The Family in the 21st Century: Exploding the Nuclear Myth

The High Sheriff’s Law Lecture
given by The Rt Hon Sir Mark Potter, President of the Family Division
at The Examination Schools, Oxford
on Tuesday, 14 October 2008

The Rt Hon Sir Mark Potter

President of the Family Division and Head of Family Justice

Sir Mark Potter was born on 27 August 1937 and educated at The Perse School, Cambridge, and Gonville and Caius College, Cambridge. He married Lady Undine Potter in 1962 and has two sons and two grandchildren.

He has been President of the Family Division since April 2005. The Family Division has 19 judges.

Sir Mark was a Judge of the High Court, Queen’s Bench Division, from 1988 to 1996; Presiding Judge of the Northern Circuit from 1991 to 1994; Judge in charge of the Commercial Court from 1994 to 1995; and a Lord Justice of Appeal from 1996 to 2005.

He was called to the Bar in 1961 by Gray’s Inn and was in practice at the Bar from 1962 to 1988. He became Queen’s Counsel in 1980, a Bencher in 1987, and Treasurer of Gray’s Inn in 2004.

From 1980 to 1984 he was a member of the Supreme Court Rule Committee. He served on the Lord Chancellor’s Civil Justice Review Committee from 1985 to 1988; was Chairman of the Bar Public Affairs Committee in 1987; Vice-Chairman of the Council of Legal Education from 1989 to 1991; Chairman of the Lord Chancellor’s Advisory Committee on Legal Education and Conduct from 1998 to 1999; Chairman of the Legal Services Consultancy Panel from 2000 to 2005; Chairman of the Family Procedure Rules Committee from 2005; and Chairman of the Family Justice Council from 2005.

He is an Honorary Fellow of Gonville and Caius College, Cambridge, and King’s College, London; was a member of the Council of Nottingham University from 1996 to 1999; is a Trustee of the Somerset House Trust, London; received an Honorary LLD from London Metropolitan University in 2000; and is a Patron of Children Law UK and STEP.

The Family in the 21st Century: Exploding the Nuclear Myth

In 2005, when I was appointed to my present position and returned to a field in which I had not practised for many years, I found there had been added to my formal title of President of the Family Division that of Head of Family Justice. This addition, focusing less upon my formal position than my overarching function, caused me to reflect upon the nature and extent of the family unit with which the family justice system concerns itself and which, so far as I am aware, lacks any accepted comprehensive definition, whether for the purposes of our domestic family law or the right to “family life” enshrined in Article 8 of the European Convention on Human Rights.

My first resort was to the current edition of the Encyclopaedia Britannica, which initially defines the word “family” thus:

“A group of persons united by the ties of marriage, blood, or adoption, constituting a single household, and interrelating with each other in their respective social positions of husband and wife, mother and father, son and daughter, brother and sister… Frequently the family is not differentiated from the marriage pair, but the essence of the family group is the parent-child relationship, which may be absent from many marriage pairs.”

Two aspects of that definition are at once apparent. First, there is a primary assumption, though no precondition, that the relationship arises within the ties of marriage. Second, that the essence of family life is identified, as most would surely identify it, as residing in the parent-child relationship and being centrally concerned with the care and upbringing of children.

It is, no doubt, that emphasis upon the binding ties of marriage combined with the parent-child relationship which is encapsulated in the expression the “nuclear family”, a term widely encountered and beloved by politicians and the media. This convenient shorthand derives from the Latin word for a kernel or nut and, I suppose, represents an idealised version or image of what comes into most people’s minds when the word “family” is used: a family unit or household consisting of father, mother and children, living together.

The vision conjured up, at least by the politicians, is also one of social and economic cohesion: the family as the basic unit and lynchpin of Western society. Within the unity of this idealised nuclear family lies the concept of mutual financial self-sufficiency: no single mums, fewer benefits, state support and beneficial exercise of parental influence and control from both a mother and a father figure, children at home doing their homework and watching television in the bosom of the family, and certainly not out on the streets.

As a matter of origin, it is interesting to note that the term “nuclear family” was first devised in the middle of the 20th century as a convenient term by which to distinguish the majority of Western households consisting of father, mother and children from the wider Eastern and African concepts of the “extended family”, in which far larger family groups, including grandparents and other relations, live together in a wider family community, sharing or taking responsibility for each other’s children.

That is not to suggest that such larger family groups lack the cohesion of the more restricted European model. Quite the reverse. The extended Southeast Asian family unit usually maintains a greater degree of social contact and frequently uses the family unit as the basis of business partnerships. The membership of the group is most commonly defined in terms of shared descent through a male line. In some areas, notably in West Africa, matriarchal descent is used. In both areas, however, the interests of the individual parent/children unit are seen as subordinate to the wider family group, which will act corporately in dealing with a wide range of affairs, whether economic or domestic.

Family systems of this kind are older and more extensive across the world than the more fragmented “nuclear” European form and, for many migrants, they continue to provide the framework within which family life is organised, even though they may need to be adapted to the customs of the host country. Features such as corporate family enterprises and arranged marriages need to be understood by the family judge in terms of their original context and not simply as departures from the norms of the host country.¹

Thus, while retaining the ideal of marriage and permanence as the societal unit best suited to the rearing of children, our family law and practice, as in many other family law systems which have their origin in European cultural values and Christian ideals of marriage, have come to appreciate that the particular assumptions about relationships between children and parents which are enshrined in those values and ideals may be inappropriate as a standpoint when dealing with cultures where conceptions of kinship and good child-rearing practice are significantly different from the nuclear family model.

In jurisdictions such as ours, which have large immigrant communities, quite where the balance lies in welfare terms between recognising and accepting the traditional norms of other cultures within a society and judicial system based on European traditions and values is, and will remain, one of the greatest problems facing family courts in the 21st century. Whilst recognising and making allowances for different norms of behaviour, it is nonetheless necessary for the law to draw a clear line against unacceptable practices such as forced marriage² and excessive physical discipline.³

To take a less obvious example, in various West African countries the term “mother” extends beyond the biological mother and is used of the matriarch or other senior member of a kinship system who discharges the maternal role within the extended family group, while its other members, including it may well be the biological mother of children within the family group, are absent elsewhere, earning money to be sent home for the support of that family group.

I recently tried a case where a Ghanaian child’s immigrant status was at risk because, in questions and answers given in separate interviews, her use of the term “mother”, both in relation to her grandmother back in Ghana and her biological mother here in this country, had been wrongly taken by local authority officials as signs of a manufactured family history.

It is thus very important, particularly in cases where the local authority has intervened in a family because a child has suffered significant harm, or is in substantial danger of such harm, and the court is considering the placement of the child elsewhere, for courts concerned with immigrant or indigenous ethnic communities not to privilege parents, or relegate the rights of other family members, to a degree which conflicts with the child-rearing values of those communities.

It may well, on occasions, be wrong to assume that a child’s best interests lie in preserving the continuity of that child’s relationship with a single “psychological parent” or willy-nilly to apply notions of the nuclear family to extended families. Considerations of this kind call for conscientious and delicate handling, whether in the context of private law disputes between parents as to the upbringing of, or contact with, their children, or in the field of public law care proceedings instituted by local authorities.

Returning to the homegrown nuclear family model, it is of course the position that marriage between parents is no longer an essential feature within any modern definition of the “family” with which family lawyers and judges are now concerned, but it was not ever thus. The introductory words of the title of my lecture, “The Family in the 21st Century”, perhaps invite a brief historical survey in order to show just how far and fast legislative events, social assumptions, and thus the essential task of judges administering family law, have moved in only the last two or three decades when compared with preceding centuries.

In this country, prior to the Marriage Act 1753, known as Lord Hardwicke’s Act, the formal ceremony of marriage in a church was essentially limited to the upper echelons of society. Prior to that time, the regulation of marriage had been left to the Church, and the ecclesiastical courts responsible for the regulation and recognition of marriages had come to tolerate an extreme degree of informality for the purpose of recognising a couple as married.

However, by defining and laying down the formalities required in respect of a valid marriage, including a religious ceremony in church, as well as residence in the parish where the ceremony was performed, Lord Hardwicke’s Act swept away the acceptance hitherto accorded to informal arrangements and established state control over marriage, albeit via the ecclesiastical route, thus creating a clear legal dividing line between marriage and mere cohabitation.

Nearly a century later, the Marriage Act and the Registration Act of 1836 allowed couples to marry by a civil ceremony. However, that ceremony also had to be formally registered. Thus, while the requirement for a religious ceremony disappeared, the legal regulation and formalisation of marriage as the only recognised basis of family life was extended and confirmed.

These measures, taken in conjunction with the common law definition of marriage propounded by Lord Penzance in Hyde v Hyde in 1866, “the voluntary union for life of one man and one woman to the exclusion of all others”, not merely reinforced the view of society of the moral superiority and desirability of marriage as the basis for family life, but for two centuries established marriage as the only socially acceptable way by which to partner or to parent, so that unmarried mothers and illegitimate children were universally stigmatised by both society and lived largely outside the protection of civil and family law.

You may have noticed that, in Lord Penzance’s definition, there was no mention of a marriage ceremony between the parties for the purposes of legal recognition. But it was presupposed. It was, indeed, the essential ingredient, if effect was to be given to the property rights of the parties and the legitimacy of their offspring for the purposes of the law of succession. Anyone familiar with the novels of Jane Austen will know that such questions were not only of legal concern, but a social preoccupation of the upper classes in 18th and 19th century society, anxious to preserve and protect their family fortunes from dissipation.

Marriage effectively served to define the family because only marriage conferred legitimacy on a child, which was the law’s recognition of the child’s family relationship. Apart from dealing with divorce, an expensive process for which it was necessary to prove various types of marital offence, family law was concerned with inheritance and property rights, and the cases brought to the courts largely concerned validity of marriage, legitimacy and breach of promise.

Novels and plays recounted tales of romantic love, but for persons of substance, marriage was usually a commercial contract and the value of a bride lay in the money she could bring to the marriage. The poor simply had no relevance to family law. They often did not marry, and thus their children were illegitimate and, in any event, they had no estate or property worthy of the expensive attention of the courts.

Until the 19th century a patriarchal system of values, reflected in the common law, meant that marriage was in truth a partnership in name only. It was the husband who was the unquestioned head of the family and a married woman was essentially a slave within a free society. Her person, her property, her earnings and her children all passed to the absolute control of her husband. The husband had the right to use her sexually, beat her “within reason”, as the cases put it, and confine her for disobedience to his orders.

Thus William Cobbett, a non-lawyer, in his Advice to Young Men and, Incidentally, to Young Women, could accurately state in 1837 that:

“[The wife] makes a surrender, an absolute surrender, of her liberty, for the joint lives of the parties: she gives the husband the absolute right of causing her to live in what place, and in what manner and in what society, he pleases; she gives him the power to take from her, and to use, for his own purposes, all her goods, unless reserved by some legal instrument: and above all, she surrenders to him her person.”

The case of Turst v Turst,⁴ in the early 18th century, highlights some of these ingredients. The husband was an impecunious Sergeant-at-Arms to George I. The wife was Catherine Petter, a woman of some fortune. Because of the disparity in their means, her concerned relatives made an agreement with the husband that her estate would be settled on trustees for her personal use, free from her husband’s clutches.

Following the marriage, deprived of the expectations which the law accorded to husbands in the ordinary way, the husband had an agenda to terrorise the wife so that she would release control of her fortune to him. He threatened to lock her in an asylum; he removed their three children from the home, telling his wife falsely that the youngest had died; and he kept her a prisoner locked in her bedroom.

She escaped and fled. He sought her out, imprisoned her again, took all her possessions and beat her over a four-day period with a birch stick. Still she would not yield to the demands regarding her money. This time, her relatives issued a writ of habeas corpus forcing him to produce her, black and blue, before the Chief Justice. She was released and successfully sued her husband in the London Consistory Court for judicial separation. But such happy endings were rare and the preserve of those wealthy enough to go to law.

Well into the 19th century, wives who were separated from their husbands had no protection for their property, unless, like Catherine Petter, her relations had protected her fortune through the creation of a trust, trusts being the concern of the courts of Chancery.

In 1854, Lord Brougham’s Act, which was introduced in response to an organised campaign led by a few articulate upper-class women and supported by a petition of 25,000 signatures, produced some protection for the property of separated wives, but it was not until 1882 that the Married Women’s Property Act afforded her protection in respect of property she personally acquired or accumulated during an extant marriage.

So much for the wife, but what about the children? The answer is that, so far as the children of the marriage were concerned, they too were for centuries regarded as the property of the husband. Until the 19th century the husband could remove the children or marry them off without consulting his wife. Catherine Petter never saw her children again, because the court had no jurisdiction over custody and, however badly the husband had behaved, he had absolute power over his children.

Legal changes in that position came very slowly, through a developing realisation among the educated and political class that absolute authority was no longer justified by the practicalities of family life. Another intelligent and well-connected woman, Caroline Norton, the daughter of Richard Brinsley Sheridan, the playwright, lobbied politicians and judges about her own marital problems in order to effect change.

Her husband had falsely accused her of adultery with Lord Melbourne, then the Home Secretary, and abducted their three children. She sought a declaration from the court which acquitted her of adultery, but the husband still refused to return the children to her. His own barrister was obliged to concede this was not because of any vice or lack of maternal qualities on her part, but as a ploy to force her to accept a reduced level of maintenance. Nevertheless, at that time, the law gave her no remedy.

Her persistent and relentless lobbying and pamphleteering led to the Child Custody Act 1839, since described as the first piece of feminist legislation on the statute book, which empowered the Court of Chancery to transfer legal custody of children under seven to the mother, but of course too late to be of benefit to Caroline Norton.

As late as 1862, a judge refused to grant an adulterous wife any contact to her children taken from her, observing:

“It will probably have a salutary effect on the interests of public morality that it should be known that a woman guilty of adultery will forfeit, as far as this court is concerned, all rights to the custody of or access to her children.”

Thus, the courts were still treating children as possessions, with virtually complete lack of concern for the welfare of the child in reaching decisions in parental disputes.

During the 19th century, the situation began to change for the better as Parliament intervened in a series of statutes, the effect of which was to whittle down the father’s proprietorial rights and give the mother positive rights to have the care and control of children. But it was not until the Guardianship of Infants Act 1925 that statute finally provided that in any proceedings before any courts neither the father nor the mother should be regarded as having a claim superior to the other in respect of the custody or upbringing of the child.

Section 1 of the Act further provided that in any proceedings or any court in which the custody or upbringing of a child was in question, the court, in deciding that question, should have regard to the welfare of the child as the first and paramount consideration.

For a variety of reasons and in a number of respects which need not be explored in this lecture,⁵ the courts were slow to give full effect to section 1 of the 1925 Act. However, it can confidently be stated that since the Children Act 1989, which was both a comprehensive and ground-breaking statute governing all types of proceedings relating to children, the welfare of the children in any such proceedings, rather than the asserted “rights” of the adult parties, is invariably applied by the courts as the paramount consideration governing their decision.

From the point of view of the concept of the family, the importance of the Children Act 1989 is that it is founded upon the significance of parentage, the relationship of the child to the parent, and the notion of “parental responsibility”,⁶ rather than upon, indeed it has little direct concern with, the nature of the legal relationship between the child’s parents.

Two years earlier, the Family Law Reform Act 1987 removed almost all the legal disadvantages of having been born outside marriage and it sought to avoid attaching the label “illegitimate” to children born outside marriage. The Law Commission report which preceded this statute⁷ stated that it was not intended to affect respect for the institution of marriage. However, by 1989 the marked increase which had taken place in both short and long-term cohabitation outside marriage required a statute whose terminology was designed to cover all proceedings concerning children, not merely in private law disputes between parents, but in public law proceedings by local authorities concerned with cases of ill treatment and neglect of children within their family situation.

These developments have led to the position today whereby the majority of family units still exist within the bonds of marriage, but an ever-increasing number do not. So far as respect for the institution of marriage is concerned, in a recent decision of my own,⁸ I described the position of the traditional family thus:

“It is apparent that the majority of people, or at least of governments, not only in England but Europe-wide, regard marriage as an age-old institution, valued and valuable, respectable and respected, as a means not only of encouraging monogamy but also the procreation of children and their development and nurture in a family unit, or ‘nuclear family’, in which both maternal and paternal influences are available in respect of their nurture and upbringing.”

That, I believe, remains, and should continue to be, the conventional view. Certainly, in its Green Paper Supporting Families, the present government stated its own agenda for “strengthening marriage” as follows:

“Marriage does provide a strong foundation for stability for the care of children. It also sets out the rights and responsibilities for all concerned. It remains the choice of the majority of people in Britain. For all these reasons, it makes sense for the Government to do what it can to strengthen marriage.”⁹

I know of no subsequent official statement modifying this stance.

Nonetheless, during the last twenty years, the increase in cohabitation outside marriage, the level of separation and divorce, and the consequent increase in lone-parent households and new step-families, have rendered any definition of the family in terms simply of marriage and offspring born within the confines of marriage, or any limitation on the court’s powers to deal with children by reference to the existence of a marriage, neither helpful nor realistic.

Divorce rates have increased and, in any given successive period, a significantly higher proportion of cohabiting relationships as well as marriages are terminated. In more and more cases, the children in the family group are no longer confined to the offspring of the same parents. The separation of parents is likely to be followed by new partnerships and, in turn, the chances that the second union will dissolve are higher than for first marriages or cohabitation.¹⁰

Furthermore, as a result of 21st-century legislation of high importance, to which I shall refer later in this lecture, a comprehensive definition of family life must now be sufficiently wide to include the children of same-sex couples living in civil partnership.

For the moment, suffice it to say that the major part of the work of modern family courts is concerned with extended disputes as to where the welfare interests of children lie in any given case, not as formerly on the breakdown of marriage, but in the wake of all kinds and complexions of parental partnership, whether by way of long-term cohabitation or a one-night stand.

The parties may have married according to the rites of many religions. Others may have cohabited simply as couples, whether married or not, and with partners who are not always of the opposite sex. Children may live in households with many adults or only a single parent. Their parents may or may not be their natural parents and their siblings may be half-siblings or step-siblings. Whether as a result of choice or circumstance, many adults and children live in family groups far removed from that of the traditional nuclear family.

Where there is a dispute as to the welfare of the child, the courts are directed to careful consideration of a “welfare checklist”, set out in section 1 of the 1989 Act.

By way of digression, it is of interest to note at this point that one of the important matters listed for the consideration of the court is “the ascertainable wishes and feelings of the child concerned, considered in the light of his age and understanding”.¹¹ This provision in the 1989 Act coincided with the requirement of Article 12 of the United Nations Convention on the Rights of the Child, to which this country is a party, which provides that states should ensure that children be afforded the opportunity to be heard, either directly or through a representative, in any judicial proceedings affecting them, the views of the child being given due weight in accordance with his or her age and maturity.

This requirement received further impetus after the year 2000 with the need for all courts to give effect in their decisions to Articles 6 and 8 of the European Convention on Human Rights, which require consideration of the human rights of children within the family circle as well as the asserted rights of their parents, and a need to ensure that the child’s point of view is adequately and independently expressed in any decision-making process affecting the child.¹²

In this context, the right of a child “of appropriate age”, as to which opinion differs among judges, to have his or her views heard is of particular importance in cases where such views are likely to be at odds with those of his parents.

This is a vital development in our family law. Traditionally, the law governing separation and divorce between married couples has been fundamentally adult-centred and based on the adversarial process, which approach inevitably infected the later proceedings for “custody” and “care and control” of the children, as they were called prior to the 1989 Act.

The wider field of relationships covered by the Children Act and the more tangible concepts of “residence” and “contact” which it introduced, together with the further developments just mentioned, require the courts to be more sensitive and receptive to the voice of the child in influencing the outcome.

In practice in this country, this means that in any dispute between parents following separation, where, as a result of the parents’ evidence or attitude, there is reason for concern that the court is not getting a proper picture in relation to the child’s welfare or personal wishes and feelings, then the court will order a court welfare officer to visit a child, and to interview him if he is old enough, to report his wishes and feelings to the court.¹³

In the most intractable of these disputes, where neither party can be trusted to prioritise the welfare of the child, as opposed to his or her own selfish “will to win” in the contest over residence or contact, the court may even order that the child should have separate representation, and that a Guardian be appointed for that purpose.¹⁴

There is a major debate going on in the field of family justice at the moment, called the “Voice of the Child” debate, which is engaging family jurisdictions worldwide, as to whether, how far and at what age it is desirable for the judge to speak directly to children themselves in these disputes, rather than having their view reported through a guardian or welfare officer.

There is a traditional reluctance of the English judge to talk to children in private, rather than relying on the evidence of the parties or any welfare report, although it is regularly done on the continent of Europe. This English reluctance is rooted in the rules of evidence and the adversarial mode of trial: in the fact that what is said in private by the child to the judge cannot be tested in evidence or in cross-examination; and that the judge cannot promise confidentiality to the child, because of his duty to inform the parties of issues which trouble him as a result of what the child has said, so that the parties may address them before judgment is given.

Depending upon the child’s age and temperament, it will often be the case that the last thing the child wants is to be directly involved in the proceedings. All he wants is for the dispute to be over and his parents to behave sensibly. No judge should insist on seeing a child who does not wish to see him. But where the child does want his say, or at least to meet the man or woman who is making decisions which affect his life so closely, in my view he should be able to do so. That is certainly the case in my court. On occasions, it can throw a completely different slant on the case to hear the child’s wishes and feelings from his own mouth rather than through the mouths of others.

I have called this the Voice of the Child “debate”, because the matter is still very much under discussion and the views of the judges, as well as child experts, as to whether the judge should hear the child’s views at first hand are divided.

In a recent case, the Court of Appeal considered a dispute¹⁵ concerning three articulate children aged 11, 13 and 15 whose views on whether they should be taken to live in Sweden had been sought by the court welfare officer. The children had said they were happy to go to Sweden, but the court welfare officer recommended that it was in their best interests to remain here.

The three judges deciding the case considered the various ways in which the court can hear the views of a child. Lord Justice Thorpe believed the judge in the lower court should have seen the children, in particular the eldest, before coming to its decision. While agreeing with Lord Justice Thorpe’s overall conclusion that the views of the children had not been well represented, Lord Justice Wilson would have spoken to the children, but only after the judgment, to explain the reasons for the decision, and Mr Justice Charles said he would not have seen the children at all.

I have already made my own views clear. I have mentioned the Voice of the Child debate not only because I am interested myself to promote it, but also because it shows just how far the courts have now moved from treating children virtually as property within a marriage to be disposed of accordingly, and have become a child-focused jurisdiction in which the question whether or not the warring parents are or have been formally married is virtually irrelevant.

That brings me back to the question of cohabitation, to which I have already referred.

Over the last 30 years, for a variety of reasons, unmarried cohabitation, far from being the scandal of Jane Austen’s day, has become so widely practised and socially accepted at all levels of society, and the number of couples electing to cohabit has risen so fast, that social and peer pressure to acquire married status, even for the purpose of childbearing, is now confined to particular sections of society. The decision whether or not to marry or simply to cohabit is widely recognised to be a question of personal choice in relation to which questions of universal stigma no longer attach, and most people would have no difficulty in identifying households where parents bring up their children without the benefit of marriage as families.

Indeed, in March this year, 2008, figures from the Office for National Statistics revealed that the proportion of adults in England and Wales who marry has fallen to the lowest rate since figures were first recorded in 1862. Forty-four per cent of babies are born out of marriage, rising to 55 per cent in the North East. The report also shows that for those who do choose to marry, the divorce rate for first marriages is about 45 per cent. These figures are part of a continuing trend.

While rejecting calls for all cohabitants to be given the same rights as married couples and civil partners in the event of their separation, the Law Commission concluded that remedies should at least be made available between unmarried couples who live together with children, that is, as a family, for two principal reasons.

First, where couples live together with one or more children as a family, they generally adapt their original roles within the relationship in order to provide appropriate support for the children and each other, most notably where one partner gives up full-time paid work to care for a young child in reliance on the other partner’s financial contribution to the household. Given that cohabiting parents are likely to adopt money-management practices similar to those of many spouses, it seems wrong that, where that has been a joint decision by a cohabiting couple to conduct their family life in this way, the long-term financial “gains” and “losses” should simply lie as they fall on the basis of ordinary application of the laws of property between the parties upon an arm’s-length basis.

Second and more important, where there are children there is a recognisable public interest in their continuing welfare. Separation of cohabiting couples inevitably impacts on children who have been part of their parents’ shared household. While the state will require a non-resident parent, usually still the father, to maintain the child, presently through the Child Support Agency, the current law fails adequately to address the financial hardship experienced in many cases by women in whose care the children remain, and this inevitably affects the quality of life of the children of the family for whom that adult party continues to care.

Children are dependent upon both parents to provide for their welfare and protection and, in so far as that welfare and protection may be an incidental casualty upon break-up of a long-term familial relationship, the law should be able to protect children by making appropriate dispositions of property, particularly the family home, to assist the party who has the principal responsibility for their care.

I share the disappointment, widely expressed, that the Government, having given every reason to expect that it would follow the Law Commission’s recommendations, has decided at this stage not to make the changes proposed. It has said it will wait on the bedding down of Scottish legislation giving remedies to cohabitants, which was introduced in 2006. This, it is said, will give an opportunity to assess the likely costs of implementing the recommendations. However, given the high degree of public support for reform, and the fact that the Law Commission’s report clearly identifies the need for it, it is unfortunate that priority is not to be given to remedying this clear lacuna in the family justice system.

While, as I have shown, the business of the family courts is now largely concerned with the parent/child relationship regardless of legal forms, there are three important respects in which modern legislation has intervened specifically to create a legally recognised family relationship outside the nuclear family model of mother, father and their biological offspring.

The oldest of these state-designed family relationships is adoption.

Adoption is a legal procedure by which a child’s legal parentage is entirely and irrevocably transferred from one set of adults, usually the birth parents, and vested in other adoptive parents. An adopted child loses all legal ties with his or her birth parents and becomes a full member of the new family, usually taking on their surname.

Although adoption and fostering have taken place informally for centuries, it was only in the 1920s that adoption became legally recognised in Britain¹⁶ as a method of providing security for war orphans and children born to unmarried mothers.

The 1960s and 1970s saw major changes in adoption, fostering and childcare practices.¹⁷ The number of babies available for adoption fell rapidly because of improved birth control and changing public attitudes. Consequently, adoption practice changed its focus to finding families for children with “special needs”, such as those in local authority care who had been abused, neglected or had physical or learning disabilities.

Adoption has been aptly described by Lady Justice Hale, as she then was, as:

“A most valuable way of supplying a child with a ‘family for life’, to which everyone ought to be entitled and of which some children are tragically deprived.”¹⁸

Save for one extremely limited circumstance,¹⁹ an adoption order is irrevocable regardless of the wishes of the parties. It creates a family relationship for life.

In one case,²⁰ a child born of a Muslim Arab father and a Catholic mother was adopted by an orthodox Jewish couple believing the child to be Jewish. In adult life, the child wished to settle in Israel but was suspected of being an Arab spy and asked to leave the country. His application to revoke the adoption order or to set it aside was made on the basis of a fundamental misapprehension or mistake, namely that his adoptive parents would not have taken him on had they known that he was not Jewish.

The then President dismissed his application and the Court of Appeal dismissed his appeal. In giving judgment, Lord Justice Swinton-Thomas said:

“There is no case in which it has been held that the court has jurisdiction to set aside an [adoption] order by reason of a misapprehension or mistake. This would undermine the whole basis on which adoption orders are made, namely that they are final and for life as regards the adopters, the natural parents and the child.”

The traditional law and practice in respect of adoption was, until recently, a straightforward supplement to the nuclear family model, readily absorbed into its structure. However, modern developments required the law of adoption to be overhauled and updated by the Adoption and Children Act 2002, which came fully into force at the end of 2005.

By section 144(4) of that Act, provision was made to allow adoption applications to be made by a same-sex couple living as partners “in an enduring family relationship” and, by the time that section came into force, Parliament had passed the Civil Partnership Act 2004, which is the second measure to which I have referred as creating legal status for hitherto unrecognised family relationships.

In contrast with the Government’s unwillingness to do so for cohabiting couples of opposite sex, the Civil Partnership Act adopted what may conveniently be termed the “marriage mirror” approach in respect of same-sex couples who formally register civil partnerships. It creates an entirely new status for same-sex couples. Upon registration of that relationship, it effectively gives them every material advantage of marriage in the sense of the same range of public and private law rights, including parental or property rights, as are vested in married couples.

However, although widely called “gay marriage” in the media, it expressly denies to the parties the formal title or status of marriage. Thus, as a result of the Acts of 2004 and 2002, any working definition of the term family now requires to be suitably expanded to include partners of the same sex who have adopted children under the terms of the Act of 2002.

Perhaps the most remarkable thing about the passage of the Civil Partnership Act through Parliament was the relative lack of controversy it generated at the time. It may have something to do with the fact that when the Bill was being debated, the hunting row was in full cry, but, whatever the reason, one had to search hard in the media to find mention of the advent of one of the most striking pieces of social policy legislation for years, creating as it does a new form of partnership in the 21st century equivalent to marriage in the case of same-sex partners.

Let me just tell you of a case²¹ in which the court was concerned with a parental dispute over the children of a family. The two parents, A and B, were not married but had lived together from 1995 to 2002 in Shropshire. A, the mother, gave birth to the two children of the family in 1999 and 2001. In 2002 the relationship broke down and A moved out of the home, taking her children with her to live nearby with a new partner, so that B was still able to see the children regularly.

Later, however, A moved with her new partner and the children to Cornwall and a dispute developed as to whether she should be allowed to continue to keep the children, given that B could no longer see them easily or regularly and their excellent relationship with B was suffering. The judge who heard the case ordered that the children should go back to live with B in Shropshire, rather than their birth mother in Cornwall, and the Court of Appeal upheld the judge. A appealed to the House of Lords and won.

You may think it surprising that the case had to go all the way to the House of Lords for that result. Children of that age should usually be with their mother. However, you may think the matter less straightforward when I tell you that the parents A and B were both women, the children in question being the product of artificial insemination using sperm from an anonymous donor.

For good measure, shortly before the break-up, the couple had registered their civil partnership under the new legislation. By the time of the litigation, the partner who walked out, that is, the biological mother, and who was the primary carer of the children, had found a new female partner with whom she was also contemplating registration of a civil partnership. The abandoned female partner herself had a seventeen-year-old son born as a result of AID during a previous relationship of hers. Her son had established a close bond with the warring couple’s two much younger children, who regarded and loved him as a brother, a matter to which the lower courts had attached significance.

What, one may ask rhetorically, would Lord Hardwicke or Lord Penzance have made of that? Well, whatever the answer may be to that question, the modern answer was succinctly given by Baroness Hale, when giving the principal speech in the House of Lords decision. She stated:

“The issues in this case arise in a novel context but they are issues which may arise whenever there are disputes about the future care and upbringing of children. The context is that of a couple who made the conscious decision to have children together, who together arranged for anonymous donor insemination at a clinic abroad, and who brought up the children together until their relationship broke down. Now sadly they are locked in a dispute about the future of those children. And the issues arising are just the same as those which may arise between heterosexual couples. The legal principles are also the same.”

The House of Lords found that the lower courts had allowed the unusual context of the dispute to distract them from principles which were of universal application. The key consideration, reinforced by statute, in relation to any parental dispute was that the welfare of the children was paramount, and it was clear that insufficient weight had been attached to the relationship with the biological mother.

Nonetheless, it is undoubtedly the arrival on the family scene of same-sex couples as parents or potential parents which most dramatically illustrates how times have changed since family law concerned itself only with the family wrought in the image of Lord Penzance’s definition of marriage.

The third new legally created relationship, equally foreign to 19th-century perceptions of family life, is that of surrogacy, to which I will turn in a moment. It is associated with that other driver of change in so many fields, namely scientific advance.

While changes in society’s attitudes have greatly altered the perception of what is a family, changes in science and medicine have also made the possible permutations even more complex and they are poised to go yet further.

In 1978 the birth of Louise Brown, the first “test tube baby”, stirred immense controversy. The wonder that medical advance could remove the distress of infertility was matched by disquiet at a subversion of the natural order. The doctors responsible were both hailed as pioneers and derided for playing God.

In July 1984, Dame, now Baroness, Mary Warnock chaired the Committee of Inquiry into Human Fertilisation and Embryology, which considered the social, ethical and legal implications of developments in the field of human reproduction. This was spurred not only by Louise Brown’s birth, but by the subsequently developing techniques of in vitro fertilisation, IVF, to enable couples to achieve fertilisation by scientifically assisted means, and by egg and embryo donation, which created the possibility that the woman giving birth to the child might not be the genetic mother.

The Warnock report led to the enactment of the Human Fertilisation and Embryology Act 1990. The 1990 Act regulates the creation, keeping and use of embryos outside the human body and the storage and use of gametes to create embryos. It governs some activities, such as the provision of services through licensing of fertility clinics, and absolutely prohibits other activities, including placing non-human embryos or gametes in a woman.

In vitro fertilisation, IVF, is so common today, accounting as it does for one in 66 births,²² that the concerns of the 1970s seem remote. The debate is no longer whether IVF is acceptable, but how far it should be paid for by the State, and how to reduce the multiple births which are by far its biggest hazard. As a matter of interest, Louise Brown celebrated her 30th birthday in July this year and is now herself the mother of a naturally conceived son.

In January 2004, the Government announced a review of the 1990 Act, citing the further developments in reproductive medicine since the passage of the original legislation as creating a need for reconsideration of the law, and, following public consultation, introduced a new Human Fertilisation and Embryology Bill in 2007.

One of the aspects with which it is concerned is assisted reproduction. Here, changes are proposed to reflect changes in societal attitudes and to update the law to clarify who²³ will be regarded as the “mother” and “father” of a child created through donor conception. Where the couple are both female, the proposed changes include a new concept of parenthood for the female partner of the child-bearer, making equivalent provision to that for opposite-sex couples.

However, media attention has concentrated upon another aspect of the Bill relevant to this lecture, which was highlighted by the headline on the front page of The Times on 21 May this year: “Women win the right to children without fathers.”

The article referred to the legislative proposal²⁴ to remove the duty of fertility clinics, as a condition of their licence, not to provide treatment for a woman “unless account has been taken of the welfare of any child who may be born as a result… including the need of that child for a father”. That was a provision introduced into the 1990 Act to neutralise parliamentary opposition from MPs concerned at the availability of such treatment to single women or lesbian couples.

The current Code of Practice governing the work of the fertility clinics already in fact provides that:

“Where the child will have no legal father, the treatment centre should assess the prospective mother’s ability to meet the child’s or children’s needs and the ability of other persons within the family or social circle willing to share responsibility for those needs.”

However, the clear statutory statement now proposed to the effect that the child’s needs to be considered exclude the need for a father figure in the family of which the child will form part may well be thought to sound the death knell for the nuclear family archetype.

As to surrogacy, this is essentially a contractual process whereby one woman carries a child for another who, for whatever reason, is unable to conceive or bear a child by her husband or partner.²⁵ “Full surrogacy” arrangements involve semen and egg donation by the commissioning parents and use of IVF techniques. “Partial surrogacy”, whereby the surrogate mother is inseminated artificially by the commissioning father, is more common.

If all goes as planned, the Surrogacy Arrangements Act 1985, as amended by the 1990 Act, provides that, following a successful surrogacy arrangement, the “commissioning couple” is entitled, within six months of the birth, to apply to the court for a parental order, the consequence of which is that the child will be treated in law as their child from the date of its birth. That is the procedure usually followed and, where it is, the effect of such an order is the same as that of an adoption order, but backdated to the birth date, rather than just taking effect from the date of the order.

However, grave difficulties can arise if a surrogate mother changes her mind and retains the child following its birth and refuses her consent to a parental order. This is because a surrogacy arrangement, while permissible, is not legally binding on the parties.²⁶ Even though the commissioning parents may both be the genetic parents of the child, the woman who carries the child, and her husband if she has one, are the legal mother and father and this remains the position unless and until a parental order is made.

If the surrogate mother refuses to hand over the child, it is open to the commissioning couple to apply on welfare grounds for a residence order in respect of the child under the Children Act 1989. However, the emphasis of that Act upon maintaining the status quo under the welfare principle renders an order for removal from the biological mother who has nurtured the child from birth uncertain at best.²⁷ Surrogacy arrangements thus remain a risky venture from the point of view of the commissioning parents.

In order to complete this survey of the changing family picture, I should perhaps refer to the Gender Recognition Act 2004, which came into force in April 2005. This allows for those who have undergone gender reassignment surgery to be legally recognised in their new gender.

It used to be the case that a person’s gender was established at birth and that there could be no change to the sex shown on their birth certificate. This caused much confusion on, for example, admission to prison, where allocation followed the gender shown on the birth certificate despite any outward appearances.

Following implementation of the 2004 Act, those who wish to live fully and permanently in their acquired gender may apply to a Gender Recognition Panel for a gender recognition certificate. They then have the right to receive a new birth certificate, to marry and to receive state benefits and pensions in their acquired gender.

Whilst that no doubt renders the personal position of the gender re-assignee clear cut, the same can hardly be said for his or her inter-familial relationship with their spouse or with any children fathered or conceived prior to such change.

To take the matter yet further, you may have read in June this year of the New Yorker who, having been born female, underwent gender reassignment surgery to become a man and then married a woman. Despite the earlier surgery, he had retained his womb and, following his new wife’s hysterectomy, they decided that he should become impregnated by AID and bear a child. He told Oprah Winfrey on her show:

“I feel it’s not a male or female desire to have a child. It’s a human need. I’m a person and I have the right to have a biological child.”

He wrote in Vanity Fair:

“I will be my daughter’s father and Nancy will be her mother. We will be a family.”

Few could dispute that this trio will indeed constitute a family, nuclear or otherwise. However, the legion of ethical, physiological and psychological questions raised by this extreme example of where science has led us well illustrates the extent of the departure from conventional notions of parenting within the family unit which may on occasion confront family judges in the 21st century.

At the end of the day, it is as well to remember that, whatever the definition of a family, its principal function and value in our society is the provision through parental care of nurture, upbringing, safety and happiness to the children who will form the next adult generation.

As Dr Claire Sturge, a leading consultant child psychiatrist, has stated:

“From the child’s perspective nurture is overwhelmingly more important for their healthy development than nature. The child’s healthy development depends on the quality of their relationships - with anyone who is committed to them. Psychologically, it is the nurturing parent or co-parent who is all important in meeting their emotional needs.”²⁸

So far as families are concerned, one size does not fit all, and never has. The ideal of the nuclear family retains its validity as an aspiration, but the ways in which familial care may be provided are legion and best judged by their effects, rather than the degree of their conformity with an attempted definition.

¹ Judicial Studies Board, Equal Treatment Bench Book, March 2008.
² Forced Marriage (Civil Protection) Act 2007.
³ Resolution 12 of the Dartington Conference 2007: “This Conference believes that physical abuse as a form of discipline of children is unacceptable and transcends class, race, culture and religion.”
⁴ Feaubert v Turst (1703) 2 Eq Cas Abr 475; 1 Bro Parl Cas 129; Prec Ch 207.
⁵ See generally Bromley’s Family Law, 10th edition, Lowe and Douglas, pp 353-361.
⁶ Defined as “all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child and his property”, section 3, Children Act 1989.
⁷ Illegitimacy, Law Com No 118, 1982, paras 4.6-4.8.
⁸ Wilkinson v Kitzinger [2006] EWHC 2022 (Fam), [2007] 1 FCR 183.
⁹ At para 4.8.
¹⁰ Rogers and Pryor, Divorce and Separation: The Outcomes for Children, Joseph Rowntree Foundation, 1998, summarised in Foundations 6108, Joseph Rowntree Foundation.
¹¹ Children Act 1989, section 1(3).
¹² See CF v Secretary of State for the Home Department [2004] 2 FLR 517; Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730.
¹³ See section 7, Children Act 1989.
¹⁴ See rule 9.5, Family Proceedings Rules 1991, and President’s Direction of 5 April 2004.
¹⁵ Re W (Children) [2008] EWCA Civ 538.
¹⁶ Adoption of Children Act 1926.
¹⁷ Adoption Act 1958; Adoption Act 1976.
¹⁸ Re B (Adoption by One Natural Parent to Exclusion of Other) [2001] 1 FLR 589.
¹⁹ That is, where for legal reasons a natural parent has adopted the child and wishes the adoption order to be revoked to “re-recognise” the genetic relationship between the parent and child: section 55, Adoption and Children Act 2002.
²⁰ Re B (Adoption: Jurisdiction to Set Aside) [1995] 2 FLR 1. ²¹ Re G (Children) (FC) [2006] 2 FLR 629.
²² The Times, 25 July 2008. Source: University of Sheffield.
²³ A summary of the present position may be found at Bromley’s Family Law, 10th edition, Lowe and Douglas, pp 306-317.
²⁴ Clauses 14(2)(b) and 23 of the Bill.
²⁵ See generally Principles of Family Law, 7th edition, Cretney, Masson and Bailey-Harris, pp 853-860.
²⁶ See section 1A of the Surrogacy Arrangements Act 1985, as added by section 36 of the Human Fertilisation and Embryology Act 1990.
²⁷ See Re P (Minors) (Wardship: Surrogacy) [1987] 2 FLR 421.
²⁸ Dartington Conference, “Integrating Diversity”, 29 September 2007.