1. INTRODUCTION

Writing in 2013, under the ironic title of ‘Marriage: A Modest Proposal’, John Eekelaar advanced what he acknowledged was in fact a ‘truly radical’ solution for the reform of marriage law. In it he advocated that the law should allow a legal marriage to take place anywhere within England and Wales, and in any form, the only legal requirements being that it be ‘attested by two witnesses’ and preceded by rigorous formalities designed to ensure that the parties were eligible to marry. As he noted:

It was an imaginative and sensitive way of dealing with the variety of beliefs that exist in England and Wales today, and the corresponding variety of ways in which couples might wish to express their consent to marry. This sensitivity to both the religious context and individual preferences reflected other aspects of his scholarship, including his work on multiculturalism and his long history of empirical research.

At the same time, his suggested solution also acknowledged the need for both legal certainty and a somewhat simpler set of rules than exists at present, which he quite fairly described as ‘bizarre’ and ‘confused’. While, as he acknowledged, it is ‘not dishonourable’ that the law governing entry into marriage ‘has developed by making a series of accommodations with various groups and points of view’, such accommodations have certainly done little for its coherence.

In this contribution, I would like to explore four different aspects of the argument advanced by Eekelaar in his article.

In the 25 years that I have been studying, researching and teaching courses on children’s rights, much has changed. The academic scholarship has expanded greatly, the Committee on the Rights of the Child has been relentless in the adoption of its concluding observations and general comments, and issues such as climate change, advancements in digital technologies and Covid-19 have created new challenges for the realisation of children’s rights. Within this dynamic and constantly shifting landscape, the scholarship of John Eekelaar has endured. Rare is the occasion when an article I write does not draw on his insights, and never has it been the case that the course materials I prepare for my students do not include his work. Why is this so?

The invitation to contribute to this contribution in honour of John’s work has given me pause to reflect on why his work occupies such a strong and enduring role in my own thinking on children’s rights. What follows, then, is an account of these reflections on some of the key contributions of John’s work on children’s rights as I see them. It is necessarily idiosyncratic, and others will no doubt have differing perspectives, as may John himself. But for me, the legacy and enduring relevance of his contribution arises from two sources.

First, his scholarly attention and contribution across three intersecting themes: a historical account of the development of children’s rights, a theoretical justification for this concept, and a working account of how to translate this concept into practice. His decision to address each of these areas serves as a reminder to students, academics and practitioners alike of the critical importance in understanding the interconnected nature of history, theory and practice when seeking to explore, develop and refine the idea of children’s rights. Knowing where this idea came from, and how it can be justified, can only serve to strengthen an understanding of how it could, or should, be applied in practice.

The second reason I continue to engage with and share John’s work relates to the rigour of his scholarship and the methodology he adopts.

1. INTRODUCTION

It is a privilege to write in honour of John Eekelaar, whose contribution to the study of family law is as immense as it is wide-ranging. Aside from his research, John was a key figure in creating and nurturing the International Society of Family Law, which was so influential in shaping the family law agenda, and which provided opportunities for academics around the world to meet and to discuss issues of joint concern.

I first met John in 1976, at a conference organised by the University of Toronto. He was already an established and well-respected scholar. I had just ‘discovered’ the issue of international parental child abduction via my research into the wardship jurisdiction. John also had an early interest in that topic, and his valuable study of the problem, in Commonwealth legal systems, helped to persuade Commonwealth law ministers to support a Hague initiative, which in due course led to the concluding of the 1980 Hague Abduction Convention.

While John’s career took a different direction, I developed an interest in international child abduction and, more broadly, in the global attempts to deal with cross-border disputes concerning children. Pursuing an international theme, this contribution explores some of the jurisdictional consequences that ensue in having to apply the 1996 Hague Protection of Children Convention (the Convention), rather than Council Regulation No. 2201/2003 (the revised Brussels II Regulation, hereafter ‘BIIa’), which the UK formally revoked on 31 December 2020 – the end of the implementation period following its withdrawal from the EU – and which is now referred to as ‘IP completion day’.

2. BACKGROUND TO THE CURRENT JURISDICTIONAL RULES

2.1. THE CONVENTION, BIIA AND THE FAMILY LAW ACT 1986

Jurisdiction to make orders relating to children is complicated. To put the following discussion into context, it should be appreciated that, before IP completion day, the UK was bound by BIIa, and was a Contracting State to the Convention. So far as children are concerned, the two instruments overlap to a significant extent, which is not surprising, since the Regulation was modelled on the Convention. Each instrument provides for common rules of jurisdiction, and for consequent recognition and enforcement.

1. INTRODUCTION

It is appropriate that, in this chapter, I want to contemplate John Eekelaar’s article ‘Family Law and Love’: ppropriate because, whenever John’s name comes up in conversations with family lawyers, he is spoken of with remarkable warmth and affection. And his name is often spoken of by family lawyers! His impact on the academic study of family law is enormous. Anyone tempted to think that family law is a’soft’ subject for academic study, or has little of philosophical interest, will soon have their minds changed by reading any of John’s work. The depth, quality and clarity of his thought is unsurpassed.

But more important is his kindness of heart. John was not only an outstanding researcher; he was an inspiring teacher. One thing that always struck me was his dedication to his students. He would find a kind and supportive comment about even the least worthy of them. At a time when it is common to express frustration about teaching or despair at the quality of students, John was always deeply committed to teaching, and proud of those he taught. He was a most wonderful colleague: enormous fun, hospitable, extraordinarily conscientious, supportive and inspiring.

In his later work, John explored the grand themes of family law. These magisterial works demonstrate an academic at the height of his powers. As already mentioned, in this chapter I shall discuss one of these, ‘Family Law and Love’. I shall set out some of the thoughts inspired by this article. They are not intended in any way as a rebuttal of the arguments made in the article, but rather as my own consideration on three of the themes raised. First, the contrast between family law which seeks to influence people’s behaviour (the instrumental function of law) and family law which deals with problems and disputes after the event (the retrospective function of the law). Second, the relationship between domestic abuse and love. Finally, the role of kindness in the resolution of family disputes. Before considering these, I start with a brief summary of the article, although I shall be expanding on the themes as the chapter progresses.

The text of this chapter is the Blackstone Lecture I delivered at Pembroke College, Oxford on 21 January 2021. I am delighted to dedicate the lecture to John Eekelaar. The topic of the lecture aligns with John’s strong commitment to issues of family justice; and it is a particular pleasure to be able to dedicate a Blackstone Lecture to John, since in his time at Pembroke, he played a considerable role in the organisation and publication of the Blackstone Lectures.

The Blackstone Lecture 2021: ‘Justice in a Crisis’

On 5 January 2021, as the UK Government began to further develop lockdown restrictions during the Covid-19 pandemic, the Nuffield IFS Review of Inequalities chaired by the Nobel laureate Sir Angus Deaton produced a report as part of its review. Its message was stark:

The key findings were described as follows:

As Sir Angus commented:

The language of exclusion is worthy of note, given the political realities that have faced Western States since the financial crisis of 2008. At the inception of his review in 2018, Sir Angus raised the possibility that inequalities may prove a threat to our economic, social and political systems, unless they are tackled effectively. The evidence cited of differentially increasing mortality as one of the consequences of increasing inequality, and its exacerbated effect during this crisis, should be a clear warning to us of the seriousness of the political considerations that have arisen, and which may persist. Sir Angus added that, ‘[c]atastrophes can create space for reforms previously hard to imagine; they can also turn impossibilities into imperatives’. Only two days later, there were scenes at the heart of government in the United States that must concern any constitutional democracy.

1. INTRODUCTION

It is evident that disputes over contact issues following divorce (or during separation) have increased in Japanese family courts over the years. This is largely due to parents’ failure to reach agreements on contact, and breaches of conditions, as in the case of those resulting from highly antagonistic relationships. In Japan, a divorcing mother, in most divorce cases, holds parental rights and duties, and continues to take care of the couple’s minor children following the divorce. Statistics in Japan show that 157,299 minors were involved in their parents’ divorce proceedings (59.9% of all divorces) in 2000, and 120,497 (57.8%) in 2018. In cases of divorcing parents with minors, 84.5% of mothers and 11.9% of fathers take parental rights and duties, whereas for cases decided in family courts, statistics point to 93.4% of mothers and 9% of fathers. As a consequence, it is commonly observed that a resident parent is usually the mother and a nonresident parent is usually the father. Under such circumstances, the importance of continuing contact between a minor and a non-resident parent is recognised among specialists working in child welfare contexts, and several research projects have been conducted exploring how ‘contact’ operates to promote the welfare of the child. In 2011, section 766 of the Civil Code (hereinafter cited as ‘Civ.’) was revised, and this now specifically refers to ‘contact’, requiring divorcing parents to tick the relevant box on the divorce notice form in order to confirm that custody arrangements have been made following divorce. Meanwhile, some non-profit organisations and self-help groups now provide various services for supporting parents and minors in relation to contact matters. At the present time, it could be said that no one would deny the importance of post-divorce contact between a minor and a non-resident parent from the viewpoint of achieving the interests of a minor, as long as contact is conducted in safe and comfortable settings. However, there are varieties of interpretation among lawyers regarding whether ‘contact’ is to be understood as the right, or a mere interest, of a minor and a non-resident parent.

1. INTRODUCTION

In 2003, an article on the impact of the 1996 Constitution of South Africa on family law was published in the International Journal of Law, Policy and the Family. In particular, it reviewed the origins of the absence of a clause specifically dedicated to family rights in the constitutional drafting process, the definition of a family under the Domestic Violence Act, parental responsibilities and rights, the status of partners in same-sex unions, and Muslim and customary law marriages, and at various points, pending law reform was referred to. In one notable instance, this has come to fruition, namely in the adoption of the Children’s Act 38 of 2005 (in force since 1 April 2010).

The constitutional provisions that were largely implicated were (and are) the right to equality ; the right to dignity; the right to freedom of religion, belief and opinion; and children’s rights. This contribution updates that article some two decades later. While not purporting to be exhaustive of all of the family law-related constitutional avenues that have emerged in South Africa, it does cover some main themes, in particular the existing diversity of marriage forms and their constitutional compliance, the position of persons in non-formalised intimate partnerships, and some aspects of the proprietary consequences of relationship breakdown or dissolution. Constitutional developments in relation to parental responsibility and rights have, however, had to stand aside due to space constraints. At the outset, it is set against the background of a Discussion Paper 152 on a Single Marriage Statute that was issued by the South African Law Reform Commission (SALRC) in January 2021.

It appears that this investigation was triggered by an approach from the Ministry of Home Affairs, which is responsible for the births, marriage (civil and customary) and deaths registration. Their interest is less in the proprietary consequences of intimate relations, and more focused on maintaining an accurate population data roll, and the prevention of sham marriages. According to an explanatory memorandum provided to the SALRC, the State has a few vested interests, as it pertains to the institution of marriage in regard to its citizens primarily: some of these relate to the acquisition of citizenship, the establishment of consent and the marital age.

1. INTRODUCTION

In this chapter, I intend to examine the issue of the customary law of marriage in South Africa and how it has fared at the hands of the courts and, to a lesser extent, the legislature, since the advent of democracy. I argue that more needs to be done to embed customary law, in general, in the South African legal system, and that the disarray currently noticeable in the area of marriage law, especially the issue of the essentials for validity of customary marriages, is not helping to achieve this purpose. The driving idea behind these musings is the belief that not enough care is being taken to consider the future of customary law when its rules, as currently perceived, are sought to be applied, especially in the South African courts.

Paradoxically, the situation has not necessarily been improved by the development of the bench into an institution that is increasingly more demographically representative of the South African population. This area requires more research but, from a scan of the decided cases, it seems that, on occasion, the improved numbers of judges with ‘insider’ knowledge of customary law is sometimes an obstacle, where there is sometimes over-deployment of ‘local knowledge’ in the dilemma that Bennett describes in the words, ‘the courts reached an unhappy compromise between taking judicial notice of customary law and requiring proper proof’.

I argue that the way this branch of the law has been treated in the courts represents a missed opportunity for embedding customary law in the mainstream of the legal system of a new South Africa, as the Constitution intended, or at the very least, to raise its profile as a serious player.

The chapter starts offby establishing the link between culture and customary law, adopting the view that particular sections of the Constitution confirm that the recognition and application of customary law are among the cultural rights protected by the Constitution. Next, the chapter undertakes a brief review of the notion of ‘living’ customary law, with a view to bringing out some of its less-appreciated pitfalls, illustrating these with an in-depth look at some examples.

1. INTRODUCTION

Anyone who has read John Eekelaar’s article ‘The Emergence of Children’s Rights’ could not but be impressed by its scholarly breadth and depth. Stimulated by then-recent House of Lords decisions, including Gillick v. West Norfolk and Wisbech AHA, John assessed the status of the concept of children’s rights in English law by way of a historical overview of the emergence of legal recognition of an interest pertaining solely to the child, a theoretical analysis of the interrelation of various broad categories of interests that children might plausibly claim, and an interpretation of the case law. His conclusion on the implications of Gillick was that children would ‘now have, in wider measure than ever before, that most dangerous but most precious of rights: the right to make their own mistakes’.

While I appreciated how this view aligned with some of the statements of general principle in Lord Scarman’s speech in Gillick, and that it was right to highlight their potential implications, I found myself unable to understand how, as a matter of precedent, Gillick could be attributed with such a radical children’s autonomy rights reading. This led to correspondence with John, who graciously tolerated the ‘obsession’ of the young(er) ‘upstart’. His third letter indicated that he had said all he wished to say on the matter! When, shortly thereafter, I cornered John during an interval at the 2003 Society of Legal Scholars Family Law Section meeting in Oxford, he might have been forgiven for thinking he had a stalker, but John very kindly acceded to my request to supervise my research. My time at Pembroke College, as one of John’s last research students (possibly his last) proved highly significant to my career development, for which I shall always be grateful. With John’s assistance, I met many new family law colleagues and friends, not least my fellow student at the time, and now co-editor of this volume, Jens Scherpe.

And so it is, with these embarrassing recollections of my first interactions with John, that I am led to my topic for this chapter.

1. INTRODUCTION

This chapter is my tribute to John Eekelaar, and my thank you for all he did for me when I studied at Oxford University. It was a privilege to be guided in my exploration of the family law system of England and Wales by such an outstanding family law scholar. John provided me with lots of learning opportunities during my time at the university, and my time spent with him will always be a precious part of my life.

The chapter focuses on the Civil Code of the People’s Republic of China, effective from 1 January 2021, in which the Chinese legislature, in its new clause on family values, has sought to revise the law to influence social behaviour. The idea of the law seeking to influence social behaviour is, of course, a topic on which John Eekelaar has written, for example in his article titled ‘Family Law: Keeping Us on Message’.

Within the general provisions of the part of the Civil Code concerned with marriage and the family (which incorporates the Marriage Law Amendment 2001), a new first clause has been added to Article 1043. It provides that ‘families should establish and practice good family values, and attach importance to the endeavour in improving family civilization’. For convenience, I shall refer to this new clause as the ‘family values clause’. In what follows, I examine the family values clause, and what the Chinese legislature is seeking to achieve by way of instilling some important family values into family law. I also explore how the new provisions of the Code are likely to be applied in practice. A number of academics in China think that the family values clause is an ‘advocating clause’, and this concept will be explained.

2. BACKGROUND

Before promulgation of the Civil Code, China had a Marriage Law as judicially interpreted. The law was amended by the Marriage Law Amendment 2001. This amendment adheres to the original legislative guiding ideology that ‘general rules are more appropriate than detailed regulations’ in the field of family law. This mindset has a far-reaching impact on family law legislation in China.

In France, the history of family mediation is marked by great hopes, equally strong disappointments, and, finally, an irrepressible stagnation. Here, we reconsider this story. Where does the impression come from, over the last 30 years, of an almost inescapable disillusionment? Is it the effect of the competition between different professional groups in the field, which operates to the detriment of family mediation? Is it due to the fact that the supporters of mediation did not have sufficient strength? Or is it a trait inherent to mediation itself, as if the immense hope that it had aroused in its promoters could only be disappointed?

For this analysis of the diffusion of an innovation in the sociolegal world, it is necessary to consider the strategies of legal professions, as well as the action of the State. In order to understand the strange position of mediation, we will try to answer the following questions: what kind of response does mediation offer to the new situations and demands that have appeared in the family field? Which actors have shown themselves capable of developing such a form of action by relying on a recognised expertise? What role has the State played, either in recognising this expertise and supporting family mediation, or in moderating the activism of mediators? Finally, what relations, and also what tensions, have developed within the different professional groups that intervene in the judicial field?

These four questions will be asked in relation to three very different stages of the development of family mediation in France: the moment of its ‘invention’, the moment of its institutionalisation, and, finally, the position it has today.

1. THE TIME OF ENTHUSIASM AND RECOGNITION

The first period of the implementation of family mediation in France dates from 1988 to 1989. Presented in several conferences, at the initiative of parents and legal professionals, mediation immediately aroused an extraordinary enthusiasm. We can try to distinguish what is specific in this first stage, from the point of view of the four parameters mentioned above, namely the existence of a ‘market’, the action of the promoters of family mediation, the role of the public authorities, and the reactions of the other professionals in the judicial field.

1. INTRODUCTION

This chapter is about the way in which conceptions of truth and reality are articulated and contained in family law, specifically in contexts in which the meaning of knowing comes into question. It explores the idea that there can, and could be, a space between conceptions of truth and reality, and that family law might need to articulate an account of what this means and entails. The question is inspired by what is, to my mind, one of the most provocative and interesting lines in John Eekelaar’s book, Family Law and Personal Life : the line that ‘in general it is better to confront the world as we have made it than pretend it is otherwise’. The normative dimension and practical implications of this claim have generated much debate in the literature. What I would like to consider here, however, is what it would mean to inhabit the spaces that are implied in this statement. What would it mean to ‘confront the world as we have made it’, to ‘pretend it is otherwise’, or to be somewhere in-between? What would it mean to know, in these spaces?

The context in which the line in question arises in Eekelaar’s book is one of an analysis of the way in which ‘physical truth’ (meaning ‘what is or was the case regarding physical events and actions’) has, at times, been concealed in family law, as where a child’s paternity is concealed by way of ‘the legal truths generated by [birth] registration or presumptions’. Eekelaar’s argument is twofold. It is firstly, and in relation to children, an argument about justice: that children’s interests ‘in knowing the physical truth’ outweigh those of adults, ‘because for children they give rise to claims in justice, whereas for adults they form the basis for attempts at exercising power’.

1. INTRODUCTION

John Eekelaar’s inspiring and seminal 2017 work Family Law and Personal Lifeidentified the critical questions about relationships and the law with which, in England and Wales at least, we are still grappling. Indeed, it is probably fair to say that no jurisdiction has yet found the perfect solution to balance the conflicting rights and risks of individual autonomy as against family solidarity in the complex, interdependent mesh of post-welfarist family life. On the other hand, some great strides have been made in England and Wales to recognise non-traditional forms of coupledom, mainly based on equality and nondiscrimination arguments. These have both expanded our recognition of types of formalised couple relationships beyond traditional heterosexual marriage, and changed the law’s hierarchy of relationship recognition. At the heart of the debates on whether further reform is needed has been the issue of whether the law should take a functional or form-based approach to relationship regulation. With equal marriage and equal civil partnership now a reality in England and Wales, there is a view that formalised relationship choice is sufficient. Perhaps the law, through these reforms, can succeed in establishing what John Eekelaar has described as ‘a new’ ethic ‘of interpersonal relations’, where ‘normative’ law is used to persuade people into desirable forms of behaviour. By extending the realm of choice within and beyond marriage for same- and differentsex couples, has the law done enough to acknowledge new social norms and provide a tenable legal framework? Or do arguments in favour of ‘functional’ cohabitation law reform, which involve interrogating both the role of family law and the normative challenges to the exercise of personal autonomy within family relationships, still hold good? Indeed, might those arguments even extend to other informal couples, such as those Living Apart Together?

Reflecting on these issues at a moment when the House of Commons Women and Equalities Committee is considering whether to recommend cohabitation law reform to government, this chapter aims to explore whether enough has been achieved, or whether there is still an active role for family law to play in regulating wider forms of coupledom.

1. INTRODUCTION

Unlike concepts such as patria potestas, parental power or parental rights, the idea of parental responsibility seeks to highlight that children are not a kind of possession to be controlled by their parents, but, rather, people who must be cared for by them. As such, parental responsibility better describes the expectations of contemporary legal systems regarding parental functions and the central role of the best interests of the child. In particular, parental responsibility seems consistent with the idea that parents play a key and fundamental role in the life of the child, but in a way consistent with rights of the child. In the following, I provide a short account of the way in which the idea of parental responsibility, as conceptualised by John Eekelaar, has become central in the legal regulation of the parent-child relationship in Latin America. While most jurisdictions in this region continue to prefer concepts such as patria potestas, parental power or parental authority, both legislation and courts are reshaping these legal concepts in ways closer to the idea of parental responsibility as described by Eekelaar.

2. PARENTAL RESPONSIBILITY, PRIVILEGES, AND RIGHTS

Perhaps the clearest example of recognition of the notion of parental responsibility is the one developed in the jurisdiction of England and Wales. During the nineteenth century, English common law conceived the relationship between parents and children in terms of ‘parental rights’, which gave parents almost complete authority over their children. However, this conception changed substantially, to the point that the rights and best interests of the child began to delimit the legitimate scope of the parental function. As the Law Commission suggested in 1988, to refer to the concept of ‘right’ in the relationship between parent and child is likely to produce confusion. As against third parties, parents clearly have a prior claim to look after, or have contact with, their children, but that claim will always be displaced if the interests of the child indicate the contrary. The parental claim, accordingly, is more accurately described in the concept of parental responsibility.

Influenced by the landmark Gillick case, the Children Act of 1989 defined parental responsibility as all the rights, duties, powers, responsibilities and authority which, by law, a parent of a child has in relation to the child and his or her property.

Children cannot survive on their own. They need others to feed them, to protect them, to care for them, to socialise them, to prepare them for life in society, and to represent their interests in (potential) conflicts. The satisfaction of children’s manifold needs is typically the work of many individuals and societal institutions, and many different combinations of individual and collective responsibility for children are thinkable, and have indeed been tried in the course of history. Nevertheless, all societies of which I know have rules designating specific individuals who bear the main responsibility for taking care of children, and who have the authority to take decisions for children. We call these specific individuals ‘parents’.

The question then arises on which grounds the said individuals are selected. The rules on the designation of parental status in contemporary family laws are quite complex, and take account of many particular interests. Nevertheless, the first and predominant legal criterion for the designation of parents is the biological tie. As a rule, a child’s parents are the woman who has given birth to them and the man who has fathered them. Most legal scholars appear to consider these basic rules as more or less self-evident, as do most other people. But are they? A look at history tells us that the rules can be quite different from what they are today, and that it is only recently that biological ties have become predominant. This observation alone should make us question the self-evident character of contemporary rules.

I will proceed in two steps. The first point I have to demonstrate is that, in contemporary laws, parental status is indeed derived from biological ties. It will be easiest to do this by contrasting present-day rules with their predecessors. This will have the side effect of denaturalising contemporary rules, for nobody could claim that rules are obvious, self-evident or natural if they can be shown to have been subject to fundamental change over the last century, or even in recent decades. The second step will then be to look for justifications of the present-day rules.

1. INTRODUCTION

Like so many family law scholars of my generation around the world, I owe an enormous debt to John Eekelaar. John’s book, Family Law and Social Policy, first published in 1978, was set reading when I studied family law as an undergraduate. It introduced me to the social context in which family law and family policy is embedded. It had considerable influence on my early thinking about family law and public policy.

As I went on to do postgraduate study in family law, and then became an academic specialising in the area, John’s writings were a constant source of information and inspiration. His sociolegal research, together with Mavis Maclean, gave me a model for empirical work in family law. While, early in my career, I moved from England to Australia to take up a position at the University of Sydney, I met John regularly at the world conferences of the International Society of Family Law. He became a mentor and friend over the years. John’s influence really is remarkable, for he has also been a mentor and friend to so many other family law scholars around the world.

When John wrote the first edition of Family Law and Social Policy, the social context of family law was utterly different from now, although he anticipated so many of the changes that were to come. The law’s regulation of family life was, for that reason, quite different as well. A book written now on family law and social policy would need to acknowledge and address issues arising in a very different social and cultural landscape.

This chapter seeks to discuss just one issue, and that is what questions now arise from the decentring of marriage as the legal contract (or sacrament, if you will) that provides the basis for family relations. In family law systems across the Western world, we are seven-eighths of the way through a revolution, but without a clear understanding or agreement about what the legal regulation of family life might look like when that revolution is complete.

1. INTRODUCTION

It goes without saying that John Eekelaar is a giant of family law, not just in the United Kingdom, but across the world. His writing on children’s rights, in particular, has been field-defining, and no student essay (or, indeed, academic article) is complete without a reference to his work. What is less well known is the quieter contribution Professor Eekelaar has made to the thinking – and writing – of those around him. Whether it be in conferences, workshops, or through his work on the International Journal of Law, Policy and the Family, his engagement with the ideas of others – and particularly young scholars coming through the ranks, unsure of their academic footing – has encouraged a new generation of family lawyers.

This chapter seeks to build on Professor Eekelaar’s later work on law, gender and the understanding of identity, which will be examined in section 2. Section 3 will then explore the role that the law plays in defining and confining the concepts of sex and gender, and how this corresponds with individual sex/gender identification. Section 4 will examine the reasons why the law wishes to regulate sex/gender, and highlight the advantages and disadvantages that this has for various groups within society. Section 5 will then go on to provide possible models of reform, proposing a new way forward that does not rely on sex/gender as a uniform and unchanging legal identity, but as a legal concept whose definition changes depending on the context in which it is employed. Finally, section 6 will provide some brief conclusions.

2. DEFINING IDENTITY

In his 2018 article ‘Family Law and Identity’, Eekelaar explored the meaning of ‘identity’, and described two versions of this concept. The first, he termed ‘individual identity’, which relates to an individual’s personal characteristics, and perception of their self. This internally driven concept of identity corresponds closely with an individual’s personality traits and features, which are seen as central and self-defining.

1. INTRODUCTION

Among the broad range of legal issues influenced by John Eekelaar’s seminal work on children’s rights is the extent to which the decisions of competent minors in regard to medical treatment should be given effect. Under his ‘dynamic selfdeterminism’ approach, the essential starting point to implementing children’s rights is hearing what children say and addressing those views with respect. This imperative is captured in Article 12(1) of the UN Convention on the Rights of the Child (CRC), which provides that: ‘States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.’ Article 12 points to the increasing autonomy rights of children as they develop. The right of a child to have their views given due weight is ongoing as their circumstances change, in order to ensure optimal realisation of the individual personality. Matters that seem important to the child must be taken into account. As Eekelaar explained:

Hearing what children say must therefore lie at the root of any elaboration of children’s rights. No society will have begun to perceive its children as rightsholders until adults’ attitudes and social structures are seriously adjusted towards making it possible for children to express views, and towards addressing them with respect.

The intention is to ‘bring a child to the threshold of adulthood with the maximum opportunities to form and pursue life-goals which reflect as closely as possible an autonomous choice’.

The increasing autonomy rights of a child as they mature until they reach the age of 18, when the CRC no longer applies, require that the child’s wishes be at least an increasingly significant consideration in matters affecting the child. It does not follow, however, that a child’s wishes will necessarily be determinative. The limits on the autonomy of children flow from the welfare principle. This principle, captured in Article 3 of the CRC, requires that the best interests of the child be ‘a primary consideration’ in all actions concerning children.