Divorce reform and the image of the child

Journal of Law and Society

Volumn 23, Issue 3, 1996, Pages 364-382

  Piper, Christine ^a  

^a BRUNEL UNIVERSITY   (United Kingdom)

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[No Author keywords available]

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EID: 0039333938     PISSN: 0263323X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1410717     Document Type: Article

References (130)

1. Lord Chancellor's Department, Looking to the Future: Mediation and the Ground for Divorce (1995; Cm. 2799).
2. A. James and C. Lyons, 'Editorial' (1995) 17 J. Social Welfare and Family Law iii-vi, at iv and v respectively. For detailed criticisms of the proposals see M. Richards, 'But What About the Children? Some reflections on the divorce White Paper' (1995) 7 Child and Family Law Q. 223; and G. Douglas, M. Murch, and A. Perry, 'Supporting Children When Parents Separate - A Neglected Family Justice or Mental Health Issue' (1996) 8 Child and Family Law Q. 121. In addition, nineteen child care agencies and professional bodies issued a joint statement drawing attention to the lack of attention to the needs of children in the Family Law Bill 1995: see G. Newman in 'Children are Divorce Reform Target' (1996) no. 124 Childright 2.
3. A. James and C. Lyons, 'Editorial' (1995) 17 J. Social Welfare and Family Law iii-vi, at iv and v respectively. For detailed criticisms of the proposals see M. Richards, 'But What About the Children? Some reflections on the divorce White Paper' (1995) 7 Child and Family Law Q. 223; and G. Douglas, M. Murch, and A. Perry, 'Supporting Children When Parents Separate - A Neglected Family Justice or Mental Health Issue' (1996) 8 Child and Family Law Q. 121. In addition, nineteen child care agencies and professional bodies issued a joint statement drawing attention to the lack of attention to the needs of children in the Family Law Bill 1995: see G. Newman in 'Children are Divorce Reform Target' (1996) no. 124 Childright 2.
4. A. James and C. Lyons, 'Editorial' (1995) 17 J. Social Welfare and Family Law iii-vi, at iv and v respectively. For detailed criticisms of the proposals see M. Richards, 'But What About the Children? Some reflections on the divorce White Paper' (1995) 7 Child and Family Law Q. 223; and G. Douglas, M. Murch, and A. Perry, 'Supporting Children When Parents Separate - A Neglected Family Justice or Mental Health Issue' (1996) 8 Child and Family Law Q. 121. In addition, nineteen child care agencies and professional bodies issued a joint statement drawing attention to the lack of attention to the needs of children in the Family Law Bill 1995: see G. Newman in 'Children are Divorce Reform Target' (1996) no. 124 Childright 2.
5. A. James and C. Lyons, 'Editorial' (1995) 17 J. Social Welfare and Family Law iii-vi, at iv and v respectively. For detailed criticisms of the proposals see M. Richards, 'But What About the Children? Some reflections on the divorce White Paper' (1995) 7 Child and Family Law Q. 223; and G. Douglas, M. Murch, and A. Perry, 'Supporting Children When Parents Separate - A Neglected Family Justice or Mental Health Issue' (1996) 8 Child and Family Law Q. 121. In addition, nineteen child care agencies and professional bodies issued a joint statement drawing attention to the lack of attention to the needs of children in the Family Law Bill 1995: see G. Newman in 'Children are Divorce Reform Target' (1996) no. 124 Childright 2.
6. Lord Chancellor's Department, Looking to the Future: Mediation and the Ground for Divorce, (1993; Cm. 2424).
7. V. Tufte and B. Myerhoff (eds), Changing Images of the Family (1979) at 9.
8. LCD, op. cit., n. 3, pp. iii, iv of the foreword by the Right Honourable the Lord Mackay of Clashfern.
9. LCD, op. cit., n. 1, at para. 5.1.
10. id., para. 2.12.
11. id., para. 2.13.
12. id., para. 2.21.
13. id., paras. 2.22-2.23. The remaining four criticisms are: 'the system is unjust'; 'the system is confusing and misleading and often open to abuse'; 'the system is discriminatory'; and 'the system distorts parties' bargaining positions'.
14. C. Cockett and J. Tripp, Family Breakdown and its Impact on Children (1994).
15. LCD, op. cit., n. 1, para. 5.16. Para. 5.15 also refers to the Joseph Rowntree funded research into comprehensive mediation in relation to the effectiveness of mediation in 'reducing bitterness and tension'.
16. id., para. 3.11 mentions that this is the consequences 'for themselves and their children'.
17. LCD, op. cit., n. 3, at para 5.11.
18. Law Commission, The Ground for Divorce (1990) at para. 2.19.
19. LCD, op. cit., n. 1, para. 3.5.
20. id., para. 3.5.
21. id., para. 4.37.
22. id., para. 5.16.
23. See, also, id., paras. 4.6 and 4.13.
24. id., para. 5.11.
25. id., para. 5.24.
26. id., at paras. 5.17 and 5.21.
27. id., para. 7.4. The provisions for attendance at information sessions, when the benefits of mediation and the needs of children will be conveyed, are to be found in section 8 of the Family Law Act 1996. It will be 'a meeting organised in accordance with prescribed provisions' made by the Lord Chancellor' and so no details are as yet available.
28. This image was strengthened by an amendment to the Family Law Bill 1995 conceded by the Lord Chancellor so that the hardship bar to divorce existing in current and proposed divorce law was modified to refer to 'substantial' (instead of 'grave') financial or other hardship and to children as well as the spouse. Though this has significance within the context of this discussion, it may not have much practical significance given the marginal applicability and use of the current provision.
29. P. Thane, 'Childhood in History' in Childhood, Welfare and Justice, ed. M. King (1981) at 15. For a discussion of the development of wardship and the inherent jurisdiction, see P. Bromley and N. Lowe, Bromley's Family Law (8th ed., 1992) ch. 14.
30. P. Thane, 'Childhood in History' in Childhood, Welfare and Justice, ed. M. King (1981) at 15. For a discussion of the development of wardship and the inherent jurisdiction, see P. Bromley and N. Lowe, Bromley's Family Law (8th ed., 1992) ch. 14.
31. Thane, id., at p. 18.
32. The Factory Acts of the nineteenth century provide voluminous evidence of legislative concern for children as victims of employers. For a detailed analysis of the history of such concern, see I. Pinchbeck and M. Hewitt, Children in English Society (1973) vol. II. For a survey of those offences created to protect children and young persons by criminalizing particular acts when committed against minors, see A. Bainham, Children, the Modern Law (1993) at 474-86 and H.K. Bevan, Child Law (1989) ch. 9. It is, however, problematic whether much of this legislation properly feeds into an analysis of the 'child' as victim in that much is concerned with the regulation of the sexuality of women and girls. For example, in R. v. Tyrrell C.C.R. [1894] 1 Q.B. 710, which held that a young girl is deemed to be incapable of consent (and so not guilty of aiding and abetting) in relation to s. 5 of the Criminal Law Amendments Act 1885, Lord Coleridge CJ stated: 'The Criminal Law Amendment Act 1885, was passed for the purpose of protecting women and girls against themselves' (at 712). Male children were not so protected.
33. The Factory Acts of the nineteenth century provide voluminous evidence of legislative concern for children as victims of employers. For a detailed analysis of the history of such concern, see I. Pinchbeck and M. Hewitt, Children in English Society (1973) vol. II. For a survey of those offences created to protect children and young persons by criminalizing particular acts when committed against minors, see A. Bainham, Children, the Modern Law (1993) at 474-86 and H.K. Bevan, Child Law (1989) ch. 9. It is, however, problematic whether much of this legislation properly feeds into an analysis of the 'child' as victim in that much is concerned with the regulation of the sexuality of women and girls. For example, in R. v. Tyrrell C.C.R. [1894] 1 Q.B. 710, which held that a young girl is deemed to be incapable of consent (and so not guilty of aiding and abetting) in relation to s. 5 of the Criminal Law Amendments Act 1885, Lord Coleridge CJ stated: 'The Criminal Law Amendment Act 1885, was passed for the purpose of protecting women and girls against themselves' (at 712). Male children were not so protected.
34. The Factory Acts of the nineteenth century provide voluminous evidence of legislative concern for children as victims of employers. For a detailed analysis of the history of such concern, see I. Pinchbeck and M. Hewitt, Children in English Society (1973) vol. II. For a survey of those offences created to protect children and young persons by criminalizing particular acts when committed against minors, see A. Bainham, Children, the Modern Law (1993) at 474-86 and H.K. Bevan, Child Law (1989) ch. 9. It is, however, problematic whether much of this legislation properly feeds into an analysis of the 'child' as victim in that much is concerned with the regulation of the sexuality of women and girls. For example, in R. v. Tyrrell C.C.R. [1894] 1 Q.B. 710, which held that a young girl is deemed to be incapable of consent (and so not guilty of aiding and abetting) in relation to s. 5 of the Criminal Law Amendments Act 1885, Lord Coleridge CJ stated: 'The Criminal Law Amendment Act 1885, was passed for the purpose of protecting women and girls against themselves' (at 712). Male children were not so protected.
35. See M. King and C. Piper, How the Law Thinks About Children (2nd ed., 1995) ch. 4, especially 64-7.
36. G. Teubner, 'How the Law Thinks: Towards a Constructivist Epistemology of Law' (1989) 23 Law and Society Rev. 727-57, at 741.
37. The child as victim is therefore one of several constructs such as the child as witness, as a bundle of needs or as a bearer of rights. See King and Piper, op. cit., n. 29, at p. 64.
38. As Zedner comments, 'Studying victims has become one of the growth industries of criminology' (L. Zedner, 'Victims' in The Oxford Handbook of Criminology, eds M. Maguire et al. (1994) at 1207).
39. J. Morgan and L. Zedner, Child Victims (1992) at 5.
40. See J. La Fontaine, 'How Do the Bullied See Bullying?' (1992) no. 83 Childright 7-8.
41. See A. Mullender and R. Morley, (eds), Children Living with Domestic Violence: Putting Men's Abuse of Women on the Child Care Agenda (1994); M. O'Hara, 'Domestic Violence and Child Abuse - Making the Links' (1992) no. 88 Childright, 4-5.
42. See A. Mullender and R. Morley, (eds), Children Living with Domestic Violence: Putting Men's Abuse of Women on the Child Care Agenda (1994); M. O'Hara, 'Domestic Violence and Child Abuse - Making the Links' (1992) no. 88 Childright, 4-5.
43. Morgan and Zedner, op. cit., n. 33.
44. Zedner, op. cit., n. 32, at p. 1230.
45. Morgan and Zedner, op. cit., n. 33, at p. 20.
46. R. Flowers, Children and Criminality: The Child as Victim and Perpetrator (1986) at 187.
47. M. Peelo and J. Stewart, 'Trashing and Looting' (1992) 39 Probation J. 138-42. See, also, S. Walklate, Victimology: The Victim and the Criminal Justice Process (1989).
48. M. Peelo and J. Stewart, 'Trashing and Looting' (1992) 39 Probation J. 138-42. See, also, S. Walklate, Victimology: The Victim and the Criminal Justice Process (1989).
49. M. Freeman, The Rights and Wrongs of Children (1983).
50. id., at pp. 191, 192 referring to J. Wallerstein and J. Kelly, Surviving the Breakup (1980).
51. Royal Commission on Marriage and Divorce (1956; Cmd. 9678), the 'Morton Commission'. See Family Law, Review of Child Law: Custody, Law Commission working paper No. 96 (1986) for a summary of the arguments of the Morton Commission which led to their decision to recommend that court approval of arrangements be a condition precedent for divorce and also for reference to the Denning Committee, Final Report of the Committee on Procedure in Matrimonial Causes (1947; Cmd. 7024), and a non-enforceable provision in the Matrimonial Causes Rules 1947.
52. Royal Commission on Marriage and Divorce (1956; Cmd. 9678), the 'Morton Commission'. See Family Law, Review of Child Law: Custody, Law Commission working paper No. 96 (1986) for a summary of the arguments of the Morton Commission which led to their decision to recommend that court approval of arrangements be a condition precedent for divorce and also for reference to the Denning Committee, Final Report of the Committee on Procedure in Matrimonial Causes (1947; Cmd. 7024), and a non-enforceable provision in the Matrimonial Causes Rules 1947.
53. Royal Commission on Marriage and Divorce (1956; Cmd. 9678), the 'Morton Commission'. See Family Law, Review of Child Law: Custody, Law Commission working paper No. 96 (1986) for a summary of the arguments of the Morton Commission which led to their decision to recommend that court approval of arrangements be a condition precedent for divorce and also for reference to the Denning Committee, Final Report of the Committee on Procedure in Matrimonial Causes (1947; Cmd. 7024), and a non-enforceable provision in the Matrimonial Causes Rules 1947.
54. Report of the Inter-Departmental Committee on Conciliation (1983), the Robinson report, para. 5-1; see also para. 5.5.
55. LCD, op. cit., n. 3.
56. LCD, op. cit., n. 1, at para. 3.10.
57. N. Pearce, 'First Impressions of the Children Act: A Judge's Assessment' (1992) 2 Family Conciliation 10-13, at 10.
58. J. Roche, 'The Children Act 1989: Once a Parent Always a Parent?' (1991) 5 J. of Social Welfare and Family Law 345-61, at 355.
59. id., p. 346.
60. Children Act 1989 s. 2.
61. For a discussion, see C. Piper, 'Marketing the Children Act 1989: the invisibility of mothers and fathers', paper presented at the Annual Conference of the Social Policy Association, 18 July 1995, Sheffield Hallam University.
62. See case notes on Re O (Contact: Imposition of Conditions) [1995] 2 F.L.R. 124 by S. Jolly, 'Implacable Hostility, Contact and the Limits of Law' (1995) 17 Child and Family Law Q. 228-35 and C. Piper, 'Court of Appeal: In re O (A Minor) (Contact: Imposition of Conditions)' (1995) 17 J. Social Welfare and Family Law 355-9.
63. See case notes on Re O (Contact: Imposition of Conditions) [1995] 2 F.L.R. 124 by S. Jolly, 'Implacable Hostility, Contact and the Limits of Law' (1995) 17 Child and Family Law Q. 228-35 and C. Piper, 'Court of Appeal: In re O (A Minor) (Contact: Imposition of Conditions)' (1995) 17 J. Social Welfare and Family Law 355-9.
64. See a recent article by I. Weyland, 'Judicial Attitudes to Contact and Shared Residence since the Children Act 1989' (1995) 17 J. of Social Welfare and Family Law 445-59 which compares and contrasts case law on contact and shared residence before and after the Children Act 1989.
65. In legal communications, the image of the child as victim of divorced or divorcing parents is further defined by a particular construction of the victimizing parent. Such a parent is not the 'absent' parent who does not seek or maintain contact but rather the custodial parent who is 'implacably hostile' to contact and refuses to co-operate in arrangements for contact. This cannot be explained solely by the lack of procedures to enforce contact on non-custodial parents but rather by an over-riding aim to remove, not create, parental conflict. (See Piper, op. cit., n. 52.)
66. M v. M (child: access) [1973] 2 All E.R. 81 per Wrangham J.
67. Re F (Contact: Restraint Order) [1995] 1 F.L.R. 956 at 963 per Waite LJ.
68. E. Jones and P. Parkinson, 'Child Sexual Abuse, Access and the Wishes of Children' (1995) 9 International. J. of Law and the Family 54-85, at 55. They use the phrase 'in the past' because they later discuss an Australian case which suggests different assumptions being held by judges. They argue that currently the underlying assumption in the reported cases 'is that if a sexually abused child could have contact with the perpetrator in a relationship which was free from further abuse, then contact would be desirable' and that they 'seek to question that assumption' (p. 56).
69. Indeed the White Paper states: 'It is doubtful whether further research on the effectiveness of mediation can do more than reiterate the available evidence which is considerable, and supportive of the benefits attributed to mediation' (LCD, op. cit., n. 1, para. 5.20). In this context it is interesting to remember that the nineteenth-century ideology of women as subordinate to men, physically and mentally, which underpinned much regulation, was supported by science and medicine as well as religion. See B. Ehrenreich and D. English, For her Own Good: 150 Years of the Experts' Advice to Women (1979).
70. See L. Lehner, 'Education for Parents Divorcing in California' (1994) 32 Family and Conciliation Courts Rev. 1, 50-4, and V. Petersen and S. Steinman, 'A Court-Mandated Educational Program for Divorcing Parents' (1994) 32 Family and Conciliation Courts Rev. 1, 27-39. See also (1996) 34(1) Family and Conciliation Courts Rev., the special issue entitled 'Parent Education in Divorce and Separation' which includes eight articles on the subject. P. Salem, A. Schepard, and S. Schlissel, 'Parent Education as a Distinct Field of Practice' (pp. 9-22) points out that there are now more than 560 programmes throughout North America (at p. 10).
71. See L. Lehner, 'Education for Parents Divorcing in California' (1994) 32 Family and Conciliation Courts Rev. 1, 50-4, and V. Petersen and S. Steinman, 'A Court-Mandated Educational Program for Divorcing Parents' (1994) 32 Family and Conciliation Courts Rev. 1, 27-39. See also (1996) 34(1) Family and Conciliation Courts Rev., the special issue entitled 'Parent Education in Divorce and Separation' which includes eight articles on the subject. P. Salem, A. Schepard, and S. Schlissel, 'Parent Education as a Distinct Field of Practice' (pp. 9-22) points out that there are now more than 560 programmes throughout North America (at p. 10).
72. See L. Lehner, 'Education for Parents Divorcing in California' (1994) 32 Family and Conciliation Courts Rev. 1, 50-4, and V. Petersen and S. Steinman, 'A Court-Mandated Educational Program for Divorcing Parents' (1994) 32 Family and Conciliation Courts Rev. 1, 27-39. See also (1996) 34(1) Family and Conciliation Courts Rev., the special issue entitled 'Parent Education in Divorce and Separation' which includes eight articles on the subject. P. Salem, A. Schepard, and S. Schlissel, 'Parent Education as a Distinct Field of Practice' (pp. 9-22) points out that there are now more than 560 programmes throughout North America (at p. 10).
73. See L. Lehner, 'Education for Parents Divorcing in California' (1994) 32 Family and Conciliation Courts Rev. 1, 50-4, and V. Petersen and S. Steinman, 'A Court-Mandated Educational Program for Divorcing Parents' (1994) 32 Family and Conciliation Courts Rev. 1, 27-39. See also (1996) 34(1) Family and Conciliation Courts Rev., the special issue entitled 'Parent Education in Divorce and Separation' which includes eight articles on the subject. P. Salem, A. Schepard, and S. Schlissel, 'Parent Education as a Distinct Field of Practice' (pp. 9-22) points out that there are now more than 560 programmes throughout North America (at p. 10).
74. M. Geasler and K. Blaisure, 'Court Connected Programs for Divorcing Parents in Michigan' (1995) 33 Family and Conciliation Courts Rev. 484-94, at 484.
75. P. Salem, 'The Emergence of Parent Education Programs in the United States' (1995) 5 Family Mediation 5-7, at 5.
76. Announced by Virginia Bottomley, then relevant Minister, 8 December 1994.
77. Editorial, 'Education for Separated Parenting' (1995) 5 Family Mediation at 4. In North America, 'a market has developed for parent education products and services . . . Some programs offer complete packages that include training, videotapes, instructor manuals, and participant workbooks' (Salem et al., op. cit., n. 59, at p. 10).
78. LCD, op. cit., n. 1, para. 2.37.
79. id., at paras 7.8 and 7.12 respectively. The White Paper therefore draws a distinction between legal information and advice (at para. 7.9), a distinction which Cretney argues is untenable ('Divorce Reform in England: Humbug and Hypocrisy or Smooth Transition?' in Divorce Where Next?, ed. M. Freeman (1996), at 47-8).
80. Freeman, op. cit., n. 41, at p. 191.
81. M. Fineman, The Illusion of Equality (1991); L. Weitzman, The Divorce Revolution: The Unexpected Social Consequences for Women and Children in America (1985).
82. M. Fineman, The Illusion of Equality (1991); L. Weitzman, The Divorce Revolution: The Unexpected Social Consequences for Women and Children in America (1985).
83. For a review of the literature, see F. Kaganas and C. Piper, 'Domestic Violence and Divorce Mediation' (1994) 3 J. of Social Welfare and Family Law, 265.
84. Mullender and Morley, op. cit., n. 35.
85. M. Hester and L. Radford, 'Domestic Violence and Access Arrangements for Children in Denmark and Britain' (1992) 1 J. of Social Welfare and Family Law 57-70; Jones and Parkinson, op. cit., n. 57.
86. C. Piper, '"Looking to the Future" for Children' (1994) 6 J. of Child Law 98; D. Utting, J. Bright, and C. Henricson, Crime and the Family (1993). See, also, Children and Violence, report of the Commission on Children and Violence convened by the Gulbenkian Foundation (1995) at 46-8.
87. C. Piper, '"Looking to the Future" for Children' (1994) 6 J. of Child Law 98; D. Utting, J. Bright, and C. Henricson, Crime and the Family (1993). See, also, Children and Violence, report of the Commission on Children and Violence convened by the Gulbenkian Foundation (1995) at 46-8.
88. C. Piper, '"Looking to the Future" for Children' (1994) 6 J. of Child Law 98; D. Utting, J. Bright, and C. Henricson, Crime and the Family (1993). See, also, Children and Violence, report of the Commission on Children and Violence convened by the Gulbenkian Foundation (1995) at 46-8.
89. L. Burghes, Lone Parenthood and Family Disruption: The Outcomes for Children (1994) 49. See, also, Utting et al., op. cit., n. 71, p. 19: 'The extent to which marital breakdown and delinquency are related is, in fact, a rich source of confusion'.
90. M. Cockett and J. Tripp, Children Living in Re-ordered Families (1994) 3.
91. James and Lyon, for example, have drawn attention to this, in referring to 'the furore surrounding the pre-publication release and related television coverage last year of findings from the Exeter family study' (op. cit., n. 2, at p. iv).
92. J. Elliot and M.P.M. Richards, 'Children in Divorce: Educational Performance and Behaviour Before and After Parental Separation' (1991) 5 International J. of Law and the Family 258, at 274.
93. See Richards, op. cit., n. 2 and Douglas et al., op. cit., n. 2.
94. Indeed, not until the proof stage of this article was there any confidence that these proposals would become law, given the history of the Domestic Violence and Matrimonial Homes Bill 1995 and the tenor of the debate in both House of Parliament over the Family Law Bill 1995. In relation to that debate, the strongest challenge to the Bill was via the construction of an alternative image of the child as harmed by divorce itself.
95. The phrase used to describe the period of one year between filing this intention to divorce J and divorce being granted under the new proposals.
96. See Geasler and Blaisure, op. cit., n. 60, at p. 486.
97. Salem, op. cit., n. 61.
98. In the same way legal communications focus blame only on individuals (King and Piper, op. cit., n. 29, at p. 66) though, paradoxically, this image of the child as victim is not promoting the 'legalization' of disputes but, rather, is being used to justify a move from the legalization of disputes towards informal ordering and non-intervention by the state.
99. Some images cannot be reconstructed within other discourses because they do not 'make sense' to that discourse. See n. 108 below.
100. LCD, op. cit., n. 1, ch. 9.
101. LCD, op. cit., n. 3, at para. 10.2.
102. id., para 10.3. Interestingly, the sudden demise of the Domestic Violence and Matrimonial Homes Bill led to the inclusion of provisions regarding domestic violence in the Family Law Bill 1995, albeit in a separate Part III, now Part IV of the Act.
103. For a discussion of the images of the separated family which are constructed in mediation see C. Piper, The Responsible Parent (1993).
104. A. James, 'Social Work in Divorce: Welfare, Mediation and Justice' (1995) 19 International J. of Law and the Family 256-74, at 271-3.
105. Thane, op. cit., n. 26, at p. 19.
106. L. Fox Harding, '"Children's Rights" in Recent Government Policy', paper presented at a conference on Government Policies and their Effects on Children, University of Central Lancashire, 6 September 1995. Fox Harding discusses, among other things, the Children Act 1989 and legislation relating to the child as witness. See, also, B. Franklin (ed.), The Handbook of Children's Rights: Comparative Policy and Practice (1995); M. Freeman, 'Taking Children's Rights More Seriously' in Children, Rights and the Law, eds. P. Alston, S. Parker, and J. Seymour (1992).
107. L. Fox Harding, '"Children's Rights" in Recent Government Policy', paper presented at a conference on Government Policies and their Effects on Children, University of Central Lancashire, 6 September 1995. Fox Harding discusses, among other things, the Children Act 1989 and legislation relating to the child as witness. See, also, B. Franklin (ed.), The Handbook of Children's Rights: Comparative Policy and Practice (1995); M. Freeman, 'Taking Children's Rights More Seriously' in Children, Rights and the Law, eds. P. Alston, S. Parker, and J. Seymour (1992).
108. L. Fox Harding, '"Children's Rights" in Recent Government Policy', paper presented at a conference on Government Policies and their Effects on Children, University of Central Lancashire, 6 September 1995. Fox Harding discusses, among other things, the Children Act 1989 and legislation relating to the child as witness. See, also, B. Franklin (ed.), The Handbook of Children's Rights: Comparative Policy and Practice (1995); M. Freeman, 'Taking Children's Rights More Seriously' in Children, Rights and the Law, eds. P. Alston, S. Parker, and J. Seymour (1992).
109. See, for example, M. MacLeod and E. Saraga, 'Challenging the Orthodoxy: Towards a Feminist Theory and Practice' (1988) 28 Feminist Review 16-51.
110. J. Roche, 'Children's Rights: in the name of the child' (1995) 17 J. of Social Welfare and Family Law 281-300, at 281.
111. However, as Freeman pointed out, 'With divorce it is easier to identify the wrong that children suffer than to spell out any code of rights' (op. cit., n. 41, at p. 192).
112. Roche, op. cit., n. 91, at p. 292. Douglas et al. (op. cit., n. 2, at p. 125) make the same point: 'The key question is what, if anything, can be done by way of community support to help children through the critical transitions that follow the break-up of their parents' relationship?'
113. Roche, id. As an example, he gives the fact that while the local authority social services departments have to take notice of the language of rights, education authorities do not.
114. See L. Schwartz, 'Enabling Children of Divorce to Win' (1994) 32 Family and Conciliation Courts Review 71.
115. The White Paper (LCD, op. cit., n. 1) discusses 'children's interests' in relation to mediation at paras 5.31 - 5.33, noting that mediators 'are required by their code of practice to remind parents of their duty to take account both of the welfare of their children and their children's views, where these are ascertainable (pp. 45-6). An amendment to the Family Law Bill 1995 went further by imposing a statutory duty to do so in stating that the mediator must ensure 'that the parties are encouraged to consider the welfare, wishes and feelings of each child' (clause 24(6B)).
116. Giving Children a Voice in Mediation: report produced by National Family Mediation (1994) at 20.
117. T. Fisher, 'The Rights of the Child in Mediation and Divorce' (1996) no. 9 Child Care Forum at 14. See, also, R. Best, 'Direct Consultation with Children: A Progress report on Training Modules' (1995) 5 Family Mediation 8 for details of the training proposed.
118. T. Fisher, 'The Rights of the Child in Mediation and Divorce' (1996) no. 9 Child Care Forum at 14. See, also, R. Best, 'Direct Consultation with Children: A Progress report on Training Modules' (1995) 5 Family Mediation 8 for details of the training proposed.
119. Richards, op. cit., n. 2, at pp. 224, 225.
120. The image of the child 'as actor' in relation to offending has not proved to be to the benefit of children who offend because the imputation of culpability rather than vulnerability leads to their being placed in penal establishments.
121. Fox Harding, op. cit., n. 89, at p. 12.
122. Similarly, Cunningham has noted, 'Both "children" and "childhood" appear in my title because we need to distinguish between children as human beings and childhood as a shifting net of ideas' (H. Cunningham, Children and Childhood in Western Society Since 1500 (1995) at 1).
123. Roche, op. cit., n. 91, at p. 293.
124. M. King, A Better World for Children, Explorations in Morality and Authority (forthcoming) ch. 7.
125. R. and W. Stainton Rogers, Stories of Childhood, Shifting Agendas of Child Concern (1992) at 83.
126. id., p. 190.
127. King, op. cit., n. 104, ch. 4.
128. An example of 'noise' is the phenomenon located by Jones and Parkinson, op. cit., n. 57, who, after reviewing both English case law regarding contact in cases of sexual abuse and also psychological interpretations of the effects on the child of sexual abuse, note that law does not take into account the latter knowledge because it can operate only in terms of sexual abuse as an event or series of events (at p. 77): it cannot 'know' the complexities knowable within the psy-sciences.
129. G. Teubner, personal communication, quoted in King and Piper, op. cit., n. 29, at p. 33. Therefore, 'Information is always created internally but in the case of interference created simultaneously and from the same communicative event participating in more than one social sub system' (G. Teubner, 'Social Order from Legislative Noise: Autopoietic Closure as a Problem for Legal Regulation' in State, Law and Economy as Autopoietic Systems, eds G. Teubner and A. Febbrajo (1992) at 631). For example, Joan Kelly recently addressed a joint meeting of members of the Family Law Bar Association and the Solicitors' Family Law Association (Middle Temple Hall, London, 2 November 1994). She summarized her research on siblings from high conflict families, noting that some children were so traumatized by their experiences of violence that they could not recover unless cared for separately from their siblings. By the end of that meeting members of the legal profession were reconstructing that knowledge as a legal guideline that siblings could be separated via care proceedings in their own best interests. There was no shared 'truth', simply parallel legal and psychotherapeutic communications. (Personal notes.)
130. Douglas et al., op. cit., n. 2, have, for example, suggested that discussion be conducted in a mental health framework by applying a crisis model of intervention to helping children adapt to family breakdown. They specifically note that in suggesting the application of this model 'we do not infer that we regard children in these circumstances as victims'.