World War, eugenics became discredited and concern over genetic
results of marriage selection faded. The effects of nurture and family culture on
offspring were emphasized in explanations of achievement as well as failure.20
During this time, a series of Parliamentary Acts had gradually enlarged the
pool of possible legitimate spouses, all of them of in-law status, starting in 1921
by allowing marriage with a ‘deceased brother’s widow’ and in 1931 between a
man and his deceased wife’s aunts, nieces, nephews’ and uncles’ widows (note,
usual male-centred language). In 1960 marriage with relatives of a divorced
spouse was now permitted as if the spouse were deceased. 1978 brought
attempts to legalise marriage between in-laws in the direct line, that is son-in-
law or daughter-in-law, but this did not become law until 1980 with a Private
Members Bill. In 1984 the Criminal Law Revision Committee even recom-
mended that sexual relations between brothers and sisters over 21 years should
cease to be ‘incest’ and thus an offence, but the recommendation was not
carried out and was opposed by the Church among others (Wolfram, 1987:
232–233). However, in the last few years, sexual relations among stepsiblings
leading to marriage have been openly discussed.21


These legal changes reflected as well as contained what was happening in

people’s lives. From the mid-Victorian average of six live births per married
woman, there had been a steady decline over the generations to the mid-
twentieth century when the two-child family had become the overwhelming
norm.22 The pool of potential sibling exchange marriage partners had shrunk to
unworkable levels. For those coming to maturity in the inter-war period it has
been estimated that a young adult could expect to have only around an average
of half-a-dozen siblings and cousins (Zhongwei, 1996: 255). The myriad aunts

As early as the mid–1920s attention had been drawn to the effects of Western society’s own
patrilineal descent on the way this subject was understood (Seligman, 1925). Cross-cousin marriage
erupted into a full-scale debate in the 1950s, rumbling on into the next decade. One eminent anthro-
pologist assumed the sentiment of ‘Ego’ for his mother’s brother’s daughter in terms of ‘patrilineal
authority and matrilineal nurturance’. Not only does this configuration inevitably assume the mas-
culine ‘Ego’ as the main element in the transaction, but takes for granted general assumptions about
masculinity and femininity that may not have been appropriate to non-Western societies (Spiro,
1964: 31).
See, for example, for the 1950s, the conclusions in Annan, (1955: 284).
‘Step Kids in Love’, Channel 4 television documentary, 27 July, 2005.
Royal Commission on Population Report (1949), quoted in Szreter (1996); but note his empha-
sis on the unevenness of this shift and the effects of differential mortality on chances of surviving to
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38 Leonore Davidoff

FIG 1: A Contemporary Double Sibling Marriage*

and uncles that had produced flocks of cousins were gone.23 Marriage with close
kin was simply no longer a practical option quite aside from its ‘unnatural’ over-
tones. By the start of the Second World War, there was a feeling that at the very
least ‘there is nothing very romantic in marrying one’s cousin’ (Bramwell, 1939:
* Photograph by Louise Bobbe. Despite our efforts, we have been unable to contact the photo-

grapher to obtain permission to use this image.

23 But see, for a 1930s example, when two brothers married to two sisters and one of the couples

died within a few years of each other, the other couple took over their son and daughter
(Hobsbawm, 2003).
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‘Close Marriage’ in Nineteenth and Twentieth Century Middle Strata 39

306). Until recently, this attitude has continued and at present, in the very rare
cases when it occurs, marrying a cousin seems somehow to be a last resort for
those incapable of otherwise finding a spouse.
Within a century, the contrast between the taken for granted status of intra-
familial marriage and the unease it now evokes is illustrated by the 1999 cover
story in a Sunday broadsheet magazine which blazoned the photograph of a
family worthy of note—why? Because in 1986 the sisters Johanna and Camilla
Awdry had married the brothers Wilf and Philip Stephenson. Their six children
were thus double cousins. The article accompanying the picture highlighted the
‘spooky symmetry’ surrounding the families and the fact that they were all ‘best
friends’ and went on holiday together every summer. They met when Camilla,
the younger sister by two years, was involved with Philip whom she had met at
university. After graduating he was sharing a flat with Wilf in London, the
brothers living close by the sisters, the two couples joining in various activities.
But Camilla claimed that: ‘a romance between Wilf and Johanna was the last
thing on my mind; it would have seemed incestuous’. Johanna agreed that at the
time, ‘if I had thought about it at all, it would have seemed like fancying my
cousin’. Wilf and Johanna felt the situation was so fraught that they almost gave
up the idea of marriage (Allott, 1999).
By the 1960s and 70s, the fears aroused by fascist eugenics policies were reced-
ing and new developments in genetics emerging. The first rumblings of what has
evolved into the new behavioural genetics and evolutionary psychology were
returning ‘mating behaviour’ to a biological base (Kerr and Shakespeare, 2002).
From prohibited degrees of marriage, the focus had shifted to the presence of
erotic desire and where this might lead, an issue going back to the nineteenth-
century concerns of Freud and Westermarck. In the 1960s the anthropologist,
Robin Fox, was one of the earliest to throw down the gauntlet with the notion
of ‘instinctive avoidance’, a crucial part of the socio-biological understanding of
the incest taboo as a cornerstone of cultural evolution (Pastner, 1986: 573).
In the last decades of the twentieth century, with increases in pre-marital sex,
co-habitation, new reproductive technologies and, above all, the separation of
sexuality and reproduction, academic interest had narrowed to concern with
reproductive potential assumed to be driven by genetic forces. Yet even detailed
studies have only concluded that ‘biological relatedness per se, should not be
considered a factor in the ontogeny of sexual avoidance’ (Bevc and Silverman,
1993: 171).
Despite the aggressive stance of the evolutionary scientists, unease remains
about the role of culture. For one thing, as the neo-evolutionists have had to be
reminded, the smaller number of children in modern societies severely restricts
the possibility of near kin as marriage partners (Bittles, 1994). With sex now
seen as an unrestricted opportunity, the view has increasingly been mooted that,
as one newspaper article put it: ‘to ban sex between two people because their
offspring may be ‘defective’ is to adopt a eugenicist’s standpoint’ (Hari, 2002).
Gradually the work of geneticists themselves has begun to undermine the basis
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40 Leonore Davidoff

of evolutionist arguments as more accurate understanding of physiological

inheritance is undertaken and disseminated to the public. In 1996, the professor
from University College London in charge of a ‘revolutionary database’ is
reported as saying that the overstatement of the risks for cousins marrying is
often more to do with tradition and religious practice than scientific fact
(McHugh, 1996).
In the United States, where prohibition of cousin marriage had been intro-
duced since the end of the nineteenth century, it is still illegal in 30 out of 51
states. But even there popular opinion may be turning against the interdict. In
2002, the President of the National Society of Genetic Counseling announced
that cousin marriages are not significantly riskier than any other, a statement
that made the front page of The New York Times. A follow up article cited the
Rothschilds, and, yet again, Charles and Emma Darwin, as cases where cousin
marriage had not had any negative effects. ‘This phobia is distinctly American,
a heritage of early evolutionists’ misguided notions about the upward march of
human societies’ (Conniff, 2003).24
Meanwhile, the factors that increased close kin ties in the West in the nine-
teenth century may also be at work in other parts of the world, especially when
emigration, combined with the continuation of large families, once again dis-
rupts the notion of a smooth transition to the modern family form. In these sit-
uations the proportion of marriages between close biological kin can actually
expand. The explanation partially mirrors the English experience; that as
greater numbers of children survive to marriageable age, ‘the traditional social
preference for consanguineous unions can be more readily accommodated’.25
But it may also be fostered by reinforced mutual aid and obligation when kin
lines are stretched across continents. For example, it has been estimated that
within some U.K. Pakistani immigrant communities, between one-half and
three-quarters of marriages are between cousins or other close relatives, a situ-
ation that has caused concern about the level of mortality and disability of their
offspring in the context of a modern society (Shaw, 2001).26
The Middle East is another part of the world where consanguinity is
common. While it is often perceived to be influenced by religion, it is rather a
matter of culture and tradition with, for example, cousin marriage remaining
frequent among both Christian and Muslim Arabs. While these marriage
patterns may be seen to have social advantages as well as following a cultural
tradition, they do carry slightly raised genetic risks with higher frequency of
recessively inherited disorders and some congenital abnormalities in children
(e.g. Teebi and Farang, 1997; Teebi and El-Shanti, 2006). When two carriers of
a recessively inherited genetic disorder (who themselves are normal) have chil-
dren together, there is a one in four chance that a child will have the disorder.
24 See also Willing (2002).
25 Report of First South American Workshop on Genomics and Community, Brazil, September
26 Also reported on ‘Newsnight’, BBC2, 16 November, 2005.
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‘Close Marriage’ in Nineteenth and Twentieth Century Middle Strata 41

Carriers of such genetic conditions are rare in all populations, but if parents are
blood relatives there is a higher chance that they may both be carriers of the
same recessive condition—hence the raised incidence of such conditions in the
children of parents in a cousin marriage.
How long close marriage, especially between cousins, will continue is open to
question. Cultural shifts and more precise genetic information combined with a
steady fall in the birth rate may work to discourage the practice. For one thing,
with increased availability of artificial reproduction technology, the need to
make up for a wider family’s infertility through adoption by close relatives is
less necessary. Then, too, the power of a human rights mentality as well as
Human Rights legislation sweeps away both prohibition and prescription in the
choice of marriage partners. Even in places where first cousin marriages are
actively sought, gradual shifts away from familial based organization of prop-
erty and public life combined with modern medical beliefs about the negative
genetic effects may be slowly discouraging the practice.27
In contemporary society, especially within the caring professions and among
legal commentators, the focus has shifted from what is now considered an old-
fashioned notion of incest to a concern with child abuse not necessarily among
kin. For example, 2003 legislation re-introduced prohibition on sexual relations
between step-siblings under the age of 18 living in the same household, despite
the obvious lack of a genetic relationship.28 Such thinking is part of the
paradoxical situation where some scientists would have us believe that genetic
drives are behind more and more of our behaviour, while sexual desire, repro-
duction, and its social corollary, marriage, are more than ever seen as matters of
free, individual choice.
Such contradictory positions are not new whether garnered from scriptural
authority, folk ideas or medical/scientific findings. The nineteenth-century case
considered here, echoes more general tensions found in most societies. As the
anthropologist Robert Simpson has said, there is on the one hand

‘a tendency to genetic essentialism; on the other, the possibility that kinship relations
can be made and creatively re-ordered . . . the bare facts of biology are incidental to
the primary business of making and maintaining relationships of one kind or another’
(Simpson, 2006).

This complicated and emotionally fraught subject—that is the rules dictating

who may reproduce with whom—reaches into the most fundamental organizing
principles of any society. Expectation of negative effects from certain unions
(deformed offspring) then becomes a basis for forbidding them; expectation of
positive effects (intra-kin solidarity) promotes them (Heritier, 1999: 10–12).
Once rules have been laid down, the availability of the requisite pool of
those defined as desirable potential partners becomes a secondary factor to the
For Afghanistan, see Aizenma (2005).
Sexual Offences Act 2003, Ch 42.s 27.
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42 Leonore Davidoff

feasibility of sticking to them. In the long run this situation may conspire to
change the rules themselves, as with the turn of the twentieth century dramatic
fall in fertility in cutting short the supply of partners. In modern Western soci-
ety, the rules of kinship have been regarded as a type of ‘primordial identity and
inevitable relations’, part of the natural world that is the basis of social life
(Strathern, 1992: 198). Our knowledge of other cultures and other times demon-
strates that even such a basic view of the world may fade and be replaced in the
future, bringing novel forms to our ‘culture of relatedness’ (Carsten, 2000).


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Status Anxiety? The Rush for
Family Recognition


‘Status anxiety’ is the term coined by Alain de Botton (2004, pp 3–4) to describe

‘a worry . . . that we are in danger of failing to conform to the ideals of success laid
down by our society and that we may as a result be stripped of dignity and respect; a
worry that we are currently occupying too modest a rung or are about to fall to a lower

Status is defined by de Botton as ‘one’s position in society’. Deriving from the

Latin statum or standing, in the narrow sense it refers to ‘one’s legal or profes-
sional standing within a group’ but in the broader sense it refers to ‘one’s value
and importance in the eyes of the world’. Legal status was defined by Lord
Simon of Glaisdale in The Ampthill Peerage1 as ‘the condition of belonging to a
class in society to which the law ascribes peculiar rights and duties, capacities
and incapacities’.
This paper is concerned with status in the context of the family. How import-
ant is family status, socially and legally? One prevalent view is that status is of
decreasing importance and the new emphasis is rather on contract and on the
private ordering of family affairs. At its most basic, this is an approach which
would treat those connected by personal, intimate relationships as if they were
not so connected. What people agree between themselves would be the key con-
sideration and not the particular relationship which they have, whether formal
or informal. The limitations of private ordering in family relationships in
relation to such matters as protection of the vulnerable, unforeseen changes of
circumstances and so on, have been explored many times before and I do not
intend to add to this literature. My focus is rather on the continued, indeed

1 [1977] AC 547, 577.

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48 Andrew Bainham

increased, relevance of status in family relationships. I will contend that this

reflects a pervasive concern about the social acceptability of personal and fam-
ily relationships and the need to secure for them the imprimatur of the law. In
short, de Botton’s phenomenon of status anxiety can be clearly observed in the
context of the family, not altogether surprisingly, given that the family is one of
the two great spheres of activity which dominate the lives of most of us2.
The issue of status permeates recent debates and legal reforms concerning the
family across the developed world, whether we are looking at relationships
between adults or those between adults and children. I consider some of the
legal trends affecting adult relationships in the third section and those concern-
ing adults in their relationships with children in the following section. In the
final section, I offer the view that a coherent family policy needs to be con-
structed which would, inter alia, address the question of why status is important
and which values should underscore the ascription of a particular legal status to
some but not to others.


In looking at this question of legal status in the family context, one cannot fail
to be struck by the apparent lack of significance attached to family membership
as such. With limited exceptions (the transmission of tenancies being the most
important3), being a ‘member of a family’ gives rise to few legal consequences.
This failure to attach legal importance to family membership no doubt reflects
in part the reluctance on the part of Parliament, and successive governments of
all persuasions, to define ‘the family’, despite stressing how important to society
it is. The Blair government attempted to engage with family policy in its con-
sultation paper ‘Supporting Families’ (Home Office, 1998). Ostensibly a decla-
ration of the government’s commitment to all families, it had a strong flavour
about it of maintaining traditional support for marriage as the preferred status-
giving institution. Little has been heard since and what we therefore have is a
vacuum in family policy itself, a vacuum which is filled by special pleading, ad
hoc solutions and an emphasis on outcomes for children (Henricson and
Bainham, 2005).
Traditionally under English law, the great status-giving institutions have
been marriage, parentage and adoption4. We can now add to this list civil
partnership.5 This is not to say that the law has been unwilling to attach con-

2 The other is the sphere of employment and few would argue that status is unimportant in that

3 See especially FitzPatrick v Sterling Housing Association [2001] 1 AC 27.
4 Other legal institutions, notably guardianship, give a considerable legal status but fall short of

the standing of these three. Specifically, guardianship does not alter legal kinship relations.
5 Governed in the UK by the Civil Partnership Act 2004 brought into force in December 2005.
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Status Anxiety? The Rush for Family Recognition 49

sequences to relationships which are not constituted by consanguinity, affinity

or adoption but, where it has, these consequences have generally fallen short of
conferring what we may call the ‘full status’ attaching to those related by blood,
marriage or adoption. Most importantly in the context of a book on kinship,
until recently it was only marriage, legal parentage or adoption which could
generate legal kinship links, or disrupt them. One of the reasons why the recent
Civil Partnership Act 2004 is therefore important, beyond the obvious legal
recognition of committed, same-sex relationships, is precisely because it confers
this ‘full status’, and affects kinship relations going beyond the partners
It would be wrong to conclude from this that outside these status-giving insti-
tutions the existence of personal relationships, whether between two adults or
between adults and children, is of no legal significance. Important legal effects
now attach to being recognised as a ‘cohabitant’, whether heterosexual or
homosexual, and they attach too, for example, to someone possessing ‘parental
responsibility’ for a child. These legal effects are automatic and imposed by
operation of law. There is no choice in the matter. I think we might reasonably
say in these two cases that while the cohabitant or the social parent with
parental responsibility do not have, respectively, the ‘full status’ attached to
marriage or legal parentage, they do possess elements of legal status. We might
view them as having a kind of ‘intermediate status’ falling short of ‘full status’
but adding up to distinctly more than ‘no status’. Even where it is clear beyond
doubt that the legal consequences attaching to a certain relationship are so few
and so specific that it could not be said that they possess a legal status at all, this
is not to deny the importance of certain legal consequences. Take, for example,
the case of home-sharing. Sharing a home may be something which takes on the
character of family life, but the mere fact of home-sharing will not give rise to
the legal effects attaching to those regarded by the law as ‘cohabitants’.6 In rela-
tion to one matter, however, home-sharing is legally important. The test for
those relationships which trigger the special remedies for protection from
domestic violence is now very wide and it is sharing a home with the alleged
assailant which gives rise to perhaps the most noteworthy qualification to be
regarded as an ‘associated person’.7 Beyond this, home-sharing does not (yet)
attract the other legal consequences of cohabitation. Much the same point could
be made in relation to the so-called ‘living apart together’ relationships where,

6 Until recently the term ‘cohabitants’ was exclusively heterosexual in English law, referring to

those who might be classified as ‘living together as husband and wife’. Following the decision of
the House of Lords in Ghaidan v Godin-Mendoza [2004] 2 FLR 600 it is increasingly likely that
the legal notion of ‘cohabitants’ will be interpreted to include a same-sex as well as opposite sex
7 Under S 62 (3) Family Law Act 1996 a person is ‘associated’ with another person if, inter alia,

‘they live or have lived in the same household otherwise than merely by reason of one of them being
the other’s employee, tenant, lodger or border’.
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50 Andrew Bainham

for example, two longstanding lovers have never in fact shared a home together
and do not, for that reason, qualify as cohabitants8.
The choice for policy makers in determining what recognition to give to the
many and varied relationships which might broadly be viewed as ‘familial’
would seem to fall into these three categories—to confer a full legal status equiv-
alent to that achievable through marriage, parentage or adoption and designed
to affect kinship relations; to give an intermediate status designed primarily to
regulate practical problems and potential areas of dispute, but which will not
affect kinship relations; or to ignore the relationship completely, leaving the
parties to have recourse to the ordinary law including private ordering, except
in very special circumstances where specific legal remedies are necessary as in
the case of protection from domestic violence.
The most clearly discernible trend in English law and in other countries at
the present time is a clamour for what we have called full status, seen most
strikingly in the reforms affecting same-sex partners but clearly evident also in,
for example, the apparent preference for adoption over other alternatives for
permanence. In the eyes of many, these other alternatives offer less to those
looking after a child permanently than adoption does. Such claims for a recog-
nised status equivalent to that of marriage or parenthood are grounded to an
appreciable extent in principles of equality and non-discrimination (Glennon,
2005). The argument at its most basic is that cohabiting relationships resemble
marriage and that social parents resemble biological parents in terms of the
functioning of these relationships. This approach is summed up in a well
known ditty which goes something like this:

‘If it looks like an Elephant,

If it feels like an Elephant,
And if it smells like an Elephant,
Then it must indeed be,
An Elephant!

If it looks, feels and smells like a family, then, to paraphrase, it must indeed
be a family and be treated as such by the law. Such an approach, if carried to its
logical conclusion, has the potential for greatly altering existing understandings
of kinship and creating a whole new legal network of kinship relations. But
before concluding that a full legal status ought to be conferred on all those who
can lay claim to be in familial relationships, there surely needs to be some inves-
tigation of whether there is in fact a functional equivalence between, for exam-
ple, married and unmarried cohabitation or legal and social parenthood. Should
the creation of legal kinship relations still be dependent on, and attended by, a
high degree of formality? What, in any event, should be the legal significance of
kinship? Who should be admitted to these highly formalised status-giving
For a dramatic illustration of this kind of relationship see Kroon v The Netherlands (1995) 19
E.H.R.R. 263, where the parties had no less than four children together but never cohabited.
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Status Anxiety? The Rush for Family Recognition 51

institutions, who should be left to an inferior, intermediate status and whose

relationships should be ignored completely and on what basis? These are ques-
tions which need to be addressed in a properly thought out family policy and
they are questions with which the Law Commission may have to engage in its
review of the law of cohabitation.9


Throughout the developed world, the debate over the legal treatment of same-
sex partnerships has been raging for some years (Wintermute and Andenaes,
2001). It is a debate which has excited passions everywhere and has led to widely
differing legal responses ranging from the opening up of marriage, through the
creation of a new legal status known variously as civil partnership, registered
partnership, civil union or domestic partnership, to outright hostility and the
total rejection of the claim that there is any equivalence between heterosexual
marriage and gay partnership. It may be useful to review briefly this range of
political and legal reaction.
A small number of States—the Netherlands, Belgium, Canada and (alone in
the United States) Massachusetts—have at the time of writing permitted same-
sex marriage as such. Much the more common response, especially in continen-
tal Europe, has been the creation of a ‘marriage-like’ status, though the
particular institution varies from state to state. The early Scandinavian model
was the ‘registered partnership’(Broberg, 1996) and this remains the most
common terminology. In English law the new institution is known as ‘civil part-
nership’ but it has the same essential purpose as the continental registered part-
nership which is to enable a same-sex couple to complete a public act of
registration of their relationship with a view to achieving almost all the legal
effects normally reserved for marriage, including those which govern break-
down of the relationship. Similar schemes have been established in various
American States, usually consequential upon constitutional rulings at the state
level that the state provide a ‘marriage-like’ status for same sex couples
(Oldham, 2006). The Vermont Supreme Court led the way. Following its deci-
sion in 199910, Vermont became the first US state to create an opt-in status
known there as a ‘civil union’. From the beginning of 2005, California has
revised its ‘domestic partner’ legislation so that this status becomes, in almost
every respect, similar to marriage. From October 2005, Connecticut has enacted
a ‘civil union’ scheme similar to the Vermont scheme.
Despite these vigorous moves to assimilate the status of registered same-sex
couples with that of marriage, we ought not to leave the United States without
9 Details of the review are provided on the Law Commission’s website at

10 Baker v State, 744 A.2nd 864 (Vt.1999).
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52 Andrew Bainham

noting that the picture, countrywide, provides evidence of a furious battle over
the issue. In most parts of the United States, there is open hostility to the very sug-
gestion of equivalence between heterosexual marriage and gay partnership.
Fearful that their own legislatures might follow the example of Massachusetts,
as many as forty states had by early 2005 enacted or amended laws to provide
expressly that the institution of marriage be reserved for heterosexuals and that
their own states should not recognise any same-sex marriage entered into else-
where (Oldham, 2006).11 There is in particular at the present time a striking con-
trast between the legal position in Canada, (Bailey, 2006) which has now entirely
accepted same-sex marriage, and the United States which, Massachusetts apart,
has not (Oldham, 2006). The opt-in schemes of Vermont, Connecticut and
California have, as we have noted, largely assimilated marriage and registered
same-sex unions in terms of their legal effects. However, it is also worth noting
that other states have created less far-reaching institutions in the sense that the
rights created by the status are significantly inferior to those given to the married.
Such schemes, which we might see as falling within the general notion of an
‘intermediate status’ discussed above, have been established for ‘domestic part-
nerships’ in New Jersey and ‘reciprocal beneficiaries’ in Hawaii. Finally, there is
the intriguingly-termed ‘meretricious relationship’ of the state of Washington
which depends not on formally opting-in but on being in a relationship which
possesses certain characteristics. Where these exist, the parties are treated as if
married (Oldham, 2006). This approach is similar to that followed in other
jurisdictions outside the United States, notably New Zealand (Atkin, 2003).
The English response to the issue of same-sex relationships has come (typi-
cally) later than that in most of the significant states of Western Europe and
North America. It is the ‘civil partnership’ established by the Civil Partnership
Act 2004 and brought into force late in 2005 (Harper, Downs, Landells and
Wilson, 2005). The new status of civil partnership has been deliberately con-
structed to resemble marriage closely, but without extending marriage as such
to same-sex couples, principally because of the religious connotations of holy
matrimony. The government seems to have been determined to strike a balance
between its steadfast refusal to accept same-sex marriage and its anxiety to com-
ply with human rights obligations. It has however been noted that its central
aim in this respect may be frustrated if, in the course of 2006, a lesbian couple
legally married in Canada succeed in their legal challenge to the government’s
refusal to recognise their marriage (Welstead, 2006).
The civil partnership, in terms of legal effects, is said to be marriage in all but
name but it nonetheless remains a different and distinctive institution, the
difference principally being that it is available only to same-sex couples while
marriage is available only to heterosexuals. Before leaving this point, it should be

11 It should be said in passing that many complex issues of private international law arise from

the legal recognition or non-recognition of same-sex relationships where one or more of the parties
moves between jurisdictions (Curry-Sumner, 2005).
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Status Anxiety? The Rush for Family Recognition 53

noted that it is not inevitable that it should have been restricted to those of the
same sex. It would have been possible, for example, to follow the Dutch
approach which makes both marriage and registered partnership available to
both heterosexual and same-sex partners (Schrama, 2002). A Private Member’s
Bill introduced by Lord Lester, which would have extended partnerships to both
same-sex and heterosexual partners, was withdrawn when the government
agreed to introduce its own Bill in 2003. The English scheme is to have two mutu-
ally exclusive institutions, though the extent to which the general public, or even
the popular press, fully appreciate this may be doubted. When Elton John ‘tied
the knot’ with his long-term partner David Furnish, in the popular imagination
they were ‘getting married’12, a perception likely to have been reinforced by their
choice of venue (the Guildhall, Windsor), the same as that recently chosen for the
marriage of the Prince of Wales and Duchess of Cornwall.
A civil partnership is concluded by two people, who have capacity, signing a
civil partnership document in the presence of each other, the registrar and two
witnesses.13 It therefore closely resembles a civil wedding. Like marriage, civil
partnerships are exclusive. No one who is already married or already a civil
partner may enter into a civil partnership.14 Clearly, they are also intended to be
monogamous, though the notion of fidelity is tricky since the concept of adul-
tery does not easily travel. It is one of the rare legal features of marriage which
does not apply to civil partners since adultery, involving vaginal penetration, is
an exclusively heterosexual activity. That this is not the inevitable interpreta-
tion of adultery is however demonstrated by the willingness of the Supreme
Court of British Columbia to amend the definition to include an extra-marital
homosexual affair in 2005 (Welstead, 2006) and by the law of the Bahamas
which, appropriately enough, has quite an exotic definition of adultery extend-
ing well beyond vaginal penetration15 (Thompson-Ayhe, 2005). For the same
reason, there is no requirement of consummation in the case of civil partner-
ship.16 But otherwise, the requirements relating to capacity, formation and
dissolution of civil partnerships involve the wholesale transportation of
marriage and divorce law into the new institution.17
This is also largely the case in relation to legal effects of a civil partnership.
Among the more important to note are that civil partners, like spouses, have
See ‘Elton’s Wedding: Exclusive!’, The Daily Mail, Wednesday, December 21st 2005 at p9.
Civil Partnership Act 2004, s2.
14 Ibid, s3.
15 Under s 2 of the Bahamian Matrimonial Causes Act adultery is defined as ‘any voluntary act of

an intimate sexual nature, other than that regarded as an act of mere familiarity, between one party
to a marriage with another party of the opposite sex who is not the other spouse and which act is
inconsistent with that sexual fidelity that is presumed in the interest of public policy to exist between
parties to a marriage, or any conduct between a party to a marriage with another person as afore-
mentioned whereby a strong presumption arises that such sexual act occurred between them’.
16 Thus, non-consummation is not a basis for annulment of civil partnership as it is for marriage

(Civil Partnership Act 2004 s50 cf Matrimonial Causes Act 1973 s 12 (a) and (b).
17 A civil partnership is essentially dissolved on all the same grounds, technically ‘facts’, which

form the basis of divorce except for adultery.

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54 Andrew Bainham

occupational rights in the home18; are liable to support one another19 and are
subject to the wide-ranging jurisdiction of the courts to make property and
financial orders, previously reserved to the context of divorce 20. They may suc-
ceed to tenancies on the death of one civil partner21 and will be treated similarly
to spouses in the tax and social security systems.22 But most importantly in the
context of this book, a civil partnership creates new legal kinship links and is
accompanied by those legal effects which depend on establishing these kinship
relations. Thus, the civil partner will, for example, have the same rights on intes-
tacy as a surviving spouse23 and the same preferential claim, normally reserved
for spouses, under the Inheritance (Provision for Family and Dependants) Act
1975.24 The rules relating to the prohibited degrees of relationship for the pur-
poses of marriage will now apply to civil partners25 as they do to spouses since
the network of legal kin, arising from the conclusion of a civil partnership, will
be the same network as would have arisen from marriage. Put at its most basic,
the mother, father, or brother of a civil partner will have an in-law relationship
with the other civil partner. In short, like marriage, parentage and adoption, the
broad effect of civil partnership is to create new family relations, like those aris-
ing from affinity, a result which takes us well beyond the immediate relationship
of the couple and into the extended family. Likewise, step-relationships will be
created by civil partnership. One of the more interesting questions therefore is
precisely what legal, as opposed to social, significance ought to attach to legal
kinship relations like this. For the moment, it is sufficient to note that, for the
first time, a legal institution other than marriage, parentage or adoption will
have a direct effect on the creation of legal kinship.
What about the legal relationship between civil partners and children? So far
as an existing child of a one civil partner is concerned, the other will find him-
self or herself in a position closely analogous to that of a step-parent. Thus, like
a step-parent, there will be no automatic acquisition of a legal status in relation
to that child by virtue of civil partnership any more than there is by virtue of
marriage. But, like the step-parent, the civil partner will now be able to acquire
parental responsibility for the child by agreement with both natural parents or
by court order.26 It should be noted carefully that this will not make the civil
partner the legal parent or, put another way, establish kinship between him and
the child; for that adoption will be necessary. Hence, it was the Adoption and
Children Act 2002, rather than the Civil Partnership Act 2004, which introduced

18 CPA 2004 s101.

19 Ibid Sched 5 Part 9.
20 Ibid, s 72 and Sched 5.
21 Ibid Sched 8.
22 Ibid s 254 and Sched 24.
23 Ibid Sched 4.
24 Ibid.
25 Ibid s3 and Sched 1.
26 Ibid, s 75 (2).
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Status Anxiety? The Rush for Family Recognition 55

the radical change. Same-sex couples are now eligible to adopt27 but this does
not depend in any way on their being civil partners. Indeed, it is quite possible
that a same-sex cohabitant, who is not a civil partner, may enjoy a legal status
in relation to a child (through adoption) which is superior to that enjoyed by a
civil partner. It is adoption which alters kinship relations here more effectively
and more comprehensively than civil partnership.
There are two other ways in which the existing child of a civil partner may
have a legal connection of sorts with the other civil partner. First, the definition
of ‘child of the family’ in the Children Act 1989 has been amended to include
children who are ‘treated’ as children of the family by civil partners as well as by
married partners.28 Again the analogy with step-parenthood is a strong one
since usually, but not exclusively, children of the family are step-children and
the issue is their financial support by a step-parent following divorce. The
court’s jurisdiction to order that support is important because such children fall
outside the child support scheme. In future there will be a need to address sup-
port issues for such children on the dissolution of a civil partnership. Secondly,
the definition of ‘relative’ in the Children Act 1989 29 has been amended to
include civil partners. Once again, in this context, step-parents had fallen within
the definition, perhaps somewhat surprisingly given that there was no kinship
relationship between the step-parent and the child of the sort which would, for
example, have given rise to inheritance rights. In practical terms, this means that
a civil partner will have legal standing in relation to his or her partner’s child in
certain instances in which the local authority has become involved with the
family and in which there are care issues relating to the child.
It is of course impossible for civil partners to have a child together other than
through adoption, mentioned above, or with the assistance of reproductive
technology. It is in relation to the latter that we find one of the other rare dif-
ferences of treatment between civil partners and spouses and indeed between
stable same-sex and heterosexual cohabitants. Under the Human Fertilisation
and Embryology Act 1990, where a married or unmarried woman undergoes
fertility treatment involving donated sperm, any resulting child may be treated
in law as the child of the husband30 or extra-marital partner31 where, in the case
of a husband, it is not shown that he did not consent to the procedure and, in
the case of a partner, that he and the mother were receiving treatment services
provided for them together. These provisions have caused a great deal of diffi-
culty but what is clear is that they are not extended to civil partners by the 2004

27 Adoption and Children Act 2002, s50 and s144. It may however be an advantage to be a

civil partner for the purposes of eligibility to adopt since the civil partner, unlike the ‘unregistered’
same-sex cohabitant, will not be required to establish that the partners are in an ‘enduring family
relationship’ (CPA 2004, s 79 (2)).
28 Children Act 1989, s 105 (1).
29 Ibid.
30 HFEA 1990 s 28 (2).
31 Ibid, s 28 (3).
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56 Andrew Bainham

legislation. In terms of kinship, this means that civil partners will not be able to
become legal parents together of a child who is the biological child of one of
them. Parental responsibility may be obtained but this will not generate legal
kinship. Adoption by the other partner will again be an option but some may
regret that a rather easier procedure for acquiring legal parentage has not as yet
been established for these cases of joint enterprise in the context of a civil part-
nership or a stable same-sex relationship.
The close assimilation of civil partnership to marriage, leaves undisturbed the
legal position of those who decide not to opt in to the new status and focuses
attention on what has often been called the ‘default position’. It must be remem-
bered in this respect that the overwhelming majority of stable, same-sex rela-
tionships are unlikely to be formalised into civil partnerships. So far as
heterosexuals are concerned, the choice between formal marriage and informal
cohabitation is more evenly balanced but it seems highly unlikely that marriage
will ever acquire again its former level of popularity and that we are set to expe-
rience high levels of cohabitation for the foreseeable future. Unlike the law in
some other common law jurisdictions, English law has never attempted to
create a special status for cohabitants of whatever sexual orientation. Where
such a status has been created, the purpose has generally been to provide for
practical issues and to regulate potential areas of disputes between cohabitants,
especially over property and financial issues (Atkin, 2002). But these statutory
schemes, even where they exist, have invariably fallen well short of equating the
legal effects of marriage and cohabitation. In England, we have had for many
years, a typically English piecemeal and pragmatic approach which has not
involved the creation of a special status but which has been characterised by ad
hoc pieces of legislation to deal with particular problems such as domestic vio-
lence, fatal accidents, inheritance claims32 and so on, whilst others were largely
left to the courts, notably the issue of transmission of tenancies on the death of
one cohabitant.
In recent years, the novel question has been how far the statutory provisions
applying to heterosexual cohabitants should also be interpreted to apply in
equal measure to same-sex cohabitants. After initial reluctance in the courts, the
House of Lords33 has now given a strong indication that it will be difficult to jus-
tify interpreting these provisions in a way which differentiates on the basis of
sexual orientation and the position could hardly be any different given the
Human Rights Act 1998 and the incorporation of the ECHR into English law.34
The Canadian experience is particularly instructive in this respect, as constitu-
tional litigation under the Canadian Charter of Rights and Freedoms made it

32 Under, respectively, the Family Law Act 1996, the Fatal Accidents Act 1976 and the Inheritance

(Provision for Family and Dependants) Act 1975.

33 Ghaidan v Godin-Mendoza [2004] 2 FLR 600.
34 See particularly the decision of the European Court of Human Rights in Salgueiro da Silva

Monta v Portugal [2001] 1 FCR 653.

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Status Anxiety? The Rush for Family Recognition 57

progressively impossible to apply legislation in a discriminatory manner as

between same-sex and opposite-sex partners.
The English Law Commission has now embarked on a review of cohab-
itation35 and will need to address a wide range of questions concerning cohab-
itants’ legal status. In the final part of this paper, I will suggest some of the central
issues which are worthy of consideration. For the moment it is sufficient to note
that cohabitants occupy a legal position significantly inferior to that enjoyed by
married partners and now civil partners, but are affected by a range of legal pro-
visions which create automatically some important rights and obligations. In
that sense, it is inaccurate to say that they lack a legal status and more accurate
to describe their position as having an intermediate or partial status. One of the
chief characteristics of this status is that it does not affect legal kinship and it is
perhaps primarily this which distinguishes the cohabitant’s position from that of
the spouse or parent. Legal kinship, for all the modern emphasis on functional
relationships, remains heavily dependent on formal public procedures. Civil
partners do not achieve their status and all the rights and obligations which go
with it, because they have a stable relationship, or because they have commit-
ment or because they behave as if they were married or because they have been
together for a specified period of time. None of these things matter one jot. They
achieve it through a public and formal procedure; if any of these other things are
present (as we assume they usually will be) they are certainly not necessary.
Ironically, realistic tests of commitment, stability, marriage-like-behaviour and
duration are much more likely to be demanded outside the context of civil part-
nership or marriage in determining whether a statutory provision can or cannot
be applied to a particular relationship. It has always been the case that the one-
day-old marriage is of far greater legal significance than the forty year cohab-
itation. The wife of one day, for example, has ‘home rights’ which are denied to
the cohabitant who has lived for forty years with her male partner in a home
owned solely by him.36 We can now say with equal force the same about the one-
day-old civil partnership and the forty-year gay cohabitation.


When we look at legal relationships between adults and children we can

uncover much the same issues of status which we encounter in adult relation-
ships. First, there are those who have what we have described earlier as ‘full
status’ in relation to children. Full status in this context largely turns on being
regarded as a legal parent, though the position of the unmarried father is anom-
alous in this respect and requires separate discussion. Secondly, the full status of

Supra, note 10.
Family Law Act 1996, s. 30.
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58 Andrew Bainham

legal parentage is again attended by formality and the requirements of some

public procedure, usually but not invariably birth registration. Thirdly, there
are those who occupy what we have called an ‘intermediate status’ in relation to
children. This involves acquiring parental responsibility37, though this too
requires formal steps to be taken either by agreement with legal parents or by
court proceedings.38 Fourthly, there are those in social parenting or de facto
relationships with children who effectively have no legal status and no parental
responsibility, yet are subject to the general principles and legislation governing
children. They are, for example, legally bound to take proper care of children
being looked after by them and also have the legal power to take those decisions
involved in that care.39 Finally, we can observe the same phenomenon that legal
kinship is closely tied to acquiring the full status of legal parentage and in par-
ticular that the acquisition of parental responsibility does not at present have
implications for kinship.
What I will seek to demonstrate in this brief review of relationships with chil-
dren is that there is a pervasive concern among those caring for children that their
status be improved and a strong desire to gain the full status associated with par-
enthood. The law has responded to this pressure, most recently in the Adoption
and Children Act 2002 (Bridge and Swindells, 2003), by amendments which
enhance the legal status of such carers but which generally fall short of giving to
them this full parental status. I will also seek to illustrate that it is the issue of
kinship which is again at the heart of the debate about status. Those who are seek-
ing full status are, it is argued, seeking it because they wish to have their position
recognised as a legal family generating the network of kinship relations and sup-
port which such recognition would bring (for further discussion of this see
Masson and Lindley, chapter 7, this volume). The law’s resistance to this is also
founded first and foremost in a concern about kinship. The concern here, hugely
bolstered and indeed mandated by human rights considerations, is for the preser-
vation of existing kinship links which would be destroyed, or at least greatly
diluted, by the acquisition of the status of legal parent by the social parent.40
Let us then take some examples to illustrate these arguments. First, full status
depends on being a legal parent and is attended by legal formality. The legal
position of a parent is made up essentially of two components—establishing
legal parentage and possessing parental responsibility. It is the notion of legal
parentage which encapsulates the kinship relationship, or filiation, between the
child and the parent and of course beyond that to the wider family. It is parental
responsibility which gives to the parent all those powers and duties which are
required to look after and raise the child (see further discussion of this in

37 This is defined in the Children Act 1989, s 3(1) as ‘all the rights, duties, powers, responsibilities

and authority which by law a parent has in relation to the child and his property’.
38 Principally by obtaining a residence order under the Children Act 1989, s 8.
39 Children Act 1989, s 3 (5).
40 This ‘transplant’ effect of adoption, replacing one legal family with another, has not been

affected by the Adoption and Children Act 2002.

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Status Anxiety? The Rush for Family Recognition 59

Masson and Lindley, Chapter 7, this volume). If either of these components is

missing, it can be said that the adult in question lacks full legal status in relation
to the child. Establishing legal parentage therefore becomes the gateway to this
full status and this can only be effectively achieved through birth registration or
a finding in legal proceedings. So far as the mother is concerned, it is true that
her legal parentage is not dependent on birth registration since the European
Court of Human Rights has found that the legal relationship between mother
and child arises at birth41, a position supported by Article 7 of the UNCRC.
Nonetheless, English law does require the mother, where unmarried, and both
parents where married, to register the birth of the child within 42 days.42 So far
as the unmarried father is concerned, although the same article appears to envis-
age the right of the child to recognition of paternal filiation at birth, the reality
is that legal paternity has to be established by formal procedure (Bainham,
2006). In civil law jurisdictions this is generally achieved by a formal act of
recognition or acknowledgment, while in English law it requires a joint regis-
tration of the birth by the mother and the father, or a finding in legal proceed-
ings. Even where the father’s legal paternity is established, however, he will not
automatically have full status since the other component of full status, the
acquisition of parental responsibility, is not an inevitable consequence. It is the
position since December 2003 that a joint registration of the father’s name on
the child’s birth certificate will now automatically give parental responsibility43,
or full status, to the father. But it should not be overlooked that when official
consideration was given to the appropriate trigger for the acquisition of
parental responsibility, it was the formal public procedure of birth registration
which was chosen and that the alternative of cohabitation with the mother was
specifically rejected (Lord Chancellor’s Department, 1998). This reform still
leaves a significant minority of fathers with only an intermediate status. This
form of intermediate status is, however, quite unlike the other examples of
intermediate status in family law since, unlike the others, it does carry with it a
kinship relationship. This is because it is legal parentage and not parental
responsibility which is the vehicle for kinship recognition. The case of the
unmarried father does perhaps beg the question of whether there are other
examples of intermediate status, either in adult-adult or adult-child relations,
which should have implications for legal kinship. Before leaving the issue of the
unmarried father, it should also be noted that much of the debate about his
position has been concerned with yet another question of status—whether it is
possible to abolish completely the status of illegitimacy, or rather the dual
concepts of legitimacy and illegitimacy, without also equalising the position of
married and unmarried fathers.44
Marckx v Belgium, Series A/31, (1979) 2 E.H.R.R. 330.
Births and Deaths Registration Act 1953, s 10.
Adoption and Children Act 2002, s 111 amending Children Act 1989, s 4.
For a detailed account of legitimacy and illegitimacy historically, tracing the incremental
reforms of the 20th century, see Cretney (2003).
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60 Andrew Bainham

Secondly, there is plenty of evidence that those having long-term social rela-
tionships with children would wish to have the full status which comes only
with being a legal parent. The best example is perhaps the constant demand for
adoption which far outstrips the supply of available babies and has given rise to
a major, and controversial, market in international adoption. A central feature
of much of this activity has been to obliterate links between the child and the
birth family which legal adoption can achieve (Bainham, 2003). In domestic law
we can also find reported examples of foster carers who give all the impression
of being fundamentally unhappy about long-term foster care and who are satis-
fied only if they are allowed to adopt. It is adoption for them that makes them
‘real parents’ with a ‘real family’ and it is, as they see it, a fundamentally inse-
cure position to be given merely parental responsibility for the child even where
accompanied by other legal safeguards.45 In my view, this sort of attitude also
has a great deal to do with status—the low status which we in England attach
to long-term foster care as an alternative for permanence. Foster care is per-
ceived, probably rightly, as low-paid, unattractive and low-status work. It is
also clear that the government itself has championed adoption as the best, one
could say high-status, solution for children in long-term care (Department of
Health, 2000).
The Adoption and Children Act 2002 has a number of provisions which are
designed to enhance the status of various categories of those looking after chil-
dren but which fall short of adoption. In this way it is hoped that greater legal
security may be provided without the drastic effects on existing kinship rela-
tions which adoption entails. The measures include a power to extend residence
orders to the child’s majority, better mechanisms for the acquisition of parental
responsibility by step-parents (and now civil partners) and, most importantly,
the creation of a new status of special guardian (discussed more fully in Masson
and Lindley, Chapter 7, this volume).46
What is perhaps interesting in the context of the present discussion, is the
large degree of scepticism with which the new regime of special guardianship
has been received. There was no shortage of those who were quick to say that it
would not be much used or even that it might suffer the fate which the related
notion of custodianship suffered in the 1980s.47 Why is this? I suggest that it
again has a great deal to do with the prevalent concern about status. The fact is
that however secure special guardianship is, it is clearly not the equivalent of
adoption and again the central issue is kinship. Unlike adoption it will not
change the legal family of the child and this appears to be what some long-term
carers really want. It is certainly arguable that in any thoughtful formulation of
family policy, a great deal more needs to be done to increase awareness about
45 The best example being Re M (Adoption or Residence Order) [1998] 1 FLR 570 where the fos-

ter parents indicated that they would cease to look after the child altogether unless allowed to adopt.
46 New s 14 A-G Children Act 1989.
47 The custodianship order, introduced by the Children Act 1975, took a decade to implement,

was little used and then quickly abolished.

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Status Anxiety? The Rush for Family Recognition 61

the requirements of the ECHR which strongly militate against the destruction
of birth relations48 and also to improve significantly the status of foster care.
The ‘pro-adoption’ policy in the UK, following that in the US49, is simply not
accepted elsewhere in Europe (Warman and Roberts, 2003) and has compara-
tively recently been rejected in Australia too (Parkinson, 2003).
Perhaps the fundamental issue in the law governing relations between adults
and children is when (if at all) social parents, in their many manifestations,
should become legal parents and thus occupy a full legal status in relation to the
child, when they should be limited to the intermediate status of possessing
parental responsibility and when they should effectively be left with no status at
all, beyond that occupied by anyone who physically has a child with him or her.
One of the most interesting cases is that of the step-parent. Given the rate of
divorce, we are of course talking about a very large number of people. What
should their legal status be and should they have a recognised kinship relation-
ship with the child? Much the same questions can now be posed in relation to
civil partners. Those who believe that step-parents have an inferior legal status
will point again to the functions which they perform and will argue that many
step-parents are fulfilling a role in relation to children which is in all but name
that of a parent (Engel, 2005). It can accordingly be argued that the step-parent
should possess a legal status equivalent to that of the parent-spouse, parent-civil
partner. Against this it can be argued that step-parents become step-parents in
a widely differing set of circumstances and that, for example, the position of the
step-father who marries an unmarried mother where the genetic father left the
scene before the child’s birth, is very different from that of the step-father who
marries the divorced mother when the child is older and has an established rela-
tionship with the biological father. The case of step-parenthood perhaps illus-
trates that caution is required in assuming too readily that what looks like a
parent must be a parent, or that it is appropriate to hand out a full status to all
those looking after children who may, given the propensity for serial relation-
ships, be only in that position for a limited time before being replaced by
another parent figure.
Finally, before leaving the issue of relationships with children, we should
surely reflect on the whole children’s rights debate. What is this if it is not prin-
cipally another manifestation of commitment to the importance of status? In
essence children are no longer viewed merely as the possessions of their parents.
They are seen as legal subjects with rights and not merely objects of concern.
Looked at in this way, the recent arguments about the place of the welfare prin-
ciple in the new era of human rights are essentially arguments about the status
of the child, specifically in legal proceedings.

A consequence of the right to respect for family life under Article 8 ECHR.
Under the Adoption and Safe Families Act 1997.
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62 Andrew Bainham


This paper has been about the importance of status in family law. It has not been
my intention to deny the significance of private ordering, or to deny that in the
real world people will live out their family lives often oblivious of what the law
may say and not caring very much about it either. My purpose has been rather
to draw attention to the continued, and in my view, increased significance of
legal status in the context of the now very wide range of formal and informal
family arrangements. Many more examples could be given of this concern about
status, a recent and important one being the law’s belated recognition of gender
change in the case of transsexuals by the enactment of the Gender Recognition
Act 2004 (Welstead, 2006). I have also sought to demonstrate the connection
between status and kinship relations which, at least in law, are closely inter-
twined. The higher the legal status, the more likely it is that kinship relations are
affected. Those family arrangements which are at or near the top of the legal
hierarchy are also those which establish or alter kinship and may well be per-
ceived by some as the only real families or, to take an historical perspective, the
only legal families (Cretney, 2003). Socially too, it seems highly unlikely that the
same people who are obsessed with the value of their homes, their promotion
prospects at work, the age and make of their cars, the size of their bank balances
and where their children’s schools are in the national league tables, will be indif-
ferent to the social acceptability and standing of their family arrangements.
If it is accepted then that status matters in family life, the following broad
questions might be posed for policy-makers, not least the Law Commission as
it embarks on its review of cohabitation:
(1) How should legal kinship be created and transmitted? Should it continue to
depend on the conclusion of formal legal procedures, which doubtless have
an importance in terms of legal certainty, or should the law lend its support
to a looser network of kinship relations arising from more informal family
(2) What legal importance ought to be attached to kinship? At the present time,
the legal effects which turn exclusively on kinship are quite limited, though
important, and do not extend much beyond inheritance rights, liability for
child support and the prohibited degrees of relationship for marriage or civil
partnership. Indeed it could be said with some force that the social signifi-
cance of kinship exceeds the legal significance. It may not matter a great deal
in law, if at all, that someone is one’s uncle. But if that uncle were to become
seriously ill, with no other close relatives to arrange for his care, it is more
than likely that one might feel some sort of social or moral obligation to take
an interest in his situation. And, unlike the situation of friends who are
chosen, this is likely to be the case whether or not there is a close bond of
affection between uncle and nephew. More research is needed on the nature
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Status Anxiety? The Rush for Family Recognition 63

of these social and moral obligations arising from kinship and the extent to
which these may vary across different cultures.
(3) Are the current legal effects arising from kinship relations appropriate or in
need of review? To take just one example, is it any longer appropriate that
English law should maintain the very strong preference for the surviving
spouse in the case of intestacy, the effect of which may be to cut out com-
pletely the biological children of the deceased’s former marriage?50 And is it
appropriate that step-relationships should be completely ignored? Rules
enacted in 1925 need to be regularly revised to ensure that they keep up with
changes to family structures in society, in this case the high incidence of
divorce and remarriage.
(4) How far should the law continue to attach automatic legal consequences to
personal intimate relationships? What underlying values should govern the
question of the appropriate legal status to be accorded to different kinds of
relationship? It seems likely that commitment and stability would rank high
on the list of such values but, as has been pointed out, a legal system which
attaches the greatest importance to formality is in a sense undercutting these
other values. And if commitment and stability are what really matters, then
there must surely be concern about the low status currently occupied by
those in long-term but informal family arrangements.
(5) Should the principal focus of attention be on the nature of the relationship
in question or should it rather be on the specific issues which need to be
addressed? An issue-based approach would come at things from an entirely
different angle. Instead of seeking to formulate a comprehensive, catch all,
status for various familial associations, the law would instead focus on the
particular problem requiring resolution. To take just one example, earlier it
was noted that the test for standing in the context of the protective remedies
for domestic violence is now principally a household test. Few, apart from
some ultra-conservatives and readers of the Daily Mail, would argue that
there should be nice distinctions drawn between relationships when the need
for protection clearly arises first and foremost because of proximity between
assailant and victim. But suppose that the issue is the quite different one of
whether someone who shares a household should, by reason only of moving
in, automatically acquire occupational rights in, or ownership of, that prop-
erty. Many people would recoil from any such implication and that is the
view that has also consistently been taken by parliament51 and the courts.52
What this example shows is that it is not sufficient to ask the question, ‘what
is the nature of the relationship’? We must also ask, ‘what is the issue’?

Under the Administration of Estates Act 1925.
Occupational rights in the home arise by virtue of marriage (s 30 FLA 1996) or civil partner-
ship (s 101 Civil Partnership Act 2004) but not from cohabitation or home-sharing however long
such arrangements have lasted.
For a good example see Layton v Martin [1986] 2 FLR 227
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64 Andrew Bainham

(6) As regards relationships with children, perhaps the key question is whether
the current conceptual distinction between parentage, which affects kinship,
and parental responsibility, which does not, should be maintained. I have
argued elsewhere that it should, and that there should continue to be a clear
distinction in law between parents on the one hand, and social carers on the
other, principally to uphold the significance of the birth family as required
by international obligations. A balance needs to be struck between the
status of the birth family, which should be preserved wherever practically
possible, and that of the social family in its need for legal security (Bainham,
These then are some of the broad issues relating to family status and kinship
which a properly constructed family policy might need to address. In the
absence of such a policy there is plenty of scope for de Botton’s ‘status anxiety’
to persist.


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(E) Ebtehaj et al Ch4 31/8/06 13:18 Page 67

DNA Testing and Kinship: Paternity,
Genealogy and the Search for the
‘Truth’ of our Genetic Origins



NE OF THE most significant developments arising from the so-called

O ‘genetic revolution’ of the late-twentieth century is the possibility of

identifying individuals and the degree of genetic relatedness between
individuals through DNA analysis. Amid widespread claims that social prac-
tices, discourses and relations are being geneticised by the developing know-
ledge and technologies (Lippman, 1991, 1992; Finkler, 2000, 2001), we might
expect DNA testing to have profound conceptual and practical implications for
socio-legal and cultural understandings of kinship. Our aim in this chapter is to
evaluate the significance of DNA testing as a method of confirming the genetic
basis of paternity and kin relationships. We will discuss how far this technology
may reinforce or undermine the socio-legal and cultural status traditionally
attributed to ‘biology’2 in defining paternity and kin relationships.
DNA testing has provided the first definitive method of confirming the genetic
basis of paternity and other close familial relationships (e.g. grandparent, aunt,
uncle, twin, sibling, half-sibling). It is based on the principle that each individ-
ual (with the exception of ‘identical’ or monozygotic twins) has a unique

1 The authors’ research on lay understanding of inheritance and kinship has been supported by a

grant from the Wellcome Trust. We would like to thank Thomas Nutt and Leonone Davidoff for
helpful comments on earlier versions of this chapter.
2 Whilst the focus of this chapter is on the role of genetics and genetic relatedness in defining

socio-legal and cultural concepts of paternity and kinship, it is clear that notions of kin relationships
as being formed through procreation and biological connectedness (e.g. being related by ‘blood’)
predate contemporary understandings of genetic inheritance. For this reason, the following discus-
sion assumes that the implications of DNA testing can be interpreted more widely in terms of the
traditional importance ascribed to procreative and ‘biological’ relationships (however conceptu-
alised) in defining socio-legal and cultural concepts of paternity and kinship.
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68 Tabitha Freeman & Martin Richards

genome or genetic ‘fingerprint’ of DNA sequences composed of the contribu-

tions in the egg and sperm from the two parents. While we all have the same
genes, DNA sequences of genes and other parts of our genome vary. Identifying
and comparing elements of that variation allows for the determination of
genetic relationships because, as each parent contributes to their child’s genome,
there will be familial similarities.3 Using similar techniques, DNA testing can
also be used to trace male and female bloodlines of individual ancestry and the
likelihood of ancestors coming from particular populations. Consequently,
there are new tools for tracing genealogical genetic lineages in relation to fam-
ily surname and, to some extent, to possible ethnic or geographical origins.
The unique capacity of DNA testing to uncover genetic connections within
existing family groups and across past generations is of fundamental signific-
ance, given the primacy ascribed to notions of blood relationships in defining
western kinship systems. Within western societies, kin relationships are deemed
to be acquired by marriage and procreation, with generational ties being struc-
tured along bloodlines, most typically according to patrilineal descent. DNA
testing thus offers a scientific means of reifying the biological basis of kin rela-
tionships that has, at least until relatively recently, been assumed to provide the
bedrock of kinship structures in western societies.
The practical and cultural appeal of an accessible technology for verifying
paternity or exploring the genetics of genealogical descent has been reflected by
the rapid uptake of DNA relationship testing in the UK. Since the development
of DNA testing in the late 1980s, paternity tests have swiftly become one of the
most prevalent applications of all the new genetic technologies and are now
widely available as an increasingly routine procedure for settling cases of
unknown or disputed parentage across a range of familial and legal settings.
The State has fast emerged as the principal UK user of paternity testing, with the
majority of tests being conducted on behalf of the Child Support Agency (CSA),
for determining paternal liability, and the Home Office, for regulating immi-
gration.4 There are, however, strong indications that such institutional applica-
tions are being outpaced by a substantial growth in individual testing fuelled by
the commercial availability of ‘DIY’ home-testing kits. Paternity testing is
currently the leading product in an expanding internet market of direct-to-

In testing, DNA is extracted from any cellular sample which contains DNA (e.g. saliva, blood,
hair roots or skin cells). Comparative analysis of DNA from a man (or woman) and a child will pro-
vide positive evidence of the genetic relationship with over 99.9 per cent accuracy; a level that can
be treated as certainty for all practical purposes (barring accidental errors such as the muddling of
samples). This is a fundamental change from the former methods based on blood group analysis
which could only rule out paternity or indicate its possibility. For further discussion of the scientific
basis of DNA testing, see Jeffreys (1993) and Richards (2001).
Estimates of uptake of paternity testing in the UK range from 8,900 to 20,000 tests per year, with
approximately 5,000 conducted for the CSA (Bellis et al, 2005). To these figures must be added a sig-
nificant but largely unknown number of tests carried out overseas for UK residents by companies
trading on the internet.
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DNA Testing and Kinship 69

consumer genetic testing services.5 Most companies presently offer two kinds of
paternity testing: the ‘legal’ court approved service which has consent require-
ments and cheaper ‘personal’ tests using DIY home sample collection kits.6
These latter tests are popularly marketed as ‘peace of mind’ and ‘curiosity’ kits
that offer a cheap, accurate and trouble-free means of relieving the nagging
uncertainty of paternity and protection against the perils of ‘paternity fraud’.
The recent addition of prenatal paternity tests to the array of available services
means that it is no longer necessary to wait for the birth of a child to verify
parentage.7 Other forms of relationship testing are likewise readily available
within this open consumer market, including genealogy, surname and ‘infi-
delity’ tests of various kinds.
As DNA testing promises to unveil the ‘truth’ of our genetic origins and put
longstanding assumptions about the importance of biology in determining kin-
ship to the test, it is timely to ask how far parentage and kin relationships can in
fact be understood as reducible to matters of genetic relatedness and shared
DNA sequences. This chapter addresses this question by examining the relative
claims of the ‘biological’ and ‘social’ in framing socio-legal and cultural under-
standings of parentage and kinship, exploring these concepts from both tradi-
tional and contemporary perspectives. By uncovering the complex interplay
between biological and social dimensions of kinship in relation to past and
present notions of parentage and genealogical descent, this chapter also points
towards how we may make sense of kin relationships in the future.
It is estimated that paternity tests currently account for approximately 80 per cent of the inter-
net market of direct-to-consumer genetic tests, which also include a range of health and lifestyle
related products. For further discussion, see Gollust et al (2003) and Williams-Jones (2003).
The existence of a two-tier system of ‘legal’ and ‘personal’ tests is clearly discernable in the mar-
keting on the numerous commercial websites that offer paternity testing services. Within the UK,
‘legal’ paternity testing must be carried out by accredited companies that conform to a voluntary
Code of Practice (Department of Health, 2001). This Code is designed to ensure the consent of
involved adult parties and maintain technical standards. Legal tests are intended to be valid for court
use and are linked with the potentially significant financial benefits of avoiding child support pay-
ment on many of the websites. In contrast, ‘personal’ tests commonly flout the voluntary Code by
advertising ‘motherless testing’ (i.e. testing with a man and child’s DNA sample only) and explicitly
detailing ways of covertly collecting DNA samples. However, once the ‘truth’ of paternity is known,
there may well be legal and financial implications and thus the distinction between ‘personal’ and
‘legal’ testing may not be so clear-cut in practice. The Human Tissue Act (2004) introduced the first
legal provision by making the non-consensual collection and holding of tissue samples for DNA
analysis a criminal offence. However, this may have limited impact in practice, particularly given
the global reach of the internet market. There is no reliable information available about the extent
of use of the ‘personal’ tests, but it seems likely that the uptake of these has now outstripped that of
the ‘legal’ tests.
Prenatal testing services employ both invasive procedures (i.e. amniocentesis or chorionic villus
sampling) and, more recently, non-invasive techniques based on comparative analysis of DNA from
fetal cells or free DNA in maternal blood samples and DNA sample(s) from the putative father(s).
These tests raise a number of ethical concerns, not least because the invasive techniques involve the
compliance of a medical practitioner and carry the risk of miscarriage. Whilst seeming to offer a
technical solution to these ethical problems, the accuracy of the non-invasive techniques involving
maternal blood samples may be open to question. Moreover, one might assume that anyone wish-
ing to test during pregnancy is likely to be contemplating termination of that pregnancy should the
result indicate the ‘wrong’ man is the father (see Human Genetics Commission, 2006).
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70 Tabitha Freeman & Martin Richards

The central premise of our discussion is that the concept of paternity can be
understood as providing a lynchpin of western kinship systems which are struc-
tured around notions of marriage, blood relations and patrilineal descent. In
Section Two, we provide a conceptual framework for the chapter by examining
the cultural and socio-legal status of paternity. In particular, we explore the cul-
tural significance of the hitherto uncertain link between biological and social
fatherhood and trace the evolution of socio-legal mechanisms for determining
male parentage. In doing so, we uncover what is identified as the paradoxical
place of biology in traditional kinship systems; as such, the assumed priority
given to biological relatedness in defining socio-legal and cultural understand-
ings of parentage and kinship is itself brought into question.
Such deeply embedded conceptual fault lines have been visibly exposed in
recent years, where an apparent decline of the traditional nuclear family has
brought longstanding tensions between biological and social constructs of kin-
ship to the fore. The growth of DNA testing has occurred amid wider cultural
and demographic transitions that are perceived to have far-reaching implica-
tions for the nature of parentage and kinship; not least, the rising rates of
divorce, separation and cohabitation and the development of assisted repro-
ductive technologies (ARTs). In Section Three, we turn to an examination of
recent academic and public debates concerned with the nature of paternity, kin-
ship and identity within the contemporary age of genetic testing, where a criti-
cal focus on the ‘fragmentation’ of the traditional family bound by genetic
relatedness has been met by a visible reassertion of the fundamental importance
of the biological as a key determinant of kinship identities and relationships. We
examine these two contradictory trends of ‘genetic essentialism’ and ‘social con-
structionism’ by evaluating the extent to which underlying demographic and
cultural developments have transformed or maintained traditional ideologies
and structures of kin relationships in order to highlight some of the wider impli-
cations of the rapid growth of the DNA relationship testing.
In Section Four, the relative claims of genetics and socially constructed mean-
ings in shaping our understandings of kinship are further explored through a
consideration of the potential significance of utilising DNA relationship testing
to elucidate the nature of kin relationships and genealogical descent within dif-
ferent substantive contexts. We focus our discussion here on the use of DNA
analysis to trace genetic ancestry and ethnic origins in order to illustrate some
of the limitations of this technology for describing the nature of our kin
We conclude by returning to the central aim of this chapter: that is, to assess
the significance of DNA testing as a means of establishing the genetic basis of
paternity and kin relationships by evaluating ways in which this technology
might challenge or confirm ideological assumptions that kinship is founded
upon blood relatedness. To this end, this chapter attempts to understand how
far DNA testing contributes to an increasing genetic essentialism in cultural and
socio-legal concepts of parenthood and kinship, and how far uncovering the
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DNA Testing and Kinship 71

tenuous status of the ‘truth’ of our genetic origins opens up paths for reconcep-
tualising the nature of kinship.



Whilst procreation, blood relationships and marriage have long been under-
stood to define the structure of western kinship systems, the ‘truth’ of genetic
relatedness has hitherto remained impenetrable owing to the inherent uncer-
tainty of paternity. Until the advent of DNA testing, the impossibility of estab-
lishing paternity and patrilineal descent with absolute certainty created an
implicit tension in western understandings of kinship between the primacy
attributed to bloodlines and the unverifiable nature of genetic relatedness.
Western kinship systems have therefore rested on a deep-seated paradox: the
intangible realities of paternity posing intractable conceptual problems for tra-
ditional socio-legal and cultural kinship frameworks that are legitimated by
notions of blood relatedness and patrilineal descent.
The problem of ‘paternal uncertainty’ has not escaped critical attention and
indeed, has carried enormous explanatory weight across the academic domain
to account for a variety of social and psychological phenomena. For example,
the problematic relationship between biological paternity and social fatherhood
has long been recognised as being intrinsically linked to the origins of patri-
archy. A classic statement is given in Friedrich Engels, The Origin of the Family,
Private Property and the State (1884).8 According to Engels, the rise of capital-
ism compounded the perils of paternal uncertainty; this ‘natural’ problem for a
male seeking to ensure the continuance of his bloodline being realised as a social
problem of determining the rightful inheritance of private property. For Engels,
the attempted resolution of this predicament underlies the institutionalisation of
female monogamy within marriage, as enshrined within the patriarchal family;
a kinship structure that is

based on the supremacy of the man, the express purpose being to produce children of
undisputed paternity; such paternity is demanded because these children are later to
come into their father’s property as his natural heirs Engels (1986 [1884]), p 92.9

There is also a significant feminist literature on the role of paternal uncertainty in the evolution
of patriarchy, including the seminal account given in O’Brien (1981). Other salient uses of paternal
uncertainty include evolutionary accounts of male behaviour as being shaped by uncertainty over
progeny and the drive to ensure genetic inheritance (e.g. Trivers, 1972; Schuiling, 2003). Whilst
DNA testing has fundamental implications for these theoretical frameworks as the first definitive
‘solution’ to the problem of paternal uncertainty, the conceptual implications of this technological
breakthrough have not been adequately theorised in these terms. For further discussion, see
Freeman (2005).
The premium placed upon female monogamy is illustrated by Engels’ chilling statement of the
absolute rights engendered upon the husband within the patriarchal family: ‘In order to make
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72 Tabitha Freeman & Martin Richards

However, the risk of falsely attributed paternity persists as an awkward tension

within this patriarchal scheme, especially given the sexual freedom tacitly
bestowed upon men.10 Thus whilst the capitalist model of patrilineal kinship is
founded upon the ideological significance of biological paternity, the social def-
inition of fatherhood as being legally identified with marriage is effectively pri-
oritised; a paradox that is illustrated by Engels’ citing of the Napoleonic
Code which states that ‘the father of a child conceived during marriage is the
An examination of the legal tradition likewise confirms that the principal
socio-legal means of establishing paternity has long been marriage, with the
uncertain link between social and biological fatherhood being negotiated by the
common law assumption of a husband’s paternity.12 In English law, paternity is
a matter of social status and is contingent upon a man’s relationship with the
mother of his child; a relational concept that contrasts with the naturalised con-
stant of maternity which is legally constructed through the act of birth
(Richards, 2006). The socio-legal association of motherhood with birth rests on
a tacit assumption that there is an irrefutable biological bond between a mother
and her offspring that is visible at birth, whilst the father-child relationship can
be understood as being socially constructed through marriage. More specific-
ally, a husband’s putative paternity has historically bestowed legitimacy upon a
child born within wedlock; an assumption that conversely rendered the legal
status of a child born outside marriage as filius nullius (‘nobody’s child’). In
effect, an illegitimate child was deemed to have no father.13
As with Engels’ account, we can once again point to the immediate fallibility
of this system in leaving open the conceptual loophole of concealing misattribu-
ted paternity within the legal institution of marriage. Furthermore, whilst in
practice, the marital presumption has been interpreted as rebuttable, the possi-

certain of the wife’s fidelity and therefore of the paternity of the children, she is delivered over
unconditionally into the power of the husband; if he kills her, he is only exercising his right’ (Ibid,
p 88).
10 A classic account of the sexual double-standard of female monogamy and male promiscuity,

and the intrinsic problems this poses for the patriarchal order, is given in Thomas (1959). For fur-
ther discussion, see Freeman (2004).
11 Article 312, ‘L’énfant concu pendant le mariage a pour pere le mari’ (Ibid, p 98).
12 The presumption of paternity within marriage is not absolute and may be rebuttable in excep-

tional circumstances. However, at least historically, this was rare and rested upon circumstantial
evidence as to the impossibility of paternity. As the eighteenth-century legal commentator, William
Blackstone, described: ‘As bastards may be born before the coverture or marriage state is begun, or
after it is determined, so also children born during wedlock may in some circumstances be bastards.
As if the husband may be out of the kingdom of England (or, as the law somewhat loosely phrases
it, extra quatuor maria) for above nine months, so that no access to his wife can be presumed, her
issue during that period shall be bastard. But, generally, during the coverture access of the husband
shall be presumed, unless the contrary can be shewn; which is such a negative as can only be proved
by shewing him to be elsewhere: for the general rule is, praefumitur pro legitimatione’ (1770), p 457.
13 To quote William Blackstone again, a child born outside wedlock ‘hath no father’ (1770,

p 455). For further discussion of the socio-legal determination of paternity and legitimacy, see Nutt
(2005), Collier (1995), Smart (1987) and Lowe (1982).
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DNA Testing and Kinship 73

bility of contesting paternity within marriage only serves to expose the vulnera-
bilities of a socio-legal framework that is legitimated on the tenuous conflation
of paternity with marital status. Therefore, whilst patriarchal kinship systems
have traditionally been founded upon the language of ‘natural’ rights associated
with paternity,14 this rests upon the socio-legal fiction of the marital presump-
tion that conveniently glosses over the thorny problem of paternal uncertainty.
The intrinsic limitations of marriage for defining parentage are further exacer-
bated by the fact that maternity is likewise not necessarily confined within the
marital relationship, with the history of unmarried motherhood and illegit-
imacy revealing the long-standing problem of enforcing paternal economic
responsibility outside this legal framework. In this context, it is interesting to
note that the biological basis of paternity has in fact long been viewed as the
decisive rationale for enforcing paternal responsibility in cases of unmarried
motherhood. Indeed, long before the advent of DNA testing, the attempt to
establish paternity by recourse to the circumstances of conception in order
to enforce financial responsibility for bastard children was commonplace; a
practice that can be illustrated by the operation of the affiliation system from the
sixteenth century onwards (Nutt, 2005; Gowing, 2001).
The significance of DNA testing as the first definitive method of verifying the
genetic basis of kin relationships must therefore be set against the historical
heritage of the determination of parentage within legal discourse, where social
constructions of marriage and legitimacy effectively take precedence over the
illusive ‘truth’ of biological paternity in defining the socio-legal status of father-
child relationships.15 This is not to say, as in the majority of cases, that a hus-
band may not likewise be the genetic father of a child conceived during
marriage.16 Indeed, it is quite feasible that the realities of genetic relatedness

Patriarchal kinship systems rest upon a particular conception of paternity defined by origina-
tion and ownership, by which a man’s position as father and head of household effectively renders
his wife and children his property. For further discussion of the concept of paternity as origination,
see Franklin (1996). Empirical examples of the natural rights associated with paternity can be found
in Murray’s detailed account of the patriarchal conceptualisation of women as property (1995, Ch.
7), and Pateman’s description of the common law doctrine of coverture (1988).
A contemporary illustration of this paradox is given in the Warnock Committee report on
assisted reproduction, which refers to the importance of the birth certificate as a ‘true genetic
record’, as follows: ‘We recommend that the law should be changed so as to permit the husband to
be registered as the father [of a child conceived by artificial insemination by donor (AID)]. We are
fully aware that this can be criticised as legislating for a fiction since the husband of a woman who
has conceived by AID will not be the genetic father of the child and the register of birth has always
been envisaged as a true genetic record’ (Department of Health and Social Security, 1984: para 4.25).
16 It is commonly claimed that a significant minority of men are raising children whom they

falsely assume to be their genetic children. For example, a recent survey of available research con-
ducted across many countries found an average 4 per cent rate of ‘paternal discrepancy’ (Bellis et al,
2005), with the ‘fact’ that up to 1 in 25 fathers could be unwittingly bringing up another man’s child
attracting widespread media attention. Such estimates readily lend themselves to becoming some-
thing of an urban myth and are frequently picked up by paternity testing companies who play on
fears about the secret promiscuity of women in order to sell their personal ‘peace of mind’ testing
kits. However, the limited empirical evidence supporting these claims is highly problematic, not
least because rates of misattributed paternity are likely to show great variation across different
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74 Tabitha Freeman & Martin Richards

may concord with the socially defined status of father-child relationships and in
this light, the significance of DNA testing as resolving the problem of paternal
uncertainty should not be over-played.17 Rather the point is that, in practice,
socially ascribed meanings may paradoxically be taken to be definitive of male
parentage within kinship systems that are legitimated upon the primacy of
blood relationships.
Where the legal fiction of paternity is overtly challenged, whether through the
rebuttal of a husband’s paternity or what was once perceived as the illegitimate
birth of a fatherless child, there is an inevitable attempt to restore order by
retrieving the biological facts of paternity. In this light, the advent of DNA test-
ing can be viewed as a landmark tool for settling cases of disputed paternity with
unprecedented accuracy, efficiency and certainty. However, the radical poten-
tial of this technology should not be over-stated in this context, as the applica-
tion of DNA testing for establishing parentage can be understood as an
extension of a well-established legal tradition of working to define the con-
testable link between paternity and social fatherhood when the constraints of
the marital framework breaks down. What is perhaps more disruptive for the
traditional patriarchal order is the potential for DNA testing to challenge the
ideological foundations of the marital framework itself by rendering the hidden
paradoxes of paternal uncertainty visible to scrutiny. Indeed, paternity testing
presents a double-edged sword for the patrilineal basis of traditional kinship
structures, with its rapid exploitation for legal and commercial purposes both
demonstrating the resilience of biological definitions of kinship based on pater-
nal descent whilst uncovering the essential weakness of this ideological system
through confronting the problem of paternal uncertainty head on.
It is evident that DNA testing has the potential both to reinforce and desta-
bilise longstanding assumptions concerning the socio-legal status of paternity
and throw a priori claims about the primacy of biology in determining western
kinship systems into question. By creating an accessible means of establishing
the presence or absence of a genetic relationship between a man and child and
indeed, between generations of kin, DNA relationship testing provides a litmus
test for traditional concepts of western kinship defined by patrilineal descent
and brings the paradoxical place of biology within this system to the fore. If kin-
ship systems have traditionally been legitimated by recourse to the socio-legal
status of paternity and biological relatedness, what happens when this ‘legal
fiction’ can be challenged by the ‘genetic facts’ of DNA testing? Is it likely that

samples and social groups. For further discussion, see, for example, Macintyre and Sooman (1991)
and the ensuing debate in later issues of The Lancet.
17 Moller Okin is one of the few commentators to respond critically to the explanatory weight

placed upon the concept of paternal uncertainty by posing reasonable doubts over the empirical
applicability of this theoretical concern, as follows: ‘It is extremely difficult to believe that actual
historical male consciousness has been obsessed with the issue of paternity . . . Have actual, histor-
ical men really had no sense of genetic continuity, in spite of having ancestors, in spite of having
children that they generally had little cause to doubt were their own biological offspring?’ (Moller
Okin, 1983 p 444).
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DNA Testing and Kinship 75

paternity testing will undermine the marital presumption of paternity in English

Law, as already seems to be happening in the USA (Glennon, 2000; Rothstein,
et al, 2005)? How can claims of parental rights based on social contact and
parental involvement be weighed against the traditional status attributed to
paternity? As DNA testing looks set to become part of the socio-legal fabric of
determining parenthood, providing answers to these questions becomes increas-
ingly pressing.
At present, it may be observed that, although the common law assumption of
a husband’s putative paternity remains operative, the potential to establish the
biological truth of paternity offered by DNA testing has been reflected by an
increasing legal emphasis on the importance of verifying paternity (Bainham,
2005). There are growing indications that determining paternity is becoming a
paramount concern, with UK case law interpreting knowledge of the ‘genetic
truth’ of one’s origins as being in the ‘best interests’ of a child in cases of
disputed parentage.18 This essentialist discourse is exemplified by the strong
association between paternity and economic responsibility enshrined in the
Child Support Act (1991), as implemented by the Child Support Agency. Indeed,
the notoriously unpopular and unsuccessful nature of the CSA’s practices can be
partially explained by the reductionist fervour underpinning the use of shared
DNA sequences to determine a man’s obligation to pay child support and the
corresponding absence of any automatic legal link between financial responsi-
bility and the rights (e.g. of access and contact) associated with fatherhood.
Similarly, DNA paternity tests are becoming an increasingly frequent feature of
divorce settlements, where they may be used to determine child maintenance
obligations. It is hard not to speculate that the increased reliance on paternity
testing could act to undermine the marital presumption, and there are signs that
the importance placed upon an intact family life implicitly preserved by this
legal doctrine is being trumped by what is now viewed in terms of the right to
knowledge of one’s genetic identity. How far the paternity testing industry is
itself leading this transition remains open to question, but it seems likely, given
the widespread accessibility of paternity tests, that this technology has played
some role in the current movement towards uncovering genetic truth.
Despite the genetic essentialism being promoted within contemporary socio-
legal discourse, the tacit importance placed upon social relationships in defining
fatherhood has not been sidelined. Rather, it is perhaps more accurate to say
that recent cultural and demographic change has led to a visible exposure of the
socially constructed nature of the link between social fatherhood and paternity.
Institutional and individual use of DNA testing has gained pace alongside wider
transitions in cultural and socio-legal concepts of kinship, with the rights and
responsibilities ascribed to biological and social fathers becoming a particular

18 Both the primary consideration of the child’s best interests and the right to knowledge of one’s

identity are contained in the United Nations Convention on the Rights of the Child (1989). The right
to private and family life (Human Rights Act 1998) has also been cited in this context.
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76 Tabitha Freeman & Martin Richards

focus of concern. In particular, rising rates of divorce, remarriage and cohab-

itation and the availability of ARTs involving sperm donation have led to an
increasing proportion of men assuming parental relationships with children
known to be genetically unrelated and/or born outside marriage. Within this
context, the significance of the biological basis of fatherhood is potentially
undercut by the import ascribed to social relationships between men and chil-
dren in constituting parenthood. For example, the contingency of fatherhood is
reflected by the legal ascription of parental status to the social, rather than the
genetic, father in cases of donor insemination; indeed, a man’s mere presence at
a fertility clinic with his partner is enough to confer parental status upon him of
any child born of that procedure.19 Likewise, men’s parental rights are no longer
deemed to be contingent upon marriage and biological relatedness in all cases.20
It is somewhat ironic that, alongside the advent of DNA testing and the
promise of paternal certainty, the increasing numbers of children living with
social fathers has contributed to a more widespread questioning of the tradi-
tional significance bestowed upon biology as the principal determinant of kin-
ship identity. In part, the multiple routes to parenthood within contemporary
western societies has helped to facilitate more expansive definitions of father-
hood beyond men’s traditional procreative and economic contributions.21
However, in spite—or because—of the contested nature of fatherhood, the tra-
ditional socio-legal and cultural status ascribed to biological paternity remains
strong.22 Within this changing cultural climate, socio-legal and cultural con-
cepts of fatherhood have become riddled with tensions and contradictions
(Freeman, 2003), with the relative claims of the biological and the social being
continuously played off against one another in an attempt to hold onto the
ideological and practical importance of family and kinship.23 In the next sec-
tion, we will further explore the impact of recent demographic and cultural

19 See Jackson (2001) and Lee and Morgan (2001). Men within heterosexual partnerships parti-

cipating in ARTs involving sperm donation are recognised as the legal fathers of any child born of
this procedure (Human Fertilisation and Embryology Act 1990). In this context, it is of interest to
note that the longstanding naturalised association of motherhood with pregnancy and childbirth
means that birth, rather than genetics, determines maternity in cases of surrogacy involving egg
donation. In cases of maternal surrogacy, the birth mother is recognised as the legal parent in UK
law rather than the commissioning mother, regardless of which of them provided the egg. The com-
missioning mother must therefore go through a formal procedure to assume parental status.
20 The legal status of unmarried fathers is now effectively equivalent to that of married men, so

long as they are registered on the birth certificate (Adoption and Children Act 2002).
21 This is most vividly expressed in the contemporary cultural rhetoric surrounding ‘equal par-

enting’ and the rise of the ‘new father’ who is intimately involved in childcare. For further discus-
sion see, for example, Lupton and Barclay (1997), Henwood and Proctor (2003) and Dienhart
22 Another salient example of this trend is the recent removal of donor anonymity within the UK,

which came into effect from April 2005.

23 One widely documented recent example that brings these issues to the fore is the case of Leeds

(The Leeds Teaching Hospital NHS Trust v Mr A, Mrs A and Others [2003] EWCA259 (QBD)),
involving the accidental mix-up of two couples’ gametes in their respective IVF procedures that
came apparent through the mismatch of the skin-colour of the corresponding parents and infants.
For a critical discussion of this case, see, for example, Sheldon (2005) and Richards (2006).
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DNA Testing and Kinship 77

change for contemporary understandings of kinship in order to make sense of

some of these contradictions.


Whilst the advent of DNA testing has the potential to shed light upon the bio-
logical dimension of familial relationships, this technology initially ran against
the tide of what has been described as a move away from such essentialist deter-
minants of kinship and identities in both socio-demographic and academic
terms since the late 1960s. This anti-essentialist current can be illustrated by
considering salient trends within contemporary anthropological discourse;
anthropology itself being the natural home of kinship studies since its founda-
tion in the nineteenth century. Indeed, whilst kinship has long been the mainstay
of anthropological work, the onset of late-modernity (or, as some would
describe, post-modernity) witnessed a fundamental transition in the theoretical
and empirical concerns of this discipline.
In part, the rejection of biological essentialism and the universalising tenden-
cies that such a framework promotes was an inevitable consequence of the
nature of anthropology as a cross-cultural enterprise; the influential work of
Schneider in particular (e.g. Schneider, 1972, 1980, 1984) being attributed with
a pivotal role in throwing light upon the cultural relativity of the hence tenuous
claim to the universal primacy of biology in constructing kinship relationships
in the west. By exposing a diversity of kinship structures and cultural under-
standings of procreation across different societies and ethnic groups, anthropo-
logical research negates the existence of a universal kinship structure based on
monogamous heterosexual partnerships formalised through marriage and
patrilineal descent; an assumption that had hitherto been embedded in the foun-
dations of both this discipline and, as such anthropologists would claim, of
western culture itself.24 From this perspective, the implicit dualism between
‘nature’ and ‘culture’ by which the biological ‘facts’ of reproduction were once
held to be mapped onto social constructions of kinship centred around the
nuclear family has itself been called into question.
The recognition of the cultural relativity of western concepts of kinship
thus led to a critical consideration of the dualism between nature and culture
and, by implication, of the category of nature itself (e.g. Strathern, 1992a).
Likewise, the empirical diversity of kinship observed across different social and
ethnic contexts has become ever apparent within the increasingly fluid bound-
aries of western societies, where demographic transitions appear to challenge

The significance of Schneider’s work and associated re-evaluation of the universalising claim
to the biological basis of kinship structures is widely documented, representing as it does a ‘para-
digm shift’ in the anthropological discipline. For further discussion, see, for example, Strathern
(1992b), Peletz (1995), Carsten (2000) and Finkler (2001).
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78 Tabitha Freeman & Martin Richards

the primacy bestowed upon biological relatedness in founding and legitimising

kinship structures. Indeed, the changing patterns of partnership and procreation
that are evidenced by increasing levels of divorce, separation, remarriage and
cohabitation have created a cultural climate in which the socio-legal and
cultural institutions of marriage and the nuclear family are perceived to be in
Whilst the apparent fragmentation of the traditional familial structure has
caused alarm across many political and cultural circles, within anthropology,
the potential to reconfigure concepts of kinship has been met with the reinvigor-
ation of this topic as a fruitful arena of enquiry. In particular, by providing
insights into the gendered, heterosexual preconceptions underpinning the tradi-
tional privileging of the patriarchal family and laying claim to the visibility of
alternative forms of kinship relationships, feminist and gay/lesbian studies have
both reawakened interest in, and challenged monolithic concepts of, the family
and kinship. This democratic embrace of diversity has led to the expansion of
definitions of kinship beyond the traditional concerns of marriage, fertility and
patrilineal descent to include a range of intimate relationships and ‘cultures of
relatedness’ (Carsten, 2001) that may transcend or subvert the naturalised
boundaries of legal and blood ties.
One of the most widely debated influences on the nature of contemporary
kinship across the social sciences has been the advancement of new forms of
reproductive technology. Whilst the use of contraceptives to prevent conception
had a significant impact in separating traditional links between sexuality and
procreativity, the development of ARTs designed to aid conception went one
step further in untying socio-legal and cultural definitions of parenthood from
the reproductive process. It is therefore no surprise that contemporary kinship
studies remains engrossed with this topic, with the implications of ARTs for
concepts of kinship and parenthood likewise being a familiar feature of recent
social policy and public debate.26 In characterising the essence of this debate as
it has entered anthropological work, it is hard not to be struck by a sense of
theoretical consensus: namely, that the advancement of reproductive technolo-
gies has led to a collapse of the distinction between natural and cultural aspects
of human reproduction, exposing the artificiality and mutability of what is per-
ceived as the entirely socially constructed nature of kinship.27
The theoretical abandonment of essentialist claims to the ‘natural’ origins of
family structures evident in the ARTs literature should not belie the continued
concern with the significance of biology to cultural understandings of kinship
25 For a critical discussion of the contemporary ‘crisis’ of the family, see, for example, Smart and

Neale (1999) and Wright and Jagger (1999).

26 The impact of ARTs on the family and parental relationships have received wide attention

across the academic disciplines; see for example, Fenwick (1998), Golombok (2000) and Richards
(2003). On the impact of ARTs on concepts of fatherhood in particular, see, for example,
O’Donovan (1998), Donovan (2000) and Wallbank (2004).
27 There is a large body of literature in this area; see, for example, early works in Stanworth

(1987) and more recent edited collections such as Franklin and Ragoné (1998), Edwards et al (1999).
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DNA Testing and Kinship 79

within much contemporary anthropological work. Likewise, despite the frag-

mentation of sexuality, reproduction and parenthood proffered by ARTs, pro-
creation and kinship remain closely interlinked within cultural and socio-legal
discourse, with the traditional nuclear family bound by biology and marriage
retaining central place as the tacit norm against which the diversity of intimate
relationships are measured. Indeed, recent demographic and technological chal-
lenges to essentialist concepts of the family have done little to displace prevalent
assumptions that our biological origins are a significant determinant of identity
and kin relationships in both practical and symbolic terms. Moreover, the per-
sistence of such beliefs has in some senses been heightened by our entrance into
the new genetic era, marked by the Human Genome Project. By promising to
unveil the transparency of our genetic makeup, this pivotal scientific moment
has provided a new language for kinship relations and identity based on genetic
relatedness and inheritance, creating an upsurge of genetic essentialism within
different sectors of academic and cultural discourse.
The most notable example of such genetic essentialism in relation to cultural
and academic concepts of kinship is the discussion of the ‘geneticisation’
(Lippman, 1991, 1992; Petersen and Bunton, 2002),28 ‘biologization’ (Franklin,
2001), or ‘medicalization’ (Finkler 2000, 2001) of family life and identity. The
geneticisation argument is principally used to describe the cultural and psy-
chosocial implications of medical applications of biotechnologies; for example,
Finkler (2001) argues that increasing attention to the role of genetics in the aeti-
ology of specific diseases, behaviours and personality traits encourages people
to perceive their family history through a medicalised lens of genetic inheri-
tance. However, empirical evidence suggests that such shifts in perceptions and
discourse may be very over-played. For example, in a recent study of hyper-
cholesterolaemia (a dominantly inherited disease caused by a gene mutation
which can be revealed by a DNA test and is strongly linked to heart disease),
both patients and the professionals who treated them did not perceive the
disease in a strong genetic frame (Weiner, 2006). Rather, patients emphasised
the role of diet and lifestyle as well as drug treatment in discussing the disease
and made little of its genetic nature. Here it would seem that, because the dis-
ease is treatable and there are widely articulated cultural ideas about causation
and the role of diet and lifestyle in heart disease, there is ‘resistance’ to
geneticisation. Despite such resistance, there has been a rather over-ready and
uncritical acceptance of the geneticisation thesis by many social scientists.29

The concept of ‘geneticisation’ was coined by Lippman to describe a process by which both
professional and public discourses about health and illness were increasingly drawing on genetics
and genetic differences, and focusing on biological rather than social factors associated with disease.
These claims were based on the rhetoric surrounding the Human Genome Project at the time, which
often focused on the possibilities for the prediction and prevention of common diseases of adult-
hood. These notions have been very widely articulated within social science writings about health
and illness, which has often accepted such changes as self-evident.
A critical discussion of Finkler’s medicalisation thesis follows her article on the topic in
Current Anthropology (2001), 42, pp. 250–260. See also Konrad (2005).
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80 Tabitha Freeman & Martin Richards

Whilst in itself, the claim that such genetic reductionism has become a pre-
dominant paradigm for conceptualising kinship deserves critical questioning,
perhaps the most striking feature of this thesis in the context of the present
discussion is the analytical focus on disease and medical discourse and the con-
spicuous absence of any consideration of the impact of DNA paternity and rela-
tionship testing on constructions of the family and kinship. Finkler is not alone
in neglecting DNA testing in her discussion of genetic technologies. Indeed,
whilst DNA testing is empirically and symbolically one of the most significant
products of the new genetics for concepts of family and kinship, medical uses of
biotechnology for the enhancement of human health and the prevention and
treatment of heritable disease have received by far the most academic and pub-
lic policy attention.30 In conjunction with the medicalisation of procreation
through the ART clinic, such a focus on the genetic origins of human life reduces
perceptions of the reproductive process to the molecular mechanics of concep-
tion and genetic inheritance. However, in contrast to the fluidity and complex-
ity of contemporary parenthood signified by the impact of ARTs and the
weakening cultural script of the permanency and necessity of marriage, the
geneticisation of family relationships may implicitly emphasise continuity in
kinship structures rather than change by appealing to traditional ideologies of
the primacy of biological relatedness.
The emergence of two distinct trends within anthropological theory towards
the prioritisation of social and genetic aspects of kin relationships evidenced by
the ARTs and geneticisation literature respectively may initially appear to be
something of a paradox. However, it is possible to interpret this divergence as
reflecting wider tensions in contemporary understandings of kinship shaped by
the demographic and technological developments outlined above. Indeed, the
reassertion of the biological basis of kinship facilitated by the language of genet-
ics can be understood as resisting the tide of anti-essentialism beckoned by the
fragmentation in traditional family structures, as illustrated by the stark equa-
tion of paternity with economic responsibility in current child support policy.
The open association of paternal responsibility with paternity (regardless of
marital status) can be seen as both a consequence of, and reaction to, the moral
panic surrounding the apparent decline of the traditional nuclear family. Such
concrete attempts to assert the socio-legal significance of paternity by determin-
ing parentage outside the boundaries of marriage act to reinforce the ‘natural’
legitimation of this threatened cultural institution.

30 The social science and bioethics literature on new genetic technologies focuses almost entirely

on medical applications (e.g. Marteau and Richards, 1996). Likewise, the tendency to overlook
DNA paternity and relationship testing is also evident in policy debates, with regulatory frame-
works being tailored towards concerns about the commercialisation of genetic testing for health-
related conditions or lifestyle purposes (e.g. Human Genetics Commission, 2003; Expert group on
Ethical, Social and Legal Implications of Genetic Testing, 2004). The striking lack of empirical and
policy-related research on DNA testing has only recently become the focus of critical attention; see,
for example, Anderlik and Rothstein (2002), Rothstein et al (2005) and Forseca (2006).
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DNA Testing and Kinship 81

In more general terms, holding onto ideas about the importance of our
genetic origins may take on particular psychosocial and cultural significance
given the potential dysphoria that emanates from the apparent diversity and flu-
idity of contemporary kinship relationships; an argument that Catherine Nash
convincingly makes in relation to the current popularity of genealogy testing
(Nash, 2002). However, as the example of the robustness of the socio-legal sta-
tus of paternity suggests, claims that traditional kinship structures are in a state
of dissolution should be expressed with some degree of caution. Indeed, whilst
the widespread assumption that the contemporary period marks a time of
radical transition in the nature of kinship often goes unquestioned across the
social science and anthropological literature, it is important to consider how
such claims may mask continuities in the nature of family life in symbolic and
empirical terms.
As demonstrated above, the argument for change is commonly made with ref-
erence to contemporary technological and demographic developments, particu-
larly in terms of the impact of ARTs and rising rates of divorce. In empirical
terms, one can question the widespread significance of these developments for
kinship. For example, despite the high levels of media and policy attention given
to ARTs, and to assisted conceptions involving gamete donation in particular,
these practices are still relatively uncommon: births by IVF and donor insemi-
nation currently account for only approximately one per cent of all births in UK,
and of these, the vast majority do not involve donated gametes.31 Furthermore,
amid claims that these technologies have revolutionised the nature of kinship, it
is easy to lose sight of the fact that the use of artificial insemination and sperm
donors is not in itself a novel practice.32 Similarly, with regards to discussions
about the impact of divorce and separation, it is also important to question the
empirical reach and historical novelty of this phenomenon. For example, despite
the moral panic incited by ‘fatherless families’, current studies show that over
80 per cent of fathers live with all their biological children under the age of
18 years in the UK (Burghes et al, 1997; Lewis, 2000). Furthermore, although
contemporary concerns about lone parents are often assumed to represent a
modern day malaise, there is good evidence that there was the same level of sin-
gle parent households in the mid-nineteenth century as now (Snell and Miller,
1987). As the discussion of cousin-marriage in the nineteenth and twentieth cen-
tury in Leonore Davidoff’s chapter in the present volume further illustrates, any
assumption that kinship can be understood as evolving in a clear-cut transition
from simple to complex family forms is therefore highly questionable.

31 For example, annual figures produced by the HEFA for 2005 show 7505 successful births aris-

ing from IVF (amounting to 8544 children) and only 767 successful births from donor insemination
(amounting to 818 children).
32 The first recorded birth of a child conceived by artificial insemination (with the sperm of the

husband) was in 1790 in London and in 1866, in the USA. The first insemination using a donor (i.e.
with sperm other than the husband’s) was reported in the late 1800s by William Pancoast (Cooper
and Glazer, 1998; Wilmot, 2006).
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82 Tabitha Freeman & Martin Richards

Beyond these empirical questions, it is also important to identify ways in

which contemporary policy and legal frameworks work to reproduce tradi-
tional definitions of family and kinship at an ideological level. To take the IVF
example again: the original regulatory frameworks were clearly underpinned by
implicit assumptions about the importance of the traditional nuclear family,
with the limits placed on granting access to lesbian couples and single women
being enacted in terms of welfare considerations recognising a child’s ‘need for
a father’.33 Thus it may be more accurate to say that whilst IVF marks a funda-
mental transition in the circumstances of conception, this does not necessarily
undermine existing familial structures. Indeed, the very existence of IVF pays
testament to people’s desire to have their ‘own’ children. Where children are
conceived through gamete donation, the ‘natural facts’ of procreation and fam-
ily relatedness may be re-constructed to accord with social meanings of kinship
(Thompson, 2001; Hargreaves, 2006). Likewise, policies concerned with single
parents and ‘absent fathers’ work to restore kinship links by tying paternity to
financial responsibility and problematising lone parenthood. Therefore, whilst
the contemporary period has opened up sites of real change, such examples
demonstrate how claims that traditional familial structures are being
‘fragmented’ must be balanced by an assessment of underlying continuities in
patterns of kinship relations.
The complex constellation of continuities and transformations in the nature
of kinship offers a means of understanding why both biological and social
dimensions of familial relationships are emphasised within different spheres of
contemporary academic and socio-legal discourse. In the case of anthropologi-
cal theory, our discussion has illustrated how the alternate appeal to culture and
genetics is manifest in distinct characterisations of kin relationships, in relation
to the impact of ARTs and biotechnologies respectively. Despite focusing upon
different sides of the dualism between biology and society in shaping per-
ceptions of kinship, these two countervailing trends are united by their implicit
collapse of the ontological distinction between nature and culture. Indeed, there
is a danger in both instances of undoing the complexity of kinship and identity
in place of either a social or genetic form of reductionism.
We argue instead that kinship is not reducible to either social or genetic rela-
tionships and further, that preserving a conceptual distinction between biolog-
ical and cultural aspects of kinship is both an unavoidable and important
component of understanding the nature of contemporary kinship. Despite the
well-documented intractable pitfalls of employing an analytical dualism
between ‘nature’ and ‘culture’ (not least the traditional gendering of these

33 See clause s.13(5) in the Human Fertilisation and Embryology Act (1990) which states that: ‘A

woman shall not be provided with treatment services unless account has been taken of the welfare
of any child who may be born as a result of the treatment (including the need of that child for a
father), and of any other child who may be affected by the birth.’ The controversial phrase, ‘the need
of that child for a father’, has received widespread critical attention; see, for example, Donovan,
(2000), Haimes and Weiner (2000) and Sheldon (2005).
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DNA Testing and Kinship 83

spheres),34 it is undeniable that this distinction is still widely operative in both

socio-legal and cultural terms and for this reason, we would argue that it is still
of relevance for describing the nature of contemporary kinship. As our earlier
discussion of the current socio-legal framework illustrated, the distinction
between ‘social’ and ‘genetic’ aspects of fatherhood is evident within legal dis-
course, with alternative definitions of parental responsibility across different
procreative contexts betraying the difficulties of balancing the relative claims of
genetic and social relationships in determining parentage. Similarly, in everyday
understandings of kinship, people commonly employ a distinction between
their genetic or ‘real’ father and their social father or ‘dad’ (e.g. if brought up by
adoptive or step-parents), even where the identity of the former is not known.
In such instances, perceptions of the relative significance of the genetic and
social basis of relatedness may take on different subjective meanings for the
individuals involved.35 As Jan Pryor describes in the present volume, the defini-
tive feature of kinship for children may commonly be identified as love, empha-
sising the importance of subjective evaluations of family relationships. In the
following section, the multi-levelled nature of kinship is further explored by
examining the relative claims of genetics and social relationships in constituting
our kin identities and genealogical histories.


Thus far in our discussion, we have largely focussed on paternity testing.

However, as was noted in the introduction, DNA tests can be used to determine
a much wider range of relationships. So, for example, siblings can be tested to
see whether or not they are full siblings without involving DNA samples from
putative fathers. The same sorts of tests have also been used by groups of adults
who know they were conceived by donor insemination at the same clinic to see
whether or not they may be half-siblings sharing the same donor. Given that in
the period before donation was regulated by the Human Fertilization and
Embryology Act 1990, it was common for clinics to use the same donor on many
occasions, the chances of finding a half-sibling may be quite high.
Techniques of DNA analysis employed by population geneticists to examine
human genetic diversity and biological relatedness within and between human
populations are being harnessed by the commercial sector and packaged,
promoted and sold to the public as novel ways of understanding our individual

For a classic account of the gendering of nature and culture as female and male respectively,
see Ortner (1974). For further discussion, see MacCormack and Strathern (1980).
For further discussion, see Edwards, Gillies and Ribbens McCarthy (1999) and Ribbens
McCarthy et al (2003). This study found that the importance placed on biological relatedness may
vary according to class, with middle class families tending to give stronger emphasis on biological
relatedness and working class families, on the significance of social bonds.
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84 Tabitha Freeman & Martin Richards

family histories, kinship and identities. There are three broad types of product
that are being marketed in a variety of ways: testing concerned with the ident-
ification of family ancestry based on father-son lineages, those following mater-
nal lineages and testing concerned with biogeographical ancestry analysis.36 For
example, companies now offer to provide genetic snapshots of an individual’s
ancestral heritage by locating their ethnic origins within the population groups
of the world created by human migration patterns thousands of years ago.
However hypothetical and fallible these claims may be, the appeal of identify-
ing kinship links with distant ancestors and gaining new insights into our
genetic inheritance has made recreational DNA relationship testing a significant
growth industry that shows no sign of losing popularity in societies where
family history has become a major leisure activity.
For some, at least in the US, the interest in DNA relationship testing is not
simply recreational. For example, one company urges its potential customers to
use its services, ‘whether your goal is to validate your eligibility for race-based
college admissions or government entitlements.’ Others have tried to use tests to
establish their first national status and so gain access to casino profits and other
entitlements. The potential applications of DNA testing for establishing inherit-
ance rights has also become incorporated into the marketing of these tests in the
UK and elsewhere.
A well-known situation where Y chromosome lineage testing was employed
concerned the Jefferson/Hemmings families. There is an old story that the
American President, Thomas Jefferson, fathered a child with one of his slaves,
Sally Hemmings. Y chromosome analysis has been carried out on samples from
contemporary male Jefferson and Hemmings descendants. Patterns of variation
36 Male lineage testing uses Y chromosome (patriline) analysis. The Y chromosome is passed

down the male line, usually unchanged. Mutations in the DNA sequence occasionally arise and so
then a slightly changed Y chromosome is transmitted down the male line through the generations.
DNA tests can reveal these variations in the Y chromosome so an individual can be placed in the
lineage of descent of particular patterns of variation. In Euro-American culture with patronyms, the
Y chromosome will often, though not always, run with surnames. So these lineages among individ-
uals with the same or similar surnames can be compared to identify previously unconnected genetic
relatives. Testing companies have set up databases for this purpose.
Maternal (mt DNA, matriline, umbilical or uterine line) lineage testing uses the DNA in mito-
chondria. These are minute organelles in cells which have their own DNA and are only passed
between generations in eggs, and so follow a maternal line. Variations in the mt DNA are used in an
analogous way to Y chromosome markers. As well as following lineages, maternal and paternal lin-
eage analysis can provide information that is relatively specific to a particular region, or population.
Thus companies offer tests to determine whether an individual has paternal or maternal lineages
that originate from European, African, native American or Asian populations. The accuracy of
these tests depends on the size and sampling of the database used, and the populations in the
particular region. It is also important to note that lineage analysis can only use male or female ances-
tral lines, so will not include most of an individuals’ ancestors.
Another approach, which avoids this major limitation, uses biogeographical ancestry analysis.
This uses a variety of genetic markers in an individual and compares these with databases of differ-
ent populations. However, much will depend on the numbers of markers used, the particular popu-
lations involved and the quality of the comparison databases. Individuals are likely to get rather
different results depending on which company they entrust with their DNA sample. For a review of
these techniques, see Shriver and Kittles (2004), see also Simpson (2000) and Bamshad et al (2004).
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DNA Testing and Kinship 85

in the Y chromosome DNA strongly suggest that the contemporary Hemmings

are Jefferson’s descendants (or descendants of a close male relative of Thomas
Jefferson). Of course, the techniques can only be used to explore male lines of
descent. In Euro-American culture with patronyms, Y chromosome variation
will often, but not always, run with surnames. This has led to the setting up of
surname groups among family history enthusiasts who have then used patriline
analysis to see whether members share common (male) lines of descent. More
distant descent lines may be illuminated by comparing an individual’s Y chro-
mosome variation with those typical of different populations. So, for example,
British men of Afro Caribbean descent can determine whether their paternal line
leads back to Africa or to Europe so suggesting the intervention of a white slave
owner or another European man. Clearly this technique depends on having ref-
erence samples of Y chromosome variation from different populations and, as
yet, some of these remain quite small, making it difficult to assign origins with
much precision.
Potentially, there are other ways of tracing origins using the genetic variation
which is typical of a particular population. By examining the patterning of
variation in an individual’s DNA across a number of parts of the genome and
comparing this with population samples, it is possible to provide a probability
of an individual coming from a particular population. This kind of testing is
offered by some of the companies providing recreational genetic testing for fam-
ily historians. This is also the basis of the ‘ethnic profiling’ that sometimes is
attempted by the police using DNA samples collected from crime scenes, essen-
tially trying to predict the ethnic background of the person from whom the sam-
ple comes. However, given the nature of genetic population variation and that
within-group variation is greater than between groups, such profiling is little
more than an informed guess. So, for example, claims of ‘Viking blood’ might
be more accurately described as probably originating in north western Europe.
Mitochondrial DNA (mt DNA) allows analysis of female lines of descent. In
a popularising book on mt DNA, Bryan Sykes (2001), an Oxford University
population geneticist,37 promotes the idea of seven (fictional) ‘daughters of Eve’
who lived in Europe or the Middle East and who may be the ancestral mothers
of most European women. He locates these ‘clan mothers’ geographically: for
example, Ursula from Greece, Helena from the Dordogne, Tara from Tuscany
and Jasmine from Syria. Less colourfully, we might say that analysis of mt DNA
variation among women in Europe could be categorised into about ten groups,
each of which is associated with a particular part of Europe or the Middle East
which will have descended from a common ancestor some 15–30,000 years ago.
But there is an important point about the sense in which we may speak of these
groups as being relatives—‘clans’ as Sykes terms them—or the Y chromosome
‘brotherhood’. Of course, if we go back far enough, all human kind is related.
We each have two parents, four grandparents, eight great grandparents and so

37 He also founded and runs Oxford Ancestors, a company that sells genetic genealogical tests.
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86 Tabitha Freeman & Martin Richards

on. If we go back fifteen generations we each have half a million ancestors so the
sense in which a shared biological relationship is being demonstrated is very
We should also note that tracing these ancestral roots depends on the size and
quality of the database that is being used for comparison. Not long ago the BBC
produced a documentary about black Britons tracing their Y chromosome and
mt DNA roots. One woman was shown being introduced to her ‘cousins’ on the
island of Bioko off the coast of Cameroon. Her mt DNA matched that of sam-
ples from eight people who live on this island, although this was from a very
small database of African mt DNA. Among later additions to the database was
a sample from Mozambique, which also matched her mt DNA. Perhaps one of
her ancestors was enslaved on Bioko, but equally likely it could have been from
almost anywhere in central Africa. The ‘truth’ about our ancestors which
these techniques reveal, with their apparent scientific precision, may be highly
As yet, these uses of DNA testing by those interested in family histories and
origins has received very little research attention from social scientists. A pio-
neering exception is the work of Catherine Nash, who has provided an analytic
case history of Y chromosome and mt DNA analysis and the production of Y
chromosome ‘brotherhoods’ and mitochondrial DNA ‘clans’:

As genetics is commodified and consumed within popular genealogy, the globalised

rhetoric of technologies meets the intimacy of personal genealogies, identities and
family relatedness. Nash (2004, p 2).

Nash considers how the popularisers of this genetic science and the providers of
genetic genealogy tests shape and deploy ideas of gender, reproduction, nation,
‘race’ and relatedness in their presentations of genetic kinship and have pro-
duced new versions of kinship with Y chromosome genetic brotherhoods, mito-
chondrial DNA clan membership and a global genetic kinship.
But what of the consumers of these genetic kinship tests? Nash suggests that
‘the genetic answers supplied by these tests [may] reinforce, challenge or leave
unchanged existing personal and collective notions’ of identity, family, ethnic-
ity and so on. As she says, kinship cannot be genetically tested. There is no sim-
ple process of creating new relatives. Even in terms of biological relationships,
they can only map chains of mother/daughter or father/son connections rather
than the coming together of mothers and fathers and the branching trees of their
descendants. Certainly sometimes they can create new stories of family his-
tory—or add weight to old ones as in the case of the Jeffersons and the
Hemmings. But the kinship genealogies of these two families remain—the
Hemmings do not overnight become Jeffersons. Or, to take the example of a

38 This figure of half a million ancestors is a maximum: if parents are themselves related, as will

often be the case, it will be significantly smaller.

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DNA Testing and Kinship 87

participant in the aforementioned BBC TV documentary about genetic genealo-

gies, a young Afro-Caribbean man who had grown up in south London was
interviewed. His Y chromosome trail led to Europe rather than Africa but, as he
said after hearing the test result, he remains the same person, black British and
living in Brixton. Social identities would seem resistant to change through DNA
analysis. And far from emphasising a genetic kinship, this testing may reinforce
the disjunction of biological relationship and kinship. Surname group analyses
may well tend to emphasise the point that surnames are not simply passed from
father to son like copies of DNA. There are many reasons of course: names may
‘daughter out’ and are passed to others not biologically linked, names are some-
times changed, there may be adoptions and co-options and what in this world
of genetic testing are often referred to as ‘non-paternity events’. This is typical
of the stories we learn about our own families, as I (Martin Richards) can
illustrate from my own.
During my childhood, I came to understand that the family of my maternal
grandparents—at least the male line—could be traced to a knight who came
over with William the Conqueror and that the family name came from the name
of a village where this knight was granted land. Later, I realised that there was
disjunction in the family stories I had assimilated. My grandfather grew up on a
tenanted farm on an estate, but why did he have the same name as those in the
big house who were said to be descended from that Norman knight? I asked rel-
atives. Was it that my grandfather descended from a different family? But how
did they come to share a surname, particularly a rather uncommon English sur-
name? What was the link between the two families? Living on the estate of the
big house surely could not be a coincidence. My mother had always spoken as
if the two families were the same, although she never explained the link. More
recently, she told me of an occasion when she went on a guided tour around the
big house. The then incumbent met with the tour party. When my mother told
him that they shared a family name, he said that she looked just like his aunt.
Could the link be a son from the big house whose descendants came back to
work on the estate, or perhaps an illegitimate birth (that is, assuming there is
indeed a genetic link)?
So here perhaps is a case for the genetic genealogist truth tellers. Collect DNA
samples from those on both sides of the blanket (as it were) and see what con-
nections might exist. However, that would not tell me what I (at least) would
find interesting in my family history: that is, how, if there is a genetic connec-
tion, did this other branch of the family come to be established and have the
same surname? There are many possibilities and a DNA test result would do
little to yield any meaningful answers.
We all make and remake the histories of our families, our genealogies and our
kinships. Genetic genealogies provide a post-genomic entrepreneurial
opportunity and an extension of the ways in which we can do family histories.
For those who indulge, it may provide new material—as might the discovery of
a marriage record or a previously unheard story from a relative. However,
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88 Tabitha Freeman & Martin Richards

family history is about the lives and actions of our forebears, not the transmis-
sion of DNA sequences. Any illumination DNA analysis provides is rather
sparse and stark, itself needing to be reworked—or rejected—in our family stor-
ies. In contrast to paternity testing where the identification of genetic relatedness
may affirm or disprove socially identified parental relationships, with genealogy
testing (leaving aside the issues concerning the specificity and grounding of the
companies’ claims), there is no simple correlation between the rather meagre
level of genetic information that may be obtained and the social meanings
ascribed to genealogical descent and ethnic origins. Perhaps the overriding fea-
ture of the current fascination with seeking to establish genetic connections with
our more or less distant ancestors is the ambivalent place of biology in deter-
mining any individual’s social identity.
Occasionally, genealogy testing may have significant implications for an indi-
vidual. Recently, a case was reported of a young man in the USA, who knew he
was born through donor insemination, who found his sperm donor father
through a genealogy test of surname group (Motluk, 2005). A DNA test sug-
gested that his donor father had a relatively rare surname.39 The young man
knew where he had been born, and assumed that this might also be where the
donor had lived, and perhaps still lived. Searching with the surname he had
learnt through the test led him literally to the door of his donor father.
Thus sometimes, new forms of kin relationships may be created through
genealogy testing, as with shared surname groups or the half siblings that may
identify each other among the donor insemination offspring conceived in a (pre-
regulation) clinic.40 These might represent, albeit limited, examples of the new
biosocialities that some social scientists have envisaged (Rose, 2001; Rose and
Novas, 2004). Likewise, using DNA analysis to trace our ethnic origins has the
capacity to create alternative meanings of race and ethnicity, whilst illuminat-
ing the commonality of our shared genetic heritage as human beings. However,
this would seem to fall short of a new post genomic kinship structure, as some
claim (Finkler, 2001). Indeed, the creation of new forms of genetic fraternities
based on shared surname strengthens traditional notions of kinship defined by
marriage and patrilineal descent, particularly given that, like the Y chromo-
some, the family surname is only passed down the male line.41 More generally,
the notion that our social identities and kinship networks are founded upon
genetics and genetic relatedness has the capacity to destroy as many social
relationships as it creates.

39 This was established by comparing the young man’s Y chromosome variation with those in a

surname database.
40 There are also websites specifically dedicated to people conceived by gamete donation who

wish to establish contact with half-siblings (i.e. others who share the same donor) and/or the donors
themselves. For example, the ‘Donor Sibling Registry’ ( in
the USA uses the numerical identification of donors and clinics to facilitate uniting such ‘donor
siblings’ (and/or their donors).
41 As such, a woman wishing to explore her ‘genetic origins’ based on surname has to rely on

using the DNA sample of a close male relative.

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DNA Testing and Kinship 89


Our discussions of cultural, socio-legal and personal constructions of parentage

and ancestry show that there is a place for DNA testing in both contesting and
reaffirming these accounts. In particular, DNA testing appeals to the illusive
quest of verifying our biological ‘origins’ that underlines the importance ascribed
to paternity and genealogy in western constructs of kinship. With regards to
paternity, DNA testing has undoubted significance in providing an accessible
tool for verifying the hitherto intangible ‘biological facts’, and yet there has been
no radical transformation in the socio-legal and cultural meanings ascribed to
fatherhood. Rather, DNA testing provides a new solution to the very old prob-
lem of socially identifying the relationship between father and child when and if
this relationship is contested, whilst highlighting the limitations of conflating
paternity with marriage in both practical and ideological terms. The apparently
conflicting ideas about the importance of ‘biological’ and ‘social’ aspects of
fatherhood and kinship that we have identified in contemporary socio-legal, cul-
tural and academic discourse have a long history, and DNA testing does not pro-
vide a simple resolution of these contradictory trends. Rather, the paradox is
built into the ideological foundations of western kinship systems, where the pri-
macy attributed to biology rests on a tacit assumption that social relationships
may take precedence in defining parenthood and kinship.
Ultimately, the genetic underpinnings of kin relationships that may be
revealed through DNA analysis will only gain meaning when placed in the
complex web of psychosocial, legal and cultural frameworks through which
kinship is defined. Indeed, despite the popularity of DNA testing, kin relation-
ships cannot be reduced to shared DNA sequences, with rhetorical claims that
we are entering an era of ‘genetic essentialism’ telling only one side of a more
complicated story. As the empirical diversity of paths to procreation and
parenthood within contemporary western societies demonstrates, there is now
a wide recognition that kin relationships are not necessarily tied to the natu-
ralised boundaries of the heterosexual, nuclear family and that more fluid
notions of social relatedness should be positively and openly embraced.
However, legally and culturally, the ‘genetic origins’ of identity and kinship
remain important, as evidenced by the socio-legal discourse promoting an indi-
vidual’s ‘right’ to knowledge of the genetic ‘truth’ of their parentage. Indeed, it
can be argued that it is precisely because the vulnerability of biology in deter-
mining kinship relationships has become apparent that the drive to hold onto
the significance of our ‘genetic origins’ can be so widely felt. Within this contra-
dictory climate, it can be expected that genetics will continue to become both
more and less important for constructions of kinship, with DNA testing pro-
viding one means of arbitrating the relative significance we attribute to bio-
logical and social relatedness in the multiplicity of contexts in which parentage
and kin are defined.
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90 Tabitha Freeman & Martin Richards


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Part 2

Kin Care of Children and Adolescents

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Children and their Changing Families.
Obligations, Responsibilities,
and Benefits


HEN PARENTS SEPARATE, the network of kin relationships
and their attendant obligations, responsibilities and rights are
thrown awry. The re-ordering that follows is usually complex and
confusing, in part because external guidelines with regard to obligations are
withering in their impact. Family restructuring has become both more common
and more complicated than it was in the first half of the 20th century. Increasing
numbers of children experience multiple transitions through households as
parents re-partner, with each transition bringing with it new groups of potential
or actual kin. Each transition, too, may involve the loss of previous relation-
The notion of ‘kin’ is variable, as can be seen by its different usages in the
chapters of this book. In this chapter, kin will be used to refer to family mem-
bers around the locus of the child. Kin becomes a dynamic concept when indi-
viduals enter and leave children’s lives as they do when transitions happen in
families. And as with other situations, there is no longer a direct link between
kin and obligations, including those to children.
There are two perspectives on obligation and commitment that are relevant
to the ways in which we might think about children and kin when parents
divorce. The first is that of felt obligations. These are internal, personal beliefs
held at an individual level about what should be done in regard to other family
members. Ganong and Coleman (1999p5) describe ‘felt obligations’ as ’personal
commitments to help another family member that are arrived at through a
process of overt and covert negotiations’. This is in contrast to externally
imposed obligations that are becoming less influential, especially as adults dis-
engage from one partnership and enter a subsequent one. Negotiations amongst
adults involved with children as family structures change are more relevant
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100 Jan Pryor

when families go through transitions than when there are more static obligatory
frameworks based on assumptions of family stability.
The second framework that is helpful in understanding obligations and
commitments when families change is that of moral-normative or relational
commitment (Lewis, 2001). This is the ‘ought’ component of commitment—
previously also externally imposed, but now more likely to be negotiated inter-
nally by the partners. It encompasses a personal obligation to continue the rela-
tionship, the development of a ‘structure of understanding’ (Mansfield, 1999)
that is future-oriented. The complexity and ambiguity of kin relationships that
result when families go through transitions, suggest that these components of
commitment and obligation might be central to the establishment of new kin
relationships and the renegotiation of those still existing. They underpin the
dynamic aspects of relationships that characterise family change and restruc-
A third conceptual framework that helps to illuminate relationships amongst
kin when families change has been proposed by Luescher and others. They
propose a framework of ambivalence, given that the ‘observable forms of inter-
generational relations . . . can be . . . interpreted as the expression of ambiva-
lence and as efforts to manage and negotiate these fundamental ambivalences.’
(Luescher and Pillemmer, 1998, p414). Luescher and Pillemer note the import-
ance of status transitions as points at which ambivalence might be heightened.
Family transitions and kinship ambiguity would seem to be particularly striking
instances of ambivalence, in which negotiation, re-negotiation, and redefinition
are needed for roles and responsibilities. Ambivalence in these instances
involves not only uncertainty or dilemma about what one’s role is (for example
step-grandparents), but also and maybe especially for children, ambivalence
about what they feel or should feel toward former and current kin.
What people actually do in relationships is driven partly by social expecta-
tions (albeit less explicit than in the past). Normative beliefs about obligations
continue to exert their influence on individual behaviour, through mechanisms
of approval and disapproval. The balance of influence between normative
beliefs and personally or interpersonally negotiated obligations is hard to gauge,
and will vary amongst individuals and contexts. The rise in the importance of
children, the era of the ‘emotionally priceless child’ (Beck, 1995) adds further
complexity to the ways in which obligations and responsibilities are manifest
when families change.
This chapter argues that kinship obligations and responsibilities in changing
families are dynamic and fluid. It uses evidence from studies of children’s per-
spectives on families to infer notions of kinship in children, and reviews the
extant literature on adults’ attitudes and behaviour toward children after
divorce and in stepfamilies. It concludes by noting the reduction in salience of
biological and legal ties, and emphasises the need for flexibility and negotiation
in establishing kin obligations when family transitions have occurred.
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Children and their Changing Families 101


By the time they reach school age, and often before, children are able to articu-
late their views about families. Several studies in New Zealand, Canada and the
UK have used vignettes with young children as a way of eliciting their percep-
tions (Anyan and Pryor, 2002; Gilby and Pederson, 1982; Morrow, 1998;
O’Brien, Alldred and Jones, 1996; Rigg and Pryor, in press). Almost all young
children see the ‘traditional’ family (married heterosexual parents with chil-
dren) as a family, and are less likely to regard a couple without children as a
family. Sole-parent households and non-resident extended family members are
considered to be part of families, although New Zealand children appear to be
more likely than those in the UK to endorse sole-parent households (Rigg and
Pryor, in press). New Zealand children seem not to regard legal marriage as
important, although Morrow reported low levels of agreement in the UK that
unmarried parents and their children were a family in her sample of eight- to
Adolescents and young adults are more likely than younger children to
endorse a diversity of family forms (Rigg and Pryor, in press). Non-resident par-
ents, same-sex parents and children, and extended family members are widely
seen as families or family members.
The family ‘without love’ is the least likely to be acknowledged as a real fam-
ily at all age groups, and this reflects the finding that affective factors such as
love and support are overwhelmingly more often mentioned by children in their
definitions of families than any other criteria, including biological relationships,
cohabitation, and legal status. This is a powerful indication that affective con-
siderations may underpin their determinations about where their obligations
might lie, especially toward older generations.
It is evident that children’s and adolescents’ attitudes to kinship reflect the
diversity of family forms they see around them. Traditional constraints on who
family members might be do not appear to be important, and it is notable in
Rigg’s study that the most frequent response to the question ‘who do you think
the members of a family are?’ was anyone the individual considers to be a fam-
ily. This is remarkably similar to the adult notion of fictive kin, and although
children do not talk about negotiating relationships, they hold a sense of reci-
procity about them. One in Morrow’s study said ‘Families are for giving me
stuff; food, clothes, presents. Loving, caring for me, and for giving things back
to’ (italics added) (Morrow, 1998).
The fact that most work on children’s views of families has been done fairly
recently makes it difficult to know whether their perspectives reflect social
change such as family diversity, or that what studies tell us indicate the way that
children have always viewed kin. Cross-cultural comparisons suggest few dif-
ferences in how children perceive families (Anyan and Pryor, 2002; Morrow,
1998); in New Zealand, Mäori children endorsed a wider range of family forms
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102 Jan Pryor

than did New Zealand Europeans, possibly reflecting the existence of informal,
whänau-based (extended family group) legitimisation of marriage.

(a) Children’s views of stepfamilies

Children’s views of stepfamilies are age-related, with young children being more
accepting of them as ‘real’ families than adolescents. In a US study of five to ten
year-olds, Mazur (1993) found that a majority of five- to ten-year-olds thought
that remarriage was good, with 70% viewing stepmothers favourably and 77%
seeing stepfathers the same way. In Rigg’s study of nine to 13-year-olds, 94.6%
saw an established stepfamily as a real family, with 85% seeing a newly formed
stepfamily the same way.
In Funder’s Australian study (Funder, 1996) almost all children who lived in
stepfamilies included stepfathers (who were usually resident) in their families,
although only 63% of stepmothers were regarded as family members. They
were, too, more likely to want a more distanced relationship with their step-
mothers than with their stepfathers. This may indicate the importance of co-
residence for having kinship status, although it is also the case that stepmothers
generally have more vexed relationships with stepchildren than do stepfathers
(Pryor and Rodgers, 2001).
Because contemporary stepfamily formation usually results from the separa-
tion and divorce of children’s biological or adoptive parents, children frequently
have multiple parenting relationships as stepparents become added to the group
of adults in their lives. As non-resident fathers increasingly remain involved
with their children after separation, there are potential dilemmas of loyalty for
children. How are these relationships negotiated by the children and adults
Three models have been suggested to explain children’s experiences of having
two (usually) fathers (White and Gilbreth, 2001). One, the loss model, suggests
that children lose their biological father but do not ‘gain’ a stepfather. The sec-
ond is the substitution model, in which their biological father is replaced by a
stepfather. The third is the accumulation model, in which children add a parent
to their lives when they acquire a stepfather.
In situations where the non-resident father loses contact with his child the
substitute model can apply, and it is common for the stepfather to adopt the
stepchild (Malia, 2005), creating a legal relationship between them. Most juris-
dictions do not allow more than two legal parents, so these kinds of adoptions
involve voluntary or involuntary relinquishment of parenthood by the non-
resident parent.
Children, though, appear to be able to accumulate parents psychologically
and emotionally (Funder, 1996; Pryor, 2004; White and Gilbreth, 2001). From
their own assessments of closeness to non-resident parents and stepparents, it is
apparent that although they do not feel as close to stepparents as to non-resident
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Children and their Changing Families 103

parents, there is a positive association between the two relationships. Closeness

to one is correlated with closeness to the other (Pryor, 2004). This can be seen
as further evidence that for children, kin and kin relationships do not conform
to a static tableau of mother, father, and biological children.

(b) Children and grandparents

Children’s inclusion of grandparents as members of their families increases with

age, with 100% seeing grandparents as family members by young adulthood
(Pryor and Rodgers, 2001 p 127). After separation they both see more of matri-
lineal grandparents, and are more likely to include them as members of their
families than patrilineal grandparents (Cockett and Tripp, 1994; Funder, 1996;
Kruk and Hall, 1995; Lussier et al 2002). Grandfathers appear to be particularly
important for children in lone-parent households, with many of them feeling
closer to maternal grandfathers than to maternal grandmothers (Clingempeel et
al, 1992). If children live with a biological mother and stepfather, they see more
of their step-paternal grandparents than of their biological paternal grand-
parents and feel just as close to them. These patterns of contact and closeness in
childhood are likely to have repercussions for obligations between children and
grandparents as they grow into adulthood.
Overall, children hold pragmatic views of kin that reflect their social realities
and, with increasing age, their experiences. Although children express a sense of
obligation toward kin (Smart and Neale, 1999), we have little understanding of
how that develops and the usual assumption is that obligations are from adults
to children, rather than the other way around. There are many anecdotal
accounts of children being in positions of responsibility toward ill parents, and
after separation some feel responsible for their distressed parents. Children are
often, too, in positions of responsibility for younger siblings. In the main, how-
ever, we can draw conclusions only about whom they see as kin, not about any
obligations and responsibilities they may feel.
There are, though, inferences that can be made from these findings that reflect
at least two of the three conceptual structures mentioned earlier: felt obligation,
relational commitments, and ambivalence. Felt obligation, with its connota-
tions of arising from individuals and of overt and perhaps especially covert
negotiations, is likely to be fostered when individuals are in co-residence and
have positive affect toward each other. Children define family primarily in terms
of people who love each other, and co-residence with stepfathers appears to
encourage the likelihood that they will be included in depictions of their fami-
lies. Similarly, children report feeling closer to grandparents with whom they
have frequent contact.
Family change also brings with it many opportunities for ambivalent rela-
tionships for children. Animosity between two equally-loved and separated par-
ents is one instance, especially toward the parent who has left the household.
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104 Jan Pryor

The acquisition of a stepparent is another obvious example, when a child is

encouraged to feel warmly toward a person for whom she may have few posi-
tive feelings and no particular reasons to develop them. For parents, negative
feelings toward the ex-partner will conflict with their desire to foster the
relationship between their children and their father, while for children warm
feelings toward a non-resident parent may not accord with what he or she per-
ceives other adults to feel.
However, children’s endorsements of diverse family forms, and the fact that
they can and do assimilate several parenting figures into their lives, are indica-
tors of the flexibility they bring to families. This suggests that future kin obliga-
tions for children will be diverse, flexible, and multi-faceted. Their experiences
of changing and multiple kin may confer both resilience and vulnerability in
their willingness to make commitments and to fulfil obligations.


When households change, the obligations to children held by the adults who are
natural or social parents present challenges for the law, families, and individu-
als. In most countries economic obligations to children are subject to legislation
of some kind, and although difficult to enforce are probably more straight-
forward than are parenting obligations. Social norms remain powerful; they are,
though, not as influential as in the past as societies become more secular and
families find their own ways of re-organising their lives.
MacLean and Eekelaar (1997) note the decreasing importance of marriage as
a framework for obligation, and the shift toward parenthood as the construct
within which obligations might be understood. Marriage has, in the past and to
a limited degree, determined both the rights and responsibilities of parents in
regard to their children. However, legal marriage, like many other external
restraints, is no longer a relevant basis for considering parental obligations since
the links between marriage and parenthood have weakened. The increase in the
numbers of births outside marriage, and the fragility of marriage as an ongoing
status, have contributed to its demise as a way of determining parental obliga-
Although in many places the law attempts to encourage biological and adop-
tive parents to have continuing non-financial responsibilities for their children
after separation, the social aspect of parental obligation, like other kin-based
relationships, is likely now to be negotiated rather than accepted without ques-
tion. It is difficult, for example, to force a father to maintain contact with his
It was noted earlier that the best we can do in illuminating children’s obliga-
tions and commitments is to make inferences from the literature on their
views of kin, and from contact patterns. With regard to adults, we can draw on
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Children and their Changing Families 105

literature addressing both social attitudes and behaviour. The first gives an indi-
cation of the social norms that prevail in determining adults’ commitments to
children after divorce. The second offers a partial window on other motivations
that may be driving commitments.

(a) Social attitudes to adult obligations

Normative beliefs about financial and other obligations on the part of fathers
have been explored in the United States (Ganong and Coleman, 1999) and in the
UK (Maclean and Eekelaar, 1997) by examining attitudes toward obligations
using vignettes. In line with the law in many countries, it is widely believed that
after divorce fathers should have ongoing financial obligations toward their
children, although Ganong and Coleman found that the amounts participants
thought should be paid fell below the amounts laid down by the State in which
they carried out their study. These views do not appear to change if the resident
mother re-partners, although current obligations to children living with a step-
father are seen by men but not women as a reason for reducing the amounts
paid. It is perhaps not surprising that women are less likely than men to believe
that the presence of stepchildren should change support for her children of the
man’s first union.
The obligations of fathers to their children are not seen to change if the father
re-partners. Re-partnering for men is seen as a choice that does not negate their
financial obligations to their children. Interestingly, given that men are seen to
retain their obligations to their children from their earlier union even though
they have entered a stepfamily, one respondent in Ganong and Coleman’s study
said that if a mother remarries ‘the stepfather should assume some financial
responsibility’ for the children. Stepparents, it seems, may be deemed financially
responsible for multiple households.
Normative views about social obligations to children after divorce appear to
be somewhat gender-based (Ganong and Coleman, 1999). Mothers were viewed
in vignettes as being better parents than fathers, and more obligated to care for
children, although it was felt that boys needed the attention of their fathers
more than do girls. Unfortunately the vignette used in this project was specific
to the situation where a child wanted to move from one parent’s house to the
other’s, so it cannot inform a broader view of non-resident parent obligations.

(b) Contact and behaviour

One way of at least partially determining internally-influenced obligations is to

look at the actual behaviour of non-resident parents. McLean and Eekelaar
(1997) did this by examining the patterns of contact in situations where the non-
resident parent had never lived with his child’s mother; where he had cohabited
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106 Jan Pryor

with her; or had been in a legal marriage with her. They found that a third of the
fathers who had never lived with their child maintained regular contact with the
child, and this was particularly likely in cases where the father lived with his
own parents. Of the unmarried fathers who had lived with their child’s mother,
45% were in continuing contact, and 69% of the formerly married men were in
committed contact at the time of interview. Contact was associated with the age
of the child (the older the child the more likely that contact was continuing) and
the length of time the child and father had lived together.
If contact is taken as an indication of obligation to a child (as well as an exer-
cising of individual rights), then it may be that the fact of biological parenthood
had some bearing on the behaviour of some men who had not lived with their
children. However, it is also possible that the fathers’ parents exerted some pres-
sure on them to maintain contact so that they themselves could have relation-
ships with their grandchildren. They had not developed obligations based on
social parenthood by living with the child over time; this was more strongly pre-
dictive of continuing commitment to their children for these fathers, suggesting
the importance of the quality and length of relationships for determining com-
mitment. Legal commitments appeared to have some bearing on contact, given
that men who were married to the mothers of their children were most likely to
stay in contact.
What can we conclude? Social attitudes toward the involvement of and oblig-
ations held by non-resident parents in regard to children have moved steadily
beyond being limited to financial support, toward endorsing significant per-
sonal involvement after divorce. This is reflected in legal moves in some coun-
tries toward assumptions of equal responsibility for parenting. Biological
relationships seem to be important in relation to normative attitudes toward
responsibility; actual behaviour, though, may be under greater influence from
the nature of the relationship established over time by the non-resident parent.

(c) Skipping generations: grandparents and step-grandparents.

In much of Europe and the English-speaking world, the role of being a grand-
parent is both discretionary and changing. Grandparents may welcome or dread
their status, one over which they have no control; their responses to the role of
grandparenthood vary on a continuum that stretches from being heavily
involved with their grandchildren at many levels to the other extreme of being
distant and infrequent visitors. When family transitions occur, however, grand-
parents are very likely to become involved with their grandchildren.
Several factors have a bearing on the nature of grandparent-grandchild rela-
tionships. Geographical proximity allows more frequent contact, which has
been associated with closer relationships (Bulic, 2003; Uhlenberg and Hammill,
1998). Financial resources are also important in determining the affordability of
travel to visit their grandchildren, for example. The ages of both grandparents
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Children and their Changing Families 107

and grandchildren are also significant. Whilst younger grandparents may still be
in the work force and hence unavailable for daytime caregiving, they also have
comparatively high levels of energy for involvement. Older grandparents may
have time, but may have reduced physical resources to give to grandchildren.
And while young children may have frequent contact with grandparents that is
mediated by their parents, adolescents are often somewhat bored by spending
time with their grandparents (Douglas and Murch, 2002).

(d) Normative attitudes

What obligations do grandparents have to their grandchildren after divorce?

Scholars have identified a ‘norm of non-interference’ that holds on the part of
grandparents when families are intact, whereby they provide emotional and
sometimes financial support but respect the autonomy of their adult children to
parent in the ways they wish. Douglas and Murch (2002) described a sense of
family obligation replacing the norm of non-interference in grandparents after
divorce, which led them to take up caregiving roles despite the disruption in
their own lives, and what they saw as contamination of their previous relation-
ship with their grandchildren by virtue of becoming caregivers. The benign and
generous visiting grandparent is replaced in this situation by someone in a par-
enting role who monitors and disciplines as well as being loving and supporting.
There is little evidence to call on that examines social attitudes to the obliga-
tions of grandparents after parental separation. However, Ganong and
Coleman’s study of normative obligations indicates that the biological link
between grandchildren and grandparents is an important factor nominated in
determining that grandparents have at least financial obligations to their grand-

(e) Contact and behaviour

In intact families, children tend to have more contact with maternal than with
paternal grandparents (Bulic, 2003; Cherlin and Furstenberg, 1986) perhaps
because women continue to be kin keepers in families and maintain more fre-
quent contact with their own parents than with those of their partner. This dif-
ference in contact patterns is exacerbated when parents separate (Lussier et al,
2002) because children are more likely to be resident with their mothers than
their fathers. Some studies have suggested that children who have experienced
divorce are closer to their grandparents than those who are in intact families
because of increased grandparental involvement at the time of separation
(Douglas and Murch, 2002; Kennedy and Kennedy, 1993), although this was not
the case in the ALSPAC study (Lussier et al, 2002).
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108 Jan Pryor

The role of grandparents when their adult children separate has been vari-
ously described as being that of latent fire-fighters, and as watchdogs. One
grandparent described the role at the time of separation as ‘providing a safe and
anxiety-free space where acceptance is above all.’ (Bulic, 2003). In practice,
grandparents often step in as caregivers and providers when parents separate,
and because most children reside with their mothers, maternal grandparents are
the most likely to provide support in this way. Douglas and Murch noted, how-
ever, that involvement by grandparents pre-separation predicted involvement
after separation, and that for many grandparents the experience was a consid-
erable burden for them both financially and temporally.
In sum, kinship ties between grandchildren and grandparents change in
diverse ways when parents divorce. Children tend to lose contact with patrilin-
eal grandparents, while their involvement with maternal grandparents
increases. Grandparents may become caregivers, at least for a time, of younger
children and this may increase their mutual feelings of closeness at the same time
as being a mixed experience for grandparents. The mediation of the middle gen-
eration has a considerable influence on the quality and quantity of contact
between children and grandparents after divorce. For those who are young
adults when their parents separate, however, there does not appear to be a diver-
gence in contact or solidarity between maternal and paternal grandparents
(Cooney, 1996). Compared with their counterparts from intact homes, young
adults whose parents had recently divorced were also more likely to initiate con-
tact with grandparents, suggesting the importance for them of maintaining links
that had been established in childhood. They are at less risk of losing contact
with paternal grandparents since they are able independently to foster those
relationships without the mediation of their fathers.

(f) Step-grandparents

If the role of a biological grandparent is diverse, then that of a step-grandparent

is even more ambiguous and unstructured. The majority of adults re-partner or
remarry after divorce, so that step-grandparents are an increasingly common
form of kin. In the US, for example, 39% of families have step-grandparents
(Szinovacz, 1998). Children, then, may have four sets of grandparents involved
in their lives, coming with both biological parents and two step-parents.
Individuals can become step-grandparents in three ways (Ganong and
Coleman, 1999). A grandparent may re-marry, in which case their new partner
becomes a step-grandparent. An adult child may partner with someone with
children from a previous union, so that the new partner’s children become
step-grandchildren. Or, a stepchild may have children of her own. The links
between step-grandchildren and step-grandparents are neither legal nor
genetic, so that any obligations that might occur are very likely to be felt
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Children and their Changing Families 109

obligations based on personal feelings, chosen and negotiated within the con-
text of the relationship. That context, in turn, will be widely diverse ranging
from no acknowledgement or contact, through to closeness and affection.
When children are young, obligations where they exist will tend to be from
grandparents to grandchildren. They will also be heavily mediated by the step-
parents, who have biological links with the grandparents and social links with
the children. If children lose contact with a stepparent, they will almost cer-
tainly lose contact with step-grandparents.
Obligations held by step-grandparents to step-grandchildren appear to
depend on the relationship a child has with a step-grandparent (Ganong and
Coleman, 1999). Compared with the obligations of grandparents, step-
grandparent obligations are seen as much reduced if the middle generation
divorces, Step-grandparents are seen as having more choice about whether or
not to support a step-grandchild, depending on the quality of their relationship.
Closeness between step-grandparents and step-grandchildren was a major fac-
tor in determining obligation.
There is a paucity of research that addresses contact and closeness between
step-grandparents and step-grandchildren. One study, carried out in the late
1980s, indicated that on a range of measures young adult step-grandchildren
had less contact with and lower levels of closeness toward step-grandparents
compared with biologically related grandchildren and grandparents (Sanders
and Trygstad, 1989). The step-relationship was mediated by the child’s rela-
tionship with his or her stepparent. Interestingly, nearly half of the young adults
rated the relationship as important or very important to them, and 63%
indicated that they would like more contact than they had. We do not know,
though, what the dynamics are that determine closeness between step-
grandchildren and step-grandparents.
Any obligations and responsibilities that step-grandparents may hold toward
step-grandchildren depend heavily on factors associated with the relationship,
since there are no legal or biological ties to have an influence. If step-
grandparents have a long and close relationship with their step-grandchildren
then they may make personal commitments to them that encompass obliga-
tions. We might expect that these kinds of kin ties will increase as stepfamilies
increase in numbers and as relationships become more likely to be based on
choice and negotiation than on legal and biological factors.


Legal frameworks that are salient for families in the UK and the United States
have, in the main, foci that are fiscal and biological. Family policy makers have
an interest in ensuring that children are financially supported by their parents,
the latter of whom are by legal definition biological or adoptive. Hence child
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110 Jan Pryor

support is well regulated, and efforts to encourage contact between non-resident

parents and children may have a fiscal spin-off since contact appears to be pos-
itively correlated with financial support by non-resident parents.
The social realities of families are not so well recognized in law, and this is
true in particular of stepfamilies. Stepparents rate scant mention in UK legisla-
tion (Edwards, Gillies, and Ribbens, 1999), and the situation is similar in the US
(Malia, 2005). For example, in most states of the USA, if a biological parent dies,
custody is awarded to the non-resident biological parent rather than to a step-
parent, regardless of the quality of the relationships the child has with them. In
the UK, a stepparent can be given parental responsibility, but only for as long as
a parenting order is in place. Legal frameworks, then, are not designed or
equipped to confer legal statuses that reflect the social families in which many
children live .


Although many children grow up in intact families where kin ties are compara-
tively clear and stable, they are very likely to have external family members and
almost certainly friends, for whom such ties become susceptible to re-definition
and negotiation as a result of divorce and stepfamily formation. Longevity and
the fragility of parental relationships mean that multiple family transitions are
now common, bringing with them a multiplicity of possible relationships. For
many of these, the associated obligations and commitments are far from appar-
ent and, as discussed in this chapter, require negotiation by and between indi-
viduals. There are, too, fewer external scripts and frameworks for children and
adults as they re-order their obligations and responsibilities toward each other.
Perhaps more significant, though, than the reduced influence of external
restraints and scaffolds is the bewildering range and diversity of possible kin
networks. There have been periods of similar diversity in the past, but the need
to define the networks and individuals within them may not have been so strong.
People were accepted as aunties or grandfathers without scrutiny of their actual
kinship status.
In this chapter, three frameworks have been suggested as being useful in
thinking about kin relationships when families go through change. Felt
obligation is a central aspect of kinship ties as the impacts of legal, biological,
and structural imperatives weaken over time and with the number of transi-
tions experienced by family members. Responsibilities assumed by non-
resident parents, grandparents, and step-grandparents depend to an increasing
extent on obligations arising from individuals that are negotiated and (usually)
Closely related to this is the concept of relational commitment in which a per-
sonal commitment is made to a relationship rather than to an individual; in this
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Children and their Changing Families 111

case to the parent-child relationship, usually by adults and without coercion

from law or biology.
Ambivalence is a third characteristic of the kin ties and obligations that arise
for children when families change. Children experiencing parental separation
sometimes do not know how they feel (Smith, 2002). They will express a mixture
of contradictory feelings including relief and sadness, anger and love. For them,
the re-definition and negotiation of previous and new relationships with kin will
be a slow process that may continue and change into adulthood. Other examples
include the feelings about involvement that grandparents have when their chil-
dren separate, and the feelings that both adults and children have about the rela-
tionships between child and non-resident parent and child and stepparent.
How much influence do children have in the establishment of new kin ties and
the sustaining of former ones? While it is clear that they hold realistic views of
what families are, their ability to determine with whom they have relationships
is considerably limited by the choices and actions of adults. They may, though,
have significant influence on the nature of those relationships. In stepfamilies,
for example, children play a greater role in determining the quality of the rela-
tionships with stepparents than do the stepparents (Hetherington, 1992). Their
conceptualisations of obligation and responsibility are, though, probably less
well developed than those of adults.

(a) The role of biological ties

In this chapter it has been suggested that biological links are playing a decreas-
ing role in determining obligations and responsibilities amongst kin. This is par-
ticularly evident in behaviour, rather than in normative attitudes, and it has
been noted elsewhere that parenting behaviour is not particularly influenced by
genetic ties (Pryor, 2004). Rosalind Edwards and her colleagues (Edwards et al,
1999) interviewed stepfamily members and found that for stepfamilies there was
a tension between two concepts; the children’s need for biological parents, and
their need for social families. They also noted that middle class adults mainly
expressed concern with biological relationships, whereas social families were
paramount for working class adults. For many stepfamilies, the juggling of these
often-competing frameworks is a considerable challenge. It is becoming a nor-
mative belief that children should have ongoing relationships with their non-
resident parents. As we have seen, children appear to benefit from that
relationship and the one they have with their stepparent; the onus is on adults
to make these often complicated arrangements work.
The importance of biology, and of knowledge of or contact with biological
kin is evident in other family scenarios. There is an emphasis on the import-
ance of knowing about genetic identity for adopted children, and those
conceived by artificial reproductive technologies. This is based in part on
medical grounds and the risk of inherited diseases. (See chapter 4, Freeman and
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112 Jan Pryor

Richards in this volume). Anecdotal evidence suggests that children vary

widely in the importance they place on knowing about their biological parents.
Some go to considerable and often unsuccessful lengths to discover these par-
ents, while others have no interest in knowing about them. In these regards the
law has been slow to acknowledge the importance of biological relationships;
only recently has it become compulsory for fertility clinics to hold information
about gamete donors.
Do children benefit when families change? The prevailing and dominant par-
adigm in regard to divorce and stepfamily formation is one of risk, and there is
no doubt that multiple transitions from one set of kin to another do pose risks
to children in many ways. The possible benefits, then, tend to be overlooked.
For many, the dissolution of a dysfunctional and toxic household is of marked
benefit to children, so long as it distances them from conflict and abuse. It may
offer the opportunity to form functional relationships that foster their wellbe-
ing and, in the most optimal scenario, help them to learn relationship skills and
to develop resilience that will be of benefit in the long term. Furthermore, if
adults get it right, having several people who love and care for children is bene-
ficial for them. There are numerous instances where children have multiple par-
enting figures, in extended or stepfamilies, all of whom provide resources for
their development and wellbeing.
In this chapter it has been argued that family change engenders both crises and
opportunities for children. Loss of kin may be devastating or a relief; gaining
new kin may be troubling and stressful, or enriching and stabilising. Family
transitions call for and are increasingly characterised by flexibility, negotiation,
and individual commitment to relationships. Obligations to kin are less and less
determined by blood and law and increasingly more by the nature and quality
of the relationships involved. Whether or not children are the beneficiaries of
these changes depends primarily on the ability of adults to develop their own
skills of negotiation and commitment as relationships are re-ordered, and then
to foster these skills in their children. The diverse and flexible attitudes of chil-
dren suggest that, when supported, they are able to be resourceful in negotiat-
ing and establishing healthy kin relationships.


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Divorce.’ (1995) 23 Journal of Divorce and Remarriage 131
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UK: Edward Elgar, 2001).
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Approach to the Study of Parent-Child Relations in Later Life. (1998) 60 Journal of
Marriage and the Family 413.
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Remarriage.’ (2002) 16 Journal of Family Psychology, 363.
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Across Households. (Oxford, Hart Publishing, 1997).
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MANGEN, D J and WESTBROOK, G, ‘Measuring Intergenerational Norms’ in
D J Mangen, V Bengston, L and P H Landry (eds), Measurements of Intergenerational
relationships (Newbury Park, Sage, 1998) p 156.
MANSFIELD, P, Developing a Concept of Partnership (Marriage and Divorce Seminar
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MORROW, V, Understanding Families: Children’s Perspectives (London, National

Children’s Bureau, 1998).
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Kinship’ in J Brannen and M O’Brien (eds), Children in Families: Research and Policy
(London, Falmer Press, 1996) 84.
PRYOR, J, Resilience in Stepfamilies. (Wellington, New Zealand, Ministry of Social
Development, 2004a).
—— ‘Parenting in Reconstituted and Surrogate Families’ in M Hoghughi and N Long
(eds) Handbook of Parenting: Theory, Research and Practice (London, Sage, 2004).
—— and RODGERS, B, Children in Changing Families. Life after Parents Separate.
(Oxford, Blackwell Publishers, 2001).
RIGG, A and PRYOR, J, ‘Young People’s Experiences of Families and Family Change.’
Childhood and Society, in press.
SANDERS, G F and TRYGSTAD, D W, ‘Stepgrandparents and Grandparents: the View
from Young Adults’ (1989) 38 Family Relations 71.
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Gerontologist 37.
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(2001) 63 Journal of Marriage and the Family 155.
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Substitute Care Of Children
By Members Of Their Extended
Families And Social Networks:
An Overview


HIS CHAPTER FOCUSES on the full-time care of children by mem-
bers of their extended families or social networks, most commonly
called kinship care, although in the UK the officially preferred term is
‘family and friends care’. While in some cultures this may be a mainstream tra-
dition, in the UK it is more likely to be a response to family crisis or breakdown.
For some families these care arrangements may be temporary, whilst others last
for years, indeed until the child becomes an adult. A minority family form,
which has been largely invisible until comparatively recently, it is now attract-
ing policy and research attention here, as in many other jurisdictions.


Growing interest in kinship care, particularly kinship foster care, is an inter-

national phenomenon. A number of reasons are cited in the literature (Hunt,
— A rising demand for out of home placements, a shortage of foster homes, par-
ticularly for minority ethnic children, and increasing numbers of hard to
place children;
— Evidence of poor outcomes for children in public care, and the potential
benefits of kinship care;
— Changing theories about family functioning, from dsyfunction and the inter-
generational transmission of abuse to ecological and strengths-based theories;
— Increased sensitivity to the needs of ethnic minority children and communities;
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116 Joan Hunt

— Political philosophies aimed at reducing the role of the State and the costs of
public services.

The relative power of these factors varies between countries and across time. In
New Zealand the primary ‘driver’ was pressure to keep Maori children in their
communities, and in USA, Canada and Australia the first legislation prioritising
kinship care was focused on ‘first nations’ communities. Subsequently, in New
Zealand, minimising the role of the State and keeping the costs of public services
low would seem to have become at least equally important.
In the USA there was a powerful mix of factors. The impact of crack cocaine
and subsequently AIDS, both thrust more children into private kinship care and
brought them to the attention of over-burdened child welfare agencies. There
was pressure from African-Americans to discard Euro-centric concepts of fam-
ily and recognise the strengths of black extended families, with their more fluid
boundaries and cultural traditions of kinship care. Legal ‘class’ actions were
also brought by carers to secure the right to become foster carers and receive
equivalent benefits as stranger carers.
The UK is unusual in that research was a major factor in early policy devel-
opment and it directly influenced the Children Act 1989, which prioritised the
use of kin for children requiring substitute care. Although it had long been pos-
sible for local authorities to approve kin as foster parents, the use of such
placements had substantially declined before implementation of the 1989 Act
(Rowe et al, 1984). It was data emerging from a number of studies, albeit none
focusing specifically on kinship care, which questioned this neglect (especially
Rowe et al, 1984, 1989).
However, despite this early research influence, kinship foster care in England
and Wales has been slower to take off than in some other countries, though it
now accounts for around 18% of foster placements (DfES, 2005). In the USA, in
contrast, though the proportion has substantially declined, it still stands at
almost a quarter on average, with much higher proportions in some states
(Geen, 2003). Moreover the prioritisation of kinship care appears to be embed-
ded into social work practice in the USA—‘almost all US welfare agencies seek
out and give preference to kin’ (Jantz et al, 2002).
In contrast a study of four English authorities (Farmer and Moyers, forth-
coming) found that only 4% of placements were instigated by social workers
and that in 57% of stranger foster placements kinship care had not even been
considered. Cases may even reach court before the extended family has been
explored (Hunt, 2001). There are also big differences in use between authorities
(Farmer and Moyers, forthcoming; Sykes et al, 2002; Waterhouse, 1997)
although it is not clear how far this represents differential use of other ways of
supporting kinship placements.
There are, however, signs of change. At a national level the government
commissioned a scoping paper to inform policy development (subsequently pub-
lished as Hunt, 2003), issued a discussion document (Department of Health,
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Care of Children by Extended Families and Social Networks 117

2001a) and initiated both research and development work. Locally just over half
of local authorities have written policies on kinship foster care (Morgan, 2003)
and many are developing information leaflets and ‘starter packs’ for carers.
Specialist kinship worker posts are burgeoning and some larger authorities have
kinship ‘teams’. Some are facilitating support groups for carers, tailoring training
and carrying out carer surveys. While all this is fairly embryonic it does seem to
represent a late burgeoning of the interest it was expected would follow imple-
mentation of the Children Act 1989. It is possible that the implementation of key
principles in the Adoption and Children Act 2002, which require adoption agen-
cies and courts to consider potential placements within the family network before
making any decision relating to adoption,1 will provide further legal impetus.


UK data about the whole population of children in kinship care is extremely

limited. There are no national statistics, and research studies focus mainly on
sub-groups of children known to social services (now known as children’s ser-
vices). It is therefore impossible to present a comprehensive profile in terms of
age, gender or ethnic background. One area of uncertainty is whether, as in the
USA, kin-placed children are disproportionately drawn from minority ethnic
groups. Research reports conflicting findings (Broad, 2001; Hunt, 2001; Farmer
and Moyers, forthcoming).
The reasons for children living in kinship care seem to be fairly similar irre-
spective of the status of the arrangements: abuse, neglect or desertion; parental
problems such as psychiatric illness, drug/alcohol abuse; violence; separation
and divorce and young people’s behaviour problems (Richards, 2001; Broad,
2001; Farmer and Moyers, forthcoming; Hunt et al, forthcoming). Farmer and
Moyers also found the children in kinship foster care to be strikingly similar to
those entering non-related care, the only statistically significant differences
being that kin-placed children were less likely to have prior emotional difficul-
ties, multiple health problems or a parent who had been in care themselves, and
had spent less time in care prior to placement. This contrasts with much
research in the USA, which reports that kin-placed children have less troubled
histories; are more likely to be placed because of neglect and parental substance
misuse rather than abuse and display fewer difficulties prior to placement (for
example Beeman et al, 2000; Benedict et al, 1996; Grogan-Kaylor, 2000). It is
clear, however, that as in the USA, children placed with kin are likely to have
higher levels of difficulty than those in the general population (Ehrle et al, 2001).
UK research also suggests fewer differences between related and non-related
foster carers than the American literature, in which carers are typically lone

1 S.1(4)(f) Adoption and Children Act 2002

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118 Joan Hunt

females (mainly maternal grandmothers or aunts) from ethnic minority groups

and are older and less well-educated, with high levels of health difficulties and
incomes below poverty levels (Hunt, 2003). Grandparents and aunts/uncles are
the principal providers of foster care in the UK too and carers are similarly
reported to be less well-educated than non-related carers, more disadvantaged,
less likely to have a partner in employment, more likely to experience financial
hardship and overcrowding (Farmer and Moyers, forthcoming). However they
are no older on average and are just as likely or only marginally less likely to live
with a partner. Levels of health problems are higher (Farmer and Moyers, forth-
coming; Rowe et al, 1984; Sykes et al, 2002). It is important to bear in mind,
however, that these findings relate primarily to kinship foster carers and that the
profile of carers in arrangements not sanctioned by social services (Masson and
Lindley, this volume) may be rather different. In one such study (Richards,
2001), 48% of grandparent carers reported long-standing health problems or
disabilities which limited their activities.


Why do carers decide to take on this enormous responsibility and maintain their
commitment, often in the face of considerable problems and little support?
Surprisingly, given the interest in other forms of kin support (Grundy and
Murphy, this volume), the question has attracted little attention from sociolo-
gists and is only tangentially covered in empirical research. What has been
described as ‘felt obligation’ (Pryor, this volume) appears to be a key driver:

Because of the way I was raised, you look out for your kin. I think I should take care
of my own. I could not sit back and ignore that I had a home and these children were
just out there and they were my relatives. I felt a commitment. (Geen, 2003)

I didn’t consider it a huge commitment; I considered it my duty as his grandmother to

care for him. (Hunt et al, forthcoming).

Obligation is often interwoven with affectional bonds, with the child and/or
parents (Broad, 2001; Geen, 2003). The decision to care is more likely where
there is a pre-existing relationship with the child, and a good relationship with
one or both parents (Geen, 2003). However neither are necessary requirements.
Both are likely to be underpinned by a belief that their own families are the best
place for children, both intrinsically and in comparison with the alternative of
stranger care (Broad, 2001; Hunt et al, forthcoming; Spence, 2004).

A social worker rang out of the blue asking if I would have him, she said if you don’t
have him he’ll have to go to a foster home. I said I’ll have him—no foster home for my
grandson. (Hunt et al, forthcoming).
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Care of Children by Extended Families and Social Networks 119

Carers may also be motivated by their own need to keep in touch with the chil-
dren, or more broadly by a desire to keep the family together or to preserve its

They were my grandchildren and I couldn’t see them going into care and being
adopted and never seeing them again. (Hunt et al, forthcoming).

She was our granddaughter. She belongs to us. Family should stay together. (Hunt et
al, forthcoming).

For ethnic minority groups this may be amplified by a need to preserve cul-
tural identity. These drivers may be so powerful that relatives may not concep-
tualise their decision as a ‘choice’, rather as something which is just ‘natural’.
Indeed, social workers may find it difficult to get them to look carefully at the
implications of what they are taking on:

A lot of relatives don’t really look at the factors that impact their taking care of the
children. They operate on their ‘gut’—it’s blood—it’s family, its blood, we can’t let
the children live in the foster care system. (Geen, 2003).

Nonetheless there are indications that other factors may impinge, suggesting
that at least some relatives may weigh up the costs to them of caring. These
include the likely duration of stay; characteristics of the child such as age and
severity of problems; the nature of the parents’ problems and likely impact on
the kinship family; the carers’ circumstances and resources; and the availability
of services (Geen, 2003).
Even if many carers take on care without anything like a dispassionate cost-
benefit analysis, why do they continue when things get difficult? The commit-
ment carers show to the children is a consistent theme in the research literature
(in the UK, Farmer and Moyers, forthcoming; Malos, 1991; Russell, 1995;
Pitcher, 1999; Tan, 2001). Obligation again may be important:

‘Just because it gets difficult you can’t jack it in, it’s children’s lives. If you’re fostering
you could hand them back; you can’t with family; they’re your own flesh and blood’
(Hunt et al, forthcoming).

One study in the USA (Testa, 2002) which examined, among other factors, the
impact of concepts of moral duty on placement breakdown, found that break-
down was less likely where carers were regular church-goers or had been raised
in the southern states.
Carers also derive positive benefits from caring: companionship, new inter-
ests and the satisfaction of seeing the child develop (Broad, 2001). Studies
comment on the delight carers show in the children (Hatmaker, 1999; Pitcher,
1999)—one carer is reported as saying ‘this is not a task, it is a pleasure’ (Gordon
et al, 2003). The quality of the relationship with the child is critical: placements
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120 Joan Hunt

where relationships were described as only poor to fair are almost three times as
likely to disrupt subsequently as those rated as good to excellent (Testa, 2002).
This study also found, somewhat controversially, that placements were more
likely to end (either through reunification with parents or placement in stranger
foster care) where payment rates had been reduced. What is striking, however,
is that the effect was quite modest, suggesting again that factors other than a
balancing of costs are operating to sustain placements.


(a) The Presumed Benefits of Kinship Care

There are many reasons to think that kinship care is likely to be beneficial. The
Child Welfare League of America, which has been highly influential in the devel-
opment of kinship care in the USA, argues (CWLA, 1994) that it:
— Enables children to live with people they know and trust;
— Reduces the trauma of placement with strangers;
— Reinforces children’s sense of identity and self-esteem;
— Facilitates children’s connections to their siblings.
From the UK, Greeff (1999) states that it is an ideal way of minimising disrup-
tion to the child and working in genuine partnership with the family, while
Broad (2001) suggests that kinship placements represent a breakthrough in
terms of the prevention of system abuse, provision of on-going, familiar and
willing support, and sustaining individual and family identities.
What is striking, however, is that few of these presumed benefits refer to the
actual impact on child well-being. Some reflect general social values, such as
building on family strengths and preserving families. Most are ‘proxy’ out-
comes, factors which are believed or have been shown to produce good out-
comes for children in non-related substitute care, such as placement stability,
placement with siblings, and parental contact. Before examining the research
evidence on these, a more direct question needs to be asked: is there good
evidence that kinship placements actually promote the well-being of children?

(b) The research evidence on the impact of kinship care on outcomes for

‘The most fundamental research gap . . . is evidence that kinship care has a positive
effect on children. I am not aware of a single well-designed, controlled, longitudinal
study that the field can depend on to support the efficacy of kinship care’ (Geen, 2003,
p 246)
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Care of Children by Extended Families and Social Networks 121

One can almost guarantee that at every conference on kinship care someone will
claim that ‘research shows that kinship care is better for children than stranger
care’. In fact research does not yet give a definitive answer. Studies which
attempt to measure this tend to have limitations: cross-sectional rather than lon-
gitudinal designs; samples of on-going rather than completed placements; and,
perhaps most importantly, no baseline measures of functioning so that it cannot
be determined whether any differences are attributable to the nature of the
placement or variation in the children. As noted earlier, much American
research suggests that kin-placed children have less problematic profiles than
those going into stranger care. There is the problem that since kinship place-
ments (both here and in the US) typically receive less support than stranger
placements, like is not being compared with like. Thus it is possible that if
higher levels of support were provided outcomes for kinship placements would
be better. Finally children arrive in kinship placements through a variety of
routes (direct from home, via one or more short-term placements, or after
lengthy stays in care). As yet research has not factored in those differences.
Even without these caveats the evidence is quite mixed. On a range of mea-
sures -health, education, emotional and behavioural development- there are
studies indicating that children do as well as those in stranger care, better, or
even, occasionally, worse (Hunt, 2003). Recent UK research reports outcomes
to be remarkably similar with the same proportions under-performing at school
and displaying emotional and behavioural problems, though kin-placed chil-
dren were slightly more likely to have a positive self-image but to have poorer
school attendance (Farmer and Moyers, forthcoming).
There appears to be only one study examining adult outcomes (Benedict et al,
1996). Since the children had displayed higher levels of functioning during place-
ment, the researchers hypothesised that this would be maintained into adulthood.
In fact outcomes were very similar in most respects while those previously placed
with kin were somewhat more likely to be using heroin or trading sex for drugs
and tended to have more arrests and convictions though fewer prison sentences.
It clearly cannot be said therefore that research has demonstrated that
kinship care is better for children than non-related foster care. Nonetheless the
evidence is broadly positive: children appear to do at least as well and possibly
better and there is little to suggest that they do worse. Moreover, as explored in
the next section, there are certain aspects of kinship placements which are likely
to promote children’s welfare.

(c) Are kinship placements likely to promote children’s well-being?

(i) Attachment and placement stability

Security of attachment and continuity of care are recognised to be important to

children’s long-term well-being. The capacity of kinship placements to deliver
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122 Joan Hunt

these is a strong theme in the research (Hunt, 2003). Children are reported to feel
secure, happy and integrated into the family, with most studies reporting that
this is more common than for children placed with stranger carers. Research
also highlights the commitment demonstrated by carers and their strong bonds
with the children. Indeed one UK study reports that they were twice as likely to
be highly committed as stranger foster-carers (Farmer and Moyers, forthcom-
ing). In contrast, a Dutch study (Strijker et al, 2003) found no difference in the
quality of relationships while a New Zealand study (Smith et al, 1999) reported
there was not the ‘irrational commitment’ found in ideal parenting situations
nor necessarily a ‘forever’ feeling of children being totally incorporated into the
Emerging evidence on placement stability is suggesting a more complex pic-
ture than previously thought, when no matter how it was measured, kinship
fared better than stranger care (Hunt, 2003). The weight of the evidence still
supports that conclusion. Kinship foster placements last longer and children
have fewer moves both overall and before entering placement (Department of
Health 2001b; Farmer and Moyers, forthcoming). A large American study of
children entering care under six and still in care eight years on found that 71%
of kin-placed children were still in their first or second placement, compared
with 48% of other children (Webster et al, 2000).
It is the evidence on disruption which is now less clear-cut. Reported rates in
previous UK research range from less than 10% to around a third (Hunt, 2003).
Few studies suggested higher rates than non-related foster-care; and the percep-
tion was that they were lower. Two recent English studies, however, indicate
that over time rates may be very similar (Farmer and Moyers, forthcoming;
Sykes et al, 2002). The data in the first study is particularly interesting in that
while a higher proportion of stranger foster placements ended, the majority did
so for positive reasons (return home or a planned move). Breakdown rates were
identical. There is also recent research in the USA which indicates that while
kinship placements are more stable in the early years, after about three years kin
and non-kin placements have the same chance of disrupting (Testa, 2001).

(ii) Continuity of experience and the maintenance of relationships

Kinship care can contribute to children’s sense of security and personal identity
through minimising other forms of disruption. Children usually go to people
they know, with whom they share a culture (Farmer and Moyers, forthcoming;
US GAO, 1999). They are more likely than children entering traditional foster
care to remain in the same school and/or neighbourhood (Bergerhed, 1995;
Doolan et al, 2004; Farmer and Moyers, forthcoming; US GAO, 2000). It is more
probable they will be placed with siblings or have contact with siblings living
elsewhere (Hunt, 2003). Links with the rest of the extended family are more
likely to be maintained (Brown et al, 2002; Farmer and Moyers, forthcoming;
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Care of Children by Extended Families and Social Networks 123

US GAO, 1999), and if carers cannot continue, other family members may take
over (Courtney and Needell, 1997; Farmer and Moyers, forthcoming; Iglehart,
1994; Worrall, 2001).
Most research reports that parental contact is more likely and highlights the
commitment carers show to maintaining contact, usually taking responsibility
for organising it and persisting despite difficulties and lack of support from
social services (Hunt, 2003). It should be noted, however, that there are at least
five studies which have not found higher levels of contact in kinship placements
(Burnette, 1999; Terling-Watt, 2001; Mosek and Adler, 2001; Strijker et al, 2003;
Worrall, 2001). Contact may also not necessarily involve both parents, which
may depend on with which side of the family the child is placed (Doolan et al,
2004; Farmer and Moyers, forthcoming; Hunt and Macleod, 1999). There is
also considerable evidence that contact can be problematic (Hunt, 2003). One
study in the USA (Browne and Moloney, 2002) found that 53% of children had
negative reactions to parental contact while recent UK research reports that
contact which was damaging for the child was occurring in 31% of placements
(though in non-related placements the proportion was even higher [45%, a sta-
tistically significant difference] (Farmer and Moyers, forthcoming). Carer atti-
tudes towards parents are not necessarily more favourable (Strijker et al, 2003)
and relationship difficulties are more common than in stranger placements
(Farmer and Moyers, forthcoming). This carries the risk that children will be
exposed to conflict between their carers and their parents, with consequent
impairment to their well-being.

(iii) Quality of care and child safety

While, as demonstrated earlier, the research evidence does not always support
kinship care to the extent its proponents may claim, on the other hand it also
suggests that the most common concerns—about quality of care and child
safety—may be exaggerated. Carers do, on occasion, abuse children—the pub-
lic inquiry into the death of Victoria Climbié provided a salutory warning
against an unduly rosy picture of the extended family (Laming, 2003). There are
also references to this possibility in a small number of research studies, includ-
ing a study in the USA of sexual abuse involving grandparents which found that
10% of the children had been living permanently with their abuser (Margolin,
There is, however, little focused research and the findings are mixed in rela-
tion as to whether children are more or less at risk than in stranger care. In one
large study in the USA, allegations of maltreatment, half of which involved rel-
ative carers, were made in 12% of cases with 21% of these being substantiated.
These figures were noted to be higher than in other studies of foster care
(Dubowitz et al, 1993). However, other studies report lower rates of confirmed
abuse (Benedict et al, 1996; Gleeson, 1999). Recent research in the UK reports
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124 Joan Hunt

the same rates of substantiated abuse (4%) although more allegations were
made against kinship carers (Farmer and Moyers, forthcoming).
Carers can also expose children to risk through breach of restrictions on
parental contact or care, as demonstrated by the death of Tyra Henry (London
Borough of Lambeth, 1987). Carers may find it difficult to enforce rules around
contact because of their emotional involvement with the parents (Chipman et al,
2003) or they may not share agency concerns. One study in the USA reported
that 36% of carers disregarded contact restrictions because they did not believe
parents presented a risk, while another found that half a sample of drug-
exposed infants were actually being cared for by their mothers ((Terling-Watt,
2001; Rodning et al, 1991). A small English study reported breach of court
orders in 18% of cases (Hunt and Macleod, 1999). These figures suggest it is cru-
cial that carers are helped to fully understand any concerns about contact. This
is even more important given that where contact has to be supervised, the carer
will typically be responsible (Farmer and Moyers, forthcoming).
There is little evidence to support concern about the quality of care provided
in more than a minority of cases. Research in the USA indicates that standards
may be variable (Dubowitz et al, 1993) and lower than the average stranger fos-
ter home (Berrick et al, 1999). However, an American government investigation
reported that in more than 90% of both related and non-related foster care
almost all parenting tasks were carried out adequately. UK research has been
quite positive (Hunt and Macleod, 1999; Harwin et al, 2004; Rowe et al, 1984)
although one study is more cautionary, finding that family and friends carers
were significantly more likely to have poor parenting skills and substantially
more were struggling to cope (Farmer and Moyers, forthcoming). Nonetheless
the researchers judged that the majority of placements (66%) were satisfactory.
While the figure for stranger foster care was higher [73%] the difference was not
statistically significant).


(a) Kinship Care Presents Unique Challenges

Since kinship care is a naturally occurring family form, often arranged without
any state involvement, it is easy to assume that it is also unproblematic. In fact,
in addition to the ‘normal’ challenges of parenting, it is likely to present unique
challenges, particularly for grandparents (Hunt, 2003):
— It is not a normative life-event but one for which carers may not be either per-
sonally or culturally prepared and which dramatically changes their life.
Grandparents are likely to have to adjust to a variety of losses (a traditional
grandparent role, peer group friendships and activities, freedom). Existing
relationships—with adult children, other members of the extended family,
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Care of Children by Extended Families and Social Networks 125

friends and partners—may come under strain or even fracture and relation-
ships with the birth parents, possibly already tense, may worsen.
— Assuming care is likely to come on top of other stressful factors such as the
circumstances which precipitated it. Carers may be struggling with a turmoil
of feelings—guilt, failure, anger, grief, and resentment—combined with a
sense of relief that the child is now safe. At the same time they may have other
care-giving responsibilities, for partners or for elderly relatives.
— The task is inherently difficult. The children may be deeply affected by the
separation, the events leading to it and earlier trauma, and may find it diffi-
cult to adjust to different routines and possibly values. They may present a
range of special needs: physical disabilities and chronic illness, developmen-
tal delay; learning disabilities, behavioural problems. Some may be physic-
ally violent towards their carers (Brownell, 1998, cited in Barnard, 2003).
— Some of the ‘benefits’ of kinship care for children—such as sibling placement
and increased contact—may place additional burdens on relative carers. At
the same time other relatives or even the children, may hold them responsi-
ble for obstructing contact.
— Unlike traditional foster parents, who make a deliberate decision to offer
care and will have been assessed to ensure that they have the resources to do
so, relative carers may take on care despite the strain this will put on already
limited capacity.

(b) Social Support May Be Limited

Social support is one of the factors considered to buffer against stressful life
experiences. Although the findings in relation to kinship care are somewhat
mixed, they suggest that carers cannot necessarily rely on helping networks with
several studies reporting carer isolation and loneliness (Hunt, 2003). Perhaps
most significantly, help may not be forthcoming from other family members.
Worrall, for instance (1996), writes of the ‘myth’ of the New Zealand legislation
that the extended family will be collectively responsible. In reality, she argues,
care by the extended family just means care by one of the related nuclear fami-

(c) Psychological stress

There is also much direct evidence demonstrating that kinship care-giving is psy-
chologically stressful for at least a proportion of carers (Hunt, 2003). In a nation-
ally representative American sample, 26% of carers described it as very or
extremely stressful (Giarrusso et al, 2000). Indeed the stress experienced by kin-
ship carers has been found to be higher than that associated with other forms of
care (Strawbridge et al, 1997). Care-taking grandparents have been found to be
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126 Joan Hunt

almost twice as likely as those without care-giving responsibilities to be cate-

gorised as depressed (Minkler et al, 1997) with some studies reporting that more
than 50% were suffering from depressive symptoms (Minkler and Roe, 1993;
Janicki et al, 2000). Relatives caring for children with disabilities or special needs
are likely to be particularly vulnerable (Burnette, 2001; Janicki et al, 2000).


(a) The service gap

The gap between the needs of kinship care families and service provision is a
consistent theme across several jurisdictions (Hunt, 2003). In England it is clear
that this extends across the full range of circumstances, from families who have
had limited or no contact with social services, to children placed by the courts
on care orders, and that it is not necessarily related to need or legal status.
Carers are uncertain as to what help is available and how to access it (Doolan et
al, 2004; O’Brien, 1999; Richards, 2001). They may be reluctant to press their
case (Bourne and Porter, 2001; Malos and Bullard, 1991) or worried that they
may be seen to be failing (Hunt et al, forthcoming). Those who do seek help may
find the response variable (Pitcher, 1999).

(b) What kind of help is needed?

There is a striking congruence in the international literature on the kinds of help

needed. Hence this section refers only to UK research.
Undoubtedly the most pressing need is financial- start-up and on-going costs,
help with special requirements and legal expenses (Bourne and Porter, 2001;
Broad, 2001; Doolan, et al, 2004; Flynn, 1999; Laws, 2001; Pitcher, 1999;
Richards, 2001; Russell, 1995; Waldman and Wheal, 1999). There are problems
with all the different ways in which families can be currently supported. These
form a complex and far from transparent ‘system’ which carers find arbitrary,
confusing and inconsistent (see Masson and Lindley, this volume) and which
leaves them struggling to cope, as has been highlighted recently by Frank Field,
MP (Blaiklock, 2005). Family Rights Group is leading a well-supported cam-
paign for the creation of a state benefit to meet the costs of care, either an unsup-
ported child element in the tax credit or an extended guardian’s allowance
(Richards and Tapsfield, 2003).
Another key need is for information, advice and sometimes advocacy to help
navigate the complexities of the legal, benefits, education and social services sys-
tems (Bourne and Porter, 2001; Doolan et al, 2004; Pitcher, 1999; Richards,
2001; Russell, 1995). Different forms of practical help would be welcome. Help
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Care of Children by Extended Families and Social Networks 127

with accommodation; transport; equipment; and child care—varying from reg-

ular respite care to holiday clubs (Bourne and Porter, 2001; Doolan et al, 2004;
Farmer and Moyers, forthcoming; Hunt et al, forthcoming; Laws, 2001; Pitcher,
1999; Richards, 2001; Russell, 1995).
Families would appreciate signposting and ready access to services, whether
broadly based ones such as Sure Start or more specialised ones such as therapy
and counselling (Russell, 1995; Pitcher, 1999). Carers need help so they can help
the children—with school work, which will be unfamiliar to many grandparents
(Richards, 2001); dealing with their feelings about their situation (Flynn, 2001)
and above all, managing behaviour (Doolan et al, 2004; Flynn, 2001): 23% of
carers in Farmer and Moyers’ study were struggling with this. They would also
like help to deal with parents, managing what can be strained relationships and
coping with contact, often a major issue (Doolan et al, 2004; Farmer and
Moyers, forthcoming; Laws, 2001; Richards, 2001; Russell, 1995).
The extent to which carers would like support to be provided through social
services is not clear (Waldman and Wheal, 1999). Some might prefer an alter-
native form of provision, perhaps through contracting out to a voluntary
agency. Others would like better access ranging from having their own social
worker and more visits from the child’s worker to occasional calls and access to
a named social worker in a crisis (Bourne and Porter, 2001; Hunt and Macleod,
1999; Laws, 2001; Pitcher, 1999). It is also unclear what proportion of carers
would welcome some form of training or the opportunity to attend support
groups or take part in a mentoring system. Although there is some support for
these in the literature and support groups operate successfully in some parts of
the country (Pitcher, 1999; Richards, 2001; Russell, 1995) in others they have
failed to get off the ground.
In addition to the specific needs identified, the literature suggests that service
provision needs to meet a number of cross-cutting requirements. It should, for
instance, be customised—tailored not only to the unique needs of kinship fam-
ilies in general but to the needs of the individual family in particular: kinship
carers are a heterogeneous group (Sykes et al, 2002) and needs will change over
time. It needs to be holistic, addressing the needs of the whole family, not just
the child or the carers. The aim should be to develop ‘wrap-around’ services,
which address the whole range of need. It should be culturally attuned, recog-
nising the specific needs of different ethnic minority groups. Finally it should be
enabling, building on the family’s strengths.
However, it is not just a question of specific support services but of the way
kinship carers are regarded and treated. An insistent message emerging from the
research on carers is the desire to be valued, and to be shown respect and con-
sideration (Bourne and Porter; 2001; Laws, 2001; Richards, 2001; Wheal, 2001).
In the words of carers:

It is a mountain that we are climbing, it is really really high. We keep plugging on because
of the love but you expect a bit of backing along the line. (Bourne and Porter, 2001).
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128 Joan Hunt

(We would like) acknowledgement that the people who are doing the caring are doing
a full-time stressful job and that if they want them to carry on doing it and not the gov-
ernment taking on responsibility, then they do need looking after themselves (Hunt et
al, forthcoming).


I think the government should be aware of the situation, how many people do care for
people within the family, and they need to think hard about some help for the carers
(carer cited in Hunt et al, forthcoming).

‘The government should now set in hand a national survey on the extent to which
grandparents play the role of parents to their grandchildren, the level of financial and
other help they need to carry out their responsibilities and the role that the new chil-
dren’s centres should play in ensuring that more effective support is given.’ (Blaiklock,
2005) p 11.

As mentioned in section 2 of this chapter, the present author prepared a

scoping paper for the Department of Health (2003) to assist in the development
of policy on kinship care. This concluded that although the research evidence
for the benefits of this form of care was not strong, there was no reason to
question the philosophy of the Children Act 1989 that wherever possible chil-
dren needing substitute care should be placed with their extended families or
social networks. Nor was it sensible to ‘mark time’, awaiting better ‘proof’.

‘What appears to be needed is a policy which reinforces the Children Act objectives of
keeping children within their extended families wherever this is in their interests but
acknowledges and addresses the dilemmas and difficulties which that policy entails
and enables it to be delivered to the benefit of children and their carers. It cannot be
said that such a policy framework is currently in place ‘(Hunt, 2003)p 84.

The report identified a number of action points for central government,

including: a cross-government initiative; addressing the issue of financial sup-
port; developing a framework for service provision; collecting information on
the whole population of children living with relatives; commissioning and dis-
seminating research. At a local level, policies should be developed on an inter-
department and inter-agency basis. There was a need for better information,
allocation of responsibilities for developing this area of work and creative think-
ing about service delivery. Social workers needed training in this challenging
practice area. Above all, effective policies and practices had to grow out of valu-
ing what kinship carers do, appreciating their difficulties and understanding
that this form of care is unique and should not be forced into existing structures
and practices.
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Care of Children by Extended Families and Social Networks 129

The fact that the scoping paper was commissioned was itself an indicator that
at least some civil servants in central government were concerned to promote
this area of work and as indicated earlier, some progress has been made.
However, much more is needed. Kinship care needs to become much more high
profile and move up the agenda of government policy.

(a) Developing a strategy for kinship care

Three overall goals are suggested as a starting point for developing a strategy on
kinship care:
— Every child who cannot be cared for by birth parents has the opportunity to
be cared for safely and effectively within their family/social network;
— Outcomes for all children cared for by relatives or friends are as good as pos-
sible and compare well with children in non-related care;
— Systems for dealing with all forms of family and friends care are transparent,
family-friendly, experienced as fair and supportive and minimally intrusive.
These could be supplemented by a set of objectives:
— National/local policy covers the spectrum of care arrangements.
— Kinship care is recognised/responded to as unique, in terms of opportunities
and challenges.
— Policy and practice is evidence-based and clear-sighted, not clouded by preju-
dice, romanticism or determined primarily by budgetary considerations.
— Services and supports are adequate, appropriate and needs-led, encompass-
ing the whole family with an element of user choice. They should be based
on participation and partnership and be community-based.
Establishing a dedicated working group or task force would still seem to be a
productive first step, not least because it would give a clear message that kinship
care is on the policy agenda. This needs to have cross-government membership
because of the range of issues facing carers and its remit should cover all forms
of kinship care, not just foster care. The task force should identify the issues to
be addressed and establish a timescale and strategy for addressing them. It
should in particular make recommendations for mapping the prevalence of dif-
ferent forms of kinship care across the country. Another clear priority would be
addressing the financial issues.
Work needs to be done (either by the Task Force or the Department for
Education and Skills) with relevant government departments to ensure their ser-
vices are sensitised to kinship care, address issues relevant to their service; and
are able to act as information and referral points for families. It is imperative
that kinship care is included in central and local government thinking about
family support and in the creation of new systems such as children’s centres and
extended schools.
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130 Joan Hunt

Local authority departments with responsibility for children’s services need to

be given a stronger policy steer. There should be clear expectations about written
policies and information for families, detailed operational guidance and appro-
priate decision-making structures. Advice should highlight the need for services,
staff training and support, reliable data across the range of arrangements and sen-
sitising and working with other agencies. Government should work towards
developing detailed, dedicated guidance and, where necessary, regulations, for
kinship care as a distinct form of care. This needs to cover assessment, standards,
decision-making processes, support services, monitoring and finance.
There is also much that could be done in the way of facilitating local devel-
opments, for instance by collecting and disseminating examples of innovative
practice, evaluating existing schemes and setting up action research projects. An
electronic national information network would enable practitioners to share
experiences, problems and creative solutions. Kinship care needs to be included
in social work training at both a basic and post-qualifying level and accessible
training events run across the country.
Finally, funding is needed for a dedicated programme of research. It is ironic
that, as mentioned earlier, the pro-kinship thrust of the Children Act 1989 was
substantially due to unexpected research findings which pointed to the benefits of
kinship care for children. Had this been treated as a fruitful starting point for fur-
ther exploration and hypothesis testing, there might now be a solid basis for the
development of policy. Instead no major research was commissioned for more
than a decade. Because the use of kinship care did not develop as rapidly as had
been anticipated post Children Act 1989 we have not reached the position of juris-
dictions such as the USA, Australia and New Zealand where researchers have
cautioned that the use of kinship care has far outstripped the knowledge base to
support it. A number of studies have now been completed or are in progress. But
they remain pitifully small and we are still over-reliant on studies carried out in
other countries to help fill the many gaps which remain. Since kinship care takes
many forms, with creative thinking it can be squeezed into research programmes
in which it is not the central focus. In reality it is more likely to be marginalised.
Given that both adoption and residential care, neither of which affects substan-
tial numbers of children, have had their own research programmes, the time is
long overdue for kinship care to receive its fair share of research scrutiny.


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Rates and Factors Associated with Placement Disruption.’ (2001) 23 Children and
Youth Services Review 111.
TESTA, M F, ‘Kinship Care and Permanency.’ (2001) 28 Journal of Social Services
Research 25.
TESTA, M F and SLACK, KS, “The Gift of Kinship Foster Care.’ (2002) 24 Children and
Youth Services Review 79.
US GENERAL ACCOUNTING OFFICE, Foster Care: Kinship Care Quality and
Permanency Issues (Washington DC, GAO, 1999).
WATERHOUSE, S, The Organisation of Fostering Services: A Study of the
Arrangements for the Delivery of Fostering Services in England (London, NCFA,
WALDMAN, J. and WHEAL, A, ‘Training Needs of Friends and Families who are
Foster Carers’. In R Greeff (ed), Fostering Kinship: An International Perspective on
Kinship Foster Care (Aldershot, Arena, 1999)p 135.
WEBSTER, D, BARTH, R and NEEDELL, B, ‘Placement Stability for Children in Out
of Home Care; A Longitudinal Analysis.’ (2000) LXXIX Child Welfare 615.
WORRALL, J, Because We’re Family: A Study of Kinship Care of Children in New
Zealand. Unpublished Masters Thesis (Palmerston, NZ, Massey University, 1996).
——, `Kinship Care of the Abused Child; The New Zealand Experience.’ (2001) 80 Child
Welfare 497.
YOUNG, D and SMITH, C J, ‘When Moms are Incarcerated: The Needs of Children,
Mothers and Caregivers.’ (2000) 81 Families in Society 130.
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Recognising Carers for What They
Do—Legal Problems and Solutions
for the Kinship Care of Children


OME CHILDREN HAVE always been brought up by people who are
not their parents. In most societies, relatively few parents now die whilst
their children are dependent.1 However, family breakdown, drug and
alcohol abuse, or illness leave many children without parents able or willing to
care for them, and being looked after by relatives or friends. These are not nec-
essarily negotiated arrangements; some carers offer help, some take over and
others are left ‘holding the baby’ (Parker et al, 1990; Richards, 2001; Hunt, this
volume). When social services become involved, for example when there are
child protection concerns, social workers may turn to the family to find a safe
environment for the child. Relatives and friends are often approved as foster
carers and provide temporary or long term care for children who are in public
care.2 Social workers also look to relatives for permanent placements so child-
ren need not remain in care.3
Although child care arrangements in England and Wales are highly regu-
lated, care by close family members is not, except if it amounts to private
fostering.4 The State has an obligation to secure the protection of children; and

1 This is not the case in communities with a high incidence of HIV/Aids such as those in sub-

Saharan Africa.
2 Local authorities have the power to place children with members of their family, Children Act

1989, s. 23(2)(a); unless such people are parents or have parental responsibility, they are local author-
ity foster parents, s. 23(4). However, social workers sometimes broker arrangements between parents
and relatives whereby children are cared for by relatives without being looked after by the local author-
ity s. 23(6)(b).
3 Where a carer obtains parental responsibility through a residence order or special guardianship,

the care order is discharged, Children Act 1989, s. 91(1), (5A).

4 Children Act 1989, Part IX as amended by Children Act 2004, s.44; Children (Private arrange-

ments for fostering) Regulations 2005 (2005 S.I. 1533); DfES, 2005).
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136 Judith Masson and Bridget Lindley

children who are not being cared for by their parents are considered to be poten-
tially vulnerable (Utting, 1997; DfES, 2005). However, since family privacy is
highly valued, State intrusion into family arrangements is not always accept-
able. Parents are considered competent to choose carers for their children
from their close relatives without the need for social services’ supervision.
Grandparents, aunts and uncles, siblings, step-parents and anyone with
parental responsibility5 may care for children without any requirement to notify
social services. But in all other cases and regardless of whether they are paid,
carers are ‘private foster carers’ and are subject to monitoring by the State.
The Family Rights Group, a voluntary organisation which provides advice
to parents and carers when they are involved with social services, has estimated
that there are a quarter of a million children in England and Wales living with a
grandparent, other relative or friend who takes responsibility for their care
(Richards and Tapsfield, 2003). Few of these arrangements are formalised
through the courts.6 Some children in state care are placed with a relative or
friend; such placements now account for more than 1 in 6 foster placements
(ONS and DfES, 2005). In the majority of cases, relatives and friends caring for
children have no formal legal status and do not have the local authority social
services department acting as a buffer between them and the parents.
Recognition and support for such carers are crucial—they need to know what
they can and cannot do, what help is available to them and who can assist if
problems arise.
This chapter examines the legal structures and arrangements where children
are looked after by relatives or friends and considers to what extent these meet
the needs of all those involved.


The legal relationship between parents, families and the State has developed
over time through the common law, but is now substantially governed by
statute, particularly the Children Act 1989 and the Human Rights Act 1998. As
greater emphasis has been given to children’s welfare, parents’ power over their
children’s lives has been cut away. Indeed family privacy has diminished as the
State has taken a greater role in protecting children, providing remedies for dis-
putes and guaranteeing rights for family members. These shifts have provided
space for the legal recognition of diverse families, and for non-parental carers,
as required by the European Convention on Human Rights.

5 Children Act 1989, ss. 66(1) and 105(1).

6 In a recent study of private law residence order applications, fewer than 5% were made by rel-
atives, mostly grandparents, see Smart et al., (2003). In a study of 77 care cases, 7 resulted in resi-
dence orders, 3 in favour of parents and 4 in favour of relatives, Masson et al., (2004). Overall nearly
3000 residence orders were made in public law proceedings in 2004, DCA, 2005: table 5.2.
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Legal Problems and Solutions for the Kinship Care of Children 137

Article 8 of the Convention requires states to respect ‘rights to private and

family life’. Respect involves the State not only refraining from unwarranted
interference, but also taking positive action to support family ties.7 The
Convention seeks to protect ‘real’ relationships. ‘Rights to family life’ are held
by those with a close personal relationship with a child, including step-parents
and carers.8 Moreover they are not held automatically merely because of a
biological link with a child; a factual relationship is required.9 Where there is a
conflict, for example between the rights to family life of parents and carers, the
European Court of Human Rights has emphasised the importance of the child’s
welfare in balancing competing claims.10
English law recognises parents in a number of different ways—through the
laws relating to parental responsibility, guardianship, child support, adoption,
inheritance and much more.11 It maintains family privacy by restricting who can
question parental care in court proceedings. For example only those who have
parental responsibility, are married to a parent12 or have cared for the child for
a substantial period can apply for a section 8 order without the prior permission
of the court unless they have the consent of everyone with parental responsibil-
ity.13 However, the courts take a fairly liberal approach to applications for con-
tact or residence by carers, former carers and those with a close relationship
with the child.14 Once children’s care is before the court, the welfare principle
applies and the child’s interests determine the outcome.15 Although the courts
have stressed the particular value of being brought up by parents,16 there is no
statutory protection of the parents’ position as their child’s carer. This contrasts
markedly with the approach taken in the USA where the Supreme Court has
upheld the parents’ fundamental right to make decisions about their child’s
upbringing without interference, except in cases of harm.17
The State has a general role in supporting families through the structures of
the welfare state, particularly health services, nurseries and schools and finan-
cial support. Parents are expected to support their own children, but it has long

Kroon v. Netherlands (1994) 19 EHRR 263.
Marckx v Belgium (1979) 2 EHRR 330, para 45; Söderback v. Sweden [1999] 1 FLR 250.
Lebbink v. The Netherlands [2004] 2 FLR 463.
Söderback v. Sweden [1999] 1 FLR 250; Johansen v. Norway (1996) 23 EHRR 33.
See Cretney et al., (2003).
Identical provision is made by the Civil Partnership Act 2004 for a parent’s civil (same sex)
Children Act 1989, s. 10. However, a local authority can only intervene in the child’s care if it
can establish that a child ‘is suffering or likely to suffer significant harm’ s.31.
Re J. (leave to issue application for residence order) [2003] 1 FLR 114 C.A.
‘The child’s welfare is the paramount consideration’ Children Act 1989, s.1; J. v. C. [1970]
A.C. 668.
Re D. (care: natural parent presumption) [1999] 1 FLR 135 CA; Re N. (Residence: appoint-
ment of a solicitor: placement with extended family) [2001] 1 FLR 1028
Troxel v. Granville 530 U.S. 57 (2000) The Supreme Court struck down a Washington statute
which allowed any person to apply for contact with a child at any time. This has major implications
for laws in the USA to recognise carers and enable them to take over from parents, see Barker
Brandt, (2004).
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138 Judith Masson and Bridget Lindley

been accepted that the additional costs of raising children justify some state sub-
sidy. All those caring for children are entitled to receive Child Benefit18 and
additional provision is made through tax credits and welfare benefits, subject to
various conditions and according to means. For those entirely dependent on
benefits, the State provides only a poverty level income. The government pro-
motes employment as the way of reducing family poverty, and supports those in
low-paid, part-time work through tax credits. Despite the government’s com-
mitment to promoting care by family and friends, there is no specific scheme to
support all relatives and friends who are looking after children who are not their
own, with the result that support needs often go unmet. Relatives or friends who
care for children by arrangement with their parents are expected to obtain finan-
cial support from the parents. Only where the parents are dead or one parent has
died and the other is divorced and without a current support obligation,
untraceable, or detained is a further benefit, Guardian’s Allowance, paid (Inland
Revenue, 2005).
Support from local authorities varies according to the status of the child.
Local authorities have powers to safeguard and promote the welfare of children
in need,19 duties to protect children from harm20 and responsibilities for regu-
lating and monitoring care outside the family in private foster homes and chil-
dren’s homes.21 Child protection is the focus of the work of social services
departments with children and families. Although local authorities have wide
powers to provide support services, including financial support, for children in
need and their families and carers,22 the provision of support is closely linked to
child protection. In practice, family support is focused on children at risk of
significant harm. Help for other families in difficulty is severely limited, and is
provided only for short periods (D.H., 2001). Attempts to force local authorities
to provide family support more widely have largely failed: the House of Lords
has held that there is no duty to provide such support and, except in the most
extreme cases of destitution, local authorities can choose whether and how to
make provision.23
When children are looked after and placed with related carers, the local
authority is under a duty to provide support for their care.24 Fostering
allowances, which the government has committed to standardising across the
country,25 are paid for children placed with carers, including close relatives26
18 Carers only receive Child Benefit if they report the matter to the Benefits Agency or the parents

notify the change in circumstances, see Blaiklock, (2005):18.

19 Children Act 1989, s.17
20 Children Act 1989, Parts IV and V.
21 Children Act 1989, Parts VIII and IX.
22 Children Act 1989, s. 17(3), (6), (10).
23 R. (G) v. Barnet LBC; R. (W) v. Lambeth LBC; R. (A) v. Lambeth LBC [2004]] 1 FLR 454 H.L.
24 s. 23 (3) Children Act 1989.
25 See accessed 17.08/2005.
26 In theory the cost can be recouped from the parents, Children Act 1989, Sched 2, pt 3. It is not

lawful to pay lower amounts to foster carers who are relatives: R. ota L v. Manchester City Council
[2002] 1 FLR 43.
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Legal Problems and Solutions for the Kinship Care of Children 139

but only whilst the child continues to be looked after by the local authority. If
such children are made subject to residence or special guardianship orders, local
authorities only have a power to provide allowances:27 such payments are dis-
cretionary, usually means-tested and generally paid at lower levels than foster-
ing allowances (Richards and Tapsfield, 2003; DfES, 2005b). Similarly, when
children are living with relatives and friends by private arrangements with the
parents, local authority support is also discretionary. With child protection
as the key focus, supporting such arrangements has a very low priority.
Consequently, unless the child has looked after status, relative carers are highly
likely to find themselves taking financial responsibility for the children they look
after. This can result in considerable financial hardship because benefits, com-
bined with any payments from parents, are inadequate (Richards and Tapsfield,
2003; Blaiklock, 2005).
The regulation of private fostering has long been a local authority responsi-
bility, although few local authorities have given much attention to this (SSI,
1995; Save the Children Fund, 1997). Following concerns raised during the
inquiry into the death of Victoria Climbié (Laming, 2003) and a campaign from
British Agencies for Adoption and Fostering (BAAF, 2004), local authority
responsibilities for the welfare of private foster children have been strengthened
and extended.28 Local authorities have a new responsibility to promote aware-
ness of the duties to notify them of arrangements (proposed or existing) and to
provide advice to parents and carers. New regulations and guidance have been
issued about the ways they should carry out their responsibilities to monitor and
inspect private fostering arrangements. These make clear that,

Overarching responsibility . . . remains with the parent or other person with parental
responsibility . . . it is the duty of local authorities to satisfy themselves that the wel-
fare of children who are, or will be, privately fostered . . . is satisfactorily safeguarded
and promoted (DfES, 2005: para 1.8).

Regulation of private fostering is a means of protecting children; and support

for parents, carers and children is a way of securing that protection, but it is not
its primary focus. However, care by close family is not regulated and so it may
be harder for these relative carers to get support from the local authority.
Although private fostering guidance may provide a useful tool in improving
practice in the support and protection of children who are not living with their
parents, many relative carers seem unlikely to benefit.

Children Act 1989, sched. 1, para. 15; Special Guardianship Regulations 2005 (2005 S.I. No
1109), regs 6–10.
Children Act 2004, s. 44.
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140 Judith Masson and Bridget Lindley


English law separates parenthood from parental responsibility, the powers and
responsibilities over a child. This law recognises parents by imposing on them
obligations to maintain their children and giving them unrestricted access to the
courts to seek or oppose orders about their children’s care. Guardians replace
deceased parents but have no enforceable obligation to maintain their wards.29
Those who are neither parents nor guardians can only obtain the same legal
position as parents by adopting the child. In addition to the status of parent or
guardian, mothers, married fathers and guardians have parental responsibility
automatically. Unmarried fathers, step-parents and carers may gain parental
responsibility in a variety of different ways. But even if they do not, English law
imposes obligations on them either because of their relationship with the child
(fathers and step-parents) or because the child is in their care (carers), and recog-
nises that they should be able to exercise powers over children.30 For example,
these people can apply to the courts for orders relating to the child’s care,
subject to various restrictions, and education law includes in the definition of
‘parent’ anyone who has care of the child.31
The concept of parental responsibility is not clearly defined.32 The Children
Act 1989, s.3(1) states that it ‘means all the powers, responsibilities and author-
ity which by law a parent has in relation to a child and his property.’ Further
explanations are provided in text books (Cretney et al, 2003). The notion of a
concept which appears to have a key position within the legal framework but
which has no workable definition is troubling. It is also unclear whether the con-
cept of parental responsibility really serves a purpose. There are many circum-
stances where having parental responsibility is neither a necessary nor a
sufficient condition for making decisions about children (Eekelaar, 2001).33
Claims cannot be derived from it and disputes cannot be settled by it; the par-
ties must go behind it to identify rights under common law or statute. Parental
responsibility is used as a shorthand term to mean ‘does this person have a legal
relationship with the child?’ But by linking status and legal relationship, the law
excludes those whose relationship derives from what they do for the child rather
than who they are.

29 Guardians have access to state benefits for their wards.

30 Anyone who cares for a child must not ill-treat, neglect, abandon or cause unnecessary suffer-
ing or injury to health, Children and Young Persons Act 1933, s.1.
31 Education Act 1996, s. 576; DFEE, (2000): para 8.
32 The Law Commission considered that it was a practical impossibility to provide a statutory

definition because parental obligations changed to reflect different needs and varied with the matur-
ity of the child, see Law Commission (1988): para 2.6.
33 Nevertheless, Eekelaar stated that he supported proposals to give all fathers parental respon-

sibility automatically.
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Legal Problems and Solutions for the Kinship Care of Children 141


(a) Recognition and status

Carers take over parents’ nurturing role, but they do not replace them. These
arrangements are similar to those made where parents separate. In the absence
of parents, carers parent the children they look after, providing for their daily
needs and planning for their future. They need to be recognised for this and have
the power to make decisions as parents do. Arrangements need to be flexible in
order to accommodate developing children and changing circumstances.
Ideally, parents and carers will cooperate in making arrangements, taking full
account of children’s wishes, and will consult regularly. However, the balance
of power between parents and carers needs to reflect community expectations
(Eekelaar, 2001) as well as carers’ and children’s needs. Although it may be very
desirable for carers to involve parents in all decisions about their children, this
may not be possible because of parental absence, illness or refusal. Requiring
parental consultation or consent creates obstacles for carers, which can impede
their care. It makes carers (and children) dependent on parents, when in reality
parents are dependent on carers to secure the well-being of their children. It
gives parents ‘bargaining chips’ which change the balance of the relationship
between them and the child’s carers, empowering parents to the disadvantage of
carers and children.34 Where one parent would not be required to consult the
other, there needs to be good reasons for imposing such a condition on carers.
If parental consent is necessary for a particular action, provision must be made
for cases where it is refused. This may be appropriate for major life changing
events such as emigration and adoption, but it would be unduly onerous for
matters which are a normal part of bringing up a child, such as dental checks or
routine immunisation, so carers should be able to decide about these without
consulting parents.
There will be cases where parents and carers disagree about children’s
futures and so mechanisms are needed for dispute resolution. This too is a mat-
ter of the balance of power between parents and carer. The process of dispute
resolution affects the relationship between parents, carers and children, and
both the children’s care and the matter in dispute. In most cases, parents and
carers will have, and will need to have, a continuing relationship. Law and the
courts may have a role to play, but experience should lead us to be very cautious
about assuming that courts are the appropriate places to resolve disputes
between family members about the way children are cared for. There are major
limitations in the court’s ability to respond to the issues that families may
dispute, and the court process can undermine relationships. Judges do not

34 See Law Commission (1988): para 2.10.

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142 Judith Masson and Bridget Lindley

automatically command the authority and respect which produces acceptance

and compliance with their decisions. The court process is also cumbersome,
costly and confusing (Richards, 2001); and recent research on contact disputes
indicates that court users are less satisfied with outcomes than those who avoid
the courts (DCA et al, 2004a; Blackwell and Dawe, 2003). Viewing problems as
social not legal, and putting resources into practical measures to support
arrangements and resolve problems would be a better way forward (Masson,

(b) Support

Typically, relative carers take on the care of a child partly as a matter of obliga-
tion and to secure the best possible outcome for them when they cannot remain
at home (Hunt, this volume). Despite having not planned for such an arrange-
ment, they provide immediate care, often in an emergency, believing that the
support they need will follow. Parents remain financially liable for their children
and the carer does not acquire such liability unless they adopt the child.35
Guardians, special guardians and carers with a residence order can apply for
orders to enforce parents’ maintenance obligations.36 These cases are outside
the scope of the Child Support Agency and the court has powers not restricted
to ordering maintenance. But in most cases, the circumstances which prevent
parents looking after their children also mean that they are unable to support
them financially. At the very least, carers should be able to access the same sup-
ports, financial and practical, that are available to parents. But current policies
for supporting families which promote employment are inappropriate for car-
ers who cannot be expected to work. Also, limiting support to what is available
to parents takes no account either of the absence of financial liability on carers,
or of the lack of adequate support from parents. Moreover, where children and
young people have left public care to live with relatives or friends, the greater
security this provides should not be at the expense of loss of financial and other
supports from social services.
Caring for children who are separated from their parents also presents par-
ticular challenges. Even experienced carers, who know the children well, may
need support to meet the child’s needs, which may be considerable after the dis-
ruption in their home life (Hunt, this volume). In addition, navigating the com-
plexities of services for families and the benefits system, particularly when they
have no formal status, is daunting and draining (Richards, 2001). The need for
carers to have access to independent sources of advice, support and, where
appropriate, advocacy to assist them to access effective support is both obvious

35 The court has the power to make financial orders for the benefit of children under Children Act

1989, sched. 1 whilst a child is cared for by someone other than a parent.
36 Children Act 1989, sched. 1, para. 1 and see Matrimonial Causes Act 1973, s. 25(4).
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Legal Problems and Solutions for the Kinship Care of Children 143

and compelling (Richards and Lindley, 2006). Where carers do not receive the
support they need, the arrangements are at risk of breaking down with the child
ending up in state care.


There are four ways that relationships or roles can be recognised—automati-

cally, by appointment, by agreement, or by court order. Automatic recognition
need not apply to every relationship and there may be conditions. The law deter-
mines the conditions and the consequences; the individuals who qualify cannot
negotiate. Automatic rights do not depend on knowledge, nor do they require
claims. Appointment may require documents to evidence the arrangement but
the consent of the person obtaining recognition is not required.37 Where recog-
nition is based on agreement, both parties must agree. Agreements between par-
ents and carers may help to avoid conflict, but family arrangements may come
about without planning and discussion. Appointment and agreement are forms
of private ordering, giving those involved some say in the arrangements made.
Finally, recognition may depend on obtaining an order or a declaration from a
court, or some other official body. Not only may there be conditions for mak-
ing the application and the granting of the order, there will be procedures, and
usually a hearing.

(a) Automatic recognition

Two provisions in English law give automatic recognition to carers. First, where
a married couple or a couple in civil partnership treat any child38 as ‘a member
of their family’, both adults automatically obtain rights and obligations in
respect of that child.39 There is no requirement that the child is related in any
way to either of the adults. Nor is there any minimum length of time before a
child becomes a family member. ‘Treating a child as a member of the family’ is
not demanding, rather it is difficult to avoid doing so where a child lives in the
household.40 Each adult can be required to maintain the child in matrimonial,
civil partnership or domestic proceedings. These are the only carers, who are
not parents, against whom a private law obligation to maintain can be

37 Under the Children Act 1989, s.6(5) the guardian is allowed to reject (disclaim) the appoint-

38 Children placed by local authorities i.e. local authority foster children are specifically

39 MCA 1973, ss. 25(3) and 52.; Inheritance (provision for family and dependents) Act 1975,

s. 1(1)(d); DPMCA 1978, ss. 1, 8 and 88(1); Children Act 1989, ss. 10, 107; Civil Partnership Act
2004, ss. 71, 72 and Scheds 4–7.
40 Snow v. Snow [1972] Fam 74 C.A.; D. v. D. (child of the family) (1980) 2 FLR 91 C.A.
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144 Judith Masson and Bridget Lindley

enforced.41 Also, each may apply for orders relating to where the child lives
(residence order) or parenting time (contact order) in order to protect their rela-
tionship with the child.
The initial intention42 was to enable the courts to secure the welfare of all
children in a family in the event of marriage breakdown. The aim was not to
recognise carers, but rather to extend the control and protection of the court to
cover all children in the family. The link to matrimonial proceedings excluded
single and unmarried couple carers from these rights and obligations. Children
in these households could not be ‘family members’ but could be dependents and
make claims under the Inheritance Act 1975, following the carer’s death.
Neither the discrimination between married/civil partnership couples and
unmarried couples, nor the imposition of a support obligation can be easily jus-
tified. Recognition of children’s relationship with their carers is dependent on
the carers’ own relationship. Consequently, these provisions do not provide a
basis for recognising and supporting carers more generally.
Secondly, the Children Act 1989, s.3(5)(b) empowers anyone who ‘has care
of a child’ to do what is reasonable in all the circumstances for the purpose of
safeguarding or promoting the child’s welfare.’ This appears to be a statutory
version of the old doctrine of in loco parentis which gave those in the position
of parents, the same authority over the child as parents. The limitation—only to
do what is ‘reasonable’—suggests that there may be actions which would safe-
guard and promote a child’s welfare but which a carer may not take because
they are unreasonable, for instance, to arrange the child’s immunisation against
the parents’ wishes or to refuse a parent’s request to return the child. Such an
interpretation appears to privilege the parent’s rights over the child’s welfare.
An alternative formulation, without the limitation of reasonableness, would
allow the carer to do anything (that was not otherwise illegal) for the welfare of
the child, rebalancing the relationship between parents and carers in favour of
carers and children. It might be argued that, if the qualification of reasonable-
ness were removed, no account would be taken of the length of time a person
has care of a child, and that the scope of action of a short term, temporary carer,
such as an evening babysitter, should necessarily be narrower than that of some-
one caring for a child for a longer period. However, even a temporary carer may
need to take decisive action, such as forbidding a child to go out or consenting
to medical treatment for the child’s welfare. On this basis, a broad power for
carers to act to ‘safeguard and promote the welfare of a child who is in their
care’ would seem to provide a more appropriate and relevant general statement
of what carers should be able to do.

41 Under benefits legislation, where a couple are living together as spouses or civil partners only

one can claim benefits for the household. The withdrawal of benefits at the start of cohabitation can
effectively make the carer’s partner liable to support children.
42 These provisions originated in the Children Act 1958.
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Legal Problems and Solutions for the Kinship Care of Children 145

(b) Recognition through appointment

English law has long allowed a parent to appoint a guardian to take over respon-
sibility for a child in the event of the parents’ death. This can be done by will or
as a free-standing document. The Children Act 1989 introduced clear provisions
designed to minimise conflict between the guardian appointed by one parent
and the other surviving parent.43 In most circumstances, the appointment only
takes effect on the death of the second parent, so the surviving parent is pro-
tected from interference.
The Children Act 1989, s. 2(9) allows anyone with parental responsibility to
arrange for someone else to meet their responsibilities. This does not remove or
transfer parental responsibility, but delegates to the carer power to act. Where
a parent hands over care of their child to a relative, private foster carer, nanny
or nursery, it is this provision which enables the carer to care for the child as the
parent would. Boarding schools frequently require parents resident overseas to
identify someone in the U.K. who has the power to make decisions about the
child where they cannot be contacted. An appointment document is not
required, but the DfES Guidance on Private Fostering advises:

it is recommended that, at the commencement of the arrangement, the parent or other

person with parental responsibility records in writing their agreement for the private
foster carer to give consent to everyday treatment which may become necessary.(DfES
2005, para 4.21)

Delegation is potentially wider than the automatic power in s.3(5)(b). Thus, it

can be used by parents to authorise carers to do something specific, for example
take the child abroad for a holiday which it might be difficult to argue safe-
guarded or promoted the child’s welfare. However, where carers have ended up
caring by default or at the request of social services to prevent a child entering
public care, they are not acting by arrangement with the parents and can only
rely on the more restricted automatic power under s.3(5)(b).

(c) Recognition by agreement

As a matter of public policy, agreements about parenting or the care of children

are not enforceable. Where disputes cannot be resolved, the court determines
the outcome on the basis of the child’s welfare. The Children Act 1989 allowed
formal agreements44 relating to parental responsibility but only between

43 Children Act 1989, ss. 5, 6.

44 Parental responsibility agreements have to be witnessed and registered in the Principal Registry
of the Family Division.
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146 Judith Masson and Bridget Lindley

mothers and fathers45; there was no need to require a court order where there
was agreement. In 2005, parents were given the power to make agreements
about parental responsibility in favour of a step-parent46 who is married to (or
is the civil partner of) a parent, but it is still not possible for parents to confer
parental responsibility on someone else who is caring for their child.
The limitation of agreement provisions suggests an apparent unwillingness
to trust parents to make decisions about their children’s care, a desire to main-
tain court control of status and a view that the courts are able to make wise deci-
sions in these cases. Yet this contrasts markedly with the policy approach being
developed elsewhere in the family justice system to promote private ordering
and non-adversarial dispute resolution, such as mediation, wherever possible.
For example, the encouragement of negotiated arrangements where parents sep-
arate (DCA et al, 2004), and the use of family group conferences in public law
cases so as to ensure family placements are explored for children who may
otherwise be in public care (DCA, 2002; DCA, 2006).
Allowing parents to make formal agreements with carers, giving them
parental responsibility and encouraging them to draw up a ‘parenting’ plan
detailing the arrangements for the child’s care (DCA, 2001; DfES, 2005a), would
provide carers with a status and clarity that some feel they need, without court
proceedings. There appears to be no clear policy reason why parents should be
able to make such agreements with a spouse but not with their own parents, sib-
lings or adult children, provided they did not subvert the regulation of private
fostering. An agreement between both parents and the carers would ensure that
both parents accepted the carer’s role; yet requiring both parents to make such
agreements would exclude cases where one parent could not be traced or would
not co-operate. Encouraging agreements between parents and carers, including
agreements about parental responsibility, would be a logical step in developing
practice relating to planning arrangements for children.

(d) Recognition though court proceedings

Until the mid 1970s, there was a substantial and increasing use of adoption
within step-families, and by relatives, frequently grandparents (Masson et al,
1983). Step-parent adoptions constituted three-quarters of all adoptions in the
peak year, 1975, but adoption was only used by a minority of family carers.
These ‘in-family’ adoptions were very much part of the culture: step-families
wanted to appear like families of the first marriage, all using the same name,47
and the parents of teenage mothers sought to avoid the stigma of illegitimacy for

45 Children Act 1989, s.4. Fathers who were married to the mother automatically had parental

responsibility, s.2(1).
46 Children Act 1989, s.4A added by Adoption and Children Act 2002.
47 The vast majority of step-parent adoptions were by mother and step-father.
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Legal Problems and Solutions for the Kinship Care of Children 147

their child and grandchild. Applications were handled with little investigation
by social workers and orders were granted routinely, usually within weeks.
All this changed when, following recommendations of the Houghton
Committee, restrictions were placed on in-family adoptions and new provision
was made for recognising carers in the Children Act 1975. The view of the
Houghton Committee was that such adoptions could end links, which were
beneficial to children, and could distort family relationships (Houghton
Committee, 1972). Instead, they recommended that carers should be able to
apply to the court for rights and status without ending the child’s legal relation-
ship with his or her parents. Further, these orders, known as custodianship
orders, should not change the carers’ or child’s legal identity, and unlike adop-
tion, should be revocable on the application of either carer, or a parent. It was
further recommended that courts should not make adoption orders unless this
was better than the alternative. The Children Act 1975 enacted these proposals.
Substantive, procedural and informal barriers combined to discourage adop-
tion. The result was that applications for adoption declined markedly, but were
not apparently balanced by corresponding use of the new alternative, custodi-
anship (Masson et al, 1983; Parker et al, 1990). It seems that most carers found
the new provisions too complex, too expensive, too limited, or were simply
unaware of them, with little having been done to publicise their piecemeal
The Children Act 1989 sought to provide a clear and comprehensible system
for providing status and rights for those caring for children, sweeping away the
different types of custody orders and replacing them with the residence order
which gave parental responsibility to any person who did not already have it.48
However, in order to protect families from interference, the system largely
retained the restrictions on applications in the earlier law, hence those who had
had a right to apply for custodianship could apply for residence on the same
basis. For those who were not caring for ‘a child of the family’, this meant
obtaining the consent of those with parental responsibility, caring for the child
for three years or obtaining permission from the court before making an appli-
cation.49 These provisions have not been widely used. Most residence orders are
made in favour of parents who seek to confirm their position on relationship
breakdown (Smart et al, 2003). It is likely that most carers have not obtained a
court order in respect of the children they look after.
In an attempt to secure a permanent family for more children who cannot
live with a birth parent, a new status, special guardianship50 was introduced at
the end of 2005. This gives the carer more powers than a residence order and
greater security against interference by a parent. Special guardians are entitled
to exercise their parental responsibility ‘to the exclusion of any other person

48 Children Act 1989, ss. 8 and 12.

49 Children Act 1989, s.10.
50 Adoption and Children Act 2002, s.115, adding Children Act 1989, ss. 14A–14G.
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148 Judith Masson and Bridget Lindley

with parental responsibility’ except another special guardian. They are allowed
to take the child overseas without special permission for up to three months,51
and only a special guardian can apply to have the order varied or discharged
without the prior permission of the court.52 However, there are some restric-
tions on special guardian’s actions: for example they need the consent of every
person with parental responsibility or the leave of the court to change the child’s
name. Moreover, applications for special guardianship are subject to consider-
able scrutiny both by the court and the local authority in a process reflecting the
power of the order. Also, unless expressly prevented by the court,53 it will still
be possible for parents to apply for a specific issue or prohibited steps order to
challenge the special guardian’s exercise of parental responsibility where there
is disagreement.54 It is therefore far from clear that carers will consider that the
effects of special guardianship justify engaging with the procedures necessary to
obtain the order (Derriman, 2006).
The addition of special guardianship has further complicated the legal land-
scape for carers. There are now different shades of parenting and parental
responsibility: guardianship, special guardianship, residence, delegation, rea-
sonable action and foster care.55 Creating a special status for a few carers may
be perceived as devaluing others, leaving them as second or third class, and
increasing their anxiety because they have not got all the available powers. The
task of the courts is more difficult and demanding, necessitating a decision
about which of the available legal frameworks (residence, special guardianship
or adoption) will best meet the child’s needs. This has to be judged on welfare
grounds. In many cases there will be no clear answer; courts will be highly
dependent on reports, with all the associated consequences for the time taken to
obtain orders. Applicants whose cases take a long time, and those who are
ultimately refused, are likely to be very dissatisfied.


(a) Universal support from central government

The inability of parents to support their children, and the absence of liability on
most carers, provide a basis for a policy of universal state support for children
not living with their parents, subject to any parental contribution. Currently,
the means testing of carers to determine benefit and tax credit entitlements
assumes they are in the same position as parents. In recognition that children

51 s. 14C, the limit under a residence order is 28 days.

52 s. 14D(3).
53 Children Act 1989, 91(14).
54 Children Act 1989. ss. 8,10, 14D(1)(3)(b).
55 There is further discussion of status in Bainham, this volume.
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Legal Problems and Solutions for the Kinship Care of Children 149

who would otherwise be in the public care system have a right to be brought up
by relatives, this policy should be re-focussed on, and determined by, the child’s
needs and circumstances. When children are not with their parents, non-means
tested payments should be provided through the benefit or tax credit system to
follow the placement (Richards and Tapsfield, 2003). The argument against this
is that with a large number of children in informal placements with relatives, the
costs would be exorbitant and the policy unworkable, unless the payment was
at such a low level that it did not reflect the costs of care. But what is the alter-
native? Carers will have to continue to look to social services for support with
all the challenges that that entails.

(b) Local support tailored to meet individual needs

Relatives caring for children after family breakdown may be unwilling to press
the social services department to support them in their task either because they
want to maintain their privacy or they fear that the children may be placed
elsewhere. Instead of accommodating children, treating relative carers as foster
carers and paying a fostering allowance, the authority may consider the
arrangement as one between parents and carers, and limit support to s.17
payments. This even happens when a social worker has made an emergency
placement, for example where the child has been taken into police protection.
Relatives who are local authority foster carers are entitled to the same
allowances as other foster carers and must also accept social services’ involve-
ment, regular meetings and control over a wide range of matters, particularly
where the child is subject to a care order. If the carers obtain a residence, special
guardianship or adoption order, the child ceases to be looked after and the basis
for financial support changes.
The DfES has issued guidance alongside the regulations about special
guardianship, detailing how local authorities should operate their duties and
powers to support special guardianship. This regime only applies to special
guardianship,56 and some duties57 are restricted to cases where children are or
were looked after by the local authority, but:

It is important that children who are not (or were not) looked after are not unfairly
disadvantaged by this approach. In many cases the only reason that the child is not
looked after is that relatives stepped in quickly to take on responsibility for the child
when a parent could no longer do so (DfES, 2005b: para 51).

Support for carers who obtain residence orders is outside the regulations, but it will be diffi-
cult for a local authority to justify why it treats carers differently depending on whether they have
residence or special guardianship orders.
The duty to assess, Children Act 1989, s. 14F(3) and Special Guardianship Regulations 2005
(2005 S.I. 1109 ) reg, 11(1).
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150 Judith Masson and Bridget Lindley

Where children have been looked after, local authorities must conduct assess-
ments for special guardianship support services on the request of particular
people, notably parents children and special guardians. In other cases they have
discretion whether or not to do so.58 As in other areas, the duty to assess the sup-
port needs of these people is not reflected in a duty to provide services to meet
their identified needs, but there is a structured system for the local authority to
issue proposals, and for the recipient to make representations, before final deci-
sions about the services which will be provided are made. Where services are to
be provided in special guardianship cases, local authorities are required to make
written support plans and to review these regularly.59 Advice and counselling
services can be provided without an assessment (DfES, 2005b).
In relation to financial support, local authorities are advised to ensure that
special guardians are helped to access all their benefit entitlements (DfES,
2005b) underlining the notion that support from the local authority is
secondary. Local authority financial support is generally means-tested, but in
relation to settling- in grants, expenses related to special care for children who
were looked after and the costs of maintaining contact for any child, there is dis-
cretion to disregard the special guardian’s means. Financial support may be pro-
vided for special guardians long term but in the past only a minority of adopters
or carers with residence orders have received such support (Lowe et al, 1999).
Where former foster carers received remuneration in addition to fostering
allowances, this can continue to be paid to them as special guardians, but only
exceptionally for more than two years.60 Local authorities can also make cash
payments, for example to cover travel costs, so that those affected by special
guardianship are able to access support services; such payments are not means-
tested. Looked after young people who become subject to special guardianship
orders retain some right to leaving care services61 but unlike other support for
special guardianship (except financial support) these must be provided by the
original care authority, not the area where the special guardian or young person
now live.62 This reflects the position for leaving care services generally, but does
not take account of the fact that the young person may have no remaining links
with the former care authority. Such an arrangement is unlikely to facilitate ser-
vice provision.

58 Reg 11(2) 50, 52.

59 Regs 14 and 17 and DfES, (2005b): paras 71 and 82.
60 Reg 7 and DfES, (2005b): paras 42 and 43.
61 Advice and assistance up to the age of 21 years, Children Act 1989, s.24A. They are not enti-

tled to help with expenses connected with employment, education or training, s.24B.
62 Children Act 1989, s. 24(5)(za) and Special Guardianship Regulations 2005, reg 22.
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Legal Problems and Solutions for the Kinship Care of Children 151


Ignorance about individual rights and a reluctance by carers to use the courts
appear to have been given insufficient consideration in the development of court
orders to secure recognition for carers. Some families do not want to take mat-
ters outside the family. Court proceedings pose great barriers for those with lim-
ited resources—financial, intellectual and emotional (Richards, 2001). The
more complex and thorough the process, the longer it is likely to take and the
more it will cost. Family courts already struggle to deal with the numbers of
cases before them. Unless new powers and processes are properly resourced,
there will be more delay. The duration of proceedings and their cost both con-
tribute to anxiety for the parties (Richards, 2001). The court process is also
stressful for children (Masson and Winn Oakley 1999; Thomas et al, 2001).
Applicants have little or no control over the process. Those who are well
advised may have their passage smoothed but high quality services are not uni-
versally available. Consideration of the impact of the process should encourage
greater reflection on the emphasis given to court orders, over other simpler
means of providing rights to carers.
Rather than relying on the courts, more emphasis needs to be given to mak-
ing clear what rights and responsibilities parents and carers have when children
are being looked after by relatives or friends, including private foster carers.
This approach fits with Hunt’s strategy of a ‘transparent’ and ‘minimally intru-
sive’ system (Hunt, this volume). National guidance63 should be written for par-
ents about making arrangements for their child’s care, and for carers to help
them decide what action they can take within s. 3(5). Guidance should encour-
age parents and carers to agree arrangements and advise them about family
mediation services that can help them do this. Parents should also be able to
make formal agreements which give close relative carers parental responsibility
so there is no doubt that they are fully responsible for the child in the parents’
The regime for support, both practical and financial, needs to focus on effec-
tive general provision, without the need for costly and intrusive assessments and
means tests. Resources are far better focused on developing service provision
than on assessment, particularly where assessment in no way guarantees any
service. As central government accepts that benefits and tax credits rather than
local authority payments should be a main source of support, special provision
should be made in the benefits system for children who are living with carers
because their parents are unable to care for them. Any responsibility for recov-
ering money from parents should fall to the State. Carers, particularly those
whose children are now adult, may need support to access the existing range of
63 The DfES has advised local authorities that they should provide leaflets for parents and private

foster carers in their area see DfES, (2005a): para 2.4.

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152 Judith Masson and Bridget Lindley

services for children and families, but all family services should be geared to wel-
coming carers—first time ‘parents’ of toddlers or teenagers may be aunts or
uncles with no previous experience of looking after children. If adequate general
services are available, fewer demands will be made on local authorities, and
these will relate to children in need. The lack of an enforceable duty to provide
family support services is a problem for all families, not just relative carers.
Clearly local authority responsibilities cannot be open ended, but given their
responsibilities to look after children, there should be an equivalent duty to pro-
vide support which prevents a child needing to be looked after.64
Simplifying the legal framework and support system should make it easier to
provide specific advice in individual cases. There are likely to be few advisers
who could competently handle queries relating to the current system for court
orders, tax credits and benefits, local authority responsibilities and service pro-
vision. Carers should have access to a dedicated advice line. This should be
based in a parenting or carers’ organisation (perhaps both) rather than being
part of the proposed Legal Services Commission Direct service, because most
queries are likely to be about caring rather than legal rights.
Overall, there needs to be a coherent and family friendly framework for care
by relatives which focuses on children’s needs, rather than whether children have
been looked after by a local authority or whether the carers are special guardians
or have a residence order. The State needs to recognise that relatives are provid-
ing a valuable service which would otherwise fall to it, and that ensuring that such
arrangements work well for children is an important State responsibility.


BAAF, Position Statement 3—the Registration of Private Fostering (London BAAF,

BARKER BRANDT, E, ‘De Facto Custodians: a Response to the Needs of Informal Kin
Caregivers?’ (2004) Fam Law Q. 291
BLACKWELL, A and DAWE, F, Non-resident Parental Contact, Final Report (London,
ONS 2003)
BLAIKLOCK, O, Britain’s Pensioner Parents: the Quandary of Parenting Your Grand
Children, Report from the office of Frank Field M.P. (2005)
CRETNEY, S., MASSON, J and BAILEY-HARRIS, R, Principles of Family Law
(London, Sweet and Maxwell 7th ed. 2003).
2002, available from

64 A duty ‘to diminish the need to receive children into care’ was owed under Child Care Act

1980, s.1 but replaced by Children Act 1989, s.17 because it was perceived as being too narrow.
However, s. 17 is only a power. The proposed statutory duty would underline the obligation to
comply with ECHR, art. 8 and only take a child into public care where the family could not provide
adequate care.
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Legal Problems and Solutions for the Kinship Care of Children 153


Cm 6565) available from
TRADE AND INDUSTRY, Parental Separation: Children’s Needs and Parents’
Responsibilities Cm 6273 (London, DfES, 2004).
Children’s Needs, Parent’s Responsibilities—Supporting Evidence for Consultation
Paper (London, DfES, 2004a).
——, Parental Separation: Children’s Needs and Parents’ Responsibilities—Next Steps
Cm 6452 (London, DfES, 2005).
—— and DEPARTMENT FOR EDUCATION AND SKILLS, Review of the Child Care
Proceedings System in England and Wales, 2000. Available from
Parents and Parental Responsibility 0092/2000 (2000)
Private Fostering (London, DfES, 2005)
——, Putting Children First: a Planner for Separating Parents (consultation draft)
(London, DfES, 2005a).
——, Children Act 1989 Special Guardianship Guidance (London, DfES, 2005b).
DEPARTMENT OF HEALTH, The Children Act Now (London, TSO, 2001).
DERRIMAN, R, ‘Special Guardianship: Reflections on a New Order’ in Jordan, L and
Lindley, B (Eds) Special Guardianship: What Does it Offer Children Who Cannot Live
With Their Parents? (London, Family Rights Group, 2006).
EEKELAAR, J, ‘Rethinking Parental Responsibility’ (2001) Fam Law 426–430
HOUGHTON COMMITTEE, Report of the Departmental Committee on the Adoption
of Children (London, HMSO, 1972 cmnd 5107).
INLAND REVENUE, Claiming Guardian’s Allowance BG1 (London, Inland Revenue
LAMING, H, Report of the Inquiry into the Death of Victoria Climbié (London, TSO, 2003)
LAW COMMISSION, No 172 Review of child law, guardianship and custody (London
HMSO, 1988 H.C. 594)
LOWE, N. et al, Supporting Adoption (London, BAAF, 1999).
LORD CHANCELLOR’S DEPARTMENT, Planning your Children’s Future (London,
DCA, 2002).
MASSON, J, NORBURY, D and CHATTERTON, S, Mine, Yours or Ours? (London,
——, ‘Thinking about Contact—a Social or a Legal Problem’ (2000) CFLQ 15.
—— and WINN OAKLEY, M, Out of hearing (Chichester, Wiley, 1999)
—— —— and PICK, K, Emergency Protection Orders—Court Orders for Child
Protection Crises (2004). Available at
AND SKILLS, Statistics of Education: Children Looked After by Local Authorities
(2004) Volume 1 Commentary and National Tables (London, DfES, 2005).
PARKER, R., BULLARD, E and MALOS, E, Custodianship: Report to the Department
of Health (London, HMSO, 1990).
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154 Judith Masson and Bridget Lindley

RICHARDS, A and LINDLEY B, ‘Special Guardianship—a Family Viewpoint’ in

Jordan, L and Lindley, B (Eds) Special Guardianship: What Does it Offer Children
Who Cannot Live with Their Parents? (London Family Rights Group, 2006).
—— and TAPSFIELD, R, Funding Family and Friends Care—the Way Forward
(London, FRG, 2003).
——, Second Time Around (London, FRG, 2001).
SAVE THE CHILDREN FUND, Private Fostering: Development of Policy and Practice
in Three English Local Authorities (London, SCF, 1997).
SMART, C, MAY, V and WADE, A, Residence and Contact Orders Volume 1, Report
to DCA 6/2003 (London, DCA, 2003) available from
SOCIAL SERVICES INSPECTORATE, Signposts: Findings from a National Inspection
of Private Fostering (London, Department of Health, 1995).
THOMAS, C, BECKFORD, V, LOWE, N and MURCH, M, Adopted Children
Speaking (London, BAAF, 2001).
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(I) Ebtehaj et al Ch8 31/8/06 13:20 Page 155

Restorative Practices: Repairing
Harm through Kith and Kin


HIS CHAPTER EXAMINES the role of kinship or family in ‘restora-
tive justice’ (RJ) in criminal justice processes and civil justice practices
in England and Wales. The notion of kith and kin being linked to crim-
inal behaviour is not a new idea, although this has largely been a negative cou-
pling whereby delinquent families have been seen to spawn delinquent youth,
and inadequate parents have been blamed and identified for retraining as par-
ents (Farrington, 1991; Gelsthorpe, 1999). In contrast, a focus on the positive
involvement of families to facilitate solutions to disputes in a civil context is a
common phenomenon (MacGowan and Pennell, 2001). But the central argu-
ment here goes beyond Western ideas about the family to suggest that whilst the
role of ‘kith and kin’ (friends, relations, and the ancestral family) is clearly
important in RJ processes and practices in other countries, notably New
Zealand, their notions of ‘kith and kin’ do not easily translate to an English and
Welsh context. In other words, although the ‘whanau’ in New Zealand might
be translated into extended family in the English and Welsh context, it misses
the additional meaning regarding the way Maori society functions and the role
that these basic kinships play in social organisation, particularly the process of
repairing harms caused by crime or disputes to communities (RJ): they are, in
effect, ‘communities of care’,1 groups which are tied together by social, philo-
sophical, ancestral and collective identity focused in symbols such as a name or
The central premise of this chapter is thus that the concept of RJ, and indeed
the practice of involving ‘family’ or what we are calling here ‘kith and kin’, has
The notion of ‘communities of care’ comes from the idea that restorative processes might
include family, extended family/kin and friends to ‘hear’ the participants’ experiences so that they
can act in an appropriately supportive manner. The ‘public’ nature of the processes perhaps facil-
itates both listening and appropriate responses. See Morris and Gelsthorpe, (2000) for further
discussion in relation to restorative justice and domestic violence.
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156 Loraine Gelsthorpe with Layla Skinns

been imported into the English and Welsh context with little thought as to what
might have been lost in the translation. Indeed, RJ ideas have been transferred
across the world without attention to the very context which might help facil-
itate success. On the basis of this premise, we describe some of the key features
of how RJ is conceived and delivered in English and Welsh processes and prac-
tices, as compared with New Zealand, where the model used is Family Group
Conferencing. The chapter begins with a general discussion about definitions
and practices of restorative justice and then describes empirical evidence relat-
ing to its use in these different contexts, as well as analysing the key components
of effective restorative practices.


The Restorative Justice movement is a recent phenomenon in the western

world, though the concepts are widely reputed to be ancient (Consedine, 1995;
Braithwaite, 1999). Indeed, twenty years ago RJ was a little known concept in
the West, yet it now occupies an increasingly important role in both criminal
and civil justice practices (Bazemore and Schiff, 2001; 2005). The broad idea of
restorative justice has connotations of returning things to ‘as they were’. It is a
capacious concept, which generally stands for the repair of harms and ruptures
to social bonds resulting from crime or other socially disruptive events. In a
criminal context, it focuses on the relationships between crime victims, offend-
ers and the community. In a civil context, it focuses on relationships between
different players in a wide range of family, community, and neighbourhood
disputes. As Marshall puts it in his overview of RJ in the UK:

Restorative justice is a process whereby parties with a stake in a specific offence col-
lectively resolve how to deal with the aftermath of the offence and its implications for
the future (1999: 17; Van Ness, 1993).

(a) Restorative justice and its potential

Whilst there is no single agreed definition, protagonists of RJ have encouraged

us to look at essential values and processes to get some idea of what it means and
its potential effectiveness. In this sense, RJ is perceived to return decisions about
how best to deal with the difficulties in relation to those most affected—those
harmed by disputes, victims of crime, offenders, and their ‘kith and kin’ (fami-
lies, friends, neighbourhoods, and communities, for example), or, as previously
indicated, what might be termed as ‘communities of care’. Thus in RJ processes
these are the principal decision-makers; and the State’s role—or the role of its
representatives—is confined to one of facilitation. RJ also emphasises a shared
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Repairing Harm through Kith and Kin 157

or collective responsibility for resolving difficulties (including offending behav-

iour) and for addressing the reasons behind the difficulties. Moreover, RJ
arguably endorses respect for all parties (and cultural relativity and sensitivity)
rather than cultural dominance. RJ processes are typically dialogic, with partic-
ipants actively engaged in resolving the conflict. The overall intention is to cre-
ate a respectful and non-shaming environment in which participants can feel
comfortable and able to speak for themselves. RJ outcomes commonly include
a reconciliation whereby different parties agree to a plan of action to resolve the
‘harm’; to agreed visiting arrangements (in cases where parents are in dispute
about child care); or to an apology, reparation or community work (where an
offence has been committed). These RJ outcomes are ways of ‘restoring the
balance’ between the different parties involved; arguably any outcome can be
restorative if it is an outcome agreed to, and considered appropriate by, the

(b) The broad contexts in which RJ is practised

In some jurisdictions RJ is often part of a non-judicial process. In others, it is

part of the formal judicial system and an integral part of both criminal and civil
proceedings. In England and Wales, RJ practices have been adapted and
adopted as processes which form part of the formal systems of criminal and civil
justice. In New Zealand and Canada, as well as in some Australian jurisdictions,
RJ very much reflects the idea that it is an alternative to the formal system, even
though it might be said to be a central part of the system. There are specific
instances of RJ being used in relation to elder abuse, disputes with insurance
companies, neighbourhood disputes in communities, disputes on prison wings,
in cases of serious crimes and family violence, conflict in schools, and problem-
oriented policing, to name but a few examples (see Weitekamp and Kerner,
2003; Elliott and Gordon, 2005 for further illustration).

(i) Family Group Conferencing

It is perhaps the Family Group Conference (FGC) which is the most widely
known variant of RJ. The FGC has become the centre of international interest
since it was implemented in New Zealand in 1989. Versions of conferencing
have been tried in Australia, Belgium, Canada, Ireland, Singapore, South Africa,
Sweden and the United States, as well as in England and Wales. The origins and
contemporary practice of Family Group Conferencing in New Zealand have
been described in some detail by Morris (2004) and so we offer only the bare
essentials here. Suffice to say that the New Zealand system has borrowed from
Maori justice based on the notion that whilst traditional Maori society estab-
lished rules about what was and was not acceptable, this was different from
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158 Loraine Gelsthorpe with Layla Skinns

European (pakeha) law which was established during the period of European

The system of behavioural constraints implied by the law was interwoven with the
deep spiritual and religious underpinning of Maori society so that Maori people did
not so much live under the law, as with it. It was part of everyday existence (Jackson,

Again, whilst European law revolves around guilt, punishment, deterrence and
so on, the Maori system seeks a realignment

. . . of those goals to ensure restitution and compensation rather than retribution; to

mediate the case to everyone’s satisfaction rather than simply punish (Jackson, 1988:

Crucially, responsibility for the harm done through wrongdoing belonged to

the family (whanau or family group—which conceptually means the broad fam-
ily/community, not just the immediate family as is understood in European
terms) of the offender, not just the offender or warring parties, and sanctions
were aimed at restoring balance. This is fundamental to the Maori notion of
justice and one of the defining features of the FGC and its potential to repair
harm done within the community.
In the New Zealand youth justice system of the 1990s, the FGC operates at two
distinct levels: as an alternative to the court, and as a mechanism for making rec-
ommendations to judges prior to sentencing. An FGC involves the young person;
members of his/her whanau, and whoever else they invite (friends, teachers,
youth leaders and so on); the victim and his/her representatives; the police; some-
times a social worker, and sometimes a lawyer (in court referred cases). The FGC
takes place at a venue chosen by the family of the offender, providing that the vic-
tim agrees: the marae (Maori community meeting house), the family’s home,
community rooms, or rooms in buildings managed by the Department of Child,
Youth and Family Services. Most cases last much longer than court cases
(Morris, 2004). A key aspect of FGCs is that decision-making rests with the
young offender, their family, and the victims. Outcomes range from apologies,
reparation and community work to training programmes, supervision, a
residential placement or even custody on occasion. As Morris puts it:

Outcomes are limited only by the imagination of the parties, though parsimony
(rather than proportionality) is intended to be a limiting factor (2004: 266).

Thus, in contrast to the role that the family has played in recent political the-
orising about crime and delinquency in England and Wales, whereby the family
is commonly perceived to be responsible for crime in a negative way (with
Parenting Orders and the like; see Gelsthorpe, 1999; Day-Sclater and Piper,
2000), family responsibility for offending in New Zealand is interpreted posi-
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Repairing Harm through Kith and Kin 159

tively. In New Zealand the family is given the role of responding constructively
to crime; the whanau (the ‘kin’ or wider family and supporters) has a role in
supporting this action.
The importance of this cultural philosophy and practice draws evidence from
the final report of a major evaluation of youth justice in New Zealand (Ministry
of Social Development, 2004). The study involved a retrospective sample of
1003 young people who had a family group conference in 1998 and a prospec-
tive study of 115 cases, which included the observation of co-ordinators of con-
ferences in 2001–2002. At least one victim was involved in 41 per cent of the
retrospective study (where a victim had been identified), although the victim
attended with family and supporters in only 11 per cent of the cases; the figures
were slightly higher for the prospective sample with 50 per cent of victims
attending, 18 per cent victim supporters, and 6 per cent victim representatives.
The retrospective study findings indicate that alongside the offender and victim,
and others mentioned above, a parent or caregiver was present in the confer-
ences for 85 per cent of the cases (usually the mother—73 per cent of cases).
Siblings were present at 25 per cent of conferences and other family members
were present in 44 per cent of the cases. Other family supporters were present
for approximately a quarter. The percentages were very similar for the prospec-
tive sample. Interestingly, the family was given the responsibility for imple-
menting some aspect of the agreed plan (outcome of the conference) in half the
cases (with family supporters occasionally being given responsibility, too).
Moreover, family members were assigned a role in monitoring the plan in at
least a fifth of the cases (with social workers, the police or youth court being the
common alternatives). Such figures give a clear impression of family-based
responsibility (in its broadest conception) for addressing the offending behav-
iour and its aftermath; in other words, strong involvement of kith and kin
appears to be critical to the enactment of RJ principles.



The Crime and Disorder Act 1998, which was created soon after the Labour
Government came into being in 1997, marked a major overhaul of the youth just-
ice system (Gelsthorpe, 2002). Amongst its various organisational and policy
changes is support for restorative justice principles. The central tenet of policy
here is that crime should be seen primarily as a matter concerning the offender
and victim and their families and thus should be resolved by them through con-
structive effort (reparative measures) to put right the harm that has been done.
Elements of restorative justice are evident in rehabilitation packages for those
given reprimands and warnings and referred to the local multi-agency Youth
Offending Team (YOT) (Gelsthorpe and Morris, 2002). They are also evident
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160 Loraine Gelsthorpe with Layla Skinns

in action plan orders, reparation orders, and potentially in supervision orders

and other provisions too. But the ‘jewel in the crown’ of the new system con-
cerns Referral Orders which were introduced in the Youth Justice and Criminal
Evidence Act 1999. The Referral Order is a court order which can be given by a
Youth Court to offenders under the age of eighteen. The Order was conceived
as an individualised preventive measure for those offenders who plead guilty to
all offences charged and who have no previous convictions or bind-overs (with
discretion to deal with offenders who have committed either very minor or very
serious offences in a different manner). Of particular relevance is the process by
which first time offenders in court are referred to a local Youth Offender Panel
(YOP; put simply, a sub-group of the YOT)—a forum seemingly away from the
formality of the court—where a contract will be arranged with the young per-
son to prevent further offending. Significantly, YOPs include members of the
public (community members); panels meet with the young offender, the victim,
and families/supporters/significant others to ‘resolve’ crimes by establishing
reparative and rehabilitative contracts using RJ principles to guide appropriate
action and intervention. This is perhaps the nearest equivalent to the much
vaunted FGC in New Zealand. Certainly, the architects of the reformed youth
justice system in England and Wales were strongly influenced by notions of RJ
and FGC in New Zealand and elsewhere.2
The nub of this chapter therefore concerns the degree to which ‘kith and kin’
and victims are actually involved in RJ processes and practices in the English
and Welsh context—using the Referral Order for purposes of illustration.3 As
stated above, the involvement of community representatives, offender, victim
and family/supporters, and its aim to resolve things through discussion in an
informal setting, establishing a reparative and rehabilitative contract, perhaps
brings it nearer to the concept of the FGC in New Zealand.4

(a) The Referral Order in practice

Referral orders have seemingly had a huge impact on the shape of the youth just-
ice system as evidenced in the number used by the courts shortly after their
national implementation in 2000 (Youth Justice Board, 2004). But the national
2 It should be noted that following the implementation of the Crime and Disorder Act 1998, the

Youth Justice Board established a development fund for special projects to work with young offend-
ers. Out of 250 projects funded 20 included family group conferencing; after two years funding seven
projects had failed to complete any conferences. Only five projects had managed to complete six or
more FGCs (Gill, 2005).
3 Another example is restorative conferencing (also known as diversionary conferencing) which

has been pioneered by Thames Valley Police (see Pollard, 2000; Hoyle et al 2002). See Crawford and
Newburn (2003) for further description of RJ practices in the English context.
4 The Children’s Hearing system in Scotland might be described as an equivalent also (see Whyte,

2005). Architects of the Labour Government’s radical overhaul of the youth justice system in 1998
drew on Scottish experiences of the hearings system as well as experience of FGCs in New Zealand
and Australia.
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Repairing Harm through Kith and Kin 161

evaluation of Referral Orders conducted by Crawford and Newburn (2003),

based on analysis of organisational practices and experiences relating to the
1803 Referral Orders and 1066 Youth Offender Panels in eleven pilot areas in
England and Wales between 2000 and 2001, has highlighted a number of legal,
ethical, and practical difficulties with regard to their implementation and
Of most relevance in the context of this chapter are issues relating to the
Youth Offender Panels in action. Crawford and Newburn (2003) report low vic-
tim representation (13 per cent) and fairly limited reference to victims during the
process of establishing a contract. Indeed, whilst the panel provided an element
of victim awareness by discussing the impact of an offence on a specific victim,
this occurred in just over half the cases (56 per cent). Moreover, in 11 per cent
of cases, references to the victim were rather vague or general ). Critically, in
21 per cent of the cases, there was no mention of the victim at all. This is in
marked contrast to comparative experiences elsewhere in the world. For exam-
ple, Maxwell and Morris (1993) found that in the early years of the introduction
of family group conferences in New Zealand, victims attended in 51 per cent of
cases in which a victim could be identified. (The evidence from Australia with
regard to victim attendance is even more impressive; see Hayes et al, 1998;
Strang et al 1999.) As Crawford and Newburn put it:

The presence of a victim at panel meetings appears significantly to alter the dynamics
of the process and have a beneficial effect on participants, especially offenders. A
noticeable shift was detected in the ‘mood’ of panels, in particular towards increased
empathy with and support for the offender. (2003: 132)

The absence of victims from panels then is telling in terms of the likely impact
of RJ principles in the English and Welsh context.
The functioning of the youth offender panels also attracts our attention since
it might be argued that the proposed ‘community involvement’ here somehow
matches the involvement of the whanau in New Zealand. Certainly one of the
radical intentions behind Referral Orders was to broaden the involvement of
various groups in the criminal justice system; the idea of lay volunteers being
involved in the decision-making process of youth offender panels seemed to
arrive late in the day (Crawford and Newburn, 2003), but according to the
Home Office Guidance, panel members are meant to be those who are:

. . . properly representative of the community they intend to serve and who have the
appropriate personal characteristics for the challenging task of dealing effectively with
young offenders, and their victims, in a restorative context. (Home Office, 2000:

Interestingly, the Guidance suggests that the involvement of lay representa-

tives of the community will reduce the social distance between panel members
and participants (although prior personal relations can rule out representatives
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162 Loraine Gelsthorpe with Layla Skinns

from any particular case). Moreover, the Home Office clearly have in mind rep-
resentatives of a ‘geographical community’ rather than a whanau, a community
of caring relatives and supporters who serve to share responsibility and facilitate
But who were the community representatives? Whose community did they
represent? The national evaluation found that community representatives were
recruited locally (most successful via local advertising through the press). The
reality for many YOT managers in setting up YOPs however, was that attempts
to attract, recruit, train and retain community panel members was a major chal-
lenge. There is little evidence to suggest that volunteers came from young
offenders’ communities specifically. The vast majority of volunteers were white
(with exceptions in London); two-thirds were women; only a fifth were aged
18–29 and only a tenth aged 60 or more. As Crawford and Newburn describe,
‘The public and private sectors appeared to be equally represented. However,
very few were in manual work or unemployed’ (2003:77). A later survey of com-
munity panel members broadly confirmed this profile. Significantly, about half
thought that they represented the community very well or reasonably well,
although a sizeable minority (a fifth of those involved in the survey) felt that, as
a group, they did not represent the local community particularly well. Indeed,
Crawford and Newburn report concerns about an over-representation of
women as community representatives.
Immediately then, there are some stark differences between RJ in England
and Wales and Family Group Conference processes in New Zealand where the
whanau are central to the process. Altogether, these findings suggest something
very different and far removed from the involvement of a person’s whanau or
‘community of care’ to facilitate repair of the ‘harm’ done, reparation and rein-
tegration into the community.
In terms of contributions to panel meetings from the young person and their
kith and kin, the research findings raise further issues about the involvement of
family, extended family or ‘communities of care’. As mentioned, Crawford and
Newburn (2003) collected data on 1066 panel meetings in their evaluation; in
two thirds of the cases (68 per cent) the young person attended with only one
other person and in a further 15 per cent of cases the young person attended
alone. This means that in over four fifths of cases (83 per cent), the young per-
son attended either by him or herself or with just one other person (in over two-
thirds of the cases this was the young person’s mother and in under a fifth of the
cases it was the father). In 14 per cent of all initial panel meetings the young per-
son attended with two other people (this was the parents in 61 per cent of cases)
or by the mother and another family member or supporter (in 36 per cent of the
cases). In less than 3 per cent of cases were young people accompanied by three
or four people (never more than four). Unsurprisingly, perhaps, given these fig-
ures, the data show that attendance by family members declined at subsequent
panel meetings (review and final meetings). Again, this is in marked contrast to
experiences in New Zealand. Morris and Maxwell (2000), for example, suggest
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Repairing Harm through Kith and Kin 163

that two fifths of family group conferences were attended by members of both
their immediate and extended families—the whanau.
However, despite this lack of family involvement in the English YOPs, obser-
vation of 92 initial panel meetings suggests active participation of those who
attended. One of the main tasks of the community panels is to facilitate discus-
sion. Crawford and Newburn’s (2003) evaluation suggests that most of the par-
ticipants (when attending a panel) contributed significantly to the proceedings.
Just 11 per cent of young offenders said little more than their name but nearly
half (49 per cent) made lengthy contributions. Where in attendance, 56 per cent
of the fathers and 53 per cent of the mothers made full contributions (as judged
by the observers); other supporters in attendance made full contributions in
52 per cent of the cases. All of the victims made full contributions, but this point
is negated by the low representation described above.
Space is too short to make many other points about the degree to which
offenders, victims and kith and kin who did attend panel meetings felt involved.
Whilst Crawford and Newburn’s analysis (2003) suggests a general sense of
vagueness amongst the participants in terms of who was present in the panel
meetings, there was nevertheless a high degree of satisfaction with procedural
fairness (91 per cent of the 90 offenders interviewed said that they knew what
was going on, for instance) and, by and large, parents and young offenders felt
that the contracts were broadly appropriate (with some disagreements where
parents thought that the outcome was harsh or lenient).
We may conclude that initial panel meetings are generally significantly less
inclusive of victims and young offenders’ family members and supporters than
Family Group Conferences in New Zealand. As previously indicated, the aim is
that within the process, young offenders will acknowledge their offending
behaviour, offer apology, take responsibility and make reparation—all in the
supportive and constructive context of kith and kin, we might say. One small
point of optimism here revolves around the fact that where victims were present
(that is in the 13 per cent of cases out of a total of 1066 initial panel meetings),
77 per cent of the young people made some sort of apology; in initial meetings
not attended by victims, only 30 per cent of young offenders apologised to any-
one, although a larger number expressed remorse in some other way other than
by apologising. Mc Cold (2000) has produced a typology of restorative practice
and its potential by classifying interventions as ‘fully’, ‘mostly’ or ‘partly’
restorative and on this basis Referral Orders have the potential to be ‘partly’
restorative even where the victim does not attend; but if a hallmark of effective-
ness is involvement, the operation of Referral Orders does not appear to have
involved victims and kith and kin in the process or in follow-up implementation
and monitoring to the extent that RJ has in New Zealand and this must surely
limit its potential to be effective.
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164 Loraine Gelsthorpe with Layla Skinns


Civil RJ is used in three main contexts: child welfare, schools and the resolution
of police complaints.5 Here, we describe firstly the Family Group Conference
and RJ practices in each of these settings and explore the extent of implementa-
tion,6 and secondly, we examine the role of kith and kin in civil RJ, particularly
FGCs, as a key process by which RJ is delivered.

(a) RJ and FGCs in civil settings

Child welfare FGCs were introduced in England and Wales in 1991.7 They are
used to deal with serious incidents which include parent-specific concerns (for
example. substance abuse), parent-child conflict, the living situation of children
(for example, visitation rights), children’s well-being (for example, physical and
sexual abuse and neglect) and children’s behaviour (for example, substance mis-
use) (Sieppert, Hudson and Unrau, 2000; Sundell and Vinnerljing, 2000).
In theory, child welfare FGCs are viewed as part of an ongoing process of
encouraging participants to become agents of social change, rather than pas-
sively being supported, treated or educated by child protection agencies (Pennell
and Burford, 2000). FGCs are intended to create partnerships between families
and professionals in which families are able to voice their opinions and influence
decisions which directly affect them. This is primarily through private ‘working
time’ in which the co-ordinator in a group discussion leaves the room and has a
consultative role. At this point, families are left to discuss and devise an action
In an educational setting, RJ processes have been used alongside punitive
approaches, such as suspension and exclusion, to deal with relatively serious
incidents which would normally necessitate a formal response. In a national
evaluation of RJ in schools in England and Wales, the Youth Justice Board
(2004) found that the most common use for RJ FGCs related to violent behav-
iour, although it was also used to address bullying, name-calling, verbal abuse,

5 RJ is also being used in local, multi-agency anti-social behaviour (ASB) problem-solving groups

(Burney, 2005).
6 We should note that the terms ‘RJ conferences’ and ‘FGC conferences’ are used interchangeably

in some of the literature in the civil context; we take it that FGCs involve more family or commun-
ity members than RJ processes which perhaps focus on the practice of seeking to resolve conflict
through discussion and reparative measures.
7 It is worth noting, however, that unlike New Zealand, there was no legal mandate in the UK,

nor was there any endorsement of FGCs by central government until 1999 (Brown, 2003). Prior to
this, the development of child welfare conferences depended on input from community organisa-
tions (see Marsh and Crow, 1998).
8 This plan is refined and authorised by the co-ordinator when the FGC re-convenes after the

‘working time’.
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Repairing Harm through Kith and Kin 165

family feuds, relationship breakdown, incidents involving teachers, theft within

school, gossip, and incidents outside school. The resolution of police complaints
through RJ FGCs is used to deal with allegations which would not ordinarily
result in criminal or disciplinary proceedings, and also when there is not enough
evidence for a formal investigation by the Independent Police Complaints
Commission. RJ is used in ‘Local Resolutions’ (which replaced Informal
Resolutions); Thames Valley Police have pioneered this approach (see
McLaughlin and Johansen, 2002).
However, civil RJ is not extensively used in any of these settings. In a national
survey, Brown (2003) found that only 38 per cent of local authorities had an
established child welfare FGC for instance. The YJB (2004) notes that RJ con-
ferences have struggled to take root. Similarly, Young et al (2005) conclude that
whilst the use of RJ to resolve police complaints remains a viable prospect, it is
uncertain whether or not the principles of RJ are fully embraced by the police.
It may be that the implementation of civil RJ requires occupational change
amongst social workers, teachers and police officers.9 The YJB (2004) note that
RJ conferences have been ‘tacked on’ to existing measures, rather than inte-
grated into systemic changes.10 In addition, civil RJ is costly in terms of the time
taken to prepare conferences and the cost of training. Head teachers estimated
that it would cost £6–20,000 for staff to run conferences and £1,500 per annum
for training (YJB, 2004). Sieppert, Hudson and Unrau (2000) found that each
child welfare conference took an average of 2.75 hours to plan.

(b) The role of kith and kin in civil RJ

In child welfare FGCs, there appears to be a high level of participation by fam-

ily members, especially mothers. For example, Sieppert, Hudson and Unrau
(2000) report that mothers were present in 91 per cent of cases, followed by
grandmothers (70 per cent), aunts (57 per cent) and fathers (52 per cent).
Similarly, Marsh and Crow (1998) found that in the UK, parents attended 96 per
cent of conferences, although fathers were more likely to decline than mothers
(22 per cent compared with 9 per cent). The average number of kith and kin pre-
sent ranged from 7 to 11 (Sieppert, Hudson and Unrau, 2000; Pennell and
Burford, 2000). There is thus an interesting difference here between the involve-
ment of family members in Youth Offender Panels, as per Home Office
Guidance, and here in the civil context where a greater number of family mem-
bers are involved. However, in contrast to the Youth Offender Panels which
involve ‘community representatives’ as lay members of the panel, there is much

9 See also McLaughlin and Johansen (2002) on police complaints; Morrison (2001; 2002) on con-

ferences in schools; Brown (2003) on resistance amongst the social work profession.
10 It is clear that educational RJ conferences are far from being the ‘youth development circles’

that Braithwaite (2001) describes. He suggests that they should be available for the entire school-age
population to encourage the development of human and social capital.
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166 Loraine Gelsthorpe with Layla Skinns

less community involvement in the civil context. Only in a quarter of confer-

ences was a friend or neighbour present and only in 15 per cent of conferences
did the young person have a peer supporter present (Marsh and Crow, 1998).
Nevertheless, family members outnumbered professionals; for example, Pennell
and Burford (2000) found that on average there were three professionals for
every ten family group members. Professional participants in the English and
Welsh context primarily included the case worker and team leader from social
services, and on occasions teachers, doctors, health visitors, psychiatrists, care
workers, police, probation officers and guardians.
In schools, family members seemingly have a lesser role. For example, the
YJB (2004) found that parents were only involved in 19 per cent of conferences
set up to resolve problems. In the police complaints process, a few supporters of
the complainant were present, although they only participated in a few
instances when the complainant felt unable to continue with the conference
(McLaughlin and Johansen, 2002).
Facilitators or co-ordinators are also crucial to the RJ process; yet, civil RJ
conferences do not always involve ‘independent’ facilitators.11 (Brown, 2003;
YJB, 2004). The extent of experience of the facilitator may impact on the RJ
process; this is certainly shown to be relevant in dealing with police complaints
via RJ processes (Young et al, 2005; Hoyle et al, 2002). Independence and expe-
rience may impact on the quality of facilitation and without good facilitation
there is a chance that RJ FGCs may have undesirable consequences. For exam-
ple, the facilitator dominating proceedings or ‘imposing’ a resolution on the
families and supporters present (Young et al, 2005) detracts from one of the
avowed purposes of such conferences, which is to empower the family to deal
with matters themselves. These difficulties may also be compounded by struc-
tural inequalities between participants, of course. These points raise questions
about the extent to which civil RJ conferences are as ‘democratic’ as they aim to
be. Perhaps for civil RJ to be truly democratic, it requires a realignment of pro-
fessional cultures (in which they relinquish some of their power) to allow the
other participants (families) an equal role.12

(c) Participant satisfaction with civil RJ

Despite some of the uncertainties about the role of kith and kin and facilitators,
satisfaction amongst participants seems to be remarkably high. In child welfare
conferences, participant satisfaction is very high. For example, based on 143
evaluation forms returned from 29 conferences, Sieppert, Hudson and Unrau

11 Independent’ facilitator may not always be appropriate; child welfare FGCs takes account of

ethnic diversity by employing co-ordinators who have knowledge and experience of the ethnicity of
participants (Waites et al., 2004).
12 For example, Brown (2003) found that 43 per cent of local authorities believed that they could

work in partnership with families.

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Repairing Harm through Kith and Kin 167

(2000) found that 70 per cent of participants were satisfied with conference
preparation and that the right people attended; 85 per cent felt free to speak out
at the conference; 76 per cent felt involved in the decision-making process; and
72 per cent were satisfied with the plan devised in the conference. In schools,
participant satisfaction with RJ FGCs is higher still (YJB, 2004). In the police
complaints process, whilst not all cases were successfully resolved, the majority
of the complainants in restorative meetings achieved something positive; they
benefited from having met the police officers and having addressed them per-
sonally to express dissatisfaction and frustration (Young et al, 2005).
Other kinds of outcomes are also reported in empirical research on child wel-
fare FGCs.13 In spite of incomplete FGC plans, families still described them-
selves as ‘better off’ since the conference, perhaps because the conference had
strengthened positive ties amongst participants and removed negative ones
(Pennell and Burford, 2000). FGCs can also increase the involvement of the
extended family in the care of children (O’Connor et al, 2005; Sundell and
Vinnerljung, 2004; Marsh and Crow, 1998), a point which finds resonance in
Hunt’s chapter (this volume) where she explores the extent to which ‘kinship
care’ is practised.


RJ in the criminal context has been subject to increasing scrutiny over the past
few years, particularly in relation to definitions of effectiveness, which revolve
around reconvictions, proportionality, legal rights, and responsibilities.14 But
key questions have also revolved around the issue of whether RJ involves vic-
tims, for example, and whether or not parties seem engaged in the process of RJ,
as well as whether parties appear to benefit from the process in other ways.
Generally speaking, research has consistently shown that RJ processes in the
criminal context can more fully involve victims than conventional justice
processes (Maxwell and Morris, 1993; 1998a; Wundersitz and Hetsel, 1996;
Strang et al, 1999). Research has also shown that the participation and involve-
ment of offenders is achievable through RJ processes: they feel that they have
been listened to and have a better understanding of the consequences of what
they have done (Maxwell and Morris, 1993; Sherman and Strang, 1997; Miers et
al, 2001). Similarly, a number of researchers in the criminal justice field have
reported positive findings in terms of the benefits for victims (Maxwell and
Morris, 1993; Sherman, 1998; Umbreit et al, 2001). Many of the positive
research findings in this sphere are specifically derived from studies of Family

13 Sundell and Vinnerljung (2004) wonder whether the low level of plan implementation may be

because the extended family withdraw their support.

14 For an examination of such issues see the special issue of the British Journal of Criminology,

vol. 42, 2002, and Zehr and Toews, 2004.

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168 Loraine Gelsthorpe with Layla Skinns

Group Conferencing (see, for example, Maxwell and Morris, 1993, 1998a,
1998b in New Zealand). Moreover, longitudinal research there has demon-
strated that where practice is of a high standard, FGCs can reduce re-offending,
and the overriding message is that young people and their families produce cre-
ative and constructive plans for dealing with the offending behaviour (including
reparation) (Maxwell and Morris, 1998b). Reviewing a wide range of evidence,
Walgrave has suggested that evaluation research on RJ practices so far, sup-
ports a case for optimism. Summing up research in the criminal context, for
example, he states:

Overall conclusions are that RJ interventions do work and produce outcomes more
satisfying than the outcomes of punitive or rehabilitative interventions. They are more
satisfying to communities of care, and there is no evidence to suggest that restorative
practices have negative consequences for public safety (2005: 12)

In the civil context, much research has similarly focused on processes and
implementation—with positive perspectives (Brown, 2003; Sundell and
Vinnerljung, 2004). Where there has been research on outcomes in terms of res-
olutions which have ‘worked’, the evidence has been quite mixed (Marsh and
Crow 1998; Sundell and Vinnerljung, 2004)—a finding which seems incongru-
ent with the high level of satisfaction expressed by families and other parti-
cipants. Explanations for this might include a lack of effective follow up services
available to children involved in FGCs, a failure to embed RJ in the working
practices of agencies, or because FGCs lack cultural relevance.


Much has been made of Referral Orders in the criminal context and Family
Group Conferences in civil contexts as significant means of delivering restora-
tive justice. Here the talk is less of crime control and more of offender/victim
participation and harm minimisation in the one context, and of round table dis-
cussions and shared solutions to family conflicts, or disputes among school-
children, for instance, in the other. These ideas draw on the legacy of customary
practices in Maori, Aboriginal and Native indigenous populations where shared
responsibility between different participants in the process of RJ was absolutely
central. In modern New Zealand there is now much greater involvement of the
State in RJ than hitherto, but in a way that still promotes partnership between
State and families in resolving issues. The underlying intention is to empower
the families or whanau to work with professionals to find effective solutions, a
process which might, but does not necessarily, involve limiting professional
involvement (as Masson and Lindley, this volume, point out, this is a critical
issue in promoting kinship care). But the practical expression of RJ ideas in the
English and Welsh context loses something in the translation. Although
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Repairing Harm through Kith and Kin 169

researchers see the involvement of ‘kith and kin’ or ‘communities of care’ as very
important to the effectiveness of FGCs and RJ (see Ministry of Social
Development, 2004, and Bazemore and Schiff, 2005, for example), we do not
know the precise extent to which this has contributed to optimism about the
potential benefits of RJ in other jurisdictions (see Elliot and Gordon, 2005;
Weitekamp and Kerner, 2003; McCold, 1996). Our general sense is that the role
of the family, extended family or community may be an essential ingredient for
‘success’ whether in terms of enhancing the sense of inclusiveness or meaning-
fulness of the processes to all involved, or in terms of agreed and effective
outcomes in practice. The picture in England and Wales is thus mixed and
messy, especially in the criminal field where there has been very limited success
in involving victims, families and supporters. With increasing recognition that
‘extended family’ or ‘community of care’ in the English context might be
‘paradise lost’ (Bauman, 2001), aspirations for RJ and FGC principles to work
may go beyond what is realistic.


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172 Loraine Gelsthorpe with Layla Skinns

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Part 3

Kin Contact and Care of Elderly People

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Gender and Kinship in
Contemporary Britain


T HAS BEEN some 35 years since the term ‘kinkeepers’ was first used to
describe women’s pivotal role in maintaining kin relationships (Adams,
1970). In the intervening decades, research has shown that, compared to
men, women are more communicative with kin, more involved in kin
exchanges, and more likely to initiate and maintain kin contact (see Widmer
2004 for a review). Of course, any meaningful analysis of contemporary gender
and kinship must also consider the impact of recent demographic changes such
as increasing life expectancy and decreasing fertility rates. Kinship networks
have lost some of their ‘horizontality’, that is, as younger generations have fewer
siblings, their own children consequently have fewer cousins, aunts and uncles.
Increased longevity means that grandparents, particularly grandmothers, play
an important role in kin contact and exchange (Bengston et al, 1996). Moreover,
demographic changes are coupled with social and economic changes such as
geographical mobility, increased divorce rates and single-parenthood, and
women’s increased involvement in paid work. These factors have profound
implications for the study of gender and kin and there is evidence to suggest that
over the last three decades each has contributed to a decline in kin contact
(McGlone et al, 1999).
Such changes have long been the focus of theoretical debate. Some commen-
tators are pessimistic, arguing that declining contact is indicative of declining
family solidarity and increasing individualism. For example, the American soci-
ologist, David Popenoe, an outspoken critic of the ‘me generation’, claims that:
’people are less willing to invest time, money and energy in family life, turning
instead to investments in themselves’ (Popenoe, 1993, p528). Others view the
changes optimistically seeing diminishing contact with extended family as an
opportunity for more ‘democracy’ in personal relationships. People gain greater
freedom to make their own decisions when they are physically distant from
other family members who may interfere with their relationship decisions
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176 Jane Nolan and Jacqueline Scott

(Giddens, 1992). Unsurprisingly, empirical research paints a far more complex

picture than that offered by the extreme optimist/pessimist positions. In this
chapter we consider the influences of geographical mobility, women’s paid
employment, and men’s involvement in the domestic division of labour on
declining kin contact. We also explore the gendered patterns of exchange across
the generations, focusing particularly on the role of grandparents. The import-
ance of these issues for socio-legal professionals is discussed in the light of leg-
islation which relates to what is popularly termed ‘work-life balance’, and in
relation to the growing pressure to acknowledge grandparents’ rights in increas-
ingly fluid kinship structures.


In order to make any statement about declining contact amongst kin, we first
need to try and establish some kind of a baseline. We can draw on a number of
different types of evidence to do this, including both case studies and survey
data. Traditionally, case studies have been the method of choice, of which
Young and Willmott’s study of Bethnal Green in the 1950s is still considered a
classic. They showed that contact among extended family members was high
and that the mother-daughter bond was particularly strong (Young and
Willmott, 1957). The reason for this bond, they argue, is that working class kin-
ship networks offer a safety net against poverty and poor welfare provision.
They suggested that as welfare benefits and other conditions improved, contact
with extended family relationships would diminish and ‘isolated’ nuclear fami-
lies would increasingly become the norm.
A number of other studies support and extend Young and Willmott’s work.
For example, a study of working class families in Swansea by Rosser and Harris
(1965) also found that contact with the extended family was robust. They noted
that while changing patterns of employment had increased the geographical dis-
tance between kin, strong emotional bonds ensured that there was still a good
deal of exchange of practical and emotional support. Bell (1968), also working
in Swansea but studying middle class families, found similar patterns. Increased
geographical distances meant less daily contact but close relationships were
maintained by longer visits and telephone calls. Charles et al (2004) have used
Rosser and Harris’ research as a model for a new study of kinship in Swansea
and preliminary results have found that, in 2001, fewer people married, cohab-
ited or had children than in 1960 (the year Rosser and Harris’ study was carried
out). However, they also found, as in 1960, a high degree of geographical sta-
bility in their survey: many people still live within close proximity of relatives.
Again, as in 1960, the frequency of mother-daughter contact was still high
in 2001 and this relationship remained essential for the functioning of kin
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Gender and Kinship in Contemporary Britain 177

What other kind of evidence can we find of the extent of kinship contact in
Britain? Survey research complements the case study approach and offers a
sounder base from which to generalize. In 1986 the British Social Attitudes
(BSA) Survey conducted one of the first national surveys of kinship in Britain
(Finch, 1989). The results indicated that people in Britain do indeed tend to keep
in regular contact with their relatives and that parents and adult children fre-
quently turn to each other for help. Family and employment structures contin-
ued to change over the next decade and when, in 1996, McGlone et al analysed
a new wave of BSA data, they suggested that while family continued to be a cen-
tral focus of many people’s lives, the increasing number of women in full-time
employment meant women’s kin contact had declined in the previous ten years.
More recent surveys have looked at a wider range of kin issues such as the iso-
lation of older men (Arber et al, 2003) and the role of demographic change on
kin relations (Murphy and Grundy, 2003). Murphy’s (2004) analysis of the 1986
International Social Survey Programme (ISSP) reflects the gendered patterns
found in case study research. He showed that once children have left home,
daughters have greater contact with parents than do sons and mothers have
more contact with their daughters than do fathers. Similar patterns are found in
Owen et al’s (2004) analysis of the Millennium Cohort Study. Nevertheless,
despite this gendered continuity in the strength of the mother-daughter rela-
tionship, it is fair to say that other aspects of kinship relationships have altered
considerably. Murphy’s (2004) comparison of the 1986 ISSP data and the 1999
Omnibus study shows that in 1986 the proportion of those seeing adult children
weekly was 69%. By 1999 this figure had fallen to 48%. Sibling contact has
fallen amongst younger age groups regardless of gender (Murphy, 2004). Men
who divorce have less contact not only with their adult children, but also with
their own parents (Lye, 1996). While it is certainly possible to find continuing
and predictable gendered patterns in kin contact, it would be inaccurate to
argue that kinship systems have been immune to shifts in social trends.


Given the nature of the research outlined above, this chapter will focus particu-
larly on gender and kin contact and exchange rather than gender and ‘caregiv-
ing’ (although, as will become apparent, these can be considered overlapping
and interlinked concepts). Here, we explore gender, kin contact and exchange
through a new analysis of BSA data collected in 1986, 1995 and 2001 and also of
the British Household Panel Survey (BHPS) 2001. Our reason for choosing to
study these two surveys is that disaggregating BSA data tends to lead to very
small numbers. The BHPS survey is somewhat larger and, in 2001, carried
similar kinship questions to those administered in the BSA survey. Thus we are
able to use BHPS data in order to provide further support for our findings. Each
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178 Jane Nolan and Jacqueline Scott

survey is described below. The questions used for our analysis are shown in
Appendix A.

(a) British Social Attitudes

The BSA Survey is designed to yield a representative sample of British adults

aged 18 or over. Each year around 3,600 adults are interviewed in England,
Scotland and Wales. From 1993 onwards, the sampling frame for the survey was
the Postcode Address File; before that it had been the electoral register from
which one adult per household is randomly selected for interview. In 1986,
1995 and 2001, as part of the ISSP, BSA issued a ‘kinship module’ to assess how
close people live to their relatives, how much contact they have with them,
the importance they attach to these networks, and whether or not they feel
that they can be called upon as sources of help and advice. The ‘kinship and
friendship’ module was administered to a random half of the 1986 sample
(around 1500), a random two-thirds (around 2100) of the 1995 sample, and a
random third (around 900) of the 2001 sample. The questions were contained in
a self-completion questionnaire given to respondents after the main face-to-face

(b) British Household Panel Study,

Our analysis uses data from the eleventh annual wave, carried out in 2001, of
the British Household Panel Study, a representative sample of British house-
holds that was launched in 1991. The BHPS initially consisted of a representa-
tive sample of 5500 households and over 10,000 individuals. These same
individuals are re-interviewed each year. The original sample was drawn using
a two-stage stratified clustered design of 250 postcode sectors from the small
users Postcode Address File (PAF). Details of sample characteristics, together
with subsequent attrition and weighting can be found in Taylor (2005).
Extension samples were added to the BHPS from Wave 9 onwards for Scotland
and Wales. The aim (prompted by devolution) was to increase the relatively
small Scottish and Welsh samples to permit independent analysis of the two
countries. As our analysis is not concerned with cross-country differences, we
have analysed the original British sample only. The cross-sectional weight
(KXRWGHT) is applied to adjust for within-household non-response giving a
sample N of 8518 aged 15 and over. The quality profile for the BHPS provides
extensive statistics concerning sample representativeness across time (Lynn,
2003). Questions from the ISSP ‘kinship and friendship’ module were adminis-
tered in face-to-face interviews in the 2001 wave.
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Gender and Kinship in Contemporary Britain 179


Geographical mobility is one of the most fiercely debated modernising influ-

ences on families. Many hypothesise that mobility is essential for the function-
ing of industrial and post-industrial economies (Beck 1992, Giddens, 1990) and
geographical (and social) mobility supposedly leads to a decline in physical
proximity to family (Willmott, 1986). It seems common sense to say that those
who live further away from their families see less of them, but exactly what
kinds of distances are we talking about? Comparing BSA and BHPS data over a
15 year period, we find very little change and most people (over 65%) continue
to live within an hour’s travelling time of their mother (See Table 1).

Table 1 Traveling time to non-resident mother

BSA 1986 BSA 1995 BSA 2001 BHPS 2001
All F M All F M All F M All F M

hour or 72% 74% 69% 66% 67% 65% 66% 69% 61% 70% 71% 69%
More than 28% 25% 31% 34% 33% 35% 34% 30% 39% 30% 29% 31%
one hour
Base n 617 303 314 984 538 446 452 266 186 3784 2062 1722

Bases refer to respondents with a non-resident mother

Of course, physical proximity does not in itself tell us about contact, but as can
be seen from Table 2, over 70% of those who live within an hour’s travel time
of their mother see her at least once a week. Again, we see little change over a
15 year period. In line with earlier research there is a noticeable gender differ-
ence emphasizing the continuing importance of the mother-daughter bond. For
example, in BHPS 2001, 82% of women who live within an hour see their
mother weekly, compared with 68% of men: that said, we should not allow this
gender difference to eclipse the very high percentage of men who are also in
frequent contact with their mother.
Contact with fathers is somewhat less frequent. In BHPS 2001, 67% of those
who live within an hour’s travelling time see him at least once a week.
Moreover, it is interesting to note that 7% of those whose father is living never
see him; the figure for mothers is 2%. There is much public concern about the
societal implications of absent fathers, or fathers who have little contact with
their families. These include worries ranging from social exclusion and crime to
‘laddism’ (Morgan, 2004). While it is beyond the scope of this chapter to explore
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180 Jane Nolan and Jacqueline Scott

Table 2 Frequency of contact with mother by travel time

BSA 1986 BSA 1995
One hour More than One hour More than
or less one hour or less one hour
All M F All M F All M F All M F

At least 77% 71% 83% 5% 2% 9% 73% 66% 79% 3% 3% 4%

once a week
At least 15% 16% 14% 14% 12% 19% 21% 27% 17% 24% 28% 20%
once a month
Less often/ 8% 13% 3% 80% 86% 72% 5.5% 7% 4% 73% 70% 76%
Base n 445 210 235 173 94 80 653 290 362 331 155 176

BSA 2001 BHPS 2001

One hour More than One hour More than
or less one hour or less one hour
All M F All M F All M F All M F

At least 79% 73% 83% 3% 4% 2% 76% 68% 82% 5% 4% 5%

once a week
At least 14% 18% 11% 25% 15% 34% 17% 23% 12% 22% 21% 24%
once a month
Less often 7% 9% 6% 72% 81% 64% 7% 9% 6% 73% 76% 70%
Base n 298 113 185 154 74 80 2645 1185 1460 1140 538 603

Bases refer to those with a non-resident mother

these issues in-depth, we would note that our data indicates that while contact
between adult-children and their fathers is not quite as high as with mothers,
most people are indeed still in frequent contact with their fathers. The extent to
which this changes for younger generations remains to be seen.
Finally, while advocates of late modernity suggest that individualization leads
to the ‘disembedding’ of people from the traditional ties of family (Giddens,
1990, Beck, 1992), it is worth pondering to what extent our figures indicate that
travelling distances, at least between parents and adult children, may not be so
very great as is generally presumed. It may be possible to argue that there has
been a decrease in contact between extended family members, yet our data sug-
gests that parent—adult child contact still seems to be robust. As Charles et al
(2004) note, the theoretical assumption that occupationally driven geographic
mobility is essential for industrial and post-industrial economies seems some-
what questionable.
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Gender and Kinship in Contemporary Britain 181


Besides geographical mobility, a second factor thought to be influencing kin

contact is the increasing number of women who work outside the home. There
has been a dramatic increase in female employment rates since the 1960s. For
example, in the UK in 2000 65% of women aged 15–64 years were in employ-
ment (OECD 2000), up from 43% in 1960. In Lisbon in March 2000, the Heads
of Governments of the European Union subscribed to the very ambitious target
of raising the employment rate for women to 60 percent by 2010 (EC 2000). The
UK, along with Nordic countries, is exceptional in having already met the tar-
get by 2000. In the UK, 65% of women aged 15–64 are working, with 40% of
working women in part-time jobs. It is important to emphasise, however, that
much of this change, in the UK, is in part-time employment, leading some com-
mentators to note that the British case is one of a ‘modified male bread-winner’,
or ‘one-and-a-half earner model’ (Crompton et al, 2005).
It was assumed that as more women entered the labour market, men’s con-
tribution to domestic labour would increase (Young and Willmott, 1973).
Evidence on gender change in the domestic division of labour is, however,
mixed, and this has implications for kin contact. Some argue that men are
indeed taking on more responsibility for domestic work (Sullivan, 2000).
Gershuny et al (1994) have suggested that a process of ‘lagged adaptation’ is
taking place and that 10 years ago, at the time of their study, men were indeed
taking on greater responsibility for domestic work. Others, however, are more
sceptical. Crompton et al (2005) comparing ISSP data collected in 1989, 1994
and 2002, found that by 2002 the process of male ‘adaptation’ seemed to have
come to a standstill. At a conceptual level, Thompson (1991) suggests that the
‘attentive and co-ordinative’ aspects of domestic labour, which includes activ-
ities such as keeping in contact with kin, can go unnoticed in research. Indeed,
Warde and Hetherington (1993) note that the different types of evidence used in
different studies makes it very difficult to assess gendered changes in domestic
divisions of labour. Dixon and Wetherell (2004) note that studies of gender and
domestic work should consider: ‘not only who is compared but also what is
compared and how such contributions are attributed’ (p171).
What are the implications of this gendered division of labour for kin contact?
Comparing BSA data collected in 1986 and 1995, McGlone et al (1999) claim that
there has been a decrease in contact with non-resident mothers among women
working full-time. They argue that demands on women’s time from paid employ-
ment and from caring for their own families means they have less time for kin con-
tact. McGlone et al (1999) suggested that kin contact could continue to decline if
more women took up full-time work. Furthermore, this process may well be exac-
erbated if the process of male ‘adaptation’ has indeed reached a plateau. We
explore these themes further by comparing BSA data collected in 1986, 1995 and
2001 and BHPS data in 2001. Our findings are shown in Table 3 .
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182 Jane Nolan and Jacqueline Scott

Table 3 Women’s and men’s employment and contact with non-resident mother
BSA 1986 BSA 1995 BSA 2001 BHPS 2001
% base n % base n % base n % base

At least once a week

All 50% 303 44% 447 46% 186 48% 1732
In full-time work 46% 224 46% 261 45% 140 48% 1452
All 65% 316 55% 539 58% 266 60% 2071
In full-time work 66% 90 47% 161 59% 114 55% 929
Once a month
All 14% 303 27% 447 17% 186 22% 1732
In full-time work 16% 224 26% 261 14% 140 23% 1452
All 15% 316 18% 539 18% 266 16% 2071
In full-time work 13% 90 19% 161 17% 114 19% 929
Less often/never
All 36% 303 29% 447 38% 186 30% 1732
In full-time work 38% 224 28% 261 40% 140 29% 1452
All 20% 316 27% 539 24% 266 25% 2071
In full-time work 21% 90 34% 161 25% 114 25% 929

Bases refer to those with a non-resident mother

The BSA sample sizes are very small and BSA 2001 is particularly difficult to
interpret. Nevertheless, the data indicates that, indeed, while women engage in
kin contact more than men, women who work full time have less contact with
their mothers than women as a whole. However, it is clear that there is no sub-
stantive decline over the 15 year period under study. Thus, we would suggest
that earlier comments that contact with kin amongst full-time working women
would continue to diminish were perhaps premature. It would also appear that
there is little sign of men becoming more involved in kin contact as a process of
‘lagged adaptation’ to women’s involvement in full-time work.

(i) Other means of contact

It is important to emphasise that relatives stay in contact with each other in

diverse ways, not just through actual face-to-face visits. Mason (1999) high-
lights the importance of new technologies in maintaining kin contact, what she
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Gender and Kinship in Contemporary Britain 183

calls: ‘close ties at a distance’. Our analysis of the BHPS (2001) data shows that
the telephone is a highly gendered means of keeping in touch with kin. We found
that 34% of women are in daily contact with their mothers via telephone com-
pared to just 12% of men. There is a gender difference of at least 20% in the
20–59 age range demonstrating the continuing importance of the mother-
daughter link. Figures are much lower for fathers, though again women are at
least twice as likely as men to phone their fathers daily. While email contact is
still comparatively rare, future kin researchers may need to consider the role of
new technologies, such as email and text messaging, in maintaining kin contact.
In sum we find that both women and men are in frequent contact with their
parents, though contact is more pronounced amongst women. While there is
some indication that full-time working women see less of their mothers than
other groups of women, our data seem to suggest that geographical distance is
not a major impediment to kin contact.


While contact offers us one indicator of the state of relationships between kin,
we also need to consider the gendered nature of exchange across generations. To
get some historical perspective it is useful to return to some of the studies men-
tioned earlier. We have seen that Young and Willmott’s (1957) study showed that
the bond between mothers and daughters was particularly strong. Young and
Willmott suggest the reason for this is that as the daughter was helped with her
own children, so she took care of her mother when she became frail. Building on
this work, Bell (1968) argued that exchanges between mothers and daughters
were fewer in the geographically mobile middle class, whose kin-exchange was
largely financial. He suggests that if finance is the main form of support, then kin
research should place more emphasis on the father/in law—son/in law relation-
ship because it is often through this link that financial support flows.
Furthermore, most intergenerational exchange indicates that exchange is most
likely to result in resources, either in time or money, flowing downwards from
older to younger generations (Hagestad, 2000; Grundy, 2005; though see Grundy
and Murphy, this volume, for a fuller discussion of this issue.)
We turn to BHPS data collected in 2001 to look at the gendered nature of this
exchange in Britain. Respondents were asked questions on the kinds of help pro-
vided for and received from, adult children and parents of adult children (See
Appendix A). This yielded four sets of data: support for adult children, support
for parents, support from adult children and support from parents. We report
in Tables 4 and 5 the most important kinds of support offered for adult children
and parents (the rank order is the same as the kinds of support received from
adult children and parents and to avoid replication we will only describe this
second set of data in the text to expand our arguments).
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184 Jane Nolan and Jacqueline Scott

(i) Support FOR children

Table 4 shows the types of support provided for non-resident adult children.
Clearly, of course, types of support for children vary over the life-course, so let
us consider the first two kinds of support in more detail.

Looking after their children: the role of grandparents

Table 4 Support for Children BHPS 2001
Support FOR Children Men Women
% % %

Looking after their children 52% 46% 57%

Financial help 42% 50% 37%
Provide or cook meals 31% 20% 39%
Give lifts in your car 27% 33% 23%
Decorate, garden, repair 24% 35% 15%
Shop for them 23% 19% 27%
Wash, iron, clean 18% 6% 27%
Base n 1894 808 1086

Bases refer to those with non-resident children over the age of 16.

The most frequently cited kind of support offered by parents to adult children
is taking care of their children. We have seen that much research emphasizes the
importance of the mother-daughter link in kin relations and Figure 1 shows
that 70% of women aged 55–64 report looking after their children’s children
compared with just over 50% of men in this age bracket. Moreover, when
respondents were asked ‘what kind of help do you receive from your parents?’,
we again found a gender difference with 55% of women in the 25–34 age range
reporting receiving help from their parents in looking after their children com-
pared with 38% of men in this group. While women give more, and receive
more, of this kind of help, it’s important not to overlook the role of i) the
father’s parents and ii) grandfathers generally. Attias-Donfut and Wolff (2000)
find that while men are usually less involved in grandparenting than women, the
presence of a grandmother makes grandfathers more involved. Although
Brussoni and Boon (1998) suggest that young people feel closer to their grand-
mothers, particularly the maternal grandmother, than to grandfathers, other
research, such as Ross et al’s (2005) study of relationships between grandparents
and teenage grandchildren in Scotland, shows that close bonds clearly do exist
between grandfathers and their grandchildren.
We have already indicated that the role of grandparents in childcare can be
linked to increased longevity and women’s involvement in the labour market.
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Gender and Kinship in Contemporary Britain 185




50 Male




Under 45 45–54 55–64 65–74 75+

Men (n) 7 50 149 134 30

Women (n) 17 141 253 166 44
BHPS 2001 respondents with a non-resident son and/or daughter over the age of 16.

Figure 1 Percentage regularly or frequently taking care of grandchildren by age

However, it is also important to frame this relationship within an understand-
ing of shifts in values in older generations. Some research shows that cohorts
who grew up in the late 1960s may hold a more individualistic orientation than
their own parents (Waerness, 1999). If this generation is more concerned with
self-realization than earlier cohorts of grandparents, how might they feel about
caring for grandchildren? Other research has shown that women in their 60s
value freedom from family care as one of the advantages of being in this particu-
lar age group (Scott and Nolan, 2005). But we know little about how they feel
about being drawn into a new round of child-care. No doubt many factors will
influence their reaction including values, socio-economic status, ethnicity and
health. Given that many governments are under pressure to reduce welfare bud-
gets, there is a tendency to encourage the growth of informal support networks
in relation to care. Obviously, this form of intergenerational support has policy
and budget implications and we discuss these further in the conclusion.

Financial help

As in previous research we find that men are more likely to offer financial sup-
port than women in all age groups (see Figure 2). This largely mirrors research
in the USA Germany and Norway (See Grundy (2005) for a review).
(J) Ebtehaj et al Ch9 31/8/06 13:20 Page 186

186 Jane Nolan and Jacqueline Scott







Under 45 45–54 55–64 65–74 75+

Men (n) 25 119 133 83 43

Women (n) 30 162 111 60 34
BHPS 2001 respondents with a non-resident son and/or daughter over the age of 16.

Figure 2 Percentage regularly or frequently providing financial help to adult children

As discussed earlier, Bell (1968) argued that in the geographically mobile middle
class, contact between mothers and daughters is lower and more emphasis
should be placed on the father/in law son/in law relationship because it is
through this link that financial aid flows. Yet while we find that fathers are more
likely to provide financial aid, we also find that daughters over 35 are more
likely to receive financial aid from their parents. 32% of women aged 45–54
receive financial support, compared with 26% of men in this age group. This
may reflect the numbers of women in single-parent families turning to their par-
ents for financial help. (To be explored through further analysis.)

(ii) Support for Parents

It is clear that parents are offering adult children a substantial amount of sup-
port in terms of time and money. But what sort of help do children provide to
their parents? As can be seen from Table 5, we find that the number one kind of
support offered by children to their parent is giving them lifts. If one subscribes
to the theoretical principles of reciprocity and rational choice then this seems
scant incentive for the parents of adult children; offer your time and financial aid
to your adult children, and in return they’ll give you a lift. Of course, many other
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Gender and Kinship in Contemporary Britain 187

factors need to be brought into the equation, such as age and health of parent,
socio-economic status and ethnicity before any further comment can be made.
However, more detailed analysis of similar datasets in the USA and Britain has
shown that, indeed, intergenerational exchanges do tend to flow downward
rather than upward (Hagestad, 2000; Grundy, 2005). And, as far as gender is
concerned, it is no surprise to find that women are more likely to shop for their
parents, and men more likely to decorate: As discussed earlier, despite some
small changes in the amount of time spent on domestic tasks, gender differences
in the form domestic labour takes seem to be enduring (Crompton et al, 2005).

Table 5 Support for Parents BHPS 2001

Support FOR parents Men Women
% % %

Giving them lifts 56% 52% 60%

Shop for them 43% 33% 52%
Decorate 43% 57% 31%
Deal with personal affairs 27% 25% 29%
Provide or cook meals 22% 13% 29%
Base n 2003 880 1123

Base n refers to respondents with a non-resident parent


Our findings indicate that many of the themes raised by earlier studies of gender
and kinship still pertain today. The mother-daughter link is still strong;—
women in full-time work appear to have less time for kin-contact; grandparents,
particularly grandmothers, are an important source of childcare; men are more
likely to provide financial support to adult children. What does this tell us about
gender in contemporary Britain more generally? Women’s lives are becoming
masculinised in the sense that employment outside the home is becoming the
norm, and of course, time spent in paid employment reduces time available for
other things, including kin-keeping. While some men may have taken on tradi-
tionally ‘female’ tasks, such as kin-keeping, there is evidence of a plateau hav-
ing been reached in this area. What might account for this? Some argue that
employment constraints on men and women offer a partial explanation.
Ladipo and Wilkinson (2002) note that reduced trade union power, ‘high
commitment’ management practices, and long working hours are leading to
more work intensification as employers struggle for competitiveness in a global
market. Nolan’s (2002) qualitative study shows how work intensification, par-
ticularly for those in ‘career’ jobs, often men, makes contact and involvement
with family difficult due, in large part, to long hours and increased stress.
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188 Jane Nolan and Jacqueline Scott

Employment constraints don’t offer us a complete account however. Others

pursue an essentialist line, arguing that women’s ‘moral rationalities’ clash with
the ‘adult worker’ model promoted by government and that women ‘naturally’
choose to put kin and family first (Duncan and Edwards, 1999). This position is
supported to some extent by Hakim’s (2000) argument that only a minority of
women are work-centred. Hakim’s argument is complex and all too often cari-
catured, but, while allowing a role for social forces in shaping individuals, part
of her explanation of gender difference is sociobiology. For Hakim, both
between group differences (between men and women) and within group differ-
ences (between different women) are, to some extent, determined by differences
in testosterone levels. As evidence for this, Hakim (1996) discusses certain ‘real
life’ examples of women receiving testosterone injections as part of a sex-change

‘Women who change over to being men are amazed to discover they go out into the
world charged with aggressive energy when they start taking the testosterone tablets,
wanting to fuck everyone and fight everything.’ (Hakim, 1996 p 205).

Hakim’s work has provoked heated debates among academics not least
because she suggests that ‘feminists’ (whom she does not name) have, for polit-
ical reasons, expounded ‘fashionable but untrue’ ideas concerning women’s
preferences. Their reason for this, she claims, is to ‘dictate’ that ‘women are vic-
tims who have little or no responsibility for their situation’ (Hakim 1995, p 448).
There have been a number of critical responses to her work (Bruegel, 1996; Ginn
et al, 1996; Crompton and Harris, 1999; Schiebal, 1999) each of which defend
the ‘feminist’ position by, principally, claming that academic feminists have
never suggested that women were homogenous in their values and preferences
and, secondly, questioning some of her empirical procedures (e.g. treating hours
worked as more important than number of jobs).
Put in a wider context, however, the debates relate to what constitutes
‘choice’ in the arena of paid work and family. Lewis and Giullari (2005) argue
that the ‘choices’ faced by women and men are shaped by the degree to which
policies address domestic work, (which must include kin contact) as well as
policies aimed at promoting the position of women in the labour market. They
argue that choice can only be ‘genuine’ when there is a rebalancing of unpaid
work, not just between women and men, but between women, men and market
and state. This introduces the hoary old issue of: ‘how to reconcile choice and
equality and what kind of state intervention can be justified’ (Lewis and
Giullari, 2005, p 79).
Government clearly sees the difficulties women face in ‘reconciling’ work and
family, yet there is a reluctance to introduce legislation to enforce so-called
‘work-life balance’. Instead, policymakers prefer to use the ‘business case’ argu-
ment to encourage organizations to help their employees, arguing that this is a
‘win-win’ scenario where business ‘wins’ by keeping skills. But is it not common
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Gender and Kinship in Contemporary Britain 189

knowledge that businesses act in their own self-interest? It has been shown that
organization-based ‘family-friendly’ policies follow the ebb and flow of the
business cycle and are thus not able to provide long-term support to employees.
If the policies, or the organization itself, cease to be economically viable then the
support is terminated (Scheibl and Dex, 1998). While it is important to empha-
size that some groups may prioritize either work or home (Hakim, 2003), such
preferences can only be considered ‘choices’ when the constraints on groups,
ideological and financial, are equivalent.
In Spain, however, there has been legislation to address the gender imbalance
in work-family reconciliation, but not, as one may have expected, at the organ-
isational level. In 2005, the so-called ‘housework law’ was introduced. The
Spanish marriage contract now contains a pledge that the couple should share
domestic work and the care of children and elderly family members (Tremlett,
2005). Failure to honour the pledge will be considered by judges in divorce cases
and partners who fail to share domestic work and child care during their mar-
riage could find that they are given less frequent contact with their children post-
divorce. Of course, the imposition of gender equality measures by the state does
not guarantee social change. As Valiente (2005) notes, while successive Spanish
governments have actively promoted gender equality policies, Spanish society is
still marked by grave difficulties in this area, not least the high levels of domes-
tic violence. Nevertheless, Margarita Uria, of the Basque Nationalist party, the
key driver behind the new law, defended its introduction by claiming that the
law ‘sends a message’ and is ‘a good way of reminding people what their duties
are’ (Tremlett 2005). In this sense it may be considered an example of rhetorical
law, as White (1987, p 684) argues

‘Law is most usefully seen not as a system of rules, but as a branch of rhetoric . . . as a
central art by which community and culture are established, maintained and trans-

We also urgently need to know much more about how grandparents view
their roles and ‘choices’. While older people are usually portrayed as the recipi-
ents of care, the role of grandparenting clearly demonstrates the productive, if
unpaid, role of older people. Hagestad (2000), for example, quotes research
from the US which estimates that grandparents’ childminding is worth $20 bil-
lion a year (Bass & Caro, 1996). Positive age initiatives by the DTI seem to be
committed to extending both men and women’s employment careers and coun-
tering the popularity of early retirement; thus the availability of grandmothers
(and grandfathers) as alternative low cost quality childcare may well dry up as
men and women continue paid employment beyond age 65.
Moreover, if changes in kinship structure mean that grandparents are more
likely to find themselves losing contact with their grandchildren, their growing
strength as a forceful lobbying group may lead to changes in legislation to coun-
teract this (Hill 2002; Purnell and Bagby, 1993). Issues surrounding grandpar-
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190 Jane Nolan and Jacqueline Scott

ents’ rights are growing for several reasons. At present, grandparents in the UK
have no automatic right to contact with their grandchildren. While estranged
parents have a right to go to court to gain access, grandparents must gain per-
mission from the court to apply for contact. Three grandparent pressure groups,
the Grandparents Association, Grandparents Plus, and the Family Rights
Group have recently published a ‘call to arms’ which aims to lobby government
to review the requirement that grandparents must apply for permission from the
court. The groups argue that the importance of extended kin is such that their
right to contact should be the same as the rights of parents (Grandparents Plus,
2005). We have seen that alterations in kinship mean that the ‘unpaid army’ of
grandparents plays an increasingly important economic and social function. As
such, the grandparents’ lobby is keen to strengthen their position in law.
To conclude, let us consider some more general questions. If women’s lives
have to some extent become more ‘masculinized’, Esping-Andersen (2005) poses
the question: can men be made to feminize their biographies? Can incentives be
put in place that would be more compatible with a feminized male approach to
work and family? If men were to become more fully engaged in childcare
responsibilities, would this extend to other aspects of kin contact and care? The
feminisation of male kin scripts, however, is not just about taking breaks from
work for childcare, or early exits for eldercare. Breaking down the gendered
nature of kin keeping would entail men initiating more of the contact and tak-
ing responsibility for more of the kin exchange. It would also mean adjusting a
range of economic, employment and ideological constraints in order to allow
this to happen. As Lewis and Giullari (2005) note, given the labour force empha-
sis of much policy-making in this area, at both the British and European level,
then such change seems highly unlikely. As a concluding comment, we would
argue that the theoretical suggestion that modernity has freed people from his-
torically prescribed roles (Beck and Beck-Gernsheim, 2004) is precipitate: kin-
ship contact and exchange still largely follow gendered pathways, if in a
somewhat modified form.


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194 Jane Nolan and Jacqueline Scott

Appendix A
Travelling time to non-resident mother
Question: About how long would it take you to get to where your mother lives?
Think of the time it usually takes door to door.
Response options: Less than 15 minutes; Between 15 and 30 minutes; Between
30 minutes and one hour; Between one and two hours; More than two hours

Frequency of contact with non-resident parent

Question: Thinking first of your mother. Please look at this card and tell me
how often you a) See your mother b) Have contact by telephone c) Have con-
tact by email
Response options: Daily; At least once a week; At least once per month; Several
times per year; Less often; Never
Question repeated about contact with non-resident father

Exchanges across generations

Question: Nowadays, do you regularly or frequently do any of the things listed
on this card for your children who are not living here?
Response options: Giving them lifts in your car; Shopping for them; Providing
or cooking meals; Looking after their children; Washing, ironing or cleaning;
Dealing with personal affairs; Decorating, gardening or house repairs;
Financial help; Anything else (Please specify); None of these.
Question repeated about help that you receive from children
Same sequence of questions repeated for things that you do and receive from
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Kin Availability, Contact and Support
Exchanges Between Adult Children
and their Parents in Great Britain


HE AGEING OF Europe’s populations has led to increased interest
and concern about the support of older people and the respective roles
of family, state and market in providing this. Reasons for this concern
arise not just from demographic change, but also from perceptions that inter-
related changes in family related behaviour, particularly increases in non-
marital childbearing, divorce and re-marriage, may be both a symptom of and a
contributor to weakening family bonds (European Commission, 1995).
Although much of this debate has focussed on the needs of older people,
extended education, difficulties in establishing careers, and increases in lone
parenthood and marital disruption, suggest that the needs of the young for sup-
port from the old are also increasing and the literature on intergenerational sup-
port exchanges suggests that the balance of transfers is downward until at least
age 60 or 70 (Cox and Rank, 1992; Grundy, 2005). Declines in mortality mean
that the adult child-parent relationship is one of longer duration than in the past
and this relationship has implications for the quality of life of those in both
generations (Hogan et al, 1996; Gierveld, 2003) which provides a further reason
for needing to know more about it. Demographic research on the family has tra-
ditionally focused on the analysis of family and household formation, change
and dissolution with an emphasis on co-resident parent-child or husband-wife
configurations. However, in the context of changing demographic, social and
economic parameters, there is a need for a shift of focus towards intergenera-
tional family support transfers that extend beyond the household (Soldo and
Hill, 1993). Given concerns about the implications of changing partnership

Research supported by the UK Economic and Social Research Council Grant reference numbers
R000237776 and R000237076
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196 Emily Grundy and Mike Murphy

patterns, understanding the associations between these and intergenerational

transfers is of particular importance. Information about variations in patterns
of interaction between socio-economic groups is also needed in order to identify
groups most likely to lack intergenerational support and to inform discussion
about future trends in the context of changes in, for example, the composition
of the population by educational status. In this chapter we present results from
a nationally representative survey on kin availability, contact, and help provi-
sion conducted in Britain in 1999 which we have used to investigate socio-
demographic and socio-economic variations in proportions with a living
parent/living adult child and variations in contact and support exchanges
between adult children and elderly parents. We focus particularly on variations
according to the marital history and status of both child and parent and differ-
ences between socio-economic groups.

(a) Socio-economic status, kin availability and contact with kin

A prerequisite of interaction with a specified relative is existence of the relative

in question and there are known socio-economic variations in availability of
close kin (Henretta et al, 2001). The availability of various types of kin at dif-
ferent stages of the life course is determined by patterns of fertility, mortality
and—in many cases—marriage. All of these are known to vary by socio-
economic status. In Britain, as elsewhere, lower socio-economic status is gener-
ally associated with earlier partnership formation and childbearing, and slightly
higher fertility overall (Ní Bhrolcháin, 1993); we would therefore expect those
in lower status groups to have more children and, because of inter-generational
associations in socio-economic status, more siblings. Mortality rates are lower
in higher status groups (Kunst and Mackenbach, 1994) which would imply
greater availability of living parents, and other older generation kin, among
such adults. However, this effect is offset to some extent by later childbearing
and consequent larger inter-generational age gaps (Henretta et al, 2001; Murphy
and Grundy, 2003). Marriage patterns also vary by socio-economic status with,
in Britain, slightly higher risks of divorce among those in less advantaged socio-
economic groups (Murphy, 1985; Berrington and Diamond, 1997). Apart from
these demographic constraints, more educated and financially advantaged
groups may have networks and aspirations which extend further beyond the
family than those of less well educated groups, including a tendency to wider
geographic dispersion. Longer distance migration which, as discussed by Nolan
and Scott (this volume), is a powerful influence on intergenerational proximity,
is strongly associated with socio-economic status, and the most highly educated
adult children are least likely to live close to their parents (Shelton and Grundy,
2000). Such differences may partly account for research findings which suggest
a greater predominance of relatives in the social networks of less highly
educated groups (Willmott, 1986). There is also a growing body of research
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Kin Availability, Contact and Support Exchanges 197

showing variations in patterns of intergenerational support by socio-

demographic characteristics, particularly partnership history. Studies from the
United States, the Netherlands and elsewhere suggest that divorced parents,
particularly divorced fathers, have less contact with their adult children than
parents of other marital status (Furstenberg et al, 1995; Dykstra, 1998; Barrett
and Lynch, 1999; Tomassini et al, 2004). One US study, however, reported that
the proximity of adult daughters to their mothers (but not fathers) was posi-
tively associated with the mother being divorced (Rogerson, et al, 1993). Several
factors may underlie these associations. On the one hand, divorced parents
without a partner may be perceived to have greater needs for support and social
exchange with their adult children (and more time to initiate and maintain
exchanges), prompting their children to visit more often and provide more help.
On the other, adult children may have weaker or less positive bonds with par-
ents if there is a history of marital conflict between parents, and/or
absence/repartnering of the parent, and may feel less commitment to a parent
such as a father who was absent during their childhood. Other influences, par-
ticularly gender, are undoubtedly important as well (see Nolan and Scott, this
volume). The effects of the adult child’s own partnership characteristics on their
relationship with their parents, which have been less frequently studied, are also
likely to be variable. Divorce may precipitate a return to the parental home and
divorced children are more likely to live with their parents than married children
of the same age (Ward et al., 1992; Grundy, 2000); this in itself is clearly likely
to involve more interaction and exchange, but is a reflection of the needs of the
adult child, rather than those of the parent.
In terms of socio-economic differentials in transfers from children to parents,
in general, the literature suggests that it is less well-educated children with fewer
resources who are more likely to provide help to parents (Grundy, 2005).
However, when viewed from the perspective of the older generation, differen-
tials appear to be reversed, in that better off parents (at least among those in
early old age) are more likely to help children than the less advantaged both
financially (Kronebusch and Schlesinger, 1994; Pezzin and Schone, 1999) and
with practical help (Henretta et al, 2002; Grundy, 2005). However, as discussed
below, most British studies have had to rely on data sets that are either too small
to allow examination of differences by socio-economic status or marital history
or have been restricted to one particular age group. As a result there are many
unanswered questions about interactive effects of marital histories of both par-
ent and child generations and socio-economic influences.

(b) Kin availability and kin exchange among older adults in Britain

Information on kin support in Britain has been restricted by the lack of data sets
of sufficient size that include information on exchanges involving non-co resid-
ents and, even more fundamentally, by limited knowledge of what proportion
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198 Emily Grundy and Mike Murphy

of the population has relatives of particular kinds at various stages of life. Small-
scale anthropological studies have provided a number of useful insights into kin
exchanges and, as Finch (1989a) has shown, have a number of common findings.
However, the results do not allow us to generalise or to rigorously examine dif-
ferences between groups. These latter two limitations largely apply also to the
range of larger studies based on random samples of particular populations (such
as those in one locality), (Townsend, 1957; Townsend and Wedderburn, 1965;
Wenger 1984, Bowling et al, 1995; Bernard et al, 2001), especially as there is
evidence of geographic variations within Britain in patterns of kin exchange
(Hunt 1978; Grundy and Shelton, 2001). Moreover, few of these localised
studies collected comprehensive information on availability of living relatives.
There are a few British national data sets that include some relevant informa-
tion, notably the British Household Panel Study and the 1986, 1995 and 2001
rounds of the British Social Attitudes Survey (Finch, 1989b; McGlone et al, 1996;
Nolan and Scott, this volume). However, these data sets are too small to allow
detailed analysis of sub-groups. The Retirement and Retirement Plans Survey
and follow-up (Disney et al, 1997) includes information on kin availability and
on family contact and support exchange and has been used to investigate socio-
demographic differentials in both (Henretta, Grundy and Harris, 2002; Grundy,
2005). However, it is restricted to one age band (adults aged 55–69 in 1988).
These data limitations mean that relatively little is known about the effects of
partnership status and history on intergenerational family related behaviours in
contemporary Britain or indeed about socio-economic influences on interaction
with kin at different stages of the life cycle.
To answer questions about the effect of socio-economic and partnership
characteristics on kin availability and interaction, we commissioned The Office
for National Statistics (ONS) to include a special module on kin and kin
exchange in two rounds of the 1999 Omnibus Survey. The module included
questions on existence and demographic characteristics of, proximity to, and
contact with specified close relatives. Additional questions were asked about
help given and received with certain activities and with money. First results
reported elsewhere (Grundy, et al, 1999) showed that nearly all adults in con-
temporary Britain had either a living parent or a living child, and many had
both. The proportion lacking one or other of these relatives was highest among
those aged 70 and over, few of whom still had living parents. Half or more of
those who had a mother, father or eldest child alive saw them at least once a
week with this proportion being slightly higher among women. Half of those
with these relatives lived within half an hour’s journey time of them.
In this chapter we use this data set to analyse socio-demographic variations in
kin availability and kin exchanges involving older people. We firstly examine
availability of, and contacts with, parents or children by age, gender and level
of education. Secondly, we analyse differentials in adult children’s contacts
with, and provision of help to, their parents according to indicators of socio-
economic status and partnership status of both adult children and their parents.
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Kin Availability, Contact and Support Exchanges 199

On the basis of the literature and known socio-economic variations in fertility

and mortality, we expected to find lower rates of proximity and contact with
parents among respondents with higher levels of education and other indicators
of higher socio-economic status. Although, as noted above, the heightened sup-
port needs of divorced children may sometimes lead to closer ties with parents,
in other cases we hypothesised that parental disapproval of marital disruption
and other ‘non standard’ family patterns, such as cohabitation, could weaken
ties, especially where the parents’ and child’s history and values diverge. We also
hypothesised that parental, particularly paternal, marital disruption and re-
partnering would be associated with less contact with children but that these
associations might vary with socio-economic status.


The Omnibus Survey conducts approximately 1,800 interviews each month

with adults living in private households in Great Britain using a stratified ran-
dom sampling design. One adult (aged 16 years or over) is randomly selected per
household for inclusion in the survey (weighting is used to correct for unequal
probability of selection caused by including only one adult per household). Our
kinship module was included in the 1999 January and February samples that
together comprised 5,388 eligible addresses. Interviews were achieved with
3,651 individuals, a response rate of 68%. It is possible that the response rate
was higher among those who were more ‘family orientated’ in which case our
results will slightly over-estimate amounts of contact and exchange.
The Omnibus Survey includes in every round a core of questions on socio-
demographic and economic characteristics. The kin module we designed
included questions about the existence of specified types of living kin, namely
grandparents, parents, children, grandchildren, siblings, and nephews and
nieces. Resource constraints and the need to keep the questionnaire to a man-
ageable length meant it was not possible to ask for information about contacts
with all these relatives. Instead we confined our more detailed questions to a sub
set of kin comprising mothers, fathers, eldest sibling, eldest child, and eldest
grandchild. ‘Eldest’ was used as a way of identifying a specific relative to ask
about as requiring interviewers to choose one at random, although preferable,
would have added considerably to fieldwork costs. Respondents were asked
about proximity to these specified relatives, frequency of contact, and provision
and receipt of certain kinds of help. Information on proximity was restricted to
a question on whether the respondent could reach the relative in question within
half an hour, using their usual form of transport. The question on contact asked
for information on frequency of face-to-face and other types of contact, such as
by telephone. Respondents were asked about ‘help you have provided/received
regularly over the past 12 months’ with giving lifts; shopping; providing or
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200 Emily Grundy and Mike Murphy

cooking meals; looking after children; giving or lending money; washing, iron-
ing or cleaning; paperwork; decorating, gardening or house repairs; or anything
else. These questions on help were modelled on those used in the Retirement
Survey and have also been used in the British Household Panel Study (Nolan
and Scott, this volume).
We first present data on the proportions with parents/children and the
proportions with frequent contact (face-to-face and of any kind) with a par-
ent/eldest child for all sample members, including those lacking the relative in
question. We next examine variations in contacts and provision of help by
socio-economic and marital status characteristics; differences by marital sta-
tus/history of both child and parent generations; and by social class and broad
region of residence of the child. In the multivariate analysis that follows, we use
logistic regression to analyse variations in face-to-face contact with, and help
given to, mothers and fathers; these analyses are restricted to people who had
the relative in question.

(a) Co-variates used in the analysis

The indicators of socio-economic status used were Registrar General’s (RG’s)

Social Class (based on current or last occupation), and age at completing full-time
education. The RG’s Social Class schema allocates people to six groupings based
on occupation. Social Classes I and II comprise professionals, senior managers
and large scale employers, and intermediate status white collar workers, such as
teachers and nurses. Social Classes IIIN and IIIM comprise respectively non-man-
ual and manual skilled workers. Social Classes IV and V refer to semi-skilled and
unskilled manual workers. This classification has been very recently replaced by
a new one which places less emphasis on the non-manual/manual divide and more
on actual job content. However the RG scheme was the one in operation when
our data were collected and has been very widely used in British studies of differ-
entials in, for example, mortality and fertility. Three educational groups are dis-
tinguished; those who left school at the legal minimum school leaving age at the
time; those who completed their education at some point between this minimum
and age 19; and those who completed at age 19 or older. As the minimum school
leaving age has changed (for example, an increase from age 14 to age 15 in 1946,
and from 15 to 16 in 1974) this measure adjusts for different cohorts’ experiences.
(In the Figures, for clarity, we show only two groups: those with median or above
age at leaving full-time education within their age cohort, and those below it, but
all three categories are used in the multivariate analyses.)
In the analysis of marital status we took account of the characteristics of both
the respondents and their parents. A four-fold classification of respondents was
used which distinguished the currently married; the currently cohabiting; those
who were single (never-married); and those who were divorced, separated or
widowed. As we were particularly interested in whether children’s interactions
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Kin Availability, Contact and Support Exchanges 201

with parents were influenced by parental marital disruption and repartnering,

the categorisation used for parents was slightly different and distinguished those
in first marriage; the remarried; widows and widowers; and other unmarried
groups (never-married, divorced and separated). Other variables considered
include age, number of children under 16 in the respondent’s household, num-
ber of siblings, an indicator of proximity to parents’ homes, and residence in the
southern or northern parts of Great Britain. The ‘Southern’ grouping includes
Greater London, the South East and the South West, and the ‘Northern’ group-
ing includes the rest of England, Wales and Scotland. In general the South is
more densely populated, has higher economic growth and higher proportions of
in-migrants (both internal and international), although it must be recognised
that these very broad regions are heterogeneous. The sample characteristics are
summarised in Table 1.

Table 1 Sample Characteristics

Variable Percent Variable Percent

of cases* of cases*
Education of respondent Marital status of father
High 20 First marriage 72
Medium 32 2+ marriage 13
Low 48 Divorced/ separated / never married 5
Widowed 11
Number of children under 16
in respondent’s household
0 70 Marital status of mother
1 12 First marriage 59
2 13 2+ marriage 11
3 or more 5 Divorced/ separated / never married 5
Widowed 25
Sex of respondent
Male 46 Contact with father
Female 54 Co-resident 2
Sees weekly (not co-resident) 18
Social Class of respondent Other weekly contact 8
I and II (Professional and 36 (not face-to-face)
intermediate) Sees/contacts less frequently 9
IIIN-M (Skilled non-manual) 23 Father dead 63
IIIM (Skilled manual) 18
IV and V (Semi- and unskilled 20 Contact with mother
Co-resident 3
Unclassified 2 Sees weekly (not co-resident) 26
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202 Emily Grundy and Mike Murphy

Table 1 Sample Characteristics (cont.)

Variable Percent Variable Percent

of cases* of cases*

Marital status of respondent

Married 68 Contacts weekly (not face-to-face) 12
Cohabiting 7 Sees/contacts less frequently 11
Single 10 Mother dead 48
Divorced/ separated/ widowed 15
Father lives within 1⁄2 hour
Yes 57
Number of siblings No 43
None 9
One 27 Mother lives within 1⁄2 hour
Yes 62
Two or more 64 No 38

Lives in North or South

South 36 Help given to father
Yes 48
North 64 No 52

Help given to mother

Yes 63
No 37

Notes: based on a total of 3,212 weighted observations of respondents aged 25 and over.
Distributions are based on non-missing cases for each variable, therefore variables relat-
ing to parents exclude those without a living father/mother apart from the contact vari-


(a) Variations in kin availability

Figures 1(a) to (d) show what proportion of the sample had at least one living
parent or child; what proportion had at least weekly face-to-face contact
(including co-residence) with a parent/eldest child; and what proportion had at
least weekly contact of any kind, by age, sex and educational level. The results
have been smoothed in order to reduce fluctuations due to sampling variation.
These data are cross sectional so variations between age groups reflect differ-
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Kin Availability, Contact and Support Exchanges 203

ences between birth cohorts included in the sample, as well as age related
Figures 1 (a) and (b) show that differences between educational level groups
in the proportions with a parent alive were small, although in multivariate
analyses we found that they were statistically significant. Interaction with par-
ents varied much more substantially (these proportions refer to all respondents,
not only to those who have a living parent). Rates of face-to-face contact
between younger people and their parents were markedly lower among the bet-
ter educated. For example, about half of better-educated women and men in
their early 30s saw their parents at least once a week, compared with about
three-quarters of lower-educated women (Figures 1(a) and (b)). Variations by
age and educational level in face-to-face contact with parents were broadly sim-
ilar for sons and daughters between the ages of 30 and 45, although male rates
were typically about 10 percentage points lower and among daughters the gap
between the higher and lower educational groups was slightly greater.
Differences by educational level were smaller at older ages and indeed disappear
altogether for daughters aged 50 and over. At all ages, there was much less dif-
ference between educational level groups in proportions with at least weekly
contact of any kind (including face-to-face), although for women aged under 40
there is a noticeably higher proportion with frequent contact among those with
lower levels of education.
Turning to whether people have children and to reported contact with chil-
dren (more precisely, with the eldest child), Figures 1 (c) and (d) show that at
younger parental ages, the proportions with at least one living child are much
smaller among the better-educated. Around age 40, nearly 90% of less-educated
women reported having a living child, compared with three quarters of better-
educated women, and indeed at this age the proportion of less-educated women
who saw their eldest child at least weekly was higher than the proportion of
more highly educated women who had a child at all. Fewer men than women
reported having a child, reflecting both later ages at paternity than maternity
and probably also underreporting of paternity by estranged fathers (Rendall et
al, 1999). As for women, there was a large difference between educational
groups in the proportion of men seeing their eldest child at least weekly.
Differences between educational groups in the proportions with any kind of
weekly contact were considerably smaller than differences in the proportions
with face-to-face contact suggesting some substitution of other forms of contact
for face to face meetings among the more highly educated.
Results from a logistic regression model (not shown here) of the proportion
of respondents aged 25 and over who had a living mother/father, with and with-
out parental age at the child’s birth included, confirmed this pattern and showed
that the chance of having a parent alive, whether mother or father, was lower
for those of lower socio-economic status and for those living in the North of
Britain, reflecting socio-economic and geographic variations in mortality. The
effect of these socio-economic and geographic covariates was larger when
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204 Emily Grundy and Mike Murphy

parental age at respondent’s birth was included in the model, indicating that
older age at parenthood partially offsets the effect of lower socio-economic sta-
tus. However, as Figure 1(a) and 1(b) show, the differentials in availability of a
mother or father are not large when compared with differentials in contact with
Patterns of reported contact by parents with their children were very similar
to those reported by children with their parents; this is reassuring as it suggests
a consistent pattern of reporting of parent-child contact by both groups.

(b) Variations by other socio-economic characteristics and by partnership

status of children and parents.

In the following sections, we report analyses of variations in the proportions

with frequent face-to-face contact and in the proportions providing help of var-
ious kinds. We have chosen to focus on child to parent interaction, rather than
the converse, because of public policy concerns with the support of older people
and because most previous studies have focussed on the converse perspective.
However, differentials viewed from either generational perspective should be
broadly similar, as already evidenced in the comparative information presented
in Figure 1.

Fig 1(a) Proportions with living parent(s) and at least sees/contacts

weekly by age and education level, Males, Omnibus Survey, 1999






High education: Has parent Low education: Has parent

High education: Sees weekly Low education: Sees weekly
0 High education: Weekly contact Low education: Weekly contact

25 30 35 40 45 50 55 60

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Kin Availability, Contact and Support Exchanges 205

Fig 1(b) Proportions with living parent(s) and at least sees/contacts

weekly by age and education level, Females, Omnibus Survey, 1999






High education: Has parent Low education: Has parent

High education: Sees weekly Low education: Sees weekly
0 High education: Weekly contact Low education: Weekly contact

25 30 35 40 45 50 55 60


Fig 1(c) Proportions with living child(ren) and at least sees/contacts

weekly by age and education level, Males, Omnibus Survey, 1999






High education: Has child Low education: Has child

High education: Sees weekly Low education: Sees weekly
0 High education: Weekly contact Low education: Weekly contact

40 50 60 70 80

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206 Emily Grundy and Mike Murphy

Fig 1(d) Proportions with living child(ren) and at least sees/contacts

weekly by age and education level, Females, Omnibus Survey, 1999






High education: Has child Low education: Has child

High education: Sees weekly Low education: Sees weekly
0 High education: Weekly contact Low education: Weekly contact

40 50 60 70 80


Notes: High education includes those at or above median terminal educational age decile; Low edu-
cation includes those below the median. Sees weekly includes co-resident; weekly contact includes
all forms of contact

Table 2 shows the proportions of adult children who saw a parent at least
weekly and the proportion regularly providing help to a parent by Social Class
and region of residence of the adult child. The analysis is restricted to those with
a mother/father alive and distinguishes contact with mothers and with fathers.
We confine these analyses to respondents aged 25 and over as we wished to exam-
ine interactions between ‘independent’ adults and a large proportion of children
aged under 25 were still living in the parental home. The small proportion of chil-
dren aged 25 and over living with a parent have been excluded since the factors
that affect whether a person is still living with parents beyond age 25 are likely to
be different from those associated with seeing parents who live elsewhere
(Grundy, 2000). It can be seen that in both broad age groups considered, the pro-
portions with this level of frequent contact were lowest for children from Social
Classes I or II; among those aged 25–39, those from these social groups were also
less likely than others to be providing regular help to a parent. In both age groups,
higher proportions regularly helped mothers than fathers. Differences by broad
region of residence in proportions seeing their parent at least once a week were
quite large, with those living in the Northern parents of Britain being more likely
to have more face-to-face contact. However, regional differences in provision of
help were much smaller, especially in the older age group.
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Kin Availability, Contact and Support Exchanges 207

Table 2 Proportion of children (a) seeing weekly and (b) helping parents by Social
Class, region of residence and age group of child

(a) % sees parent (b) % helps parent

at least weekly
Mother Father Mother Father

Age 25–39
Social class
I & II 42.6 39.0 54.2 43.8
IIIN-M 64.7 55.5 64.1 45.2
IIIM 63.0 55.4 69.6 50.2
IV & V 66.4 55.9 64.4 45.2
North 61.4 53.1 61.8 47.4
South 44.8 41.0 57.0 40.6

Sample size 864 782 819 736

Age 40–54
Social class
I & II 39.0 33.1 62.7 49.7
IIIN-M 63.4 58.9 66.0 49.4
IIIM 58.5 42.3 59.1 51.0
IV & V 48.2 40.2 59.9 52.3
North 55.6 45.2 62.3 51.1
South 39.4 36.1 61.4 48.5

Sample size 579 362 559 352

Note Excludes children co-resident with parents (see text).

(c) Multivariate analyses

As there are strong associations between, for example, socio-economic and mar-
ital status, multivariate analyses are need in order to disentangle effects of each
and allow for differences in other important variables, such as age. Table 3
shows results from analyses of characteristics associated with frequent (at least
weekly) face-to-face contact with mothers/fathers by respondents with a living
mother/father. Living close to a parent is associated with a far higher chance of
frequent contact but, because an individual’s wish for contact with parents (or
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208 Emily Grundy and Mike Murphy

vice versa) may influence where they choose to live, proximity is not a wholly
exogenous variable. We therefore present two sets of models, one excluding and
one including a measure of proximity. We included respondents’ and parents’
ages in all regressions, but as we have shown the main forms of dependence on
age in Figure 1, these coefficients are not shown in Tables 3 and 4. All the covari-
ates shown in Table 1 were included in the models but coefficients for those
which were found to have little or no explanatory power (in a stepwise regres-
sion analysis) are not shown.
As Table 3 shows, the odds of frequent face-to-face contact with parents are
considerably higher for daughters than for sons. Higher levels of education and
residence in the South of Britain were associated with a lower probability of fre-
quent contact with both mothers and fathers, although these differentials were
considerably reduced when proximity was included in the model. More highly
educated groups are more mobile and more likely to gravitate to the South
(Fielding, 1993), so part of the socio-economic difference in contact is most prob-
ably associated with greater geographical distances between children and parents
consequent on long-distance mobility. This factor appears to account for most of
the difference between Northern and Southern regions also, although regional
and socio-economic effects remained significant when proximity was included in
the model. Number of siblings, especially having two or more, was negatively
associated with frequent contact. Those in Social Classes I and II (professional
and senior managerial occupations) had the lowest levels of contact among those
with an assigned social class but, as with educational level, those in the middle of
the distribution also have higher levels than those at the bottom of the distribu-
tion. Having children under 16 years (most of whom will be grandchildren of the
respondent’s parents), was associated with higher levels of contact.
Parental marital status was clearly associated with differences in contact;
those whose parents were divorced, separated or—in a small number of cases—
never-married had considerably lower odds of frequent contact than those
whose parents remained in first marriage; re-marriage of a parent was also asso-
ciated with much lower levels of contact. Thus children of fathers who were
remarried had the lowest odds of seeing him frequently (for the model exclud-
ing proximity, odds ratio 0.24, 95% confidence interval 0.16–0.35). The effect of
mother’s remarriage was much smaller (odds ratio 0.80, 95% confidence inter-
val 0.58–1.10). Children of widows, on the other hand, had similar odds of see-
ing her at least weekly as children of mothers in their first marriage. Children of
widowers, however, had rather lower odds of frequent contact in comparison
with children of fathers in first marriage, suggesting that part of the higher lev-
els of contact between children and their married fathers is a by-product of their
contact with their mothers. The effect of the child’s own marital status on the
incidence of frequent face-to-face contact is much weaker and only statistically
significant in the excluding-proximity model for contact with fathers, where
those who were married were the least likely to have contact. This suggests
asymmetry in the role of marital status and history of parents and children on
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Kin Availability, Contact and Support Exchanges 209

Table 3 Odds ratios from logistic regression analysis of variations in the proportion of
adult children with frequent face-to-face contact with parents

Excluding proximity Including proximity

Sees mother Sees father Sees mother Sees father
weekly weekly weekly weekly

(Intercept) 0.274*** 0.162*** 0.037*** 0.029***

Respondent female (ref. male) 1.270** 1.530 1.980*** 2.790***
Number of children under 16 in
respondent’s household – 1.180** – –
High (ref.) 1.000 1.000 1.000 1.000
Medium 2.600*** 2.900*** 1.670*** 1.980***
Low 2.320*** 3.100*** 1.350 1.510
Parental marital history
First marriage (ref.) 1.000 1.000 – 1.000
2+ marriage 0.797 0.238*** – 0.239***
Divorced/ separated/ never married 0.572** 0.274*** – 0.360***
Widowed 1.010 0.692 – 0.804
Lives in North (ref. South) 1.890*** 1.700*** .600*** 1.460**

No. of siblings
None (ref.) 1.000 1.000 1.000 1.000
One 0.867 0.830 1.000 0.901
Two or more 0.604** 0.589* 0.715 0.675
Marital status of respondent
Married (ref.) – 1.000 – –
Cohabiting – 1.480* – –
Divorced/ separated/ widowed – 1.290 – –
Single – 1.550* – –
Social class
I and II (ref.) 1.000 1.000 1.000 1.000
IIIN–M 1.870*** 1.730*** 1.590** 1.500*
IIIM 1.940*** 1.640** 1.630** 1.540*
IV,V 1.460** 1.320 1.260 0.972
Unclassified 0.637 0.737 0.568 1.170
Lives near parent – – 23.200*** 26.000***

Note: *** significant at 1% level; ** significant at 5% level; * significant at 10% level.

Contact is defined as seeing the parent at least weekly by non-co resident respondent. We
use a logistic regression to model the odds of such contact as opposed to less frequent con-
tact with a living parent. The full set of covariates included in the models is shown in Table
1, apart from the help variables. Analyses are based on 1,495 respondents with living moth-
ers and 1,134 respondents with living fathers for whom full information was available.
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210 Emily Grundy and Mike Murphy

intergenerational contact. The magnitude of the coefficients for the proximity

variable is generally much larger than that of other coefficients, reflecting its
important influence on face-to-face contact.
The second indicator of intergenerational solidarity that we consider is help
given to non co-resident parents by children aged 25 and over which we
analysed using a similar framework to that used in the analysis of contact. As
before, we present models with and without the indicator of proximity.
Looking first at differences by gender and marital status of parents and chil-
dren, Table 4 shows that daughters were no more likely than sons to provide
help to mothers, but they were more likely than sons to help fathers. Children
of widowed parents were generally more likely to provide help than children of
those remaining in first marriage. Interestingly, children were more likely to
help mothers who were divorced, separated or never married even though, as
shown in Table 3, these maternal characteristics were negatively associated with
frequent contact. Children of fathers with disrupted marriages or who had
remarried, by contrast, were considerably less likely to provide help to their
fathers. This probably reflects the fact that some divorced fathers may have had
very reduced, or even no contact, with their children while they were growing
up, whereas divorced mothers more often bring up the children. Children of
remarried parents—both mothers and fathers—were the least likely to provide
help to them. It is noteworthy that, in contrast to parents’ marital status, in
these models there was no statistically significant association between the mar-
ital status of the child and help given to parents.
Children with medium or lower levels of education were more likely to help
their parents than their highly educated counterparts. Social class effects were
generally small as was the effect of number of siblings.
The largest effects are those associated with proximity, and the inclusion of
this leads to the educational level variable becoming non-significant. The odds
of a child giving help are increased substantially when the parents live close by
(even though some of the types of assistance included do not require face to face
contact), typically increasing the odds by a factor of four or five.


The analyses presented in this paper represent a major addition to our know-
ledge of kin availability and kin contact in Britain, particularly contact and sup-
port exchanges between adult children and their parents, which, as discussed
earlier, has been highly constrained by lack of suitable data. No previous
nationally representative study has examined the role of both parental and
child’s marital status and history.
Our results show differences by educational status in availability of parents/
children and, in common with analyses of other European and US datasets, large
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Kin Availability, Contact and Support Exchanges 211

Table 4 Odds ratios from logistic regression analysis of variations in the proportion of
adult children providing regular help to parents
Excluding proximity Including proximity
Provides help Provides help Provides help Provides help
to mother to father to mother to father

(Intercept) 1.320 0.458** 0.914 0.366***

Respondent female (ref. male) 0.929 1.470* 0.920 1.580**
High (ref.) 1.000 1.000 – –
Medium 1.520*** 1.480** – –
Low 1.230 1.750** – –
Parental marital history
First marriage (ref.) 1.000 1.000 1.000 1.000
2+ marriage 0.827 0.453*** 0.826 0.530***
Divorced/ separated/
never married 1.370 0.541** 1.810** 0.693
Widowed 1.550*** 1.390 1.570*** 1.590*
Lives in North (ref. South) – 1.300** 0.819 –

None (ref.) – 1.000 1.000 1.000
One – 0.778 – 0.830
Two or more – 0.998 – 1.140
Social class (ref I and II)
I and II (ref.) 1.000 1.000 1.000 1.000
IIIN–M 1.200 0.871 0.966 0.745
IIIM 1.120 1.160 0.882 1.050
IV,V 0.968 0.897 0.789 0.788
Unclassified 0.303*** 0.238** 0.266*** 0.262**
Lives near parent – – 5.160*** 3.840***

Note: *** significant at 1% level; ** significant at 5% level; * significant at 10% level.

The full set of covariates included in the models is shown in Table 1, apart from the con-
tact variables. Analyses are based on 1,430 respondents with living mothers and 1,080
respondents with living fathers for whom full information was available.

differences by socio-economic status and by marital characteristics of both child

and parent in indicators of intergenerational exchange. Variations in having a liv-
ing parent were relatively slight, in part because of the offsetting effects of lower
mortality risks but older age at parenthood among the parents of more highly
educated offspring who, because of intergenerational continuities in socio-
economic status, are likely to themselves be of above average educational status.
Differentials in having children show more variation by educational status.
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212 Emily Grundy and Mike Murphy

Variations in frequent contact and provision of help by socio-economic sta-

tus were marked and in the expected direction. We also found differences by the
marital characteristics of respondents and their parents, interestingly in some
cases operating in different directions. Thus children were less likely to meet
parents frequently or regularly help them if the parent had a disrupted or ‘non
standard’ marital history; this particularly applied to exchanges with fathers,
but was more likely to do so if their own marital history was ‘non standard’. In
common with some other studies (Greenwell and Bengtson, 1997; Roan and
Raley, 1996) we found that having a larger number of siblings was associated
with a lower chance of frequent contact with a parent, and some variations in
the association between sibship size and provision of help suggest a greater com-
mitment by only children.
In this chapter we have focussed on ‘everyday’ types of contact and help pro-
vision and we did not collect data on disability or receipt or provision of care (to
do so would have required a much larger or more targeted sample).
Nevertheless our results have some implications for policy makers concerned
with the availability of family care for older people with support needs. On the
positive side they show high levels of contact and interaction between adult chil-
dren and parents and suggest that children’s divorce does not necessarily disrupt
this. Less positively, our results confirm that in Britain, as in the USA and
elsewhere, parental divorce does have a disruptive effect on exchanges between
fathers and their adult children, and the proportion of parents who have expe-
rienced marital disruption is increasing. Among more highly educated women,
those who attain the age of 60 in the next two decades will include a higher
proportion of childless women than is the case now and for those who do have
children, higher levels of education are associated with reduced interaction.
Given that the educational level of the population is increasing, this also sug-
gests a possible decline in some of the types of exchange we have examined,
although educational differences in the proportions with frequent contact of
any kind were generally slight, suggesting some substitution of telephone and e-
mail contacts for face-to-face meetings. However, higher levels of education
may also confer more opportunities for older people, as well as their children,
to widen networks beyond the sphere of close family and greater resources,
including personal coping strategies, on which to draw for help if needed. There
are a number of limitations to this study, including relatively small sample size
and absence of information on health status; on changes in interaction patterns
over the life course or between time periods. Nevertheless we hope that it will
provide a benchmark for future work and promote more research on a topic
which although recognised to be important, has been rather neglected in recent
British research.
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Kin Availability, Contact and Support Exchanges 213


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Maintenance of the Elderly: Legal
Signalling—Kinship and State

N ITS RECENT Green Paper, Confronting demographic change: a new
solidarity between the generations, the European Commission (2005) recog-
nised that in the light of changing demographic patterns—including greater
longevity, low birth rates, later parenthood, the changing role of women and
high divorce rates—families will not be able to continue to support the elderly
to the extent that they have historically. Socio-demographic and socio-
economic trends are discussed elsewhere in this book (Grundy and Murphy, this
volume). The present chapter focuses on the legal issues involved; it examines
the extent to which, and basis upon which, the elderly have rights to receive
maintenance, the allocation of the legal burden of support between family and
State, and the broader significance of alternative legal regimes.


Although traditionally almost totally ignored by the law (and certainly by

family law commentators)1 recent years have seen a growing appreciation of the
difficulties faced by some of our older citizens and the introduction of laws
specifically targeted at meeting their needs. At the international level, the
European Convention on Human Rights (ECHR) does not include any provi-
sion that deals specifically with the support rights of the elderly, but there are
various other international texts that do, including the Charter of Fundamental
Rights of the European Union, the revised European Social Charter and the
Community Charter of the Fundamental Social Rights of Workers. The status
of these instruments is non-binding—they are ‘soft’ law and, as such, have
moral or persuasive value, but are non-justiciable in the sense that they do not

1 There are exceptions—eg, ‘Legal aspects of an ageing world’ were discussed at the Sixth World

Conference of the International Society of Family Law in Tokyo in 1988 See Eekelaar and Pearl
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218 Mika Oldham

create any freestanding obligations directly enforceable by a person claiming a

breach of his or her rights. They may be relevant, however, and certainly then
justiciable, in cases involving the interpretation of treaties or legislation, or in
cases involving arguments for the existence of a rule of customary international
law.2 So, for example, in Goodwin v. United Kingdom 3 the European Court of
Human Rights found the UK’s refusal to accord legal recognition to the changed
gender of post-operative transsexuals to amount to a breach of Articles 8 and 12
of the ECHR. The Court included among its reasons the fact that, in omitting
from the right to marry any reference to men and women, Article 9 of the
European Charter of Fundamental Rights ‘no doubt deliberately’ departed from
the wording of Article 12 of the ECHR.
At the domestic level, in appropriate cases, the courts are increasingly willing
to draw upon international law, including ‘soft’ law4, and it may be possible to
argue that a provision from a non-binding international instrument has become
directly enforceable in the national courts through its implicit incorporation
into a binding treaty.5 So even ‘soft’ rights may be useful to individual
claimants, provided, of course, that those rights are sufficiently substantial in

(a) The European Charter of Fundamental Rights

The first of the three relevant international texts is the European Charter of
Fundamental Rights, which was to have been given binding effect by its incor-
poration into the European Constitution. Article 25 of the Charter recognises
and respects the rights of the elderly to ‘lead a life of dignity and independence
and to participate in social and cultural life’.6 It sounds like something we would
all wish for the elderly, but how does it stack up as a right? What do we mean
by ‘independence’? For the Shorter Oxford English Dictionary, independence is
‘exemption from external control or support’. But unless we are suggesting that
all elderly people will have large amounts of capital at their disposal and will
enjoy absolute good health until the moment they die, independence in this

2 See R (on the application of European Roma Rights Centre) v. Immigration Officer, Prague

Airport [2005] 2 AC 1 per Lord Steyn at para. 46, finding that the proclamation against discrimina-
tion contained in article 2 of the 1948 Universal Declaration of Human Rights now had the force of
a binding rule: ‘The moral norm has ripened into a rule of customary international law.’
3 [2002] 2 FCR 577.
4 See, eg, White v Taylor [2004] EWCA Civ 1511 where Arden LJ in CA cited the Charter of

Fundamental Rights to help explain the exception to normal causation rules in a medical negligence
case and the non-applicability of that exception to a professional negligence case; R v City of
Wakefield Metropolitan Council and the Home Secretary, Ex parte Robertson [2001] EWHC
(Admin) 915; R v Secretary of State for the Home Department, ex parte Howard League for Penal
Reform [2002] EWHC (Admin) 2497.
5 See Coppard v Customs and Excise Commissioners [2003] 3 All ER 351 (CA) per Sedley LJ at

para. 38.
6 An identical provision is included in the draft European Constitution, Article II-85.
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Maintenance of the Elderly 219

OED sense is simply not possible. Paradoxically, therefore, the right of the
elderly to ‘lead a life of dignity and independence’ must mean, not a right to
exemption from external support, but a right to receive external support. It is
Article 25’s failure to spell out any right to external support, much less on whom
such a support obligation falls, that relegates it to the category of little more
than political rhetoric. Perhaps, though, some flesh may be added to the bones
of Article 25 by a further provision, Article 34. Article 34, entitled ‘Social secur-
ity and social assistance’, recognises and respects the entitlement to social secur-
ity benefit and social services in a range of cases, including old age, ‘in
accordance with the procedures laid down by Community law and national
laws and practices’. The inclusion of a reference to ‘national laws’ no doubt
made it possible for states to agree to the Charter, which, in the now unlikely
event that the Constitution comes into force, will be converted into binding law.
Unfortunately, however, the reference to ‘national laws’ also has the effect of
reducing the right that is recognised to nothing more than already exists at
national level.7
Two other international charters, neither of which has been ratified by the
United Kingdom, are more specific on the rights of the elderly, but perhaps not
hugely more useful even for the older citizens of those countries that have ratified.

(b) The revised European Social Charter

Article 23 of the revised European Social Charter 8 provides as follows:

‘The right of elderly persons to social protection: With a view to ensuring the effective
exercise of the right of elderly persons to social protection, the Parties undertake to
adopt or encourage, either directly or in co-operation with public or private organisa-
tions, appropriate measures designed in particular:
— to enable elderly persons to remain full members of society for as long as possible,
by means of:
a. adequate resources enabling them to lead a decent life and play an active part in
public, social and cultural life;
b. provision of information about services and facilities available for elderly
persons and their opportunities to make use of them;

7 The UK government took the view that the Charter of Fundamental Rights was ‘a non-justi-

ciable Charter which makes existing rights more visible’: HC Deb, 24 January 2000, c3W. For an
interesting look at the opinions of the different states on the status of the Charter, see House of
Commons Research Paper, Human Rights in the EU: the Charter of Fundamental Rights Research
Paper 00/32, 20 March 2000.
8 Article 23 reproduces Article 4 of the 1988 Protocol to the 1961 European Social Charter. The

United Kingdom ratified the Charter, but not the 1988 Protocol.
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220 Mika Oldham

— to enable elderly persons to choose their life-style freely and to lead independent
lives in their familiar surroundings for as long as they wish and are able, by means
a. provision of housing suited to their needs and their state of health or of adequate
support for adapting their housing;
b. the health care and the services necessitated by their state;
— to guarantee elderly persons living in institutions appropriate support, while
respecting their privacy, and participation in decisions concerning living conditions
in the institution’.

Article 23 focuses clearly on the provision of financial and other support and,
by comparison with Article 25 is admirable in its specific references to, and
inclusion of, not only the resources, housing and health needs of the elderly, but
also the important need to respect their autonomy. Unfortunately, however,
ratifying states undertake to do nothing more than ‘adopt or encourage’ appro-
priate measures. The majority of European states, including the UK, operate
systems of welfare pluralism, in which welfare services are provided by a num-
ber of different agencies, including both voluntary and private bodies (Oldham,
2001). In order to guarantee the rights proclaimed, Article 23 would have had to
be drafted so as to impose on signatories a duty to ‘adopt or require’ appropri-
ate measures to be put in place. Where welfare services are provided by the
State, Article 23 may indeed have the effect of setting standards that should
safeguard the quality of life of elderly people. The same cannot be said where
welfare services are provided by other agencies because, of course, mere encour-
agement may fail to persuade.

(c) The Community Charter of the Fundamental Social Rights of Workers

The third international instrument that specifically addresses the rights of the
elderly is the Community Charter of the Fundamental Social Rights of Workers,
which includes the following provisions:

‘Elderly persons: According to the arrangements applying in each country:

24. Every worker of the European Community must, at the time of retirement, be
able to enjoy resources affording him or her a decent standard of living.
25. Every person who has reached retirement age but who is not entitled to a pen-
sion or who does not have other means of subsistence, must be entitled to sufficient
resources and to medical and social assistance specifically suited to his needs.’

This Charter, adopted in 1989 by eleven Member States, is again non-binding,

and as with Article 34 of the Charter of Fundamental Rights, qualifies the ‘soft’
rights proclaimed in respect of elderly people by reference to ‘the arrangements
applying in each country’.
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Maintenance of the Elderly 221

(d) Legal signalling and human rights

It is no doubt more difficult to persuade states to become signatories to agree-

ments that proclaim economic and social rights than it is to proclamations of
civil and political rights. The implementation of economic and social rights
involves much larger potential financial commitments;9 moreover, differing
cultural, economic and political backgrounds make close agreement almost
impossible to achieve. Perhaps inevitably, therefore, provisions become watered
down and vague—as with Article 25 of the Charter of Fundamental Rights; or
qualified by reference to national laws—as with Article 34 of the same text and
Articles 24 and 25 of the Charter of the Fundamental Social Rights of Workers.
But that is not to say that, even in such a ‘dilute’ form, these provisions are with-
out importance.
There is no doubt that the ECHR—through the Human Rights Act 1998—is
changing the face of English law, some of the key benefits being the provision of
new protections and remedies for individual claimants and the acceleration of
the pace of law reform in England.10 Although the Convention fails explicitly to
address the rights of the elderly, it enunciates rights and freedoms that may pro-
vide at least a starting-point for dealing with problems such as ageism.11
Even non-binding or declaratory texts may help to shape law reform, for
example, when used as an aid to interpretation or in the framing of new legisla-
tion, or if they eventually ripen into rules of customary international law—as in
the recent Roma Rights case.12 For the government, declaratory texts serve an
important function in terms of enhanced visibility for the general public,
through the creation of ‘a showcase of existing rights’.13 For many, the aim is
the development of a new culture of human rights.14 In terms of legal signalling,
such texts may indeed convey strong messages—to states, about the standards
to which they should aspire, and to individuals, about the treatment they should
expect. But there is also a further signal, which operates through the very dis-
course of rights. As Mance LJ recently commented, ‘international thinking and
jurisprudence have over the last half century moved beyond the narrow view
that international law is solely concerned with, or enforceable by, states.’15 This

Socio-economic rights will affect and be asserted by many more people than assert a breach of
a civil or political right. See further, Beirne (2005).
10 Legislation such as the Gender Recognition Act 2004 and the Civil Partnership Act 2004 might

eventually have been introduced, but almost certainly not as quickly.

11 Article 14 (Discrimination) does not prohibit discrimination based on age, but the European

Directive on Equal Treatment (Council Dir 2000/78/EC) will ban age discrimination by 2006, at least
in employment and training. Much more, of course, is needed.
12 [2005] 2 AC 1 and see ante.
13 HL Select Cttee on the EU, Eighth Report, May 2000 (per Mr Vaz).
14 Advocate General Frances Jacobs: ‘There will be a new orientation, a new culture as it is some-

times put, of human rights.’ See generally contributions in Harvey (ed)(2005).

15 Jones v Ministry of the Interior Al-Mamlaka Al-Arabiya as Sudiya and another; Mitchell and

others v Al-Dali and other [2004] EWCA Civ 1394 per Mance LJ at para. 80.
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222 Mika Oldham

development, which has resulted in the recognition of human rights enforceable

by individuals, perhaps inevitably also has the effect of relegating into a sub-
sidiary role more communitarian values such as social or family cohesion. The
new emphasis on the individual rather than the community exacerbates rather
than resolves problems, such as the isolation experienced by many elderly
people and the tendency to exclude our older citizens from the wider commu-
nity and their families.16 Communitarian theorists have long called for more
emphasis on the community to counterbalance what they see as unhealthy lev-
els of individualism. From their perspective, adults in families have been able to
pursue their own interests at the expense of their responsibilities towards depen-
dent family members such as the very young and the very old (e.g., Sjoberg et al
(1995): ‘the common good of the community should take precedence over self
interested autonomous individuals’).
To whatever extent the ‘soft’ rights outlined above recognise, or encourage,
a right to support for the elderly, the vital question, which is not addressed
within the international texts themselves, is that of where the correlative sup-
port obligation falls—who is to bear the burden of dependence?


In England, we have seen in recent years a number of legislative initiatives

designed to protect the elderly. Part I of the Care Standards Act 2000 established
the National Care Standards Commission, an independent regulatory body for
social care and private and voluntary health care services in England.17 The
Mental Capacity Act 2005 goes some way to safeguarding the autonomy of the
elderly by creating a presumption of capacity18 and by providing, inter alia, that
a lack of capacity cannot be established merely by reference to a person’s age,
appearance, or a condition that might lead others to make unjustified assump-
tions about his or her capacity. Further, increased awareness of problems such
as elder abuse have resulted in the creation of new criminal offences.19
But as far as family law is concerned, it is interesting that at a time when the
law is evolving to confer ‘family’ rights on non-traditional social groupings such
as cohabitants, homosexuals and transsexuals (see Bainham, this volume), fam-
ily law continues to focus on the nuclear model and to exclude the older gener-
ation from its ambit. In some areas, indeed, rights have been withdrawn—for
example, grandparents used to have automatic standing to apply for access to a
grandchild, but since the coming into force of the Children Act 1989, they must

16 On the isolation of the elderly, see Oldham (2001), pp129, 134.

17 In Wales the National Assembly undertakes this regulatory function.
18 Mental Capacity Act 2005, s.1.
19 See, e.g., Domestic Violence, Crime and Victims Act 2004, s.5.
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Maintenance of the Elderly 223

obtain leave to apply.20 In terms of legal signalling, it becomes increasingly

difficult to see the legal position of the elderly as part of family law rather than
social welfare law. The law is increasingly recognising and attempting to
address the problems of the elderly, but is doing so in a manner that reinforces
cultural trends towards excluding them from the family. This tendency is
evident in our laws governing the maintenance of the elderly, which differ
markedly from those that obtain in other jurisdictions.


Before the repeal of the Poor Laws in 1948,21 there existed in England a legal
obligation to support certain indigent relatives. Section 14 of the Poor Law Act
1930 imposed a duty on ‘the father, grandfather, mother, grandmother, hus-
band or child, of a poor, old, blind, lame or impotent person, or other poor per-
son not able to work, if possessed of sufficient means, to relieve and maintain
that person.’22 With the creation of the welfare state in 1948, this support oblig-
ation was replaced by a much more restricted duty, to support one’s spouse and
one’s minor children.23 The result is that present-day English law imposes no fil-
ial support obligation whatsoever. We are free to refuse to render any form of
assistance to our parents or grandparents, regardless of their, or our own,
circumstances. Support for the elderly is considered to fall within the realm of
public rather than private intergenerational transfer.
By contrast with the English position, many other jurisdictions impose a pri-
vate law obligation to maintain a broad range of relatives, at least where those
relatives find themselves in urgent financial need. Most civil law jurisdictions
impose such a duty, but it also exists in other common law jurisdictions, includ-
ing many US states24 (see Wise, 2002, p574) and Canadian provinces and
territories (see Bala and Bromwich, 2002). The duty is based on the principle
that there exists a legal as well as a moral obligation to assist certain relatives in
need. The range of relatives varies—in France, for example, the duty applies in
respect of all direct ascendants and descendants,25 parents-in-law, and sons- and

20 Children Act 1989, s.10. Leave will generally be granted: Re J (Leave to Issue Application for

Residence Order) [2003] 1 FLR 114 (CA).

21 National Assistance Act 1948, s.62(3), Sch. 7.
22 Section 14(1). Sons and married women with separate property bore this duty indefinitely, but

because of the legal disabilities of married women under the doctrine of conjugal unity, the duty
imposed on daughters generally ended when they married.
23 Section 42 (still in force). With certain exceptions, financial support obligations in respect of

children do not extend beyond the child’s eighteenth birthday: Child Support Act 1991, s.55;
Matrimonial Causes Act 1973, s.29(1), (3); Domestic Proceedings and Magistrates’ Courts Act 1978,
s.5; Children Act 1989, s.15(1), Sch. 1, paras. 2, 3.
24 In 2005, some thirty US states have filial support laws.
25 Articles 205, 207.
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224 Mika Oldham

daughters-in-law;26 in Bulgaria, it extends to step-parents.27 Many western

jurisdictions impose a duty between siblings,28 but not between those related by
marriage.29 The Quebec code imposes a duty in respect of spouses and ascen-
dants and descendants, without any restriction as to degree.30
The private support obligations of other jurisdictions also differ in further
respects. So, for example, the French duty is reciprocal, but ‘secondary’ in two
respects. First, it applies only to the extent that the claimant’s parents are unable
to provide the necessary support, and second, the duties to support one’s chil-
dren31 and spouse32 take priority over any other duty to maintain. The French
Code Civil is silent as to which relative should be pursued for maintenance and
the Cour de Cassation has refused to imply a fixed order of priority by reference
to the order that applies in the law of succession.33 Despite academic criti-
cisms,34 a claimant is not required to bring an action against several liable rela-
tives or to pursue relatives in any particular order and the courts do not
apportion or limit liability because of the existence of any other potential
payer(s).35 By contrast, the German BGB includes a hierarchical classification of
liable relatives comparable to that contained in the German law of succession.36
A spouse is liable before any other relative, unless he or she cannot meet the
obligation without jeopardising his or her own maintenance. Descendants are
liable before ascendants, and the proximity of degree is taken into account in
determining responsibility within any category.
As regards the substance and form of the duty to maintain, the level of sup-
port required is generally less extensive than that which is imposed in respect of
the duty to maintain a spouse or child. It may, however, extend to food, cloth-
ing, housing, utilities, institutional care costs, medical and even funeral
expenses.37 It may be restricted to financial obligations, or include benefits in
kind—for example, where a liable relative brings an elderly parent to live in his
or her home. In some jurisdictions, public authorities have a right of action
against a liable relative in respect of services and care provided to a person to

26 Article 206. In practice, it is possible for an indirect financial liability to apply: see further,

Oldham, 2001, p 143.

27 1985 Family Code of Bulgaria, Art. 69. See further, Todorova(2005). .
28 See, eg, Italian Civil Code, arts. 433, 439. By contrast, no such duty exists under German law.
29 See, eg, Spanish Civil Code, art. 143–2; Swiss Civil Code, art. 328. Cp. Italian Civil Code, art.

433, imposing a duty to support in-laws similar to that which applies in France.
30 Article 594.
31 Article 203.
32 Cour Montpellier, 9 janv. 1952, d. 1952, Som. 25; Cour Paris, 20 mars, 1952, D. 1952, Som. 73.
33 Epoux Giraud, civ. 2 janv. 1929, D.P. 1929, 1, 137, note Savatier.
34 See, eg, Carbonnier, 1998, pp.384, 390.
35 Civ. 1e, 5 fev. 1991, Bull. civ. 1, no.43.
36 § 1606, 1608. See also Italian Civil Code, arts. 433 et seq., 441–442.
37 See further, Oldham (2001), pp145, 161.
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Maintenance of the Elderly 225

whom a duty to maintain is owed;38 in others, such reimbursement is not

A different approach is adopted in some American states, where the filial sup-
port obligation is enforced through the criminal rather than the civil law. For
example, Ohio’s Revised Criminal Code provides that ‘No person shall aban-
don, or fail to provide adequate support to . . . [t]he person’s aged or infirm par-
ent or adoptive parent, who from lack of ability and means is unable to provide
adequately for the parent’s own support.’40 In State v Flontek 41 the Supreme
Court of Ohio held that the prohibition applies to financial support but does not
extend to other support such as care, feeding and medical attention.
Despite the differences in the particulars of the filial support laws, what these
jurisdictions have in common, in contrast to England, is the establishment of a
much more highly developed sense of family responsibility than exists in English
law. In theory at least, the family is the first line of support and the State inter-
venes only when private intergenerational support fails. ‘In theory’, because
there is a tendency in many countries not to enforce strictly the filial support
obligation (Wise 2002)42 and some commentators have argued in favour of its
abolition (Brinig, 2005) or for a reduction in the range of relatives to whom the
duty attaches (Bala and Bromwich, 2002). And there may well be good reasons
for not enforcing strictly the duty to maintain. Research suggests that the major-
ity of elderly people do not wish to become dependant on their children (Wise,
2002) and there is of course a real risk of straining or rupturing the parent/child
relationship.43 But the existence of the obligation creates a legal tie that, in terms
of signalling, locates the older generation firmly within the family.

In France, for example, certain social services agencies are able to reclaim from a liable rela-
tive expenses that would normally fall within the ambit of the duty to maintain. See Carbonnier,
1998, 381. For arguments for and against the abolition of the reimbursement powers in Belgium, see
Van Houtte and Breda (2005), 243.
In Canada, for example, there is no provision by which the state can reclaim from a liable rela-
tive monies spent on benefits provided to anyone other than a spouse or minor child: see further,
Bala and Bromwich, (2002).
§ 2919.21. It is a defence that the adult child was unable to provide adequate support or that
the parent abandoned the child during the latter’s minority (§ 2919.21(D), (E)). See also California
Penal Code, §270c.; Ky. Rev. Stat. Ann. § 530.050(5)–(6) (nonsupport as class A misdemeanor, and
flagrant nonsupport as Class D felony); N.C. Gen. Stat. Ann. § 14–326.1 (deeming failure to support
to be Class 1 misdemeanor); Mass. Gen. Laws Ann. ch. 273, § 20 (West 2000) (providing for fine of
up to $200 or imprisonment for up to one year); Miss. Code Ann. § 43–31–25 (1999) (imposing fine
of $150 per month or partial month of nonsupport); Vt. Stat. Ann. tit. 15 § 202 (1989) (providing for
fine of up to $300 and/or imprisonment for up to two years). Twelve states specify a criminal penalty
for filial nonsupport.
41 (1998), 82 Ohio St.3d 10 (daughter, with whom mother lived, found not guilty of this offence

when mother died of severe but preventable medical problems, because daughter had provided ade-
quate financial support). A different offence in § 2903.16 prohibits the caretaker of a functionally
impaired person from knowingly or recklessly failing to provide treatment, care, goods, or service
necessary to maintain the health or safety of the person. There are no reported cases of prosecutions
under this section involving failure to support a parent.
42 Note: eleven US states have filial support laws that have never been invoked.
43 See further post, p 229–230.
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226 Mika Oldham

In England, by contrast, with the exception of the duty to maintain minor

children, there is no legally enforceable private intergenerational support
obligation. In practice, of course, the absence in English law of a legal duty to
maintain does not mean that people here do not support their ageing parents or
other relatives. Many do, both financially and in the provision of informal care.
And the fact that the legal obligation falls on the State does not inhibit succes-
sive governments from encouraging private support. Implicit—indeed often
explicit—in this encouragement is the message that public provision is needed
because families have ‘failed’ to fulfil a duty that in fact falls on the State.


The absence in the UK of a private law duty to support ascendants does not
mean there is no filial support obligation—rather that it is implemented through
public intergenerational transfer rather than through private transfer. Thus, for
example, welfare benefits and treatment under the NHS are based on a general
principle of collective responsibility and are funded out of general taxation.
Contrary to popular belief, this intergenerational transfer occurs even as regards
State pensions, which operate on a ‘pay as you go’ rather than a funded basis, so
that the contributions of the current workforce provide the basic pensions of the
current retired population (see Oldham, 2001). But even disregarding questions
about present underfunding, if—as indeed is the case in the UK and many other
countries—the community is not prepared to underwrite the ever-growing cost
of a full system of universal welfare benefits,44 some means must be found of
sharing the burden between public and private sectors. Against this background
of public cost containment, a range of arguments can be advanced both for, and
against, the imposition of a private filial support obligation.

(a) Reciprocity

Theories that justify the imposition of a private law duty on the grounds of rec-
iprocity are far from new. Blackstone (1765), in his Commentaries on the Laws
of England, describes the duty in the following terms:

‘The duties of children to their parents arise from a principle of natural justice and
retribution. For to those, who gave us existence, we naturally owe subjection and

44 Evidence presented to the Royal Commission on Long Term Care suggested that the public

believed that long-term care should be funded totally by the state, but this view was based on
scepticism about suggestions that the state could not afford to underwrite the cost and the view that
resources should if necessary be diverted from other areas of expenditure so that the overall tax bur-
den did not rise: Royal Commission (b), p.242. See further, Oldham (2001), pp129, 168.
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Maintenance of the Elderly 227

obedience during our minority, and honour and reverence ever after; they, who pro-
tected the weakness of our infancy, are entitled to our protection in the infirmity of
their age; they who by sustenance and education have enabled their offspring to pros-
per, ought in return to be supported by that offspring, in case they stand in need of
assistance. Upon this principle proceed all the duties of children to their parents,
which are enjoined by positive laws.’ (Book 1, Chapter 16)

But Blackstone’s explanation—in terms of support of the elderly in return for

support and sustenance given during the infancy of the now adult children—
becomes less convincing when he later explains that the duty is not affected by
the misconduct of the parent. Children were

‘equally compellable, if of sufficient ability, to maintain and provide for a wicked and
unnatural progenitor, as for one who has shewn the greatest tenderness and parental
piety.’(Book 1, Chapter 16)45

Today, however, most modern laws that impose a filial support obligation
also incorporate provisions under which the duty may be reduced, or even
totally extinguished, in cases of serious misconduct by the claimant.46 Some
commentators have argued that reciprocity cannot justify the imposition on
adult children of a duty to support their ageing parents, since not only did the
children not choose to be born, but at the time they received their parents’ sup-
port they were not autonomous and therefore did not freely concur in the
implicit bargain (Epstein, 1992).

(b) Law and economics: theories of ‘capital investment’ in children

A modern-day variation on Blackstone’s reciprocity is that the imposition of a

filial duty to provide for elderly parents can be explained or justified in terms of
human capital investments in children. According to this theory, in simple
terms, the investments made by parents in their minor children are motivated in
part by the expectation or hope of support in old age (see further Posner, 1996;
Brinig, 1994; Wise, 2002). If this theory holds true,47 there will be less investment
in children in societies in which elderly people tend to live alone or where there
is significant State provision for the elderly. The logical conclusion would be

45 The only exception was ‘spurious issue’, or illegitimate children, on whom there fell no duty

to support their parents.

46 See, eg, French Code Civil, art. 207 (This provides that there is judicial discretion to reduce/

discharge liability where conduct by the claimant amounts to serious failure to meet his or her
obligations towards the payer); German BGB, § 1611 (Voluntary misconduct or grave prejudice
towards the plaintiff or his/her close relative reduces liability to what is equitable; ‘gross injustice’
extinguishes the duty altogether); Italian Civil Code, art. 440.
47 Brinig’s research suggests that this pattern is in fact evident, although she acknowledges that

cultural factors such as reverence for the aged, or religion, could have the same effect: Brinig (1994),
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228 Mika Oldham

that in order to maximise parental investment in children, State provision for

the elderly should be limited.

(c) Reciprocity, capital investment, maintenance and succession

Closely related to both reciprocity and theories of human capital investment is

the relationship between a filial support obligation and the laws of succession.
Many jurisdictions restrict a testator’s freedom to dispose of his or her property
by prohibiting alienation, either inter vivos or by will, of a ‘reserve’ or portion
of the estate, which is distributed among certain relatives after the death of
the property owner. The schemes of priority do not correspond exactly with the
duties to maintain that are imposed during life, and as with maintenance, the
range of relatives who benefit from the reserve varies somewhat between juris-
dictions (Oldham, 2001). But viewed in a wider context, the burden of main-
tenance is balanced or offset by correlative succession rights.48 And in terms of
legal signalling, both areas encourage the assumption of responsibility for the
well-being of family members extending beyond the narrow, nuclear group.
In English law, too, it is possible to discern a sense of reciprocity or balance—
albeit one that sends out a very different signal—because alongside our absence
of any private law duty to provide filial support, there exists a fundamental prin-
ciple of absolute freedom of testation. Although the majority of people do in
fact leave the entirety, or at least the bulk, of their estates to family members,
they are not required to do so. The principle of freedom of testation is tempered
by the courts’ discretionary jurisdiction to make awards out of a deceased’s
estate in favour of specific categories of applicant,49 but an application by an
elderly parent may be brought only if he or she can demonstrate that he or she
was ‘dependant’ on the deceased child.50 So whereas in many jurisdictions there
exists a form of positive statutory reciprocity in the interrelationship of main-
tenance duties and correlative succession rights, what we have here is a very
different, and negative, balance that equates to ‘no duty to maintain, no right to
inherit’. In England, any positive reciprocity must operate at the level of volun-
tary support in the expectation or hope of future inheritance.51
From a law and economics perspective, it is possible to analyse the relation-
ship between maintenance and succession in terms of collateral—that is, where
elderly parents have property that the younger generation wants, that property
acts as collateral to induce the children to please their parents (Posner, 1996;
48 Inevitably, however, if the duty to maintain is invoked, the eventual estate of the claimant is

likely to be small or non-existent.

49 Inheritance (Provision for Family and Dependants) Act 1975.
50 Section 1(1)(e). The class is not defined by reference to any relationship and includes any

dependant. For a case in which a mother successfully applied for provision out of her deceased
minor daughter’s estate, see Re B (Deceased) [2000] Ch 662 (CA).
51 For arguments that altruism within the family occurs in part because of the expectation of

future inheritance from a parent, see Epstein, (1992).

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Maintenance of the Elderly 229

Brinig, 1994).52 This analysis must operate differently to the reciprocity theory,
since to whatever extent those children have a legal right to succeed to their
parents’ estates, the incentive to please their parents must be weakened. The
theory fails to explain the provision of support by adult children in cases where
the parents own little or no property which could be inherited.

(d) Fostering values of family and social cohesion in children

Another perceived advantage of a private support obligation is that the family

is the appropriate place for values such as caring, loyalty and altruism. It is
argued that if adult children support and care for their ageing parents, their
actions will engender these values in the minor children of the family and even-
tually instil in those children a sense of obligation towards their fellow humans
(Wise, 2002; Brinig, 1994). And given the right circumstances and family condi-
tions, this process may indeed operate to the benefit of all involved. But such
arguments perhaps present a somewhat distorted and romanticised view, not
only of typical family life, but also of the reality of caring for an elderly relative.
Dysfunctional families aside, the truth is that catering for the physical and emo-
tional needs of elderly relatives is often difficult and stressful, and undertaking
the role of carer may be difficult or impossible because of factors such as finan-
cial constraints, geographic separation and the fact that in many families both
spouses are in full-time employment.


As the range of maintenance obligations in different jurisdictions illustrates,

various models of private support obligation are possible. The duty may be
restricted to necessities, it may extend to assistance with the costs of health care,
or even further. Whatever the scope of the obligations, the existence of a duty to
maintain has benefits; first, that in terms of legal signalling it helps to create a
culture of thinking about kinship more broadly, relocating the older generation
back into the family; and second, where the duty is performed without compul-
sion it reduces the burden on the public purse. But when it comes to coercive
enforcement, the opposite is true in both respects. The instigation of legal
action—whether by the elderly parent or by the State—is much more likely to
trigger resentment and tension and to damage family relations than it is to fos-
ter positive ties between generations. For the elderly people concerned there are
also the damaging psychological effects of mandatory dependence: becoming an

52 For analyses based upon analogies with franchise, see generally Brinig, (1994).
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230 Mika Oldham

unwanted burden (financially, and for many also physically, as their care needs
increase) and jeopardising their autonomy vis à vis their children. Sensitivity to
such factors goes a long way towards explaining the general tendency across
jurisdictions against strict enforcement of the duty to maintain. But the unwill-
ingness of other jurisdictions to enforce the filial support obligation does not
necessarily mean that the obligation should be abolished. Quite apart from legal
signalling, from a pragmatic perspective it might be argued that since the major-
ity of people are law-abiding citizens, it is likely that the very existence of the
legal duty will encourage many people to support their ageing parents.
As far as England is concerned, it would be politically impossible to shift the
legal burden of support away from the State and back onto the family. From a
more pragmatic and practical perspective, the costs of coercive enforcement
would be significant. Quite apart from the need to set up an appropriate legal
framework within which to administer the scheme and the costs to the litigants,
the establishment of effective enforcement mechanisms is likely to be adminis-
tratively unworkable and financially unproductive. Certainly, if the example of
the notorious English child support scheme is any indicator of the likelihood of
success, we simply should not bother.
So in ideological as well as practical terms, coercive enforcement of a private
filial support obligation is unattractive. Public provision has the advantage that
the redistribution of wealth, via the State, to those in need safeguards the auto-
nomy of elderly people. But public provision is grounded in a principle of col-
lective responsibility at the level of the State and does nothing to encourage
family cohesion; moreover underfunding means that the system is not merely
straining, it is actually failing, to achieve its objectives.53


The objective of public cost containment offers governments two broad

approaches, which are likely to be used in conjunction—they can regulate
supply, by means of budgets; and they can regulate demand, by increasing con-
tributions or otherwise ensuring that consumers bear a higher share of the costs.
The argument presented here is that for England, the stick of coercive enforce-
ment of a filial support obligation is not an option, legally, politically or prac-
tically. But the government could and should make more use of the
carrot—measures that recognise, promote and encourage the provision of vol-
untary and private support. The Royal Commission on Long Term Care (1999)
took the pessimistic view that such measures were pointless:

53 For a discussion of some of the shortcomings, see Royal Commission (1999), ch. 4.
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Maintenance of the Elderly 231

. . . in a free society a Government can do little, short of compulsion or other dracon-

ian measures, to influence the way in which families or relatives decide whether to care
for their older members (p.15).

But is this right? The process of transferring a welfare burden from the State to
the private sector is not without successful precedent, in the field of pensions
provision, where a combination of tax incentives and regulatory mechanisms
has effectively transformed the State’s role from major to subsidiary provider
and contributor (Oldham, 2001). Perhaps it might be possible to design a range
of provisions that for many people could make the difference between feeling
able and willing to care for an elderly relative and deciding that they can no
longer cope. And to whatever extent the public burden is relieved,54 to that
extent more funds would be available to help those in greatest need.


Given the parlous state of public funding and the need to address problems of
exclusion and isolation experienced by many older citizens, we need to think
about measures that, in terms of legal signalling, will encourage private provi-
sion and help to reintegrate the older generation within their families. Measures
that might encourage a shift from State to family, or from public to private
responsibility could be designed to operate at a number of different levels.
At a basic level, it would be possible to introduce tax incentives to encourage
people to make advance provision for their own possible needs in later life
through savings or private care insurance.55 Private sector insurance suffers
from problems such as adverse selection—subscribers are likely to be high-risk
individuals, so premiums may rise to unacceptable levels. Private insurance
could play a role in the overall reduction of the financial burden, but unless it
was made compulsory, it would be a limited role.56 And insurance, of course,
does nothing to address problems such as social exclusion and isolation.
At a second level, measures could be introduced to encourage increased lev-
els of voluntary support within families. A small start has been made in recent
legislation57 that gives some recognition to the difficulties faced by the large
numbers of informal carers of elderly people, carers who ‘bear a very great share
of the total care burden, many without adequate support’ (Royal Commission,

54 In America it has been estimated that delaying the institutionalisation of Alzheimers patients

by one month would save US$1.2 billion each year: Wise (2002), p 584.
55 For studies that discuss the possibility of compulsory long-term care insurance, see Royal

Commission (1999), chs. 2–4.

56 For a discussion of various American voluntary schemes and their low take-up rates, see Royal

Commission (a), at 5.13, 5.38.

57 See, eg, Carers (Recognition and Services) Act 1995; Carers and Disabled Children Act 2000;

Carers (Equal Rights) Act 2004. See further Oldham (2001) p 166.
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232 Mika Oldham

1999; Pickard, 1999. Much more could, and should, be done for carers, who are
for the most part adult daughters and who, within the English legal framework,
are effectively stepping in to discharge a duty that in fact falls on the State. The
issue is far from straightforward—should we introduce policies to encourage
women to damage or sacrifice their own life opportunities in order to care for
elderly relatives?
By comparison with other jurisdictions, the support offered to carers in
England remains inadequate58. For example, even in America—where welfare
is perceived as essentially an individual rather than a State responsibility and
public support exists but at a minimal level—many states have introduced State-
funded or Medicaid compensation programmes that provide financial compen-
sation for carers’ services (Wise, 2002), as well as far more comprehensive carer
support services. In England, a Carer’s Allowance59 may be payable in certain
circumstances, although it will often not be claimed as it can result in the
person being cared for losing benefits. A similar picture emerges as regards pro-
vision to enable employees to take leave in order to care for elderly relatives.
The position in England is that employers are required to permit employees to
take ‘a reasonable amount of time’ off work in order to take action which is
— to assist on an occasion when a dependant falls ill or is injured or assaulted;
— to make arrangements for the provision of care for a dependant who is ill or
injured . . . or
— because of the unexpected disruption or termination of arrangements for the
care of a dependant.60
The employee has no right to be paid during his or her absence. There is no
statutory clarification on what constitutes a ‘reasonable’ amount of time,
although DTI guidance61 and Employment Appeal Tribunal case law62 suggests
a generally restrictive approach. The approach in America is much more gener-
ous to the carer—there exist federal and a range of state family leave pro-
grammes that allow employees to take leave in order to undertake family
caregiving.63 California has introduced a family leave insurance fund that pays
employees who take leave to care for a seriously ill relative for up to six weeks

58 The same is true for carers of minor children who cannot live with their parents—see Hunt,

and Masson and Lindley, both this volume.

59 Previously Invalid Care Allowance.
60 Employment Rights Act 1996, s.57A (as amended). ‘Dependant’ is defined to include a parent;

anyone who lives in the same household as the employee otherwise than by reason of being his
employee, lodger or boarder; and any person who reasonably relies on the employee to make
arrangements for the provision of care.
61 Time Off for Dependants (URN99/1196) (suggesting one or two days for most cases).
62 See, eg, Truelove v. Safeway Stores UKEAT/0295/04/ILB; Forster v. Cartwright Black

Solicitors [2004] IRLR 781 (section did not extend to right to two weeks’ bereavement leave with
doctor’s certificate following death of both parents).
63 The federal Family and Medical Leave Act, 1993 provides for unpaid leave of up to 12 weeks.
(L) Ebtehaj et al Ch11 31/8/06 13:21 Page 233

Maintenance of the Elderly 233

a year,64 and several other states are considering similar schemes (for a recent
survey, see Forsberg, 2001). Such an approach can be justified in economic as
well as humanitarian terms—simply put, it is cheaper for the State to provide
financial assistance to a family member who is willing to provide caregiving
services than it is to shoulder the costs of the institutionalisation of an elderly
Other avenues to encourage increased filial support—or even to maintain cur-
rent levels of filial support, given the ever-increasing opportunities open to
women—should also be explored. One possibility would be to introduce a
scheme under which the English principle of absolute freedom of testation was
modified so that an informal carer would benefit from some form of succes-
sional priority (Oldham, 2001). Under such a scheme a family member who
maintains or provides care for an elderly relative could be given a right to even-
tual compensation out of the estate of that relative, such right to take priority
over distribution to other successors.65
For those able to provide financial support rather than assistance in kind, mea-
sures in the form of tax incentives could be introduced, for example some appro-
priate level of tax relief might be introduced, to offset part of the cost of providing
or adapting housing for an elderly parent, and/or the costs of care for a parent at
his or her home or within an institution, etc. Such an approach, if appropriately
drafted, could reap benefits not only in terms of public cost containment, but also
in helping to strengthen intergenerational bonds within families.
At a different but extremely important level, if attempts to encourage
increased filial support are to be successful, a shift in cultural attitudes is needed.
In this regard, wider measures, many without financial implications for the
State, could indirectly assist in encouraging private support by relocating elderly
people in English law back within the family rather than treating them as a
problem to be dealt with within the field of social welfare law. Perhaps a first
step in this direction has been made in the recent decision of Re S (Adult patient)
(inherent jurisdiction: family life),66 in which Munby J held that ‘family life’
within the meaning of Article 8 of the ECHR continues, both as a matter of fact
and in law, after a child has reached the age of majority. Reinstating a grand-
parent’s right to apply for contact67 and including grandparents as a specific cat-
egory of person who can apply for provision out of the estate of a deceased
person under the Inheritance (Provision for Family and Dependants) Act 197568
are two examples of measures that would involve minimum cost to the State,