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Families: Why should we ‘welcome and applaud’ the second best?


Charm and misguided zeal surprisingly often go hand in hand. There’s a great deal to like at first sight about Sir James Munby, retiring President of the High Court’s Family Division. He is said to be very good company at dinner; he speaks excellently; and to give him credit, he has rightly and valiantly fought to reduce the scandalous secrecy surrounding the decisions of family judges about how the pieces of broken lives should be picked up and reassembled. But misguided he is, as witness most recently a formal lecture he gave last Wednesday at Liverpool University concerning the place of family law and the decline of the traditional family.

What is difficult is not his observation (clearly true) that the traditional nuclear family is in retreat – children living with adults who are non-biological parents, three-parent families, same-sex relationships between parents, polygamy and so on are now commonplace – but his throwaway line that this is something to ‘welcome and applaud’. Although this no doubt went down nicely in the Liverpool Law School (dubbed, interestingly and unusually, the ‘School of Law and Social Justice’), it is still a little puzzling. The constant presence of a married mother and father, with the combination it brings of a marriage commitment and a biological tie, is a very effective protection for children; moreover it tends to form the family background of most of those who, from a position of sound education and privilege, decry it. It is true that we cannot practically stop people choosing other means of child-rearing, and indeed that to some extent the law may have to condone them lest worse befall. But if some forms of family do tend to work better than others, it is by no means obvious that we should be supporting diversity for diversity’s sake. Still less does it follow that we should enthusiastically promote equality of treatment between the various flavours of the family, particularly where any children may well have little or no choice in the matter. True, alternative forms of child-rearing may work in particular cases, even if they do deprive a child of a mother or father or both. But it may well be that they do so faute de mieux. And even if a second-rate solution is better than nothing, there is no reason positively to welcome or encourage its adoption. If a child through subsequent events loses its mother, that is one thing: rejoicing in parties’ choice not to give it one in the first place is rather different.

Why, then, this enthusiasm for the family of many (equal) flavours? The answers Sir James gives, here and in previous lectures, are twofold. Both are difficult. One, based on a speech of his three months or so ago in Edinburgh, is that nuclear families are based on old-fashioned (Christian) morality; once an enlightened law realises that it cannot be a promoter of virtue, any support for nuclear families must go. Quite apart from any moral qualms about the law high-mindedly existing to allow anyone and everyone to go to hell in a handcart and take their family with them provided that’s what they really want, this suffers from the problem that the law does not now refuse to promote virtue. It simply promotes virtue of a different, Left-liberal, kind. Thus seven years ago in the Administrative Court Sir James himself, faced with a devout foster parent penalised for not accepting the local authority’s view on same-sex relationships, unhesitatingly chose the secular virtue of equality over the personal morality of Christianity, and decided for the authority.

The other refers to outside authority: no less than the Court of Human Rights, with its well-established insistence that the ‘family life’ protectable under Article 8 of the ECHR goes well beyond the nuclear family. But this again is problematical. Not everyone will agree with the ECHR view of the extended notion of family deserving of human rights protection; more to the point, even if one does accept it, there is a world of difference between protecting an unorthodox form of family life and positively encouraging it. The latter does not follow from the former; there is nothing illogical about saying that some institutions ought to be disfavoured by the law even if formally protected.

There is an interesting irony here. Wednesday’s speech was given in memory of the splendid suffragist, old-fashioned feminist and Combined Universities MP Eleanor Rathbone. Her reforming zeal, for example in the field of guardianship and health insurance where women did get a raw deal, was sensible, workmanlike and effective at curing injustice. Whether the reforming zeal of the latest in the line of lecturers in the series that bears her name is on the same level we can perhaps leave to the readers of TCW to decide.

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Andrew Tettenborn
Andrew Tettenborn
Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as Ukip’s candidate in Bath.

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