The end of an era?

Journal of Family History

Volumn 28, Issue 1, 2003, Pages 108-122

  Eekelaar, John ^a  

^a UNIVERSITY OF OXFORD   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0038240615     PISSN: 03631990     EISSN: None     Source Type: Journal    
DOI: 10.1177/0363199002238556     Document Type: Review

References (80)

1. Sanford N. Katz, John Eekelaar, and Mavis Maclean, eds., Cross Currents: Family Law and Policy in the United States and England (Oxford, UK: Oxford University Press, 2000) (hereafter referred to as Cross Currents).
2. R. H. Graveson and F. R. Crane, eds., A Century of Family Law 1857-1957 (London: Sweet & Maxwell, 1957).
3. Sir Henry Maine, Ancient Law (Oxford, UK: Oxford University Press, 1931), 104.
4. Maine, Ancient Law, 141.
5. F. Pollock and F. W. Maitland, The History of English Law, vol. 1 (Cambridge, UK: Cambridge University Press, 1968), 414.
6. Pollock and Maitland, History of English Law, vol. 2, 444.
7. Lawrence Stone, The Family, Sex and Marriage in England 1500-1800 (London: Weidenfeld & Nicolson, 1977), 158.
8. Jacques Donzelot, The Policing of Families (New York: Pantheon, 1979), 49.
9. Written at some time before his death in 1653; first published in 1680.
10. Patriarcha, chap. 3, section 1.
11. John Locke, Second Treatise of Civil Government, para. 58; also para. 170.
12. John Eekelaar in Cross Currents, chap. 18.
13. Donzelot, The Policing of Families. See also C. van Nijnatten, "Authority Relations in Families and Child Welfare in the Netherlands and England: New Styles of Governance," International Journal of Law, Policy & Family 14 (2000): 107-30, drawing on Foucault's analysis.
14. Donzelot, The Policing of Families. See also C. van Nijnatten, "Authority Relations in Families and Child Welfare in the Netherlands and England: New Styles of Governance," International Journal of Law, Policy & Family 14 (2000): 107-30, drawing on Foucault's analysis.
15. See Richard Wall and Jay Winter, "Introduction," in The Upheaval of War: Family Work and Welfare in Europe 1914-1918, eds. R. Wall and J. Winter (Cambridge, UK: Cambridge University Press, 1988); Harold L. Smith, "The Effect of the War on the Status of Women," in War and Social Change: British Society in the Second World War, ed. Harold L. Smith (Manchester, UK: Manchester University Press, 1986).
16. See Richard Wall and Jay Winter, "Introduction," in The Upheaval of War: Family Work and Welfare in Europe 1914-1918, eds. R. Wall and J. Winter (Cambridge, UK: Cambridge University Press, 1988); Harold L. Smith, "The Effect of the War on the Status of Women," in War and Social Change: British Society in the Second World War, ed. Harold L. Smith (Manchester, UK: Manchester University Press, 1986).
17. Susan Pedersen, Family, Dependence and the Origins of the Welfare State: Britain and France 1914-45 (Cambridge, UK: Cambridge University Press, 1993), chap. 2.
18. This idea was most spectacularly manifested in the English practice of emigrating children to the colonies and American policies of moving children into the interior.
19. Discussed in Cross Currents by Judith Masson, chap. 26.
20. See Carol Smart, Cross Currents, chap. 16; John Eekelaar, "A Jurisdiction in Search of a Mission: Matrimonial Proceedings in England and Wales," Modern Law Review 57 (1994): 839-58.
21. See Carol Smart, Cross Currents, chap. 16; John Eekelaar, "A Jurisdiction in Search of a Mission: Matrimonial Proceedings in England and Wales," Modern Law Review 57 (1994): 839-58.
22. See Mavis Maclean in Cross Currents, chap. 24.
23. Dunn v. Dunn, Probate Division 98 (1949).
24. Law Reform (Husband and Wife) Act of 1962.
25. But in one important respect, a wife was less well protected than her unmarried counter-part for it was not until 1991 that the vagaries of the case-law system swept away the marital rape immunity: R v. R, 4 All ER 481 (1991). But sentencing practice continued to view rape by a stranger more severely than rape by a partner: Philip N. S. Rumney, "When Rape Isn't Rape: Court of Appeal Sentencing Practice in Cases of Marital and Relationship Rape," Oxford Journal of Legal Studies 19 (1999): 243-69.
26. Inheritance (Family Provision) Act of 1938. For a full account, see Stephen M. Cretney, Law, Law Reform and the Family (Oxford, UK: Oxford University Press 1998), chap. 10.
27. Intestates' Estates Act of 1952.
28. Inheritance (Provision of Family and Dependants) Act of 1975.
29. Francis Fukuyama, The Great Disruption (London: Profile Books, 1999).
30. Review of Child Care Law: Report to Ministers of an Interdepartmental Working Party (London: Her Majesty's Stationery Office, 1985), para. 2.8; van Nijnatten, "Authority Relations"; Masson, Cross Currents.
31. Review of Child Care Law: Report to Ministers of an Interdepartmental Working Party (London: Her Majesty's Stationery Office, 1985), para. 2.8; van Nijnatten, "Authority Relations"; Masson, Cross Currents.
32. Review of Child Care Law: Report to Ministers of an Interdepartmental Working Party (London: Her Majesty's Stationery Office, 1985), para. 2.8; van Nijnatten, "Authority Relations"; Masson, Cross Currents.
33. Maclean, Cross Currents.
34. Dinch v. Dinch, l WLR 252 (1987); Harris v. Manahan, 4 All ER 454 (1996); Xydhias v. Xydhias 2 All ER 386 (1999).
35. Dinch v. Dinch, l WLR 252 (1987); Harris v. Manahan, 4 All ER 454 (1996); Xydhias v. Xydhias 2 All ER 386 (1999).
36. Dinch v. Dinch, l WLR 252 (1987); Harris v. Manahan, 4 All ER 454 (1996); Xydhias v. Xydhias 2 All ER 386 (1999).
37. Supporting Families: A Consultation Document (London: The Stationery Office, 1998), 33.
38. John Dewar and Stephen Parker in Cross Currents, chap. 6.
39. The Independent Review, February 10, 1999.
40. John Eekelaar, "Jurisdiction in Search of a Mission"; Grace G. Blumberg in Cross Currents, chap. 17.
41. John Eekelaar, "Jurisdiction in Search of a Mission"; Grace G. Blumberg in Cross Currents, chap. 17.
42. Gillick v. West Norfolk and Wisbech AHA, AC 112 (1986).
43. Michael Freeman in Cross Currents, chap. 20.
44. Local Government Act of 1988, section 28. The Blair government's proposal to repeal this provision provoked intemperate national debate and two defeats in the House of Lords. See The Times, March 24, 2000.
45. Ruth Deech in Cross Currents, chap. 8.
46. Sanford N. Katz in Cross Currents, chap. 13.
47. Law Commission, Reform of the Grounds of Divorce: the Field of Choice, Cmnd. 3123, 1966.
48. Family Law Reform Act of 1969. This followed the report of the Russell Committee, which had no inhibitions in its use of language: "Subject to the modification effected by the Legitimacy Act 1926 . . . neither the bastard nor any issue of the bastard has any right to participate on the intestacy of either parent of the bastard." Report of the Committee on the Law of Succession in relation to Illegitimate Persons, Cmnd. 3051, 1966.
49. Family Law Reform Act of 1987.
50. Mary Ann Glendon, The Transformation of Family Law (Chicago: University of Chicago Press, 1989).
51. Gillian Douglas in Cross Currents, chap. 10
52. Family Law Act of 1996, pt. IV. Rebecca Dobash and Russell Dobash in Cross Currents, chap. 22.
53. Family Law Act of 1996, pt. IV. Rebecca Dobash and Russell Dobash in Cross Currents, chap. 22.
54. Fukuyama, Great Disruption
55. Fitzpatrick v. Sterling Housing Association, 4 All ER 705 (1999). For the equivalent in the United States, see Michael Grossberg in Cross Currents, chap. 1.
56. Fitzpatrick v. Sterling Housing Association, 4 All ER 705 (1999). For the equivalent in the United States, see Michael Grossberg in Cross Currents, chap. 1.
57. Such people are considered "associated persons" for the purposes of certain remedies under the Family Law Act of 1996.
58. See "Teachers Told to Praise Marriage," The Times, September 1, 1999. The guidance was to emphasize the importance of marriage "and stable relationships," but the government has had difficulty in securing the support of politicians who believe the directive should give greater preeminence to marriage (The Times, March 24, 2000).
59. See "Teachers Told to Praise Marriage," The Times, September 1, 1999. The guidance was to emphasize the importance of marriage "and stable relationships," but the government has had difficulty in securing the support of politicians who believe the directive should give greater preeminence to marriage (The Times, March 24, 2000).
60. Supporting Families (London: The Stationery Office, 1998), 32.
61. Crime and Disorder Act of 1998, section 8.
62. See Carl E. Schneider, "Family Law in the Age of Distrust," Family Law Quarterly 3 (1999): 447-60.
63. The 1960s in Britain were particularly notable for disseminating skepticism about established institutional values. A notable example was the 1967 BBC Reith Lectures in which social anthropologist Edmund Leach declared, "Morality is specified by culture; what you ought to do depends on who you are and where you are," and "far from being the basis of the good society, the family, with its narrow privacy and tawdry secrets, is the source of all our discontents." A Runaway World? (London: BBC, 1967).
64. See Jerome A. Barron in Cross Currents, chap. 12, especially his discussion of the "right of privacy" and the concept of "liberty" in the Fourteenth Amendment.
65. For an account of the relationship between the commission, the government, and the parliamentary process, see "The Law Commission: True Dawns and False Dawns," in Law, Law Reform and the Family, ed. Stephen Cretney (Oxford, UK: Oxford University Press, 1998), chap. 1.
66. Webb v. EMO, IRLR 482 (1994).
67. Grant v. South-West Trains Ltd., All ER (EC) 193 (1998). This may change in view of the extension in the Treaty of Amsterdam of the definition of discrimination to cover sexual orientation.
68. W. O. B. and R. v. UK, 10 EHRR 29 (1988).
69. Health and Social Services and Social Security Adjudications Act of 1983.
70. Campbell and Cozens v. UK, 4 EHRR 293 (1982).
71. Gaskin v. UK, 12 EHRR 36 (1989).
72. Dudgeon v. UK, 4 EHRR 149 (1982).
73. A. v. UK, 27 EHRR 611 (1999). The government has responded by issuing a consultation paper, Protecting Children, Supporting Parents: A Consultation Document on the Physical Punishment of Children (Department of Health, 2000). This does not propose the complete criminalization of physical punishment of children but suggests that it would be sufficient to meet the convention's requirements if the concept of "reasonable chastisement" was defined more precisely by, for example, making express reference to the age, condition, and circumstances of the child and the means by which the punishment was inflicted.
74. A. v. UK, 27 EHRR 611 (1999). The government has responded by issuing a consultation paper, Protecting Children, Supporting Parents: A Consultation Document on the Physical Punishment of Children (Department of Health, 2000). This does not propose the complete criminalization of physical punishment of children but suggests that it would be sufficient to meet the convention's requirements if the concept of "reasonable chastisement" was defined more precisely by, for example, making express reference to the age, condition, and circumstances of the child and the means by which the punishment was inflicted.
75. Rees v. UK, 9 EHRR 56 (1987); Cossey v. UK, 13 EHRR 622 (1991); Sheffield & Horsham v. UK, 3 FCR 141 (1998).
76. Rees v. UK, 9 EHRR 56 (1987); Cossey v. UK, 13 EHRR 622 (1991); Sheffield & Horsham v. UK, 3 FCR 141 (1998).
77. Rees v. UK, 9 EHRR 56 (1987); Cossey v. UK, 13 EHRR 622 (1991); Sheffield & Horsham v. UK, 3 FCR 141 (1998).
78. In X, Y and Z v, UK, 4 EHRR 143 (1997), the Court accepted that a female to male post-operative transsexual living with his female partner and children she had conceived by artificial means enjoyed "family life" but only because the transsexual, although legally still a female, "was living in society as a man" and the situation was "indistinguishable from the traditional notion of family life" (166, emphasis added).
79. Fitzpatrick v. Sterling Housing Association, 4 All ER 705 (1999).
80. Donzelot, Policing of Families.