4.1 Compassionate caring relationships are essential to human well-being

We all have needs and caring for others in meeting needs is a universal experience (Held, Reference Held2005). Being in a caring relationship is an inevitable part of being human (Fineman, Reference Fineman2004, p. xvii). The extent of caring may vary during different points in a person's lifetime. There is probably no point in our lives at which we are neither cared for nor are caring for another (Sevenhuijsen, Reference Sevenhuijsen2003), and often both at the same time (Bridgeman, Reference Bridgeman2006). Care should be treasured and valued as part of a good life. As Robin West puts it:

Care is of value not just for the individual, but for the wider society. Without caring relationships, the burden that would fall onto the state would be impossible to bear (McClain, Reference McClain2001; Daly, Reference Daly2002). As Mona Harrington explains:

The law cannot simply ignore compassionate caring relationships that are central to the well-being of society and individuals.

4.2 Emotions are ethically and practically significant

In the common law, emotions play relatively little role. Typically, the law emphasises the importance of rationality and intellect. The concepts of mental capacity, informed consent and compliance with standards expected by a responsible body of opinion all privilege in legal discourse logical thought and sound judgment. Indeed, emotions used to be regarded as in competition with reason. People who were ‘emotional’ were of doubtful capacity (e.g. Re MB [1997] EWCA 1361) and legal reasoning had to be based on cold rationality (Herring and Wall, Reference Herring and Wall2015). There are a number of problems with such an approach.

First, ignoring emotions does not accord with the reality of human life. The love that goes on caring, and the grief, disappointment, frustration, anger and despair, which are all part of life, find no place in an emotion-free rationality. The exclusion of emotion means the voice of carers talking about how their cared for one should be looked after finds no ready legal mouthpiece. The law often struggles to respond to issues that are not readily reducible to an economic value nor expressed in terms of individualised rights. If the law is to respond to real people, it must respond in a way that recognises the importance of emotion.

Second, if, as argued above, care is important, then emotions must also be. That is because emotions are central to good care. Trust, sympathy, empathy, sensitivity – such things are essential in compassionate caring relationships. If the legal response to a dilemma undermines these emotions, it will undermine the care. A good example of the law failing because it does not consider the role of emotions is the widely acknowledged problems the courts have had in enforcing contact orders (now known as child-arrangement orders) in family law. Until recently, it seemed that some judges believed that a mother opposing a child having contact with a father would permit contact if they gave her a stern talking to. More recent cases indicate a greater awareness of the emotional complexities involved in such cases (Re HB [2015] EWCA Civ 389). If the law wants to impact on people's behaviour, it must speak to their hearts as well as their minds.

Third, the ethic of care has shown that ‘connection, compassion and affectivity should be recognised as important sources of moral reasoning’ (Sevenhuijsen, Reference Sevenhuijsen1998, p. 12). To have capacity, we need to value things and people and be able to use these values in decision-making (Patrick, Reference Patrick2015). Dr Spock, the Star Trek character, is a source of interest and amusement because he is not affected by emotions. His capacity can be questioned precisely because the emotional part of his decision-making is not functioning (Herring and Wall, Reference Herring and Wall2015). As Sevenhuijsen argues, ‘connection, compassion and affectivity should be recognized as important sources of moral reasoning’ (Reference Sevenhuijsen1998, p. 12). Typically, people are more driven by mixture of both an emotional and a rational response (Porter, Reference Porter2009).

5.1 The influence of law outside the courtroom

It is obviously true that law is primarily aimed at influencing people who do not come to court. To take a trivial example, the law on illegal parking impacts on a far larger range of people than simply those who receive parking fines. Criminal law is designed, in large part, to deter people from committing crime. Contract law is designed to deter people from breaching a contract or guide parties as to how to (extra-judicially) resolve disputes if a breach has taken place. The law on who can marry sends powerful messages to society about what standards of behaviour are expected in the law. In family law, it indicates what kinds of relationships are approved of and why – hence the intense debate over same-sex marriage. Legal regulations and the messages from them force or nudge people in various ways. They provide generalised guidance as to how people arrange their interactions. Court cases are but a small part of how the law operates. Law can therefore be used powerfully to encourage people to act in a way that will promote caring relationships. A particularly good example might be the law dealing with how those lacking mental capacity will be treated. It sends a reasonably clear message that decision-makers should seek to promote the best interests of the person lacking capacity in making decisions on their behalf.

While therefore we might not expect the law to be involved in promoting compassionate caring relationships by bringing short-tempered nurses to the court to be fined, the law can be involved in creating an environment in which compassionate caring relationships flourish – just as contract law plays a role in creating an environment in which contracts are respected. Crawford et al. (Reference Crawford, Brown, Kvangarsnes and Gilbert2014) have claimed that, although nurses may enter the profession with considerable empathy, organisation and professional limits hinder their exercise of compassion. Health-care systems with their emphasis on marketisation, and command-and-control models, can restrict compassionate care (Crawford et al., Reference Crawford, Brown, Kvangarsnes and Gilbert2014). A culture among health-care professions, a focus on meeting service standards and an emphasis on market values can all crowd out the opportunities for compassion. Matters such as promoting time-efficient care and maximal use of resources can lead to a skewing of perspectives. In a health care setting, it might be that law could require or encourage: seeking feedback from patients; ensuring staff feel valued and cared for and safe; identifying and celebrating compassionate care practices; integrating caring conversation into job descriptions (Dewar et al., Reference Dewar, Adamson, Smith, Surfleet and King2015). This approach recognises that, rather than blaming individual practitioners for lacking compassion (which involves many of the difficulties outlined above), we look at the health-care environment and processes that might facilitate compassionate caring relationships (Crawford et al., Reference Crawford, Brown, Kvangarsnes and Gilbert2014).

Similarly, through the provision of state support and financial protections, we can design our state support mechanisms in a way following an ethics of care. We are beginning to see support through welfare payments for those who undertake care of others, although this is limited. Employment law is offering protection to those who undertake paid work and have caring responsibilities. I have discussed elsewhere (Herring, Reference Herring2013a) the broad range of areas in which this might make the task of compassionate caring relationships easier and less a source of social disadvantage.

5.2 Rethinking rights

A core concept used in the common law is rights. The traditional approach requires us to analyse the rights of each individual in each case. However, one of the messages from the ethics-of-care literature is that people are relational. They do not seek to promote only their own interests, not because they are ‘selfless’, but because their interests are tied up with the interests of others. They cannot seek to promote their own interests with no attention paid to others. It is the improvement of their relationships they seek. The writing on compassion emphasises that, at its heart, there is a pain at the suffering of another and a desire to remedy that in so far as is possible. In experiencing such an emotion, a person's well-being becomes connected to another. In relationships of caring and dependency, interests become intermingled (Herring, Reference Herring2014). We do not break down into ‘me’ and ‘you’.

The traditional legal method of setting out the claims of rights of each party do not match how people understand their personal lives. It is not consistent with compassionate caring relationships in which individuals do not see issues as involving clashes of individual rights or interests, but rather as a working-through of relationships (Bridgeman, Reference Bridgeman2009). The muddled give and take of everyday caring life where sacrifices are made and benefits gained, without them being totted up on some giant familial star chart, chimes more with everyday life than the image of independent interests and rights. As Diana Meyers puts it, the self:

Traditional conceptions of rights might be thought to be inconsistent with compassionate caring relationships. Rights are traditionally seen as attached to individuals and promoting individual rights such as autonomy and privacy, aimed at keeping people separate and free. These are seen to promote an individualist conception of people. Rights tend to focus on the right at a particular time and consider whether any interference is justified at that point in time. It also assumes that we can separate out each party's rights, whereas, as argued above, in compassionate caring relationships, individuals’ rights are not separate. Rights can also mean that ‘real experiences’ are converted into ‘empty abstractions’ (Tushnet, Reference Tushnet1984, p. 1364). As Carol Smart puts it: ‘the rights approach takes and translates personal and private matters into legal language. In so doing, it reformulates them into issues relevant to law rather than to the lives of ordinary people’ (Reference Smart, Dewar and Parker2003, p. 238). Jennifer Nedelsky explains:

Despite these concerns, rights are not completely without use for an ethics-of-care perspective. Rights might provide the tools needed to provide the framework to enable safe relationships to develop and flourish. Martha Minow and Mary Lyndon Shanley (Reference Minow and Shanley1996, p. 16) argue that a relational concept of rights would embrace the individual as both separate and as situated within a web of relationships of care, attachments and interdependency, and to understand the family as a unit determined both by the individuals of which it is comprised and by the existing social, political and historical context. This conceptualisation of rights enables us to understand parties to compassionate caring relationships both as individuals with rights to be protected and as dependent upon the love and care of others.

Virginia Held, writing from an ethics-of-care perspective, explains:

Our starting point is therefore the necessity for care and the promoting of caring relationships. These generate responsibilities. Only then do rights come as tools to enable people to perform their responsibilities and enable relationships to be genuinely caring. Jennifer Nedelsky argues that:

Rights could be used to promote more relational values. The relational perspective is primarily interested in cases where two people are involved and that will be where their rights clash. In this balancing exercise, is there room for relational values to have weight? The nature of the balancing exercise in cases where the rights of individuals under the European Convention on Human Rights (ECHR) conflict has produced some complex jurisprudence. A popular view is that the courts must undertake a ‘parallel analysis’ of the rights involved (Choudhry and Herring, Reference Choudhry and Herring2010). The starting point is to look at the interests of each individual and consider whether they engage a right under the ECHR: the point being that not every interest an individual has is necessarily protected by a right under the ECHR. If the interest does engage a right, then the court will need to consider whether an infringement of that right is justified. This process will provide the solution, if there is only one person's right that cannot be justifiably interfered with.

However, in difficult cases, the above process may produce a clash between two rights, neither of which can justifiably be infringed. Rachel Taylor and I (Reference Taylor and Herring2006) suggest that a principled balancing of rights can be achieved by focusing on the values that underlie each right. If we see in cases that involve people in intimate caring relationships that relationships are the key value, we can argue that the value of relational promotion should be among law's central values. This would introduce a relational element into the rights-based approach, which would be key in the difficult cases where the rights of individuals clash.

Another point that would be emphasised from an ethics-of-care perspective is that responsibilities are more important than rights. In compassionate relational care, responsibilities take on a key role. People seeing others in need; feeling compassion and caring will not understand their role in terms of rights. Or, at least if there are rights, these exist to enable compassionate caring relationships to exist. Supporters of an ethic of care argue that, rather than the primary focus of the legal or ethical enquiry being whether it ‘is my right to do X?’, the question should be ‘what is my proper obligation within the context of this relationship?’ (Held, Reference Held2005, p. 15). Rather than the law promoting people's freedom from responsibility, the focus should be on how the law can enable people to fulfil their responsibilities. Rights primarily exist to enable people to carry out their responsibilities (Williams, Reference Williams2002).

The classic liberal perspective is that one is ‘born free’ and that any responsibilities one takes must be in some sense voluntarily assumed. However, for an ethics-of-care approach, with its starting point being that people are relational, then the supposition is that there will be responsibilities for others. We are born into relationships that carry responsibilities with them. So the response to a person in need is not an assessment of the extent to which you might owe them an obligation to assist, but rather an assessment of how one can meet that need, given other caring responsibilities (Sevenhuijsen, Reference Sevenhuijsen2000).

5.3 Rethinking best interests

I have just explored how rights could be rethought of in a way that is more compatible with the promotion of compassionate relational care. The same can be said of another important concept in the common law: the concept of best interests. This is used by the courts in cases where the individual (P ) cannot make a decision for themselves because they lack capacity to do so. In such a case, the court can determine what is in P ’s best interests. This, too, in its traditional understanding, has been seen in an individualistic way. The best-interests test has been interpreted by the courts to mean that P ’s best interests are the sole consideration. The court will therefore pursue the course that best promotes the interests of P, regardless of the impact on the interests of others. However, in practice, courts have found ways of protecting interests of parents and carers while adhering to the welfare/best-interests principle (Herring, Reference Herring1999).

I have written previously in favour of relational-based welfare (for a detailed discussion, see Herring, Reference Herring1999; Reference Herring2013b; Foster and Herring, Reference Foster and Herring2015). This is based on the idea that P ’s interests are best promoted when they are cared for in healthy relationships. Under such an approach, cases can be resolved by recognising and acting in the person's interests whilst heeding carers’ interests and the integrity of the family as a whole. If carers were to take every decision for P considering only P ’s welfare, that would not in fact promote P ’s welfare. Would anyone wish to be raised in a way that placed enormous burdens on our carers in order to promote our welfare, maybe just the tiniest bit? (Foster and Herring, Reference Foster and Herring2015). We would accept that a decision might be made that, on a particular occasion, was not in our best interests, but that was part of fair give and take in the relationships. Relationship-based welfare provides a means of holding onto the welfare or best-interests principle while respecting the rights and interests of caregivers.

5.4 The importance of communicative law

A central aspect of compassionate relational care is that each person seeks to meet the needs of the other in a relational context. That will mean listening to each other and finding the solution that will work in the context of the relationship and the individuals within that relationship. This means that what might be an appropriately caring response in one case might not work in a different context with a different set of people. A solution must be found that works within the particular relational context. This means that one of the key aspects of care ethics is the rejection of abstract rules.

Instead, we should start with the context and concrete reality of the particular situations and the individuals and their relationships and characteristics. This may require a detailed consideration of the history of the relationship between the parties and what responsibilities will have arisen as a result of that history. We need to look at the history of the relationship to work out what will be a fair sharing of the benefits and burdens of the relationship. In doing this, consideration may need to be given to an individual's other caring responsibilities.

In an important paper, Professor Judge Anselm Eldergill (Reference Eldergill2015) has argued that compassion is an important part of judging. He accepts that, traditionally, judging is seen as involving rational-based decision-making and a degree of detachment from the case at hand. However, he makes a convincing case for arguing that, in some cases at least, it is necessary for the judge to seek to understand the position in which the individual before the court finds themselves. If an effective response is to be made to the situation the parties are in, the judge needs to learn something of their beliefs and values. Without doing so, any order a court makes is likely to be ineffective. This was recently emphasised in the family law context in England and Wales, where the Supreme Court has stressed the importance of the court seeking to identify the order that will promote the interests of the particular child before the court. In Re B (A Child) [2013] UKSC 33, the Supreme Court rejected the use of presumptions about what generally works for children, on the basis that this provided the court with little guidance on what would promote the welfare of the particular child at the centre of the case.

In several cases recently, we have seen judges undertake a traditional legal judgment, but at the end make comments specifically addressing the parents. In Re K, H H (children) [2013] EWHC 165 (Fam), Pauffley J. said:

Here, we see the judge appreciating the impact of her decision on the grandparents and expressing to them her compassion. There was no need for such a comment to be made and it is rare to find such a comment in judgments, but it might show the parents that the judge was not unfeeling and had understood the strength of their feelings.

In Re HB [2015] EWCA Civ 389, the Court of Appeal, in refusing to order contact, added:

Two things in particular are notable about these comments. First, the judge is seeking to understand why the parents are acting in the way they are. She realises that traditional legal principle is not going to affect the behaviour of the parents. She is showing compassionate care in seeking to articulate principles that will be of meaning and value to the particular parents before the court. Second, these arguments are designed to promote the compassionate care by the parents. They recognise that parents care deeply about their children and indeed that is why family disputes can become so acrimonious. The judges in these cases are seeking to encourage the parents to exercise their compassionate care to achieve the result. I hasten to add that there may be questions over whether or not the judiciary should be encouraging parental contact in these cases, but that is a debate for elsewhere. What is notable is that the judge in these cases is both exercising compassionate care and seeking to encourage compassionate care.