Lesson 1: The family as defined in law and society

Huang v SS for the Home Dept [2007] UKHL 11 at para 18: Human beings are social animals. They
depend on others. Their family, or extended family, is the group on which many people most heavily
depend, socially, emotionally and often financially. There comes a point at which, for some,
prolonged and unavoidable separation from this group seriously inhibits their ability to live full and
fulfilling lives (As cited by Herring (2019) p.1).

o Key issue: Defining family (Contexts include home, family life)

What is ‘family law’? what rights arise/which of these are relevant? “...the law relating to the
creation and ending of marriage, all money and property rights connected with marriage and all
rights and duties that arise in connection with any children of the marriage” Susan Blake (1982). (Is
this archaic?)

The question of what constitutes a family in law is debated in psychology and sociology, politics and
religion... It can be defined in terms of structure with each family member filling a set role (....father,
mother, children).

Sociologists tend to define family more in terms of how members relate to one another than by
strict configuration of status roles.

 Nature - Blood
 Law - Marriage, adoption
 Cultural - de facto adoption, private fostering arrangements, kinship care?
 Emotional connection?- Vulnerability?
 Purpose of families - social control, preserving societal order?
 Vulnerability? Human Rights? Separated siblings? Identity changes? Legal fictions?

We can see the influence of Roman law in the use of several terms:

 Reasonable chastisement: Child protection, significant harm, ‘smacking ban’

 Pater familias – male authority, power of life and death over family, property
 ‘Raising up’ children – relinquishment/adoption/parentage
 Parens patriae – govt. acting as ‘father of the state’

In order to see how domestic law (English law) defines family, we have to see the “family test”
devised by the UK’s Dept for Work and Pensions [DWP] in 2014. It applies to all new laws and
policies.

Also, impacts of proposed reforms upon families must be assessed ...similar to what the Human
Rights Act 1998 [enacted Oct 4th 2000] requires of domestic legislation.

o Types of family / Terms of family life

Relatedness and kinship – not clearly defined in law e.g. Trusts law – differs globally/culturally.

Conceptual/policy framework – blood, marriage, civil partnership, residence, ‘household’, adoption,

fostering, guardianship.

Human rights? Article 8 ECHR; Article 12 ECHR (Do not mix up the European Convention on Human
Rights with the Human Rights Act 1998) Human Rights Act came into effect on 2nd October 2000. It
does not strictly incorporate the European Convention into domestic law, it allows the court to give
“further effect” to the Conventions rights and to take Convention right sand case law into account
when interpreting and developing domestic law. The consequence of this is that individuals can now
rely directly on Convention rights in the domestic courts.

Article 8 ECHR: “1. Everyone has the right to respect for his private and family life, his home and his
correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is
in accordance with the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the rights and freedoms of
others.”

o Family = ‘A term of limited legal significance’ Herring (2019)

 Purpose of family ?
 Child care? Child protection?
 Fineman [2011] - care- dependence is core elementDoes the term exclude? Stigmatise?
 Did/does ‘[non]marriage’ serve to stigmatise mothers, children, fathers?
 Do we have the right to an original birth certificate?

o Herring [2019]

 Is family [and parenting/marriage etc] about ‘being’ or about ‘doing’? Do you be a parent or
is it a status you gain?
 Caring? Is purpose of family about caring for the vulnerable?
 Children? Is it about caring for children?
 Financial support? Providing financial support
 Sex?

o Older cases / Judicial attitudes

Gammans v Ekins [1950] 2 KB 328 para 331: Talking of an unmarried couple it was stated ‘ to say of
two people masquerading as these two were as husband and wife, that they were members of the
same family, seems to be an abuse of the English Language’. This approach would not longer
represent the law.

Fitzpatrick v Sterling Housing Assoc [2000] 1 A.C 27: Rent Act 1977: Core issue – could a gay or
lesbian couple be a family: By a majority of 3:2 HoL held that Mr T and Mr F were a family accepting
that the meaning of family is not linked to people linked by marriage or blood. See Clyde LJ who
dissented: emphasised need for ‘law or blood..’

o What is law’s role?

 To create families – legal and social status

 To prevent stigma, impact on housing rights, right to home life
 By recognising families are we excluding those who do not have a family? What if you leave
no heirs?
 Protect families? Do families need protecting from the state?
 Where do other rights tie in ? Privacy? Health? Poverty? Separation?
 Protecting the vulnerable from their own family? Is the family a dangerous place to be
 o Changing definitions of family

After Fitzpatrick v Sterling [2000] 1 FCR 21

See Mendoza v Ghaidan [2004] UKHL30: Court held that a same-sex couple were living as ‘ husband
or wife ‘ for the purposes of para 2(2) of Sched. 1 to the Rent Act 1977

See however:Paradiso and Campanelli v Italy [2015]: A couple who had asked a woman to carry a
child for them as a surrogate mother were not held to have a right to family life in respect of that
child.

o Relationships (Status and legal recognition)

Parent and child: Rights and responsibilities – balancing and clashing rights and judicial balancing of
rightsAllocating the status of parent?

Who are legal parents? Rights and responsibilities? Financial liability?

Spouses - Legal status – finance – inheritance – property- next of kin – medical decisions?Civil
Partners, Cohabitants

Adoption triad - birth family, adoptive family and child, kinship carers, extended family

State as a carer? Children in care ?

o Alternative views of family

Dench and Ogg [2002] – maternal, matrilineal, absence of fathers /unmarried fathers

Fatherhood Institute [2008]

Brannan [2003] – ‘beanpole’ family – fewer children, fewer siblings, longer lives

Collier [2010] – ‘good’ fathering ....

o New aspects / Concepts

LAT – living apart but together

See Duncan et al [2012]

Family of choice – same sex couples [Weeks et al, 2001]

o Refugee / Migrant rights

‘Many children of migrants in the UK are living in indescribably desperate conditions due to the
immigration status of their parents. Food poverty, street homelessness and abject destitution are
commonplace, yet their voices continue to be ignored in decision-making. In any moral society, the
safety and wellbeing of children should take precedence above all else. However, the 'No Recourse
to Public Funds' (NRPF) condition is applied to all 'persons subject to immigration control' (PSIC).’

Boyce ( 2019) - on the Children Act 1989, s.17

Key issue - Legal aid ...?

o Other key theorists (Useful for essays)

Eekelaar – Family Law and Personal Life 2nd Edition (2017): Protect from harmhelp cope with
breakdown – offer support and help people cope with breakdownsupport ....

The common good – respect ....

o Herring notes…

 Laws have conflicting purposes – eg family law allows for divorce – is this promoting ‘the
family’?
 Law has limited influence – socio-cultural factors?
 If there were no such thing as marriage, there would be no divorces
 Law is often silent on certain issues