THE family law syllabus is in urgent need of attention. We are offering students a subject that is under-conceptualized and which fails to provide a coherent intellectual challenge. The subject has a low status amongst academic colleagues, who too easily regard it as an uninteresting supplement to property law. The outlines of the subject have rarely been explicitly debated and, to the extent that the subject hangs together around certain themes, recent events have demonstrated the need for a fundamental rethink of what those themes are. In this chapter, I want to explore how we have arrived at our present condition and go on to suggest how the subject might be rethought.
We can begin with the birth of the subject itself as an academic discipline. In 1957, a volume of academic writings appeared under the title A Century of Family Law. The century in question was that inaugurated by the enactment of the Matrimonial Causes Act 1857, which had introduced civil divorce into English law. This was taken by the editors to have marked the formation of 'family law' as an independent discipline. This is puzzling perhaps, since there was plenty of pre-1857 law that we would now call 'family law'. Marriage formation, for example, had been governed by legislation since 1753; the ecclesiastical courts had dealt with the dissolution of marriage and judicial separation, and the secular courts with matrimonial property rights, actions for breach of promise and criminal conversation; and parliamentary divorce had been available to those able to afford it. In addition, the wardship jurisdiction for children long pre-dated the mid-nineteenth century, and there had been rudiments of child protection and child support laws in place since the seventeenth century. Yet it was the advent of secular divorce that was taken by the editors of the 1957 collection to be the formative moment in the new subject. Divorce has retained this definitional centrality ever since, a fact which, I shall argue below, now requires urgent reconsideration.
The same year, 1957, also saw the first publication of Bromley Family Law, a new textbook of Family Law aimed specifically at meeting the needs of undergraduates. For the preceding hundred years, writings on the subject had been dominated by practitioners' works such as Eversley Law of Domestic Relations and Lush Husband and Wife. It is unclear why the academics took so long to annex family law to the academic curriculum; but the academic writings largely adopted the pattern for the subject as laid out by the earlier practitioner works. That is to say, the focus was on marriage, the effects of marriage (especially on property), its termination; and the legal relationship of parents and children in private law, especially the concepts of legitimacy, guardianship and wardship (again, historically, all property-related concepts).
Despite the enactment of the Children Act and National Assistance Act, both in 1948, there was no mention in either of the 1957 works of the impact of the welfare state on the family, nor any conception that these public law elements had a legitimate place in a family law syllabus. In his preface, Bromley offered the explanation that such matters were more properly considered in courses on social administration; and even Cretney Principles of Family Law, which first appeared in 1974 with the avowed aim of laying greater emphasis on the policy aspects of the law, devoted only 16 of its 382 pages to child protection. Thus, the privatized vision of the subject held by the barrister-authors of the nineteenth century was carried forward, at least initially, to the undergraduate syllabus of the twentieth.
Things are different now, of course. In the wake of the Children Act 1989 and the Child Support Act 1991, we cannot now escape calling ourselves public lawyers. We talk about 'the state' as if it was second nature and we think we can recognize 'privatization' when we see it. Nevertheless, I wonder if we have moved very far from the private law frame of mind, and whether we have acquired quite the degree of conceptual sophistication that we like to imagine.
One problem may be that family lawyers have been unable to develop a convincing conceptual or theoretical vocabulary to assist in the task of explaining how the subject hangs together. Too often, the 'state' is represented simply as judges doing things in courts; and the relationship between the state and the family as a kind of simple zero-sum tussle, the balance of which swings first one way and then another according to the prevailing political mood. To the extent that debate is conducted at a theoretical level, it is not in a common vocabulary: a recent debate conducted in the pages of a respected law journal between three well known academic family lawyers was couched in conceptual terms on either side that were so far apart from each other that one was tempted to subtitle the whole business: 'only connect'.