Book Review : Ideas and Debates in Family Law, by Rob George (Hart Publishing, 2012)
Rob George’s book is a slender book with Lassie* inexplicably on the cover. My first question was "Why Lassie?" but as I read on I discovered that the inside was choc full of other questions. At first I begrudged it’s lack of answers, muttered to myself that it was like being back in english literature / cultural studies lectures – but then I realized I was approaching it like I would approach a practitioner textbook. And I used to love my eng lit / cult studs lectures. Once I stepped back into the critical thinking mode of undergrad days long since past it was a joy. As someone who came to law via the conversion route (7 core subjects and no messin'), with no time for “optional” subjects like family law I found it particularly valuable. When I converted I was a law student fed up with academia, running from the theoretical and the hypothetical to the pragmatic and the real (this is the legacy of a Masters wherein I was force fed Kant). Neither then nor in the decade since have I had much time to stop and apply much critical thinking to my field of law. Nor do most of us. So, this book has not helped me with my usual “what is the law?” queries, but has reminded me of the importance of asking “why is the law?” from time to time. And particularly at this juncture, when there is so much change ongoing and on the horizon.
It is pretty rangy, leaping from international family law to marriage and on to finances on separation. Unsurprisingly, given that it is my area, I found the chapters on children law most useful and engaging. There are fascinating discussions relating to the welfare principle and the origins and evolution of concepts like custody, PR, residence and contact. In the former the author considers the pros and cons of a broad discretionary based legislative structure – flexible and tending to focus minds on the children not the adults, but yet demonstrably subjective and variable depending on the cultural and ideological filters applied to it. To give you a flavour, a highly selective extract is set out below:
"There are also compelling arguments that the welfare principle allows for opaque decision-making because of the inherent indeterminacy of the best interests standard, and allows patriarchal values to be imposed by the court on mothers and children. Similarly...the welfare principle allows paternalistic outcomes to be imposed on children and families in the name of their interests, where those outcomes promote a particular vision of the socially desirable family. The point here is not to dispute these criticisms, but simply to say that those who want to criticise the welfare principle need to be careful to criticise its reality and not a caricature which fails to do justice to its subtlety....the very indeterminacy which is criticised enables judges to take into account whatever peculiarities a case throws up." (p119)
"However, whilst this flexibility may account for the welfare principle's survival through time, it may also create difficulties in an increasingly global family law world. Just as conceptions of welfare change over time, so too they vary between nations. (p121)"
There then follows an interesting section illustrating the drastically differing approaches between jurisdictions on the question of applications for leave to remove a child abroad : New Zealand and English legal professionals were given the same factual scenario and came up with 2 wholly different outcomes (New Zealand - leave given, England - leave refused).
This book’s aim is really a starting point or springboard for further study and thought – the book is comprehensively referenced and I’m left with a long list of other academic writing I want to read: still hoping there will be an answer at the end of the rainbow…
* It isn't ACTUALLY Lassie, but it is a Lassie lookylikie who looks perturbed at the apparent marital weariness of her probable owners.