Module Information

Traditionally we have always regarded the family as a husband, wife and children. Family law is still very much involved in the dynamics of this traditional unit and policy makers are concerned to preserve it. However, the statistics make it clear that we are undergoing a process of radical family restructuring away from marriage and family law has extended its boundaries to include other types of family unit. Today more and more people are choosing to cohabit rather than get married and single sex cohabitants are now able to form civil partnerships. Many children have parents who are not married or whose marriage breaks up. How does and should the law respond to such family units? What role does the state play in regulating family life? How does our approach differ from other jurisdictions and do we comply with the requirements of the ECHR and the UN Convention? What difference does the Human Rights Act 1998 make?

The Family and Child Law Module examines how the family is defined in law and explores how issues which arise between members of the family unit, (both adults and children), are regulated by law. The course is designed to provide an insight into the legal intervention into different types of family structures and the impact of government policy. What is the purpose of legal intervention? Is it to maintain the family unit, whatever that may be? Or is to protect the individual members of the family? How does the law regulate marriage and divorce? How are property disputes regulated in married and unmarried relationships? What are the family law issues involved in domestic violence? What are the prospects of success of the new Family Law Act 1996 which introduces mediated divorce and reforms the law relating to domestic violence? Is domestic violence a private law issue or should the state use criminal law sanctions to protect victims? What about the Protection from Harassment Act 1997? Why are the Child Support Acts 1991 & 1995 controversial? Should the state intervene in this area traditionally governed by Private Family Law?

In recent times children have begun to emerge from the family as people worthy of legal consideration in their own right. While it is inevitable that we consider the legal position of children within a stable, traditional family, we will not be limited by those circumstances. The legal issues surrounding parentage, including children born as a result of infertility treatment will be addressed. Children in the homes of unmarried couples (whether homosexual or heterosexual) and single persons (whether divorced, separated, or never having cohabited) will be discussed. We will also deal with adoption as a method of creating a family tie (and destroying another). Our concern will be to identify and analyse the legal rights and responsibilities of children and their carers in these contexts. In that respect we will consider the different attitude that the law adopts to different kinds of children: both unremarkable ('normal') children and those displaying special characteristics (particularly physical and mental disabilities).

We will consider the extent to which the state does, and should, disrupt the family lives of children by taking responsibility for their care or upbringing. Local authority protection for children who are being abused will be covered. We will also consider the role of the state in educating children. Students should be aware that case law and articles concerning child abuse may be distressing to the reader.

By the end of the course students will have a working knowledge of a range of issues that concern lawyers dealing with matters relating to children and adults in family relationships. Students will have had an opportunity to exercise their critical faculties in an area of law that is interesting and exciting. They should also gain an insight into the role of socio-legal research in influencing family policy and law.

Introduction:

The definition of the family:

• traditional family
• cultural diversity
• cohabitation
• single sex relationships
• lone parents
• the extended family

The role of Family Law in family life

• to preserve the family unit
• to protect the individual
• to relieve the State of responsibility for child rearing
• to provide welfare support for family members
• to provide a procedure for settling disputes
• to promote optimum family structures?

2. The legal nature of marriage and divorce

• legal pre-requisites of marriage
• legal consequences of marriage
• relationship of husband and wife
• the right to marry and the ECHR
• children of a married couple
• financial consequences of marriage
• property implications of marriage
• criminal law and the law of evidence
• divorce and separation: a need for reform?
• should marriage be more like cohabitation?
• Mediate or litigate?

3. Cohabitation

• definition
• legal consequences
• property and cohabitation
• financial implications
• ending the relationship
• children
• should cohabitation be more like marriage?

4. Child Law

• Childhood and the law
• Background to the current law
• Some new ideas and concepts
• Some general principles

5. Legal parentage

• Introduction: becoming a parent in law
• Common law presumptions
• Infertility and parenthood
• Adoption
• The significance of parenthood

6. Parental Responsibility

• Defining parental responsibility
• Acquiring and losing parental responsibility
• Section 8 orders and the welfare principle

7. Financial and property matters

• who owns what during the relationships?
• what happens upon separation?
• is the married person "better off"?
• is adequate attention paid to the interests of children?
• implications of benefits system
• The Child Support Act 1991 : Children or Treasury first?

8. Domestic violence

• causes of domestic violence
• review of the law as it applies to married couple and to cohabitants
• is the response of the law adequate?
• what role should the police and the criminal justice system play in domestic violence?
• comparison with law and procedure in other jurisdictions
• recent reforms
9. Children and the Protective Role of the State
• Introduction
• Child abuse as a crime
• Local authority support for children and their families
• Care and supervision proceedings
• Emergency intervention to protect children
• The courts and local authority care plans
• Wardship and the inherent jurisdiction of the high court

10. Children and Education

• Parental choice and the rights of children
• Compelling children: attendance and discipline
• The national curriculum

Delivery:
30 x 1 hour lectures
6 x 1 hour seminars

Student workload:
200 hours