Family law academics

Fineman - metanarrative of sexually affiliated family

the sexually affiliated nuclear family is treated as natural without being examined or justified. replace the couple with the carer dependent dyad

Herring From Sex to Care

Making family law less sexy - better serves goals of fam law

- promoting intimate life

- protect from abuse

- remedy disadvantages

⚠ Critique: How do we define 'care'? Could this be over-inclusive? Does it capture everything that makes family significant?

Diduck and Kaganas - Marriage as Gold standard

Fitzpatrick, and Ghaidan see family law expanding accepted categories (homo) but only if relationships are 'marriage-like'

(gold standard)

Hasday - Excluded Family Bonds

Family law's focus on marriage and parenthood means other vital relationships — siblings, grandparents, aunts and uncles — are largely excluded. These relationships often function as substitutes for marriage or parenthood (e.g. grandparents raising grandchildren).

Trotter: why should such relationships need to act as substitutes before they receive recognition? Shld be significant in their own right?

Westwood — Friendship

my friends are my family: either regulate friendships or remove privileges of other relationships

edwards and gillies - dont abandon 'family'

family retains political and analytical value — it names a set of significant social practices and relationships

Distributive effect

Legal definition determines who gets rights (e.g. succession, immigration, inheritance)

Constitutive effect

Law creates and shapes the very concept of family

Normative effect

Law signals what fam 'should' look like

Strasser - Migrant Family

Ppl change their relationships to fit with regulation (shows the constitutive effect of the law)

Barker - sex to care, spinster sisters

shifting the legal focus from sex to care could inadvertently help the state privatize dependency and reduce social support

What is a family

Definitions differ radically across statutes because they serve different policy goals. This proves there is no natural or neutral definition — law chooses who counts as family based on objective and context.

Bremner - parenthood

law of parenthood privileges women-led families

motherhood is only status that is automatically and irrefutably assigned

fatherhood/ second legal parent derivative off of gestational mother = cis-heteronormative construction of family

McGlynn - parenthood

law needs to stop privileging motherhood and priv parenthood instead

Donnovan on parenthood

free women from mothering (assistive reproduction)

Auchmuty

Marriage no longer the only acceptable status for women, its merely a lifestyle choice

George - hierarchy of relationships

privileged, accepted, non-recognised, forbidden

Mnookin on paramountcy and indeterminacy

deciding what is best for the child poses a question no less ultimate than the purpose of life itself. shouldn’t rely on theory / science coz it disrupts judicial process and no universal theory of human psychology

Kay

social workers and psychologists should play more of a role than judges

George on welfare

by definition in J v C, welfare = when all relevant acts, relationships and claims of parents are ACCOUNTED AND WEIGHED —> shows welfare is composite not atomised = other ppls considerations are already accounted for, paramountcy doens’t silence other actors

Reece on paramountcy

paramountcy is a smokescreen = doesn’t even put children first nor should it coz children aren’t uniquely vulnerable = shld put social progress above children needs

Eekelar on child welfare

Least detrimental alternative = choose what is least detrimental for all parties even if child benefits less. still privileges child coz don’t choose outcome where child suffers but can choose outcome where adults suffer.

Statistics of suffering? weird calculus? no coz court alr does this = just be transparent about the complexity rather than hiding behind welfare

Choudhry and Fenwick - welfare

balance everyone’s rights equally

Herring

re-conceptualisation of welfare - relationality, meeting other ppls needs can enhance welfare

risk = child interests subsumed in parents

George = not reconceptualization coz welfare alr does this as per J v C