The view from the President of the Supreme Court.
Last Friday I mentioned here a speech that Lady Hale, the President of the Supreme Court, gave to the International Centre for Family Law, Policy and Practice on the 1st of July entitled ‘What is a 21st Century Family’. I thought I would take a closer look at some of what she said.
Obviously, the speech seeks to answer the question in its title: what does a 21st century family look like? Lady Hale begins her answer by quickly outlining some of the more important steps that the law has taken over the last fifty years to recognise families different from the old model of male husband, female wife and legitimate children, for example the recognition of illegitimate and adopted children, and of children born as a result of artificial insemination, and of course of same-sex relationships.
Lady Hale then asked a further question: Given all these changes in the concept of a family over the last fifty years, have the objects and purposes of family law also changed? In answer, she made several observations, including the desire to secure that surrogacy arrangements should be enforceable, and of the continuing view that it is the family, rather than the state, who should be supporting its more vulnerable members (she refers to the family as its “own little social security system, a private space, separate from the public world, within which the parties are expected to look after one another and their children”).
But the speech really got more interesting when Lady Hale moved on to what she saw as the threats that the social security system of the family is facing. She said that: “Some might (no doubt will) argue that the moves to adopt a wholly ‘no-fault’ ground for divorce will weaken the stability of marriage and civil partnership.” However, she said that the idea of the reform is actually “to strengthen the system by reducing the acrimony involved in having to prove facts and so create a better climate for making amicable agreements about the financial and child arrangements.”
More threatening, in her view, was Baroness Deech’s Divorce (Financial Provision) Bill, as I explained here in my post last Friday. One thing I didn’t mention in that post was Lady Hale’s criticism of the Bill’s proposal that pre- and post- nuptial agreements should be binding, provided that certain conditions are met. She pointed out that such agreements all relate to the circumstances in which the agreements were entered into, rather than the needs of the parties at the time the relationship breaks down. A very good point, of course. As was mentioned by a certain national newspaper reporting the speech, such agreements “do not predict the future and could leave a spouse – typically a woman – financially disadvantaged if she has for example given up work to raise the family or is left unable to afford a home for herself and their children.”
Lady Hale concluded by saying that three things stand out from the developments of the last fifty years.
Firstly, what she called “an increasing desire and respect for individual autonomy in adult decision-making – by both men and women”, thus:
“…we try and facilitate or at least acknowledge the family life created between same sex couples, through informal partnerships, through assisted reproduction, adoption and surrogacy. At the same time, we increasingly respect their decisions to bring their adult relationships to an end and their autonomy in deciding upon the financial consequences of doing so.”
The pressure to impose some financial obligations between unmarried couples might run counter this, she said, were it not for the proposals to allow contracting out of those obligations.
Secondly, the interests of the children involved are increasingly seen as paramount. Lady Hale said:
“Their rights to understand and develop their relationships with their parents – of all sorts – while feeling secure in their care arrangements lie at the heart of this. So children’s interests are seen as being individual to them in a way that would have been unthinkable in the past.”
I’m sure that this development is universally welcomed.
But thirdly, she asked, is there a tension between these two evolving trends? Can we allow adults their individual autonomy if this conflicts with the best interests of their children? She did not provide an answer, but instead ended with another question: “what are we protecting the 21st century family from? The outside world or the enemy within?” I’m quite sure that there will be many with very strong views upon that question.
You can read the full speech here.