Writing in the Australian Feminist Law Journal, Margaret Thornton has recently spoken of her wish to begin ‘a conversation which I hope others will join so that we might discursively constitute a new episteme of feminist legal theory that is linked to the political’.[1082] In exploring whether ‘the conjunction of postmodernism and neoliberalism’ might add up ‘to post-feminism’,[1083] Thornton questions whether the ‘institutional base’ of feminist legal scholarship may well be ‘disappearing beneath our feet’ in the context of the rapidly changing political economy[1084] in which feminist research into law is now undertaken within and beyond universities.[1085] What is necessary, she suggests, is a return to ‘political engagement, rather than introspection’, a discouraging of ‘an exclusive focus upon the individual and micropolitical sites.. . disconnected from the broader political picture’[1086]
This chapter has sought to contribute to this new episteme of feminist legal theory by re-examining how the male subject has been conceptualised in critical family law scholarship to date. Thornton has suggested that ‘clinging to the uni- versals of the past [cannot] save legal academic feminism’.[1087] Rather, she argues, what is necessary is to locate both feminist legal studies and post-modernism in the context of ‘a particular politico-historical moment’.[1088] This is a moment which is, I have suggested, marked by an embrace of formal gender neutrality and the twin pincers of neo-liberalism and post-modernism. In such a context, it has become a paradox of gender and law scholarship that the development of the academic study of masculinity has itself, in so many ways, concentrated on the individual and micropolitical sites, on issues of text and discourse, rather than these wider questions about terrain, political engagement and social power referred to by Thornton. Indeed, there is a sense in which the very model(s) of masculinity central to much feminist legal scholarship must themselves now be seen as, in fact, the product of a particular ‘episteme’ — one whose time is, if not past, then at least now open to question in some far-reaching ways.
It is in such a context that these questions about masculinity take on a particular significance. There is growing reason to believe that, in many respects, the study of masculinity and law is at an important juncture. Increasingly, the concept central to so many feminist engagements with law and gender — the gender of men, termed, variously, masculinities, masculinism, masculinity — has been subjected to critique. This chapter has questioned the implications for family law of the growing call for researchers in this area to rethink actively both their categories of analysis and focus of enquiries in relation to the study of men and masculinity;[1089] to question, for example, the overarching epistemic frame of sex/gender which has informed so much of the studies to date;[1090] to rethink the dualism between heterohomosexuality;[1091] and, in particular, to re-appraise the place of materialist analyses of labour in developing an understanding of the politics of law. The latter issue assumes a particular significance in the light of the potentially ‘corrosive impact’ of neo-liberalism and marketisation on feminist legal scholarship within the academy more generally.[1092] As Whitehead argues, it is only through a much more egalitarian material sexual division of labour that it will be possible to explore the ‘freeing up’ of gender identities advocated within so much of the work on masculinities and law; or, at the very least, to do so without the suspicion and recrimination about motive which appears to mark so many interventions in this area.[1093] Tackling material inequalities in the relative position of women and men is more likely to bring about change than attempts pitched solely at the level of textual/ deconstructive reforming men’s ‘selves’, personalities or identities, or else aimed at ‘subverting’ dominant discourses around masculinity.[1094]
Ultimately, it is important to remember, as Connell himself has long argued, that as a material practice, gender cannot be detached from what are increasingly global(ised) struggles around power and material interest.[1095] ‘Changing men’, as a political end, cannot be reduced to questions of individual or collective projects of self-actualisation. The approach outlined in this chapter has sought to appreciate the undoubted strengths and insights of those analyses which have sought to develop understandings of masculinity in the field of family law. Yet it is through a recognition of the limitations of these approaches that it becomes possible to see what the ultimate problem in this area of scholarship may be: not one of the limits of deconstructive analysis per se but the analytic and political limitations of a model of structured action which has rested on outmoded and essentialist notions of masculine identity. At the same time, and in recognising the force of perspectives originating from within a broadly post-modern frame, it is equally imperative that questions of power, interest and political economy are not overlooked. What is as intriguing as it is worrying about recent developments is the way in which, whilst a range of cultural discourses have certainly problematised the relationship between men and family law in far-reaching ways, they are doing so in such a way that, behind a purportedly progressive rhetoric of gender equity, questions of power and material interest continue to be systematically marginalised and depoliticised. The current debate about contact law reform in the UK can itself be seen to serve as a case in point in this regard.
Family law has a particular significance in these debates. Indeed, it can be seen to exemplify the effects of a depoliticising of gender, an issue which has a worrying significance for feminism. Across a number of areas of family law and policy, gender-neutral norms and assumptions about gender neutrality are being applied to what remain, in many cases, profoundly gendered areas of social life.[1096] What is so revealing about present struggles in this area is how, alongside a downplaying of questions of the wider political economy in which knowledge of ‘masculinity’ is produced, much of the rhetoric in conversations about men and the changing family then takes the form of attempts to bolster and re-affirm traditional social relations in the face of the challenges posed by economic and cultural change. If that is where the study of masculinity and law has led us then there is, perhaps, good reason to take up the call by Thornton to seek to ‘discursively constitute a new episteme of feminist legal theory’.[1097] For all the seeming heterogeneity of the ‘new ways of being a man’ foregounded in so much of the literature on masculinities, what tend to be side-stepped are questions of the material basis of what research suggests are still-entrenched sexual divisions of labour;[1098] still-pertinent questions about the autonomy of men to ‘opt out’ of caring relations; and, importantly, still- unanswered questions about what all of this might tell us about the way contemporary advanced capitalist neo-liberal societies value social care and intimacy.
[1] Chapter 11.
[2] See, for example, Malik, Chapter 11; O’Donovan and Marshall, Chapter 6.
[3] Lacey (1998); in this volume see Smart, Chapter 7; Stychin, Chapter 2; Kaganas, Chapter 8; Piper, Chapter 9; Mumford, Chapter 10.
[4] See Stychin, Chapter 2; Jackson, Chapter 4; Bottomley and Wong, Chapter 3.
[5] See Jackson, Chapter 4.
[6] O’Donovan and Marshall, Chapter 6; Bottomley and Wong, Chapter 3; Jones, Chapter 5.
[7] Malik, Chapter 11.
[8] Stychin, Chapter 2.
[9] Smart, Chapter 7; Kaganas, Chapter 8; Piper, Chapter 9.
[10] Piper, Chapter 9; Jones, Chapter 5; Smart, Chapter 7.
[11] Collier, Chapter 12.
[12] Jackson, Chapter 4.
[13] Mumford, Chapter 10; Piper, Chapter 9; Stychin, Chapter 2.
[14] Morgan (1996).
[15] See, eg, Piper, Chapter 9; Jones, Chapter 5.
[16] Collier, Chapter 12; and see Boyd and Young (2004).
[17] Douglas and Michaels (2004).
[18] See, eg, Smart (1989).
[19] Chapter 10.
[20] See, eg, Collier, Chapter 12.
[21] Philipps (2004).
[22] Chapter 3.
[23] Chapter 3.
[24] Chapter 2.
[25] Chapter 5.
[26] Chapter 4.
[27] See, for example, Ghaidan v Mendoza [2004] UKHL 30; R (on the application of Williamson) v Secretary of State for Education and Employment [2005] UKHL 15; Miller v Miller; McFar — lane v McFarlane [2006] UKHL 24.
[28] [1986] AC 112.
[29] [1991] 4 All ER 481.
[30] [2001] AC 596.
[31] Chapter 8.
[32] Wicks, The Rt Hon Malcolm, MP, Minister of State for Pensions (2004), Speech to TUC Conference, ‘Women and Pensions’.
[33] Ibid.
[34] Smart (1984).
[35] Chapter 12; and (2001).
[36] Okin (1989), p 170.
[37] Ibid, vii.
[38] Chodorow (1978).
[39] Chapter 12.
[40] Neale and Smart (2002), p 196.
[41] Ibid.
[42] Gender Recognition Act 2002.
[43] Civil Partnership Act 2004.
[44] Beck and Beck-Gernsheim (1995); Dewar (1998); Diduck (2003; 2005).
[45] Dewar (1998).
[46] Diduck (2003; 2005).
[47] Cossman (2002); Boyd and Young (2004); Fineman (2004); Diduck (2005).
[48] Collier, Chapter 12; Piper, Chapter 9; Kaganas, Chapter 8.
[49] Philipps (2004), p 605.
[50] O’Donovan (1993); Diduck and Kaganas (2006).
[51] Olsen (1992), p 209.
[52] Employment Act 2002; Work and Families Bill 2005.
[53] Domestic Violence, Crime and Victims Act 2004, s 5; A v UK [1998] 2 FLR 959.
[54] Piper, Chapter 9.
[55] Mumford, Chapter 10; Philipps (2004); Boyd and Young (2004).
[56] Immigration Rules; and see, for a discussion of the concept of family life under Article 8 ECHR,
Singh v Entry Clearance Officer New Delhi [2004] EWCA Civ 1075.
[57] I v UK [2002] 2 FLR 518; Goodwin v UK [2002] 2 FLR 487.
[58] Bottomley and Wong, Chapter 3.
[59] See, eg, Jobseeker’s Act 1995; New Deal for Lone Parents; New Deal for Partners.
[60] Grant v Southwest Trains [1998] 1 FLR 839; Webb v EMO Air Cargo [1994] ECR 1-03567. See, generally, Salford, 2002.
[61] Cotterrell (2002).
[62] See O’Donovan (1993); Diduck (2003).
[63] See Diduck (2005); Fineman (2004).
[64] Philipps (2004).
[65] Chapter 7.
[66] Philipps (2004), p 605; Kaganas, Chapter 8; Smart, Chapter 7; Stychin, Chapter 2.
[67] Chapter 7.
[68] Chapter 8.
[69] Weitzman (1981); O’Donovan (1985).
[70] Lacey (1998).
[71] See also Boyd and Young (2004).
[72] Barlow and Duncan (2000).
[73] Chapter 10.
[74] Chapter 11.
[75] Chapter 6.
[76] See, eg, Silva (1996); Diduck (1997); Fineman (1995). Motherhood’s association with care and nurture is so ingrained that the lesbian mother is now more acceptable in law than the mother who chooses not to mother. See, for example, discussion in Re G (Children) [2006] UKHL 43.
[77] Chapter 4.
[78] Chapter 5.
[79] Finer and McGregor (1974), p 101.
[80] Diduck and Kaganas (2006).
[81] Ibid; Maidment (1984).
[82] Weitzman (1981), p 323.
[83] See, for example, the Supreme Court of Canada’s remarks in Moge v Moge [1992] 3 SCR 813.
[84] White v White [2001] 1 AC 596.
[85] [2006] UKHL 24.
[86] R v Secretary of State for Work and Pensions ex parte Kehoe [2005] UKHL 48.
[87] Boyd (1994), p 69.
[88] Diduck and Kaganas (2006), ch 7.
[89] Office for National Statistics, Social Trends 2005, Tables 2.4, 2.10, 2.13.
[90] Barlow et al (2005); Law Commission (2006).
[91] See, eg, Smart (1984); Cossman and Ryder (2001); Day Sclater and Piper (2000); Diduck (2005).
[92] See also Diduck (2005), who argues that this extension also disciplines society.
[93] Fudge and Cossman (2002), p 16.
[94] HM Treasury (2004) Child Poverty Review.
[95] Ibid.
[96] Piper, Chapter 9.
[97] Chapter 9.
[98] Chapter 9.
[99] Fineman (2004), p 228.
[100] Fudge and Cossman (2002), p 28.
[101] Cossman (2002), p 169.
[102] Philipps (2004), p 606.
[103] See Reece (2003); Diduck (2003).
[104] Hansard, Commons, 12 October 2004, p 190: Mr Alan Duncan (Conservative).
[105] Local Government Act 1988 s 28.
[106] www. womenandequalityunit. gov. uk/lgbt/key_facts. htm: Angela Mason, who led the campaign at Stonewall for the Civil Partnership Act, later became the head of the Women and Equality Unit.
[107] These guidelines were issued on 7 July 2000.
[108] www. womenandequalityunit. gov. uk/lgbt/partnership. htm.
[109] The pension questions raised by the Act are complex and not entirely resolved. In particular, the issue of pension provision for dependent surviving civil partners remains a contentious issue. The argument that the survivor partner’s pension should be based upon all of the deceased’s pension contributions, and not just those made since the coming into force of the Civil Partnership Act, has not been accepted by the government. Further announcements are promised from the government on the pension implications of partnership.
[110] The ability to transfer property upon death free from inheritance tax has proven to be one of the most controversial areas of debate, leading to wider questions regarding why same-sex couples should be financially ‘privileged’ in this way over other dependent relationships. It has also led to debate regarding the relative merits of inheritance tax more generally; an interesting question which is beyond the scope of this chapter.
[111] www. womenandequalityunit. gov. uk/lgbt/partnership. htm.
[112] Hansard, Lords, 22 April 2004, p 388, Baroness Scotland (Labour).
[113] Hansard, Commons, 9 November 2004, p 776, Ms Jacqui Smith (Labour).
[114] Hansard, Lords, 22 April 2004, p 405, Baroness O’Cathain (Conservative).
[115] Department of Trade and Industry (DTI) (2004), p 22.
[116] See, eg, O’Donovan (1993); Auchmuty (2004).
[117] Stychin (2003), ch 2. See also, eg, Bell and Binnie (2000); Carabine and Monro (2004); McGhee (2003); Powell (2000); Rose (2000); Sevenhuijsen (2000); Williams and Roseneil (2004).
[118] DTI (2004), pp 16-17.
[119] Ibid, p 22.
[120] Ibid, p 2.
[121] DTI (2003), p 15.
[122] Ibid, p 38.
[123] DTI (2004), p 16.
[124] Ibid.
[125] See, eg, Barlow and Probert (1999); Pratt (2002); Steiner (2000); Stychin (2003), ch 3.
[126] On French republicanism, see, eg, Favell (1998); Jennings (2000); Laborde (2001).
[127] Stychin (2003), ch 3.
[128] See generally Bell and Binnie (2000).
[129] See McGhee (2003).
[130] www. womenandequalityunit/lgbt/partnership. htm.
[131] Stacey and Davenport (2002), p 356.
[132] Roseneil (2002), p 34.
[133] Ibid.
[134] Cooper (2002), p 232.
[135] See, eg, Diduck (2001).
[136] DTI (2003), p 38.
[137] DTI (2004), p 16.
[138] DTI (2003), p 23.
[139] See, eg, Bell and Binnie (2000); Butler (2002); Freeman (2002); Roseneil (2004).
[140] Roseneil (2004), p 411.
[141] Ibid.
[142] Stacey and Davenport (2002), p 364. See also Fineman (2004), p 135; Diduck (2001).
[143] See, eg, Giddens (1992); Weeks (2004).
[144] Freeman (2002), p ix.
[145] Ibid.
[146] Roseneil (2004), p 411.
[147] DTI (2003), p 36.
[148] Ibid, p 35.
[149] See, however, how strategic litigation can bring a case into the Family Division Bottomley,
(1994a).
[150] See, eg, Barlow and James (2004).
[151] Ibid.
[152] Ibid and Bottomley (1994b). See also Oxley v Hiscock [2004] EWCA Civ 546, [2004] 3 All ER 703.
[153] See the government’s ‘Living Together’ campaign, which was launched on 15 July 2004. For further information, refer to the Department of Constitutional Affairs website at www. dca. gov. uk/family/cohabit. htm and www. advicenow. org. uk/.
[154] See also Stychin, Chapter 2 in this volume.
[155] Hansard, Commons, cols 177-8, 12 October 2004, Jacqui Smith. The government’s view is that the Civil Partnership Act 2004 provides a ECHR-compliant secular approach to recognising stable and committed same-sex relationships and for such partners to receive the same rights and take on the same responsibilities as those who enter into a civil marriage, but without undermining (heterosexual) marriage.
[156] Especially the Law Society; see Law Society (2002).
[157] See the advertisement placed by the Christian Institute in The Times, 9 November 2003. See also Stychin, Chapter 2 in this volume.
[158] Hansard, Commons col 179, 12 October 2004, Jacqui Smith. The Property and Trusts Law section of the Law Commission has already looked, over a long period of time, into the question of property and home sharing but decided in 2002 not to make any recommendations for change. See Law Commission (2002). See now Law Commission (2006).
[159] [2002] EWCA Civ 1533; [2002] 4 All ER 1162, CA at 35.
[160] Conversely, too much slippage between status issues and specific concerns with property often obfuscate the debate; such a slippage is all too easy, given the diversity of legislative programmes in the many jurisdictions which have tackled these issues.
The term and our usage of a ‘utopian moment’ is similar to the idea of ‘liminal utopias’ developed by Sargisson (1996).
[162] The De Facto Relationships Act (New South Wales) was amended and renamed the Property (Relationships) Act in 1999 so as to extend to both opposite — and same-sex de facto couples as well as carers, while Tasmania enacted the Relationships Act in 2003 to replace the earlier legislation and extend to both de facto couples and carers.
[163] At present, only the Domestic Relationships Act and the Relationships Act do not impose a cohabitation requirement.
[164] Cf the previous definition found in s 3(1) of the De Facto Relationships Act (New South Wales), which reinforced the genders of the respective de facto partners twice in the definition.
[165] See previously De Facto Relationships Act (New South Wales) s 3(1); De Facto Relationships Act (Tasmania), s 3; cf Property (Relationships) Act, s 4(1); Relationships Act, s 4(1).
[166] The issue of the presence, or not, of a sexual relationship may well re-emerge at the level of guidelines given for, say, deciding whether a de facto relationship exists, or in the making of awards or dealing with case material.
[167] Eg, Boyd and Young (2003); Millbank (1998); Millbank and Morgan (2001); Millbank and Sant (2000).
[168] For a fuller discussion of this particular development in the Australian legislation and how this form of de-sexing is used to ‘stretch’ protection in relation to property matters to a wider range of relationships, see Wong (2004).
[169] The Relationships Act, on the other hand, does not go as far as the Family Court Act; the Tasmanian courts, for example, have more limited powers in relation to making maintenance orders. See Family Court Act s 205ZC and s 205ZD, which replicate Family Law Act (Cth) s 72 and s 75; cf Relationships Act s 46 and s 47.
[170] This was rather disingenuous — it involved taking the focus away from equality arguments and placing it on economic vulnerability arguments.
[171] Boyd and Young (2003).
[172] Domestic Relationships Act, s 3(1).
[173] Domestic Relationships Act, s 3(2)(a).
[174] The qualifying relationships have been variously termed as ‘domestic relationships’ (as in the Property (Relationships) Act and the Domestic Relationships Act) and ‘personal relationships’ (in the Relationships Act). For the purposes of this chapter, ‘domestic relationships’ will be used, since it is the more commonly employed terminology.
[175] The parties (a) must be domiciled or ordinarily resident in Tasmania, (b) must not be married or a party to a deed of relationship, and (c) are in a significant or caring relationship. The second condition points to the need for exclusivity in order to qualify for registration of the relationship. Hence only parties in exclusive de facto or care relationships are permitted to register their relationship.
[176] Relationships Act, s 15.
[177] Rowthorn (2002), for instance, argues that marriage is traditionally seen as an institution for establishing a permanent and sexually exclusive union between a man and a woman. This ‘signal’ serves the threefold function of indicating: their commitment for an enduring relationship; their unavailability, sexually, to others; and the likely stability of the relationship. The application of signalling theory to marriage will have implications for any proposed reform of cohabitation and same-sex relationships, that reform calling for the recognition of such relationships would tend to favour a policy that ensures an effective signal of commitment and stability.
[178] We could have employed the anthropological term ‘dyad’ but chose not to, given that this would have led us on to ‘tryad’. However, what has been employed here is the use of ‘stretch’ as informed by the work of Strathern (1999).
[179] Relationships Act, s 11(1)(b) and (2)(a).
[180] See n 27 above; Relationships Act, s 15(1).
[181] All three statutes refer to applications made in relation to the property of both parties or either
of them, thus reinforcing the bilateral nature of the statutes. See Property (Relationships) Act, s 14(1); Domestic Relationships Act, s 15(1); Relationships Act, s 40(1).
[182] These are financial and non-financial contributions made directly or indirectly towards the acquisition, improvement or conservation of any property, as well as domestic contributions for the welfare of the other party or the family constituted by the parties.
[183] Domestic Relationships Act, s 19(2)(a)-(f); Relationships Act, s 47(2)(a)-(m).
[184] See, eg, White v White [2001] 1 All ER 1; Cowan v Cowan [2001] 3 WLR 684; Lambert v Lambert [2003] Fam 103; Miller v Miller; McFarlane v McFarlane [2006] UKHL 24.
[185] Butler (2004); Boyd and Young (2003); Stychin, Chapter 2 in this volume; Cooper (2001; 2004).
[186] The legislative process was a reaction to the Ontario Superior Court decision in Halpern v Canada [2001] 95 RFL (5th) 41. It included an amendment to the Preamble to the Marriage Act: ‘Whereas marriage is the foundation of family and society, without which there would be neither civilization nor progress; Whereas marriage between a man and a woman has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of long standing philosophical and religious traditions.’ See Boyd and Young (2003) on Canadian reforms and also Butler (2004) and Cooper (2001; 2004) on wider issues.
[187] Boyd and Young (2003). See also Stychin, Chapter 2 in this volume.
[188] Rowthorn (2002).
[189] See especially Boyd and Young (2003).
[190] Hill (1991).
[191] Bartlett (1984), p 879. See also Jones, Chapter 5 in this volume.
[192] Births and Deaths Registration Act 1953, s 34(2).
[193] Family Law Reform Act 1969, s 23(1); In re A (A Minor) (Paternity: Refusal of Blood Test) [1994] 2 FLR 463.
[194] Re H (A Minor) (Blood Tests: Parental Rights) [1996] 3 WLR 505; Re J (A Minor) (Wardship) [1988] 1 FLR 65.
[195] Re F (A Minor) (Blood Tests: Parental Rights) [1993] Fam 314.
[196] Re H and A (Paternity: Blood Tests) [2002] EWCA Civ 383, [2002] 1 FLR 1145.
[197] Human Fertilisation and Embryology Act 1990, s 28(2).
[198] U v W (Attorney General Intervening) [1998] Fam 29, per Wilson J, p 40.
[199] [2005] UKHL 33, [2005] 2 FCR 223
[200] [2003] EWHC 259, [2003] 1 FLR 1091.
[201] Schedule 3.
[202] Human Fertilisation and Embriology Authority (HFEA) (2004), Part 6.
[203] Brazier et al (1998), para 5.7.
[204] 72 Cal Rptr 2d 280 (Ct App 1998), review denied, No S069696, 1998 Cal LEXIS 3830 (June 10, 1998).
[205] Human Fertilisation and Embryology Act 1990, s 27.
[206] [1977] AC 547, p 577.
[207] See O’Donovan and Marshall, Chapter 6 in this volume.
[208] Shultz (1990), p 352.
[209] Ibid, p 394.
[210] [1988] AC 806, p 812.
[211] (1997) 24 EHRR 143.
[212] Ibid, p 175.
[213] Bainham (1999), p 25.
[214] Hill (1991), p 360.
[215] Children Act 1989, s 12.
[216] Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004, SI 2004/1511.
[217] [1996] 3 WLR 505, p 523.
[218] Ibid.
[219] See, for example, S v McC (orse S) and M (D S intervener); W v W [1972] AC 24; In re G (A Minor) (Parental Responsibility) [1994] 2 FCR 1037; In re H (A Minor) (Blood Tests: Parental Rights) [1996] 3 WLR 506.
[220] In re O (A Minor) (Blood Tests: Constraint) [2000] Fam 139, p 144.
[221] Claire, interviewee (emphasis added).
[222] When asked during the interview, Claire confirmed that she was specifically referring to couples in heterosexual relationships. For the purpose of brevity I use the phrase ‘heterosexual couples’ here.
[223] As Day Sclater, Bainham and Richards (1999), p 15 argue, social parenting aside, Anglo-Welsh law has increasingly drawn on the concept of biological parenthood with regard to the familial relations between parents and children. However, given the distinction between genetic and gestational motherhood for example, ‘biological’ parenthood requires clarification in legal discourse (Johnson (1999), pp 49-58). Hence my preferred term is ‘bio-genetic’ parenthood.
[224] Smart (1987), p 114; Bainham (1999), p 26.
[225] Haimes (2002), p 444.
[226] Ibid.
[227] Haimes (2002), pp 444-6; also Haimes (1990), pp 167-8.
[228] However, from 1 April 2005 donor anonymity was removed (the Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004, SI 2004/1511).
[229] See also Jackson, Chapter 4 in this volume.
9a Elsewhere I have considered the construction of implied bio-genetic links between donor — conceived children and co-mothers, and to co-mothers’ extended families, see Jones (2005).
[230] This refers to donor insemination undertaken at a fertility clinic licensed by the Human Fertilisation and Embryology Authority and therefore regulated by the Human Fertilisation and Embryology Act 1990.
[231] Hayden (1995); Gabb (1999); Comeau (1999).
[232] Births and Deaths Registration Act 1953, s 2.
[233] Births and Deaths Registration Act 1953, s 10(1).
[234] Bainham (1999), p 43.
[235] See Bridge (1999).
[236] The provisions contained in the Adoption Act 1976 have been superseded by the Adoption and Children Act 2002.
[237] Where surrogacy is involved, see Human Fertilisation and Embryology Act 1990, s 30.
[238] Bainham (1999), pp 33-4, lists these effects.
[239] With regard to the ambit of parental responsibility, see Herring (2004), pp 256-66.
[240] Children Act 1989, s 2(1).
[241] Human Fertilisation and Embryology Act 1990, s 28(2).
[242] Children Act 1989, s 4(1)(a): see Sheldon (2001); Wallbank (2002). However, Children Act 1989 s 2A provides that parental responsibility acquired under s 4 can be removed by a court order.
[243] Children Act 1989, s 4(1)(b).
[244] Children Act 1989, s 4(1)(c).
[245] Children Act 1989, s 12(1).
[246] Children Act 1989, s 12(2): see Re C (A Minor) (Residence Order: Lesbian Co-parents) [1994] Fam Law 468 (unreported elsewhere); G v F (Contact and Shared Residence: Applications for leave) [1998] 2 FLR 799; and now Re G (Children) [2005] EWCA Civ 462. Co-mothers (and other non-parents) who cannot satisfy the terms of Children Act 1989 s 10(5)(b), which requires the child to have lived with that person for a period of at least three years, have to apply to the court for leave in order to make the application under s 8 Children Act 1989. From 30 December 2005 it has been possible for step-parents to seek parental responsibility under s 4A(1) Children Act 1989, as amended. However, this is limited to those persons who have married or undertaken a civil partnership with the child’s parent(s).
[247] Hence, the provisions permitting same-sex adoption (ie by both partners) under the Adoption and Children Act 2002 are to be welcomed, as this ensures parental responsibility and parental status.
[248] Bainham (1999), p 33.
[249] [2003] EWCA Civ 182, [2003] Fam 129, [2003] 2 All ER 131 (emphasis added). See Sheldon (2005); Lind (2003). The High Court decision in this case was reported as Re D (Parental Responsibility: IVF baby) [2001] 1 FLR 972. In May 2005, the Court of Appeal decision was upheld in the House of Lords, and reported as Re D (a child appearing by her guardian ad litem) [2005] UKHL 33.
[250] See also Jackson, Chapter 4 in this volume.
[251] Pfeffer (1987), p 94; for an anthropological account, see Strathern (1992).
[252] Snowden and Mitchell (1981), p 17.
[253] Smart (1987), pp 99-101.
[254] Wallbank (2001).
[255] Franklin (1993).
[256] Hereafter HFE Bill.
[257] Franklin (1993), pp 103-5.
[258] Ibid, p 104.
[259] Franklin (1993, p 104) cites embryo research and the limitation of 14 days imposed in the HFE Bill (s 3) as an example. That is, the actual emergence of the primitive streak in a particular embryo is displaced in favour of a blanket limitation period for all embryos.
[260] Franklin (1993), p 104.
[261] Hereafter HFEA 1990.
[262] Franklin (1993), p 104.
[263] See also Jackson, Chapter 4 in this volume.
[264] Franklin (1993), p 105 (emphasis added).
[265] The presumption of paternity is rebuttable if the husband can show he did not consent to the insemination (see also Schedule 3 HFEA 1990; Lee and Morgan (2001), p 237).
[266] See Re D (a child appearing by her guardian ad litem) [2005] UKHL 33, [2005] FCR 223.
[267] See also Wallbank (2004).
[268] Franklin (1993), p 105.
[269] Probert (2004), p 288.
[270] Saffron (1994; 1996; 1998; 2001).
[271] www. issue. co. uk/dinet (last accessed 2001).
[272] www. dcnetwork. org/ (last accessed September 2005).
[273] Family Law Reform Act, s 27(1).
[274] This aspect of the Family Law Reform Act 1987 was incorporated into HFEA 1990, s 28(2).
[275] Emphasis added.
[276] Hoggett (1993), p 28.
[277] Blythe and Moore (2001), p 221; Jackson (2001), p 165.
[278] Snowden and Mitchell (1981), pp 35-6, original emphasis.
[279] Emphasis added.
[280] Foucault (1980).
[281] Wallbank (2001).
[282] Smart (1987); Haimes (1990); Jackson (2001).
[283] Smart (1987).
[284] Sarah, interviewee; emphasis added.
[285] The issue of secrecy falls outside the focus of this chapter: see further Snowden and Mitchell (1981); O’Donovan (1988; 1989; 1998); Daniels and Taylor (1993); Golombok et al (1996; 2004); Murray and Golombok (2003).
[286] Section 50 Adoption and Children Act 2002 provides for same-sex couples to adopt together. For the purposes of s 50, ‘a couple’ is defined under s 144(4)(b) as ‘two people (whether of different sexes or the same sex) living as partners in an enduring family relationship’. It is possible that permitting same-sex adoption could lead to the development of alternative naming practices. For example, a co-mother like Andrea may be more inclined to label herself a ‘parent’ as opposed to ‘sort of a parent’. It is significant to note that the gender-neutral term ‘parent(s)’ is used in Schedule 1 of the Adopted Children and Adoption Contact Registers Regulations 2005, which governs the form of entry in the Adopted Children Register. Roger Errington, Head of Adoptions at the General Register Office, explains that ‘this was the straightforward summary wording which the lawyers were satisfied would cover all possible combinations of adoptive relationship. . . The above use of “parent(s)” replaces the use of “adopter or adopters” currently in use as prescribed by the Forms of Adoption Entry Regulations 1975’ (personal communication, 7 September 2005). It is not clear why ‘adopter(s)’ would not encompass all adoptive relationships. Nevertheless, the use of these gender-neutral terms suggests normative hostility to the possibility of two ‘mothers’ (or indeed ‘fathers’) within legal discourse.
[287] Emphasis added.
[288] See the discussion under ‘Joint residence orders’ below.
[289] Cussins (1998); also Thompson (formerly Cussins) (2001).
[290] Cussins (1998), p 55, emphasis added.
[291] See discussion in Jackson, Chapter 4 in this volume. However, the New Zealand Law Commission recently raised the possibility of a child having more than two legal parents: see New Zealand Law Commission (2005), paras 6.67-6.73 and 8.15-8.17.
[292] Dunne (2000), p 24.
[293] See Dunne (2000) for a discussion of parenting practices that are not necessarily mediated along gender-specific lines, a detailed discussion ofwhich falls outside the focus of this chapter.
[294] See Weeks, Heaphy and Donovan (2001) for a discussion of same-sex partners (in Britain) remaking ‘family’ or ‘families of choice’, outside of heterosexual norms and legal discourse rooted in those norms. Weeks et al note that, while these processes can be difficult for nonheterosexuals, the emergent ‘practices of freedom’ can also be liberating, and provide ongoing challenges to traditional heterosexual assumptions.
[295] Emphasis added.
[296] Human Fertilisation and Embryology Authority (2004), paras 7.28-29.
[297] Kennedy and Grubb (1994), p 789; also Jackson (2001), pp 239-40.
[298] Dunne (2000).
[299] Emphasis added.
[300] Cussins (1998), p 55.
[301] Children Act 1989, s 3.
[302] See Montgomery (2003), pp 289-304.
[303] See Jones (2003; forthcoming 2007).
[304] This was acknowledged by Thorpe LJ in Re G [2005] EWCA Civ 462, at para 7. Citing s 75(2) Civil Partnership Act 2004 (which, when enacted, will amend Children Act 1989 s 4A(1)
(acquisition of parental responsibility by step-parent) to include applications by civil partners), he stated that this is ‘an indication of a perceivable statutory trend towards the relaxation of the boundary originally set by section 4 [Children Act 1989]’.
[305] See Baroness Hale in Ghaidan v Mendoza [2004] 2 WLR 113, paras 141-3.
[306] [2005] EWCA Civ 462. Now see also Re G (Children) [2006] UKHL 43, on appeal from [2006] EWCA Civ 372.
[307] Para 27, emphasis added.
[308] Paras 25, 27.
[309] Indeed, this issue is only addressed specifically with regard to noting the mother’s evidence that ‘Miss W should be viewed as an extended family member, not in a parental position’, para 11. However, no further discussion of the mother’s evidence was undertaken with regard to this point.
[310] Cooper and Herman (1995), p 176.
[311] See Diduck (1998).
[312] Beverley, interviewee.
[313] Children Act 1989, s 5(3).
[314] Barton and Douglas (1995), p 100.
[315] Children Act 1989, s 5(6)-(8).
[316] HFEA 1990, s 28(6).
[317] Children Act 1989, s 6(7).
[318] Barton and Douglas (1995), p 100.
[319] HFEA 1990, s 28(3). Though the case of X, Y and Z v UK (1997) 24 EHRR 143 involving a transsexual social father indicates that one must legally be considered to be a man for s 28(3) HFEA 1990 to apply. However, Gender Recognition Act 2004 s 9(1) states that after a full gender recognition certificate is issued ‘the person’s gender becomes for all purposes the acquired gender.’ Consequently, a female-to-male transsexual could in future be legally registered as the father of a donor-conceived child. However, as s 12 of the 2004 Act makes clear, issuing a gender recognition certificate does not alter the (pre-certificate) parental status of an individual.
[320] Franklin (1993), outlined above.
[321] Barton and Douglas (1995); Bainham, (1999); Bridge (1999); Johnson (1999); Jackson (2001) and Chapter 4 in this volume; Herring (2004); and Probert (2004).
[322] Bainham (1999); Probert (2004).
[323] Currently this would mean a maximum of two parents, although Johnson (1999) discusses future possible developments in assisted reproductive technologies that could increase this number.
[324] Wallbank (2004).
[325] Bainham (1999), p 44.
[326] Barton and Douglas (1995).
[327] Probert (2004), pp 284-5; Herring (2004), pp 328-9.
[328] Herring (2004), p 328.
[329] Probert (2004), p 285.
[330] Re D [2005] UKHL 33; Sheldon (2005); Lind (2003).
[331] Haimes (2002).
[332] O’Donovan (1993); Diduck (1995, 2003).
[333] Probert (2004), p 278.
[334] Ibid.
[335] Per Ghaidan v Mendoza [2004] UKHL 30, [2004] 3 All ER 411.
[336] Ibid, and the decision in Re G, as discussed above.
[337] Clearly, a number of women become co-mothers following self-insemination (Saffron, 1998), to whom the consent provisions would not apply. Class issues and the access policies of licensed clinics, which can act to frustrate lesbian women’s use of licensed donor insemination, are salient considerations but fall outside the scope of this chapter: see Jones (2003, 2004).
[338] Births and Deaths Registration Act 1953.
[339] See also Adopted Children and Adoption Contact Registers Regulations 2005, SI 2005/924, Schedule 1.
[340] Children Act 1989, s 12(2).
[341] I am grateful to both Carol Smart and Lisa Young for alerting me to the Australian provisions.
[342] Nedelsky (1989), p 221.
[343] Jackson (2001); Nedelsky (1989).
[344] See, for example, Malik, Chapter 11 in this volume.
[345] For example, Nussbaum (2000).
[346] Jackson and Lacey (2002).
[347] Ruddick (1989), pp 18-19. Ruddick’s distinction has been made in French law since the eighteenth century.
[348] Re AB (Care Proceedings) [2003] EWCA Civ 1842.
[349] Odievre v France (Application no 42326/98) 13 February 2003; [2003] 1 FCR.
[350] See O’Donovan (1985); Olsen (1995); Pateman (1987; 1988); Lacey (1998).
[351] Okin (1979; 1989).
[352] Du Bois (1985); Pateman (1987); Olsen (1995); Phillips (1999); MacKinnon (1989); Gilligan (1982); Bock and James (1992).
[353] This is particularly the case in medical ethics.
[354] Kant (1988); see also Dworkin (1999).
[355] See Lloyd (1984).
[356] Taylor (1992); Sandel (1998); see analysis also by Reece (2003), ch 2.
[357] Nedelsky (1989); MacKinnon (1989); Nussbaum, (1999; 2000); MacKenzie and Stoljar (2000).
[358] Nedelsky (1989); MacKenzie and Stoljar (2000).
[359] Phillips (1993), p 43.
[360] De Beauvoir (1997); Lloyd (1984).
[361] See Evans (1997), p 45.
[362] Firestone (1971), pp 8-9.
[363] Firestone (1971).
[364] Gilligan (1982); Rich (1976); West (1988).
[365] West (1988).
[366] According to West (1988), women fear separation from the other rather than annihilation by him, and count it as a harm, because women experience the separating pain of childbirth and feel more deeply the pain of the maturation and departure of adult children.
[367] West (1988).
[368] Rich (1976), p 127.
[369] Ibid, p 280.
[370] Ibid, p 160.
[371] Ibid, p xxii.
[372] Okin (1979).
[373] Cornell (1998).
[374] Chodorow (1978); O’Brien (1981); Dally (1982).
[375] Pateman (1987); Phillips (1993); Okin (1989); Chodorow (1978).
[376] Chodorow (1978).
[377] Ibid, p 208.
[378] Ibid, p 212.
[379] Okin (1989); Nussbaum (2000).
[380] Okin (1989).
[381] Sheldon (1997).
[382] Or a resignation, again based on a conflation of the two concepts, that there is little choice to do otherwise.
[383] Stumpf (1986), pp 187-208.
[384] Ruddick (1989), p 51.
[385] Sarah Ruddick (1989) includes the work of gestation and the trauma of giving birth in the idea of birthing labour.
[386] Rothman (1989), p 161.
[387] MacKinnon (1991), p 1316.
[388] Sevenhuijsen (1998), p 56.
[389] Diduck (2003), p 83.
[390] Douglas and Michaels (2004).
[391] See, eg, Crittenden (2001); Eyer (1996); Maushart (1999).
[392] Douglas and Michaels (2004), p 4.
[393] Brockington (1996).
[394] Lee et al (2004).
[395] National Research Council (1987), p 27, cited in Lee et al (2004), p 1.
[396] Lee et al (2004), p 21.
[397] Concealment of pregnancy followed by infanticide is reported in all studies: see Brockington (1996).
[398] Firestone (1971); Okin (1989).
[399] Sandel (1998), p 19.
[400] Reece (2003), ch 1.
[401] Griffiths (1995).
[402] Griffiths (1995), p 179.
[403] Ibid, p 93; see also Malik, Chapter 11 in this volume.
[404] Reece (2003), p 14.
[405] Gilligan (1982).
[406] Badinter (1981).
[407] Reece (2003) argues that the search for authenticity, in following the right path in personal decisions, can be never-ending, and is an aspect of the therapeutic state. Eventually this search is coercive, as much so as the traditional rules it replaces.
[408] Re AB (Care Proceedings) [2003] EWCA Civ 1842.
[409] Children Act 1989, s 2. Since he was married to the mother, he has automatic parental responsibility. Nevertheless, the case suggests that a discretion does exist on the question of whether he is joined as a party.
[410] In Re J (Adoption: Contacting Father), Family Division 14/02/03, upon the woman’s request, the father of a child placed for adoption was not contacted. In Re M (Adoption: Rights of Natural Father) [2001] 1 FLR 745, the father was not contacted as there was ‘no established family life’. See also Re M (Adoption: Rights of Natural Father) [2001] FLJ 240. Where ‘family life’ is established the court will require that the father be contacted: Re R (Adoption: Father’s Involvement) [2002] 1 FLR 302. In these cases the parties were unmarried.
[411] As detailed in the appeal: Re AB [2003] EWCA Civ 1842.
[412] Re AB, para 19.
[413] McClain (1996).
[414] Reece (2003). The writers of this chapter have debated this point. One argues that autonomy is not just about ‘doing your own thing’, and that people should be helped to make the right choices. The other argues that there may be a distinction between what seems to be ‘right’ at the time and what one sees as ‘right’ in later years. When under pressure, it is the present that has to be taken care of, not the future.
[415] Re AB, para 19.
[416] Scheiwe (2003), p 144.
[417] Thorpe LJ in Re AB.
[418] McClain (1996).
[419] Registration of Births Act, 1953, s 2; Human Fertilisation and Embryology Act 1991, s 27.
[420] Offences Against the Person Act 1861, s 27.
[421] Panter-Brick and Smith (2000).
[422] Adoption and Children Act 2002, s 79.
[423] O’Donovan (2000a), pp 73-86.
[424] Odievre v France (2004) EHRR 43, [2003] 1 FCR 621.
[425] O’Donovan (2000b), pp 68-85.
[426] Odievre v France (2004) EHRR 43, [2003] 1 FCR 621.
[427] Steiner (2003).
[428] O’Donovan (2000b). See also paras 15 and 16 of the judgment in Odievre v France.
[429] Etzioni (1988). See also analysis in Part One above.
[430] O’Donovan (2002).
[431] Odievre v France.
[432] Odievre v France, para 44.
[433] United Nations Convention on the Rights of the Child, Articles 7 and 8; European Convention on Human Rights, Article 8; Steiner (2003).
[434] Scheiwe (2003). The situation in the United States, where anonymous abandonment has been legalised in a large number of states, is discussed in Magnusen (2001) and in Raum and Skaare (2000).
[435] Steiner (2003), p 430.
[436] Douglas and Michaels (2004).
[437] Nedelsky (1989), p 221.
[438] Ibid, p 225.
[439] Gilligan (1982); Sevenhuijsen (1998); Tronto (1993).
[440] Gillies (2005).
[441] Gillies (2005), p 77.
[442] Murch (1980); James and Hay (1993).
[443] Smart and Sevenhuijsen (1989); Diduck (2003).
[444] Tronto (1993).
[445] Advisory Board on Family Law (2002); Amato and Booth (1997); Morgan (1998).
[446] See also Kaganas, Chapter 8 in this volume.
[447] For example, the headline in Guardian Unlimited, 28 October 2004, read ‘Stand up for your rights, minister tells fathers’. The minister was Lord Filkin, who has responsibility for reform of existing policies in family law. Also John Humphreys, on the BBC Radio 4 programme Today, 18 June 2004, stated that we all know that fathers are discriminated against.
[448] Smart et al (2003).
[449] Wallbank (1998).
[450] Smart and Sevenhuijsen (1989).
[451] DfES (2005).
[452] Gillies (2005).
[453] Bainham (2003a; 2003b); Collier (1995).
[454] In McKenzie, the National Newsletter of Families Need Fathers, Issue 58, December 2003, the front page headline read ‘Get political’ and featured a message from Bob Geldof. The final paragraph read: ‘This law can and will be changed. Use your agony and dismay. Channel it to action. Let every humiliation and tear move you forward so that no child nor man may suffer again what you have. Good luck!’
[455] Geldof (2003).
[456] [2003] 2 All ER 131.
[457] Marsden (1969).
[458] B and D v R [2002] 2 FLR 843, p 846.
[459] Presumably this was important because it could be speculated that the child might resemble the non-genetic father’s physical characteristics to some degree and that this strengthened his claim to becoming the legal father.
[460] B and D v R [2002] 2 FLR 843, p 845.
[461] Re R (a child) [2003] 2 All ER 131, p 137. See also Jones, Chapter 5 in this volume.
[462] Re R (a child) [2003] 2 All ER 131, p 139.
[463] See also Sheldon (2001).
[464] These excerpts are from interviews carried out in 2003-4 as part of a Department for Constitutional Affairs funded project on contact and residence disputes. For a full account of the study, see Smart and May (2005). We interviewed 27 fathers and 34 mothers in three different regions in England. All had been involved in disputes over contact or residence that had gone to court.
[465] Bailey-Harris (2001); Cantwell et al (1999).
[466] Contact father, contact dispute.
[467] Contact father.
[468] Day Sclater (1999).
[469] Contact father, residence dispute.
[470] Brophy (1982).
[471] Geldof (2003).
[472] Wallbank (1998).
[473] Fineman (1995).
[474] Ibid.
[475] This recognition has occurred on an international scale. See Declaration on the Elimination of Violence Against Women 1993, Article 2; Council of Europe Committee of Ministers (2002), Appendix, para 1.
[476] See Hearn (1998), pp 7-8. See also Mawby and Walklate (1994); Itzin (2000).
[477] On feminist engagement with law, see Lewis et al (2001).
[478] See Itzin (2000).
[479] See Mullender and Morley (1994), p 7; Hearn (1998), p 11; Itzin (2000), p 360.
[480] It is not the intention here to draw definitive conclusions about the prevalence or otherwise of male victims of domestic violence. The intention is to point out that those groups contending that women’s violence against men is a major problem do not produce evidence that it is.
[481] See Cabinet Office and Home Office (1999); Home Office (2000a); Home Office (2003). See further Diduck and Kaganas (2006) ch 10.
[482] See, for example, Family Law Act 1996, as amended, ss 1, 4 and 46(3A).
[483] Domestic Violence, Crime and Victims Act 2004; Protection from Harassment Act 1997, ss 5A and 12; Youth Justice and Criminal Evidence Act 1999, s 17. See further Diduck and Kaganas (2006), ch 10.
[484] Including rape: see Sentencing Advisory Panel (2002); R v Millberry [2003] 1 WLR 546. See also, on domestic violence in the context of domestic homicide, Law Commission (2003).
[485] Home Office (2000b). See also Metropolitan Police (2001).
[486] Crown Prosecution Service (2001).
[487] See also Sentencing Advisory Panel (2004), para 9.
[488] See, for a summary of criticisms, Diduck and Kaganas (2006), ch 10.
[489] See also Mitchell (2004).
[490] The judge’s observations were, however, made in the context of contact disputes.
[491] Hamilton (2003), p 5.
[492] Ibid, p 7.
[493] See Diduck and Kaganas (2006), ch 10. See also HM Crown Prosecution Service Inspectorate and HM Inspectorate of Constabulary, 2004.
[494] Sentencing Advisory Panel (2004).
[495] Home Office (2003), p 28. See, on specialist courts, Cook et al (2004).
[496] Home Office (2003), pp 26-7.
[497] Ibid, p 28.
[498] Ibid, pp 38^0.
[499] Ibid, pp 42^.
[500] Newburn and Stanko (1994), p 155.
[501] See Diduck and Kaganas (2006), ch 10.
[502] See, for example, Dobash and Dobash (1992), pp 26 and 63.
[503] Ibid (1992), pp 63-6.
[504] See ibid, pp 27 and 118.
[505] See, for example, ibid, pp 112-13.
[506] Dobash and Dobash (2000), p 190.
[507] Fontes conducted research in the USA for his PhD and has published a number of pieces on the web on the topic of male victimisation. He claims to have dealt with abused men in his professional capacity, but restricts his evidence to an anecdote about one man and to the bald statement that he ‘was surprised by the number of men who shared with [him] their stories of being physically assaulted by their female partners’ (Fontes (1998), accessed 19 July 2004). However, he does rely on surveys by family violence researchers using the Conflict Tactics Scale (see Fontes (1998: 2003), 20ff, accessed 27 May 2004). See below for criticisms of this methodology. Fontes also relies on the rising arrest statistics for women, but does not explore the extent to which this might be the effect of arrest policies; in some areas in America the police have been known to arrest both parties routinely (Chesney-Lind, 2002).
[508] Worrall (2002), p 55.
[509] See Mirrlees-Black (1999), pp 37, 39, 61-2.
[510] The research usually includes abuse by women and by other men, without providing separate figures for these categories.
[511] See, for discussion, Gadd et al (2002).
[512] Simmons et al (2002).
[513] As was the case for the earlier British Crime Survey, these figures do not include sexual offences.
[514] Dodd et al (2004), Table 5.01.
[515] Dobash and Dobash (2004), p 324. See also Barnish (2004), para 2.1.
[516] Dobash and Dobash (2004), p 326.
[517] Ibid, p 327.
[518] Ibid, p 328.
[519] Ibid, p 328. But see Dispatches, shown on Channel 4 on 7 January 1998. See Dewar Research
(1998).
[520] Dobash and Dobash (2004), p 328.
[521] Dobash and Dobash (2000), p 190.
[522] Ibid, p 190.
[523] Ibid, p 117. See also pp 111-12. See also Barnish (2004), para 4.3.
[524] Ibid, p 115. See also Barnish (2004), para 4.3.
[525] Dobash and Dobash (2004).
[526] See further Dobash and Dobash (1992), ch 8.
[527] See, for example, Dobash and Dobash (2004), p 329.
[528] Ibid, p 329.
[529] Ibid, p 330.
[530] Ibid, p 331.
[531] Dobash (2003), p 314.
[532] Gadd et al (2002).
[533] Ibid, p 1.
[534] Ibid, p 3.
[535] Ibid, p 3.
[536] Ibid, p 3.
[537] Walby and Allen (2004).
[538] Ibid, p 15: albeit adapted to take account of criticism.
[539] Ibid.
[540] See, for example, ibid, p 37.
[541] See also Barnish (2004), para 2.3.
[542] Walby and Allen (2004), p vii.
[543] Ibid, p 11. See further pp 18, 29-31.
[544] Ibid, p vii. See further pp 23 and 25.
[545] Ibid p viii.
[546] Ibid, p viii. See further pp 33-7. Domestic violence also appears to affect women’s health but not men’s (p 87).
[547] Ibid, p 19.
[548] Ibid, p vii. Of the women who were raped, 45 per cent were raped by a husband or partner and 9 per cent by a former husband or partner (p ix).
[549] Cases where there was violence in addition to stalking.
[550] Walby and Allen (2004), pp ix and 61.
[551] Ibid, p ix.
[552] Ibid, p 19.
[553] Ibid, p 19.
[554] See also Stanko and Hobdell (1993), pp 401 and 413; Goody (1997).
[555] Fontes (1998: 2003), p 39.
[556] Walby and Allen (2004), p 91. See also Barnish (2004), para 2.5.
[557] See Walby and Allen (2004), p x and p 94. See also p 53.
[558] Ibid, p 98.
[559] Ibid, p x.
[560] Ibid, p x. See further pp 101-2.
[561] Dobash and Dobash (2004).
[562] See ibid, pp 343-4.
[563] Ibid, pp 336-7.
[564] Ibid, p 336.
[565] Ibid, p 338.
[566] Ibid, p 338.
[567] Ibid, p 314.
[568] Ibid, p 343.
[569] Ibid, p 340.
[570] Ibid, p 341.
[571] This term is borrowed from Forbes (1992).
[572] Graycar (2000), para E.
[573] MacKinnon (1987), p 170.
[574] Worrall (2002), p 48.
[575] MacKinnon (1987), p 171.
[576] Worrall (2002), p 48.
[577] (1992). She discusses the ‘discovery’ of the female sexual abuser.
[578] Ibid, pp 107-8.
[579] Ibid, p 109.
[580] Collier (1999), p 126.
[581] Collier (1995).
[582] Collier (1999), p 127.
[583] Collier (1995), p 202.
[584] Ibid, p 177.
[585] Ibid, p 202.
[586] Ibid, p 202.
[587] Ibid, p 212.
[588] Mullender et al (2002), p 180.
[589] See, for example, Mullender et al (2002).
[590] Rock (2002), p 14.
[591] Some websites include material that is simply misogynous. See, for example, Manorama, Door 3: http://homepage. ntlworld. com. verismo/index. html (accessed 19 July 2004).
[592] It is not claimed that any of these groups is representative of a significant segment of the British male population. However, these groups are significant in that they seek to influence law and policy and it is these groups that lobby politicians and policy makers, ostensibly on behalf of men as a constituency.
[593] The ‘it does happen network’ at www. itdoeshappen. org/mambo/index. php? option= content&task=view&id=8&it (accessed 5 November 2004; emphasis in original).
[594] See The Mankind Initiative at www. mankind. org. uk/charter. html (accessed 1 June 2004). It is also a strong proponent of the ‘traditional family’.
[595] See at www. mankind. org. uk/dv. html (accessed 26 November 2004).
[596] Although the organisation states that it is gender neutral, Men’s Aid has undergone organisational change and has completely rewritten its website since the bulk of the research for this paper was done. Parts of the website appeared to be still under construction at the time of writing, and by proof stage it contained almost no information about domestic violence on men. Gordon’s paper (2003) had disappeared (see below).
[597] www. crisisline. co. uk/mensaid/ (accessed 5 November 2004).
[598] See at www. mensaid. org/history. htm (accessed 25 May 2004). Women constitute about 45 per cent of their contacts (Gordon (2003), p 5) and most of these are mothers, sisters and daughters of male victims of domestic violence. See www. mensaid. org/domestic-violence. htm (accessed 6 May 2004).
[599] Gordon (2003), p 5.
[600] Ibid, p 21. They also refer to ‘the hundred thousand or so female perpetrators’ (p 24).
[601] Ibid, p 27.
[602] www. itdoeshappen. org/mambo/ (accessed 5 November 2004).
[603] www. crisisline. co. uk/mensaid/dv. htm (accessed 26 November 2004).
[604] www. mankind. org. uk/dv. html (accessed 1 June 2004).
[605] See, for example, Gordon (2003), p 12.
[606] Ibid, p 55.
[607] But see Dewar Research (1998). See also Richards (2004), para 5.1.7.
[608] See, for example, The Mankind Initiative (2004), para 3.2, which refers to ‘verbal’ abuse, a term that could extend to ‘nagging’.
[609] Gordon (2003), p 14.
[610] See Smart, Chapter 7 in this volume.
[611] Families Need Fathers (undated), p 3.
[612] Ibid, p 3.
[613] The Justice for Fathers UK website links to a page entitled ‘The Truth About Domestic Violence. Exposing Stanko’s Big Lie of 1 in 4’ (www. justiceinfamilylaw. co. uk/ The%20big%20lie. htm). This webpage refers to the 1996 British Crime Survey to show equivalence (accessed 9 February 2004). See also The Mankind Initiative, at www. mankind. org. uk/charter. html.
[614] Families Need Fathers (2001) (accessed 26 November 2004).
[615] Families Need Fathers (undated), p 3.
[616] Ibid, p 4.
[617] Ibid, p 4.
[618] The ‘it does not happen network’ at www. itdoeshappen. org/mambo/ (accessed 5 November 2004, emphasis in original).
[619] Families Need Fathers (1999), p 3. See also Families Need Fathers (1999), p 9.
[620] The Mankind Initiative at www. mankind. org. uk/dv. html (accessed 1 June 2004).
[621] Ibid and Fontes (1998).
[622] Gordon (2003), p 8.
[623] Fathers4Justice (2003), p 11.
[624] Families Need Fathers (undated), p 2.
[625] Ibid, p 3. See also p 5.
[626] Ibid, p 6.
[627] Ibid, p 6.
[628] Ibid, p 8.
[629] Ibid, p 5.
[630] The Men’s Aid Philosophy, at www. crisisline. co. uk/mensaid/philosophy. htm (accessed 5 November 2004). Although this does not refer to the gender of the parties, it is clear that it is the resident parent, normally the mother, who is alleged to have lied.
[631] See also Gordon (2003), p 27.
[632] It is suggested that allegations of violence be removed altogether from the family courts and be confined to criminal courts with the criminal standard of proof (Families Need Fathers (1999), p 2).
[633] Families Need Fathers (2001). See also Families Need Fathers (1999), p 2.
[634] Families Need Fathers (undated), p 8.
[635] Ibid, p 11. See also Mankind Initiative, ‘Family Policy Document’ at www. mankind. org. uk/ fampol. htm (accessed 1 June 2004); Men’s Aid ‘Domestic Violence’ at www. crisisline. co. uk/ mensaid/dv. htm (accessed 5 November 2004).
[636] Families Need Fathers (undated), p 9.
[637] Gordon (2003), p 27.
[638] Ibid, p 50.
[639] See at www. crisisline. co. uk/mensaid/philosophy. htm (accessed 5 November 2004).
[640] Families Need Fathers (2001) (emphasis added). See also Families Need Fathers (1999), p 3; Gordon (2003), p 30.
[641] Families Need Fathers (undated), p 5. Walby and Allen (2004, p ix) report that in 2 per cent of cases of post-separation contact involving violent men there had been threats to the children and in 1 per cent of cases, the perpetrator hurt the children.
[642] Families Need Fathers (undated), p 5.
[643] Ibid, p 5.
[644] Gordon (2003), p 8.
[645] Ibid, p 5.
[646] Families Need Fathers (1999), p 11.
[647] Ibid, p 2. See also p 10.
[648] Men’s Aid at www. mensaid. org/general-info. htm (accessed 25 May 2004).
[649] Of course, women’s groups have also used and expanded the definition of domestic violence in strategic ways.
[650] www. mensaid. org/about-us. htm (accessed 6 May 2004).
[651] www. justiceinfamilylaw. co. uk (accessed 9 February 2004). See also the Mankind Charter at www. mankind. org. uk/charter. html (accessed 1 June 2004). The courts too, in a limited range of cases, have held children to have been emotionally abused by mothers who have made unfounded allegations of sexual abuse. See Re M (Intractable Contact Dispute: Interim Care Order) [2003] EWHC 1024 (Fam), [2003] 2 FLR 636; V v V (Contact: Implacable Hostility) [2004] EWHC 1215 (Fam), [2004] 2 FLR 851.
[652] The Mankind Initiative ‘Denigration’ at www. mankind. org. uk/denigrat. html (accessed 9 February 2004).
[653] Gordon (2003), p 16.
[654] Ibid, p 55.
[655] See Families Need Fathers (undated), p 3. See also Families Need Fathers (1999).
[656] National Society for the Prevention of Cruelty to Children.
[657] Families Need Fathers (undated), p 3. See also Sacks (undated); Fathers4Justice (2003), p 8.
[658] Families Need Fathers (undated), p 3. See also Families Need Fathers (1999).
[659] Families Need Fathers (undated), p 7.
[660] Ibid, p 7.
[661] According to Fontes, ‘emotional abuse’, in the form of ‘yelling’, constitutes provocation that can lead to physical violence by the man (Fontes (1998: 2003), p 31).
[662] Families Need Fathers (undated), p 10.
[663] Ibid, p 10.
[664] Gordon (2003), p 16.
[665] Ibid, p 24.
[666] Ibid, p 25.
[667] Ibid, p 26. See also ibid p 27.
[668] Ibid, p 38.
[669] The Mankind Initiative (2004), para 3.1.
[670] See also Families Need Fathers (1999), p 1.
[671] Families Need Fathers (undated), p 4.
[672] See also Gordon (2003), p 10.
[673] Ibid, p 26.
[674] www. justiceinfamilylaw. co. uk (accessed 26 November 2004). The family law system has come under sustained attack from men’s groups. Bob Geldof, for example, in the context of contact with children, has posted a message on the Families Need Fathers website alleging that ‘family law remains flagrantly biased, prejudicial and discriminatory’, and that ‘men and our children are forced through this disgusting and baleful construct, cruelly and surely ironically called “Family” law’ (Geldof, undated). Fathers4Justice say in their manifesto: ‘We challenge the bias inherent in the family law system’ and ‘advocate the dismantling of every element of the existing grotesque, cruel, unjust and unaccountable Family Law Industry and the removal of all existing family court judges’ and seek to ‘ex-pose miscarriages of justice’ (emphasis in original), at http://homepage. ntlworld. com/f4jswansea/manifesto. htm (accessed 9 February 2004). The UK Men’s Movement (UKMM) alleges that ‘feminists have almost entirely succeeded in destroying men’s rights in marriage and the family’. And the law, it says, gives rise to ‘persecution of honest and decent men, and massive privileges for women’ (UKMM, undated a). Fathers4Justice claims there is a ‘war on Fatherhood’ with ‘mass fatherlessness’ leading to social decay (Fathers4Justice (2003), p 12). For an exceptionally intemperate attack, see at www. justiceinfamilylaw. co. uk (accessed 26 November 2004).
[675] Daily Mail (2003) at www. justiceinfamilyaw. co. uk (accessed 26 November 2004).
[676] The Mankind Initiative (2004), para 3.8. See also UKMM (undated b); www. mankind. org. uk/denigrat. html (accessed 9 February 2004).
[677] Fontes (1998: 2003), p 42 (emphasis in original).
[678] Ibid, p 46.
[679] The Mankind Initiative (2004), paras 5.1-2.
[680] Ibid, para 6.10.
[681] Ibid, p 1.
[682] Fontes (1998: 2003), p 49.
[683] Ibid, p 47. See also Gordon (2003), p 9.
[684] UK Men’s Movement.
[685] UKMM (2001), Conclusions (accessed 1 June 2004).
[686] See also Collier (1999), p 127.
[687] Corry (2002).
[688] See Farrington and Painter (2004).
[689] Boyle et al (2002).
[690] See Day Sclater and Piper (2000).
[691] See Fortin (2003), p 556.
[692] For reprimands and warnings, see the Crime and Disorder Act 1998, ss 65-6.
[693] For referral orders see Powers of Criminal Courts (Sentencing) Act 2000, ss 16-27.
[694] See Piper (1994), and the references therein.
[695] Under the Education Act 1996, ss 443-4; Crime and Disorder Act 1998, s 8(1)(d). For guidance on parenting contracts and orders see Home Office et al (2004).
[696] Home Office (2000), para 3.17
[697] Campbell (2003).
[698] Home Office (2003b), para 9, p 5.
[699] Campbell (2003), p 3.
[700] See, for example, DfES (2004b), a recent research report on risk of becoming involved in criminal or anti-social behaviour.
[701] See Piper (1999).
[702] DfES (2003); see also DfES (2004a).
[703] Home Office (2003b).
[704] See: www. commonsleader. gov. uk/output/page798.asp. However, whilst a Youth Justice Bill was announced in the Queen’s Speech in 2004 and drafted in the 2004-5 session, such Bill is not in the list of Bills for 2005-6; see the Queen’s Speech, May 2005, at www. number- 10.gov. uk/output/Page7489.asp.
[705] Youth Justice Board (2004), para 6.3.
[706] Ibid, para 6.6.
[707] See Piper (2005); for the use of ‘criminalisation’ as a state response to poverty and educational disadvantage, see Drakeford and Vanstone (2000).
[708] Farrington and Painter (2004).
[709] Ibid, p 56.
[710] Ibid. In this sample, 12 per cent of sisters and 44 per cent of brothers were convicted.
[711] Ibid, pp 57-8.
[712] See the discussion below concerning the ASSET assessment tool.
[713] At the same time, non-criminal cases were moved to the newly created Family Proceedings Court: Criminal Justice Act 1991, s 68 and Schedule 8; Children (Allocation of Proceedings) Order 1991, SI 1991/1677.
[714] See Crime and Disorder Act 1998, ss 37-41.
[715] See Piper (2001).
29 www. homeoffice. gov. uk/inside/org/dob/direct/jou. html.
30 Home Office (2003b).
31 DfES (2003).
32 Home Office (2003b). See, for example pp 4-6 and 8.
33 Burney (2002), p 473.
34 Crime and Disorder Act 1998, s 34.
35 Fortin (2004), especially pp 256-7.
36 Hibbert et al (2003), p 6.
[716] www. bbc. co. uk/insideout/southwest/series5/drinking_binge_pubs. shtml
[717] See article by C Hall on 15 December 2004.
[718] Daily Mirror, 4 February 2005. See, for a balanced analysis, the article on motivations and outcomes of a study on underage drinking in Childright, April 2005.
[719] Sunday Times, 27 November 1994.
[720] Jansen Robinson, quoted in The Times, 28 April 2002, p 2.
[721] National Association for the Care and Resettlement of Offenders (NACRO) (2001), p 2.
[722] Glasgow: Girls and Violence Project. See www. gla. ac. uk/girlsandviolence/facts. htm
[723] NACRO (2001).
[724] See www. regard. ac. uk/research_findings/R000239150/report. pdf. See also www. ed. ac. uk/news/ truancy. html.
[725] NACRO (2001), p 2.
[726] Home Office (2003c), Table S2.1E.
[727] Home Office (2004b), Table S2.1E.
[728] NACRO (2001).
[729] Boyle et al (2002), p 393.
[730] Burman et al (2001); see also Batchelor and Burman (2004).
[731] Muncie (2003), p 54.
[732] Ibid.
[733] Since the implementation of s 95 of the Criminal Justice Act 1991, the agencies of the criminal justice system must provide statistics broken down into different race and sex categories and so sentencing statistics are available by age, sex and race.
[734] Audit Commission, Youth Justice (Home Office (2004a), p 81).
[735] DfES (2005), para 169 in reference to the need for careers advisers to challenge gender stereotypes. The words ‘girl’, ‘boy’, ‘young women’ and ‘young men’ do not feature in the report.
[736] See Carlen (1983), for an early detailed study of women in Corton Vale Prison in Scotland; see Easton and Piper (2005), ch 12, for a recent review of research about women and custody.
[737] See, for example, Edwards (1984); Gelsthorpe (1986); Morris (1988); and Pearson (1976) for early, seminal work on these issues.
[738] See, for example, Morris (1988), p 163.
[739] Hedderman and Gelsthorpe (1997), pp vii-viii, and also Part 1.
[740] Carlen (1983), discussed in Morris (1988), pp 166-7.
[741] Hedderman and Gelsthorpe (1997), p viii.
[742] Ibid. The sentencing criterion is now to be found in the Criminal Justice Act 2003 at s 148(1).
[743] Hedderman and Gelsthorpe (1997), p viii and ch 2.
[744] See Harris and Webb (1987), p 134; see also Webb’s 1978 research on the supervision order (Webb, 1984).
[745] Harris and Webb (1987), p 134.
[746] Heidensohn (1986), p 297.
[747] Hudson, A (2002).
[748] Harris and Webb (1987), p 135.
[749] See Hudson, B (2002), p 21.
[750] See Easton and Piper (2005), ch 3.
[751] Hudson, B (1994), p 10.
[752] Criminal Justice Act 2003, chapter 12; see Easton and Piper (2005), ch 5, particularly pp 145-6. There is also a focus on persistence in relation to drug offences and burglary through the ‘three strikes’ legislation; see Powers of Criminal Courts (Sentencing) Act 2000, ss 110-11.
[753] Hudson, B (2002), p 25.
[754] See Holdaway and Desborough (2004).
[755] Farrington and Painter (2004).
[756] Burman et al (2001), p 446.
[757] Campbell (2003).
[758] Ibid, pp 4-5.
[759] Home Office (2004a), para 2.17.
[760] Ibid, paras 2.20 and 2.21 respectively. A note by Judy Renshaw to the Youth Justice Board, Advice on Accommodation (YJB(00)72), noted at paras 44 and 51 that 16-17 year olds who are ‘fleeing domestic violence’ are now treated as ‘vulnerable’ under housing legislation and the Safer Communities Housing Fund; see www. youth-justice-board. gov. uk/Publications/Down- loads/AccomVulnerYP. pdf.
[761] Piper and Kaganas (1997).
[762] Campbell (2003), p 5.
[763] Howard League (1997).
[764] Office for Standards in Education (2004).
[765] Ofsted (2004).
[766] Carlen (2001-2), p 44. For a discussion of one particular community-based project see Roberts (2002).
[767] Home Office (2000), para 6.3.
[768] Home Office (2003a).
[769] Alder (2003), p 119.
[770] Ibid, p 120.
[771] Under the Powers of Criminal Courts (Sentencing) Act 2000, ss 100, 91 and 90 respectively.
[772] Four privately run institutions with health and educational services, inspected by the CSCI (Commission for Social Care Inspection).
[773] Howard League for Penal Reform (2004).
[774] Owers in conversation with Wadsworth (2005), pp 10-11.
[775] Ibid, pp 9-10.
[776] National Society for the Prevention of Cruelty to Children.
[777] Creighton (2004), Table 1.
[778] DfES (2004c), paras 6.8 and 6.9.
[779] Chesney-Lind and Pasko (2004), pp 25-7.
[780] HM Inspectorate of Prisons (2005).
[781] HM Inspectorate of Prisons (2004).
[782] See Borrill et al (2005), p 57.
[783] Ibid, pp 6-61.
[784] Gender and Justice Policy Network (2001), para 2.3.2.
[785] See, for example, Kaganas, Chapter 8 in this volume.
[786] See, for example, Smart, Chapter 7, and Collier, Chapter 12, both in this volume.
[787] Worrall (2002).
[788] Muncie (2003).
[789] See, for example, Crowley (1998), for research evidence of the abusive backgrounds of 12-14 year olds eligible for what are now detention and training orders.
[790] HM Inspectorate of Prisons (2004).
[791] Lyon et al (2000).
[792] Walklate has also argued that there is a gendered victimology with an unhelpful ‘deeply embedded male view of the problem of victimisation’ (2003, pp 32-3).
[793] Danner (1998).
[794] Miller (1998), p xviii.
[795] The author would like to express warmest thanks to Prof Lisa Philipps of Osgoode Hall Law School for her invaluable assistance in the writing of this chapter; ana, also, to acknowledge the contribution of the Issues in Taxation class (2005-6) at the LSE, whose feedback on earlier drafts is very much appreciated.
[796] Sainsbury (1999), p 185.
[797] Ibid.
[798] Ibid.
[799] Minow (1991), p 270, cited at Kornhauser (1993), p 64.
[800] Women’s Budget Group (2003).
[801] Bennett (2002), p 579.
[802] Per Tax Credits Act 2002, Ch 21.
[803] Ibid, at s 3(a). Section 5A, as amended by the Civil Partnership Act 2004, defines ‘couple’ as those who are either married or civilly registered and not living separate, or those who are living as husband and wife or as civil partners.
[804] www. taxcredits. inlandrevenue. gov. uk/HomeIR. aspx.
[805] Tax Credits Act 2002, s 7(1)(a). For 2005-6, see http://www. hmrc. gov. uk/pbr2004/pn02.htm.
[806] Tax Credits Act 2002, s 8(4)(a).
[807] Tax Credits Act, ibid.
[808] Ibid, s 12.
[809] See Mumford (2001).
[810] Gerfin and Leu (2003), p 13.
[811] Staudt (1997), p 542.
[812] Blundell (2004), p 234.
[813] Ibid.
[814] Ibid, p 235.
[815] Women’s Budget Group (2003).
[816] Blumberg (1972), cited at Staudt (1997), p 535.
[817] Sainsbury (1999), p 185.
[818] Ibid, pp 186-7.
[819] Ibid, p 187.
[820] Adler (2004), p 87, citing HM Treasury (1972) Proposals for a Tax Credit System, Green Paper, London: HMSO (Cmnd 5116).
[821] Ochel (2001), p 6.
[822] Adler (2004), p 88, citing Brewer, M (2000) Comparing In-Work Benefits and Financial Incentives for Low-Income Families in the US and the UK, Working Paper WP 00/16, London: Institute of Fiscal Studies.
[823] Ibid.
[824] Ibid.
[825] Ochel (2001), p 6.
[826] Blundell and Meghir (2002), p 10.
[827] Leigh (2004), p 16.
[828] See generally Andrews (1991).
[829] As Kornhauser explains, ‘[traditionally, the power to manage and control determines whether income should be attributed to a taxpayer’: (1993), p 74.
[830] Feenberg and Rosen (1980).
[831] Oberst (1988), p 671-2.
[832] Kornhauser (1997).
[833] Blundell (2004), p 245.
[834] Becker (1999), p 32.
[835] Ibid.
[836] Ibid.
[837] The Civil Partnership Act 2004, Pt 14, s 3(c), ensures that ‘two people of the same sex who are civil partners of each other’ will be entitled to claim tax credits. This need not impact, however, on the gendered roles that continue to define the family, as explained in Eskridge (1995), pp 62-3.
[838] Bennett (2002), p 564.
[839] Ibid, p 579.
[840] Ibid.
[841] See Hockenjos v Secretary of State for Social Security [2004] EWCA Civ 1749, [2005] Fam Law 464.
[842] Kilkey and Bradshaw (1999), p 148.
[843] Ibid.
[844] Ibid, p 149.
[845] Ibid.
[846] Fredman (2004), p 299.
[847] Ochel (2001), p 3.
[848] Adler (2004).
[849] Ochel (2001), p 18.
[850] Ibid, p 5.
[851] Ibid.
[852] Ibid.
[853] Leigh (2004), p 2.
[854] Ibid, p 18.
[855] Or, in their analysis, ‘subsidies’ for children.
[856] Greenwood et al (2000), p 35.
[857] Ochel (2001), generally.
[858] Ibid, p 18.
[859] Ibid.
[860] Blundell and Meghir (2002), p 6.
[861] Ibid.
[862] Women’s Budget Group (2003).
[863] Alstott (2004). This might be described as a radical version of the UK’s Child Benefit.
[864] Ibid.
[865] Ibid.
[866] Ibid.
[867] Ibid.
[868] Fineman (1991).
[869] Ibid, p 282.
[870] Alstott (2004).
[871] Ibid.
[872] Ibid.
[873] Ibid.
[874] Ibid.
[875] Ibid.
[876] Ibid.
[877] Livingston (1998), p 1801.
[878] Ibid, p 1802.
[879] Minow (1998), p 342.
[880] Kilkey and Bradshaw (1999), p 149.
[881] Ibid.
[882] Ibid.
[883] Ibid, p 36.
[884] Greenwood et al (2000), p 7.
[885] Alvarez and McCaffery (2000).
[886] Ibid.
[887] Ibid, p 19. Interestingly, however, women also were significantly more likely to express ‘no opinion’ than men, and to emphasise their ‘ignorance’ about tax law and policy (Ibid).
[888] Ibid, p 12.
[889] Greenwood et al (2000), p 34.
[890] Orloff (2002), p 113.
[891] Lardy (2004), p 303.
[892] Staudt (1997), pp 542-3.
[893] Ibid, p 543.
[894] Adler (2004), p 91.
[895] Bennett (2002), p 566.
[896] Goode, J, Callender, C and Lister, R (1998) Purse or Wallet? Gender Inequalities and Income Distribution within Families on Benefits, London: Policy Studies Institute, cited at Bennett (2002), p 566.
[897] Ibid.
[898] Orloff (2002), p 112.
[899] As then was.
[900] Inland Revenue Annual Report (1998). The Inland Revenue has now been merged with HM Customs and Excise to form one, combined ‘new’ organisation. See the O’Donnell Report (2004).
[901] Ibid.
[902] Blundell (2004), p 234.
[903] Ibid.
[904] Pay As You Earn.
[905] Brewer (2002), p 245.
[906] Ibid.
Andrews (2001), p 306.
Ibid, p 307.
Ibid.
BBC, 10 November 2004.
Ibid.
Ibid.
Ibid.
Wikeley (2004), p 22.
[915] Women’s Budget Group (2001).
[916] Organization for Economic Cooperation and Development.
[917] Women’s Budget Group (2001).
[918] Ibid.
[919] Bennett (2002), pp 561-2.
[920] Staudt (1997), p 533.
[921] See Graglia (1995).
[922] Ibid.
[923] Gerfin and Leu (2003), p 15.
[924] Alstott (1996), p 2033, citing McCaffery, E (1993) ‘Taxation and the family: A fresh look at behavioral gender biases in the code’ 40 UCLA L Rev 983, and McCaffery, E (1993) ‘Slouching towards equality: Gender discrimination, market efficiency, and social change’ 103 Yale LJ 595.
[925] Ibid, p 2035.
[926] Orloff (2002), p 114.
[927] Dennis (1993), p 34. As Bennett observed, ‘[w]hen the government has applied a gender lens to its tax and benefit policies, it has typically tended to focus on mothers’. Bennett (2002), p 563.
[928] Howard, speech, 11 November 2004.
[929] Ibid.
[930] Ibid.
[931] Ibid.
[932] Ibid.
[933] Cahn (2001).
[934] Matthaei and Brandt (2001).
[935] Kilkey and Bradshaw (1999), p 149.
[936] Ibid.
[937] Ibid.
[938] Ibid.
[939] Davis (1988), p 233.
[940] Per Sainsbury (1999), n 1.
[941] See, for example, The Employment Equality Directive 2000/78/EC, implemented in Britain via the Employment Equality (Religion or Belief) Regulations SI 1660/2003 (introduced/presented 26 June 2003; in force 2 December 2003).
[942] See Malik (2000a).
[943] Okin (1998).
[944] See, for example, Baroness Hale’s opinion in the case of R (on the application of Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15.
[945] See ‘Women and Cultural Diversity: A Digest of Cases’ at http://webdb. lse. uk/gender (accessed on 20 May 2005).
[946] Susan Moller Okin (2002; 1998) makes the point that leaving young girls to be raised in a culture which does not respect their autonomy can cause them harm even — and especially — where these young girls internalise the values of the culture.
[947] See Eekelaar (2004), p 191.
[948] For a summary of relevant primary and secondary sources, see the bibliography at www. at- torneygeneral. jus. gov. on. ca/english/about/pubs/boyd/bibliography. pdf.
[949] See report in The Forward, 14 January 2004: ‘In a move that is angering Jewish feminists, B’nai Brith Canada is supporting the demands of conservative Muslims in the province of Ontario who wish to have the right to use private arbitration based on Islamic law for the resolution of their marital, custody and inheritance disputes. A report prepared for the Ontario Ministry of the Attorney General recommended last month that family arbitration based on Islamic law be permitted, but regulated, under the province’s Arbitration Act. But both Muslim women’s groups and Jewish feminists are opposed, fearing that vulnerable female immigrants will be coerced into submitting to Islamic arbitration.’ Cited in The Pluralism Project. See www. pluralism. org/news/.
[950] Baroness Hale discusses this issue in the Begum case, n 4 above.
[951] The right to exit argument is defended by Kukathas (1995). For the opposite view, see Green (1995). See also an application of this argument in Shachar (2001).
[952] Shachar (2001), ch 3. For a critique of the right to exit argument in the specific context of minority women see Okin (2002).
[953] For a discussion of the case for, and some scepticism about, consciousness raising in feminist theory see Smart (1989), p 80. A classic exposition of consciousness raising is to be found in the work of the late Andrea Dworkin: see, for example, Pornography: Men Possessing Women (1983). Feminist theory that draws on methods from psychoanalysis understandably gives great status to consciousness raising as a useful method for theory and practice. Luce Irigaray and Julia Kristeva’s work are examples of this; see Duchen (1986).
[954] The LSE Gender Institute’s Project Grant Report on the Nuffield Sexual and Cultural Equality: Conflicts and Tensions states in the context of forced marriage: ‘The UK initiatives have focused very heavily on exit, and more specifically, on assisting individuals forced into marriage with an overseas partner. . . our research suggests that exit only works up to a point. It leaves to many individuals with what they perceive as no choice, for when the choice is between rejecting an unwanted marriage partner or being rejected by one’s family (and as many experience it, then having to abandon one’s cultural identity), the costs are set impossibly high.’
[955] Shachar (2001), pp 132-45. In England and Wales, see s 10A Matrimonial Causes Act 1973.
[956] See, for example, Susan Moller Okin’s comment (1979), p 282 that: ‘In spite of the supposedly individual premises of the liberal tradition, JS Mill was the first of its members to assert that the interests of women were by no means automatically upheld by the male heads of the families to which they belonged, and that therefore women, as individuals, should have independent political and legal rights.’
[957] See Kymlicka (1995), p 7. See also Malik (2000b).
[958] For a discussion of some of these issues, see Nussbaum (1999), especially pp 8-10.
[959] Taylor (1992).
[960] Scott (1992), p 40.
[961] For a discussion of the importance of theory see Crosby (1992).
[962] Smart writes (in the context of feminist jurisprudence, but the arguments have a more general relevance to feminist theory): ‘It sets up a specific feminist theory as superior to other versions, not on the basis of a set of political values, but on the basis that radical feminism is the Truth and its truth is established through the validity of method and epistemology. This is scientific feminism; it attempts to proclaim its unique truth above all other feminisms and other systems of thought. It turns experience into objective truth because it has taken on the mantle of a positivism which assumes that there must be an ultimate standard of objectivity.’ (1989,
p 68.)
[963] MacKinnon (1987). See also a passage from MacKinnon’s earlier work on feminist method by Smart (1989, p 70): ‘Radical feminism is feminism. . . Because its method emerges from the concrete conditions of all women as a sex, it dissolves the individualist, naturalist, idealist, moralist structures of liberalism, the politics of which science is the epistemology. Quoted from MacKinnon (1983).’
[964] See Smart (1989), p 71.
[965] Cornell (1995).
[966] Smart (1989), p 71.
[967] Ibid.
[968] Ibid.
[969] See Segal quoted in Smart (1989), p 79.
[970] See, for example, Hooks (1984).
[971] Spelman (1988).
[972] Ibid, p 6.
[973] For a general discussion of these issues and a critique of Spelman, see Okin (1979).
[974] See Nicholson (1995), p 5.
[975] Smart writes, ‘I hope to show below why we need to theorize women’s oppression and why we cannot simply rely on experience as if it were a concrete reality which merely needs to be exposed thereby circumventing the problems and difficulties of intellectual work.’ (1989, p 72.)
[976] See Segal quoted in Smart (1989), p 79.
[977] Gertz (1993).
[978] See Kymlicka (1995). See also Malik (2000b).
[979] See discussion in Collier, Chapter 12 in this volume. For a challenge to the definition and use of the term post-modernism see Butler (1995a; 1995b).
[980] Butler (1995a; 1995b).
[981] For an example of the use of this term see the work of Schumacher: eg, Schumacher (1973).
[982] 1971, p 171.
[983] Examples include leading works such as John Rawls (1971), A Theory of Justice and, more recently, his Political Liberalism (1993); also Ronald Dworkin (1986), Law’s Empire.
[984] See, for example, Oakeshott (1975).
[985] This idea is captured by AJ Ayer’s famous statement that: ‘Just as I must define material things… in terms of their empirical manifestations, so I must define other people in terms of their manifestations — that is, in terms of the behaviour of their bodies, and ultimately in terms of
sense-contents.’ (1971, p 171.)
[986] Weber (1978).
[987] This is the idea of ‘strong evaluations’ that we find in the work of Charles Taylor and the idea of second-order desires and reflexivity in Harry Frankfurt discussions of the mind-body problem. The idea is that motivations, intention and inner states of consciousness should be a central focus for the study of human conduct. See, for example, Taylor (1985a); Frankfurt (1971).
[988] Macintyre (1985), ch 15.
[989] For a full discussion of inter-subjective interpretations, see Taylor (1985b). See also Malik (2000b).
[990] See Murdoch (1997).
[991] Max Weber states, in relation to ideal types: ‘The sociologist seeks also to comprehend such irrational phenomena as mysticism, prophecy, inspiration and emotional states by theoretical concepts which are adequate on the level of meaning. In all cases, rational and irrational alike, he abstracts himself from reality and advances our knowledge of it by elucidating the degree of approximation to which a particular historical phenomenon can be classified in terms of one or more of these concepts. . . In order that these terms should have clear meaning, the sociologist must for his part formulate “pure” or “ideal” types of systems of the relevant kind which exhibit the internal coherence and unity which belongs to the most complete possible adequacy at the level of meaning.’ (1978, p 23).
[992] Benhabib (1995).
[993] Butler (1995a).
[994] Iris Murdoch (1992), p 204 states: ‘Theories which endeavour to show that all evaluation (ascription of value) is subjective, relative, historically determined, psychologically determined, often do so in aid of other differently described or covert value systems, whether political or aesthetic.’
[995] Gadamer (1986).
[996] Many of the cases that arise where there is a conflict between women’s rights and traditional cultural and religious practices raise issues of consent. More specifically, many of these cases relate to the apparent consent of young women to marriage which they later repudiate. See, for example, Sohrab v Khan [2002] SCLR 663, Outer House (Scotland), and P v R [2003] Fam Law 162, Family Div. See also Baroness Hale’s comments in the Begum case above, n 4.
[997] One possible source for establishing limits on consent to harmful practices is international human rights law: see McGoldrick (2005). An example of existing limits on consent to harmful practices is female circumcision. The Female Genital Mutilation Act 2003 repealed and reenacted the Prohibition of Female Circumcision Act 1985. It makes it an offence for UK nationals or permanent UK residents to carry out female genital mutilation abroad, or to aid, abet, counsel or procure the carrying out of female genital mutilation abroad, even in countries where the practice is legal. The 2003 Act also increases the maximum penalty from five to 14 years’ imprisonment.
[998] One response to this challenge is Drucilla Cornell’s call that definitions of the concept ‘woman’ require feminism to take seriously issues of ‘ethics’ and define what we mean by the ‘feminine’. In the context of the discussion on minority women this raises particular problems: how do we define the ‘ethical’ and ‘feminine’ in the face of deep differences between women? Cornell (1995).
[999] On the analytic shift towards an engagement with the plural term masculinities see further Morgan (1992). The broader interrogation of the relationship between masculinities and law has been, regardless of the political orientation, methodology or underlying epistemological presuppositions of the work in question, a longstanding and significant presence within feminist legal studies.
[1000] Thornton (2004), p 10.
[1001] Graycar and Morgan (1990).
[1002] Compare in the field of criminology the argument of Newburn and Stanko (1994).
[1003] Family law is, of course, a conceptually unclear, ambiguous and profoundly contested sub-field of legal study: see further, and generally, Diduck (2003; 2001); O’Donovan (1993; 1986).
[1004] Thornton (2004).
[1005] See, for example, the debates between: Bottomley (2004); Naffine (2004; 2002); and Barron (2000); Goodrich (2001). Note, generally, the arguments of Drakopoulou (2000); Conaghan (2000); Sandland (1998a; 1998b; 1995). An excellent account of the relationship between men and legal feminism can be found in Halewood (1995).
[1006] The broader sociological study of masculinities within the academy has itself largely, although by no means exclusively, emerged as part of an attempt to develop a self-identified ‘profeminist’ politics.
[1007] See, for example, in addition to the works cited above, n 7, Smart (1989); Lacey (1998).
[1008] This approach is, I recognise, problematic, not least in the way in which it tends to categorise together a vast body of work and assume a linear narrative underscoring what is, in fact, a far more complex history. Equally, it is important not to assume a conceptual ‘clean break’ with earlier (pre-feminist) sociogenic sex role accounts of masculinity: see further Carrigan et al (1985). Contrast, generally, the approach of Naffine (1990), ch 1.
[1009] Naffine (1990), pp 3-6.
[1010] Brittan (1989), p 4.
[1011] An excellent account of which can be found in Thornton (1996).
[1012] See, for example, Bell (1995).
[1013] This idea has itself been a recurring issue within legal feminism and links to a theme within the critical study of masculinity concerning the tendency for men to claim reason as taken-for — granted, a positionality regarded as finalauthority and arbiter of social Truth: see, for example, Seidler (1989).
[1014] See Thornton (1998).
[1015] Fineman (1995).
[1016] Harding (1987; 1986).
[1017] Atkins and Hoggett (1984). Note also Sachs and Wilson (1978).
[1018] See, for example, West (1988).
[1019] Itself a central theme in feminist scholarship: note, for example, although from a different perspective, the argument of O’Donovan, (1985); cf Rose (1987).
[1020] MacKinnon (1983), p 644; also MacKinnon (1987).
[1021] MacKinnon (1983), p 658.
[1022] Naffine (1990).
[1023] Jackson (1993), p 211.
[1024] On which see, more generally, Segal (1994), p 46.
27 Thornton (2004), p 12.
28 Smart (1989). Contrast Sandland (1995), p 3.
29 Smart (1984); also O’Donovan (1985).
30 Smart (1984), p 17, my emphasis.
31 Brophy and Smart (1985).
32 Smart and Brophy (1985), p 17, my emphasis.
33 Smart (1989), p 86, my emphasis.
[1026] Smart (1989), pp 86-7, my emphasis.
[1027] Note, for example, the depiction of the ‘phallogocentrism’ of legal discourse as the fusing of a masculine, heterosexual imperative and the fixing of sign/signifier within a patriarchal structure of power/knowledge relation (Smart (1989), p 86); also ‘the needs of the masculine imperative which receive a cultural response’ (O’Donovan (1993), p 5).
[1028] Contrast Smart (1992).
[1029] Thornton (2004), p 15. See further Middleton (1992), p 159.
[1030] Thornton (2004), p 12; see also Thornton (1989).
[1031] Collier (1995).
[1032] As simply an illustration of this body of work note, for example, Bibbings (2000); Berger et al
(1995); Carver (1996); Collier (2000); Liddle (1996); Naffine (1994); Thomas (1995); Heins (1995); Williams (1995). On law, crime and criminal justice see Newburn and Stanko (1994); Goodey (1997); Jefferson and Carlen (1996); Collier (1998); Groombridge (1998).
[1033] As earlier examples of this kind of study note, for example, O’Donovan (1993), ch 5; Moran (1990); Collier (1992).
[1034] See Hyde (1997). Contrast Bridgeman and Millns (1995).
[1035] Hyde (1997), p 172.
[1036] In addition to work cited above, see also Waldby (1995).
[1037] Naffine (1994).
[1038] Sheldon (1999); also (2001).
[1039] Bibbings (2000).
[1040] Collier (2002b; 2001; 2000; 1999a; 1999b). See also Coltrane (1996).
[1041] Morgan (1999), p 13. Also Morgan (1996).
[1042] See further Brittan (1989), pp 25-36; Hearn (1987), pp 16-31; Connell (1987), pp 183-6; Carrigan et al (1985), p 598. Compare Clare (2000); Faludi (1999).
[1043] See further Beck and Beck-Gernsheim (1995); Giddens (1992).
[1044] Collier (1999a).
[1045] See further Smart (1999); Smart and Neale (1999a; 1999b).
[1046] Diduck (1995); Wallbank (1997).
[1047] See Smart, Chapter 7, and Kaganas, Chapter 8, both in this volume. On the ‘zero-sum’ conception of power implicit in such a view see Collier (1999b).
[1048] See, for example, Brown and Day Sclater (1999); Day Sclater (1999a; 1999b); Day Sclater and
Yates (1999).
[1049] Day Sclater (1999a); Arendell (1995).
[1050] Compare Dewar (1998), who suggests that the concerns about justice expressed by fathers’ rights groups appear to be shared by many who have expressed a growing dissatisfaction with the perceived limits of a broad discretionary system in the family law field.
[1051] An appeal to a normative familial masculinity has been directly linked to a defence of a ‘traditional’ (heterosexual) family; a family premised on broadly clear-cut sexual divisions of labour and male economic authority: see below.
[1052] Kaye and Tolmie (1998a; 1998b); Collier (1996); Arditti and Allen (1993); Berotia and Drakich (1993); Berotia (1998); Smart, Chapter 7, and Kaganas, Chapter 8, both in this volume.
[1053] Boyd (2003); Boyd and Young (2002); Graycar (2000).
[1054] See further Whitehead (2002), pp 84-99, 103.
[1055] Connell (1987; 1995; 2000). See further Whitehead (1999); Hall (2002).
[1056] Walklate (1995), p 180.
[1057] Collier (1995).
[1058] Walklate (1995), p 181.
[1059] See Wetherell and Edley (1999).
[1060] As above, for example, in relation to accounts of post-divorce family life; also, on interventions aimed at addressing men’s violence in families, see Gadd (2000; 2002).
[1061] Adams (1996).
[1062] Compare Pease (2000); Jefferson (1994).
[1063] Contrast Butler (1993; 1990).
[1064] Thornton (2004), p 10.
[1065] See Frosh (1997; 1994).
[1066] Connell (1995), pp 50-1.
[1067] Hood-Williams (2001), p 37.
[1068] Middleton (1992), p 152.
[1069] Note the argument of Hearn (1996), p 203.
[1070] Middleton (1992), p 142.
[1071] Ibid.
[1072] Collier (1998).
[1073] Hearn (1996), p 202; contrast Connell (2002).
[1074] It is possible, Hearn suggests, that masculinity might in many respects be ‘an ethnocentric or even a Eurocentric notion’, a product of a particular historical moment which is, in some cultural contexts at least, at best ‘irrelevant or misleading’ (1996, p 209).
[1075] Brown (1990), p 48. It is important to consider in this regard the diversity and conceptual ambiguity of ‘family law’ as a field of study.
[1076] Ibid.
[1077] Does an account such as this suggest, for example, a return to the (inevitability) of establishing some kind of normative foundation of the human subject?
[1078] See McMahon (1999).
[1079] McMahon (1993), p 689.
[1080] Thornton (2004).
[1081] See Messner (1997).
[1082] Thornton (2004), p 22, my emphasis, following Drakopoulou (2000).
[1083] Thornton (2004), p 21.
[1084] Contrast Hillyard and Sim (1997).
[1085] The wider literature on this subject is itself now voluminous. See, for example, Brooks and Mackinnon (2001); Currie and Newson (1998); Slaughter and Leslie (1997); Currie et al (2002); Thornton (2001). See also Collier (2002a).
[1086] Thornton (2004), p 9.
[1087] Ibid.
[1088] Ibid.
[1089] Whitehead (2002).
[1090] See, for example, Daly (1997).
[1091] Edwards (1994).
[1092] Thornton (2004), p 1.
[1093] Whitehead (2002).
[1094] MacInnes (1998).
[1095] Connell (1998).
[1096] Note, for example, the arguments of Boyd (2003; 2001; 1991); Rhoades and Boyd (2004); Kaganas (1999); Kaganas and Day Sclater (2004); Fineman (1995; 1991).
[1097] Thornton (2004), p 22, original emphasis.
[1098] McMahon (1993), p 689; see also Duncombe and Marsden (1999).