With the constant evolution of the notion of the ‘family’, and the increasing internationalisation of family disputes, family law in the twenty-first century is a rapidly changing landscape. As such, it is necessary that we continue to re-evaluate the assumptions underpinning our legal system, and think about family law in the context of the wider law and of society. This is what Rob George has attempted to do with his book, Ideas and Debates in Family Law.
The content of this book stems from a series of undergraduate lectures at the University of Oxford, which manifests itself in the conversational style of writing, and the easy way that it flows from one issue to another. The author expresses himself simply and clearly, in non-legalistic terms, making it ideal for the intended target audience of undergraduate students who are just starting to think more deeply about the concepts and theory behind the black letter law. In doing so, the book takes an interdisciplinary approach, positioning questions of family law in the context of public policy debates, but also in relation to other fields of law.
The book is split into three major sections, with the first dealing with overarching themes that affect all areas of family law. Chapter One considers the place of solicitors, barristers and the court in family law, and the need for family issues to be seen as a question of law and justice, and not as a purely private matter. Chapter Two focuses on the meaning and content of rights and responsibilities, and their interrelationship, contrasting these to hopes and expectations. The strength of this chapter lies not in the main body – which although interesting fails to bring the theory sufficiently back to the practical application in law – but in the set of questions posed in its conclusion, which go to the heart of the debate and provide an analytical framework for considering the issues raised by the rest of the book. Chapter Three considers the increasing internationalisation of family law, and the reasons behind this. While the analysis of the forum, mutual recognition and harmonisation approaches is sound, the chapter loses some of its impact without any mention of the relationship between the European Convention on Human Rights (ECHR) and English jurisprudence, or of the influence of the European Court of Human Rights (ECtHR) in this area. Although relocation cases are discussed at length, involving in particular the Hague and Brussels II Conventions, the landmark ECtHR cases that have been decided in the past three years concerning these issues are notable for their absence.
The second section focuses on the regulation of adult relations, and is the most cogent and compelling component of the book. Chapter Four analyses why adult relationships are treated differently, using practical examples and evidence drawn from socio-legal research, while Chapter Five continues in this vein, considering the meaning of marriage and, controversially, whether marriages should have a ‘sunset clause’ included in them. As George himself makes clear, he does not himself necessarily advocate such a policy initiative, but poses the question in order to make students think more deeply about the value and substance of marriage. Chapter Six rounds out this section, providing particularly good explanations of the different starting points for financial distribution on the breakdown of marriage, making it useful reading for any student who is struggling to make sense of this complex and confusing area of law.
The final section considers the law relating to children. Chapter Seven analyses the welfare principle and how it relates to the rights and interests of others, posing the provocative question of whether it is a valuable principle simply because it gives parents something better to argue about. Once again, the ECHR is notable for its absence, especially in relation to the welfare principle, as it has formed one of the central debates in this area in the last 15 years. However the discussion of the meaning of ‘welfare’ and its application by the English courts is informative, as is the comparison with New Zealand in relocation cases. Chapter Eight goes on to consider the meaning and content of parental responsibility, using the example of shared residence to present the changing approach of the judiciary in this area, before neatly bringing the book full circle back to the issue of family justice.
As George himself acknowledges, the book is relatively light on any explanation of the current English law, relying instead on the student having gained basic knowledge from other sources. Law is used to create examples of the dilemmas posed, rather than to provide a synthesis of the area, and thus students must be careful to use this book as a tool for further analysis of ideas rather than as a reference text. It positions itself in the market as a companion to more traditional textbooks, as further reading to more fully understand the complexities behind family law legislation. However, in recent years textbooks too have been moving away from the traditional black letter approach and starting to pose more theoretical and socio-legal questions, somewhat lessening the impact of this edition.
Nevertheless, the strength of this book lies in its exploration of less orthodox ideas, offering new and at times controversial perspectives on some of the major concepts in family law. It encourages the reader to question the reasoning behind judicial decisions, and brings to light some of the less obvious assumptions that current family law is based on. The avowed purpose of the text is not to provide answers, but to encourage the student to think more deeply about the field of law, and to come to his or her own conclusions. This the author does very well. Throughout the text there are numerous questions posed to provoke further thought and study, and deliberately contentious ideas raised in order to make the reader re-evaluate orthodox assumptions. For an undergraduate first embarking on a study of family law, it provides an opportunity to delve into this theoretical debate along non-traditional lines, and expand on the more practical aspects upon which this subject is commonly based.
This book should not be mistaken for something it is not – it deliberately does not attempt to cover all areas of family law, nor outline all the debates and issues that have arisen in those areas it does focus on. On the other hand, an indication of an awareness of some of the more prominent debates, even in passing, would have been of use. Further, while the bibliography contains a wide range of sources from some of the biggest names in English family law, there is a preponderance throughout the text towards over-citation of certain sources, and a more diversified approach may have been advisable.
Overall, the ideas and debates presented are thought provoking and, at times, unusual, and provide a useful starting point to begin thinking more deeply about the purpose of family law, and how private relationships are regulated in the public sphere. Although it fails to consider some of the current hot topics, including the public law relating to children and child abuse, same-sex relationships, and domestic violence, it is to be hoped that another edition will be forthcoming in which these areas will be focused on, as well as the existing chapters expanded.
