About Child and Family Law Quarterly

This paper explores whether private family law in England and Wales remains fit for purpose in an era of autonomy, gender equality, and evolving family structures. It argues that family law is at a crossroads, facing “normal chaos” due to conflicting principles of autonomy, equality, and protection. Despite progress in recognising same-sex partnerships and enabling no-fault divorce, informal cohabitants – particularly those with children – remain largely unprotected in financial matters upon relationship breakdown, despite calls for reform. In the cohabitation context, the paper calls for reform that acknowledges relationship-generated disadvantage, especially where caregiving roles reduce one partner’s financial independence. It explores and criticises sole reliance on private agreements, which often ignore vulnerabilities and leave economically weaker partners – typically mothers – exposed. Regarding children’s rights, it calls for children’s meaningful participation in post-separation child arrangements affecting their lives, to fulfil international law obligations. Finally, the paper highlights the potential of AI to support principled dispute resolution, provided family law values are embedded in its design. It concludes that while autonomy is valuable in some situations, family law must still address power imbalances and protect vulnerable members within modern families to avoid exploitation.

This article discusses key findings from three empirical Nordic studies which provide the first comprehensive and representative picture in Norway and Sweden of the financial and property arrangements made by separating adults. The findings reveal fragmented knowledge of law and limited inclination either to seek legal assistance or to make agreements in relationships, echoing findings in England and Wales. The degree of commitment and interdependence in different relationships may influence the need for legislative protection. Our key finding is that most couples act in accordance with values of solidarity and commitment and in the expectation of there being legal rules governing financial adjustment and fair shares when their relationship breaks down. Contemporary tendencies towards individualism do not seem to alter this. Furthermore, the findings indicate that in both countries there are considerable similarities across national borders in the way adults adjust in relationships and following the breakdown of family relationships, despite differences in legal regulation. In the light of our findings, we conclude that there is potential for improved legislation that is better adjusted to meet the expectation of protection in relationships. We suggest that this conclusion also has relevance for England and Wales and other Western European jurisdictions.

Birth certificates provide significant legal, social, and practical benefits to children and their families. However, in their current form, birth certificates embody inconsistent theoretical understandings of identity and fail to tell the whole story about who we are and where we come from, which is particularly problematic for indigenous children. This article draws on the UN Convention on the Rights of the Child 1989, alongside social constructionist conceptions of the self and narrative identity theory, to demonstrate that birth certificates should incorporate information about a child’s genetic and gestational heritage. This is premised on existing evidence suggesting that concealing the realities of a child’s origin story can have negative consequences for their sense of self and identity development. To rectify these deficiencies, this article reimagines birth certificates as more expansive documents that better reflect the social and narrative realities of identity formation, especially for children, whereby who they become is greatly shaped by the individuals in their lives and their experiences of the world. Within this context, the article presents a new birth certificate prototype, which includes genetic and gestational parentage information, to better align with the diverse ways in which children are conceived, born, and live in contemporary family.

This article draws upon an original empirical research study in England and Wales that identifies how children at the centre of Hague parental child abduction proceedings exercise their participatory rights under Article 12 of the United Nations Convention on the Rights of the Child 1989 (UNCRC). The complexities inherent in the child objection defence are considered, particularly in establishing that the objecting child’s views are their own, rather than their parents. It is argued that such complexities act as barriers to the exercise of children’s Article 12 UNCRC participatory rights and produce delay in contravention of the Convention’s primary policy objective. Through a children’s rights lens, it is argued that one way to prioritise the child and concurrently minimise delay is for a legal representative to be appointed for all children in Convention proceedings at the start of the case. In doing so, the procedural and substantive complexities arising from examining the child’s objection will be reduced, saving court time. It concludes by calling for timely accessible information to be provided to children in fulfilment of our international obligations arising from their Article 12 UNCRC rights, enabling them to access their own legal advice at an early stage.

Childhood in Liberal Theory: Equality, Differences, and Children’s Rights, Nicolás Brando, reviewed by Yijia Liu

Family Carers and Caring: What it’s all about, Alisoun Milne and Mary Larkin, reviewed by Radhini Gawarammana

Contemporary family law is undergoing a revolution. Changing social norms, coupled with medical advances, are forcing lawyers to reconceptualise how we regulate family relationships. The parent/child relationship is at the forefront of this transformation, challenging traditional understandings of legal parenthood based on the heteronormative nuclear family, through recognition of a wide array of family structures. Moreover, the role of law in the family is also changing. While the primary purpose of family law has traditionally been ‘channelling’ – steering people into participating in ‘approved’ social institutions, which policy makers see as desirable – as Herring has argued, an increase in the importance of autonomy in this area of law means that ‘the law is struggling to allow people to set for themselves the kind of legal regulation they wish, rather than have one imposed by the law in a pre-formatted model’. In light of this, the aim of this paper is to consider the evolution of the allocation of legal parenthood: where it has been, where it currently is, and perhaps most importantly, where it is going. This paper will take a comparative approach, drawing from an international project which I have been coordinating on the law of parenthood.

How many legal parents can a child have? Under family law in England and Wales, the answer is straightforward – a child can have no more than two legal parents. Yet in other common law jurisdictions, notably in the US and in Canada, statutes and courts have long recognised more than two legal parents. Is the persistence of the binary model of legal parenthood under English law outdated? In this piece, I reflect on why English law might need to consider regulating multiple parenthood, how the regulation of parental responsibility under English law needs to inform this debate and argue that multiple legal parenthood has distinct value to multiple parental responsibility.

This paper reflects on the construction of the category of the ‘potential relationship’ in European human rights law: a category that has been articulated in the context of the ‘family life’ jurisprudence under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and, more specifically, in the line of case law concerning relationships between unmarried biological fathers and their children in contexts in which they are not living together. It is a category that is, in effect, about whether a relationship can ‘count’ as a ‘family life’ relationship such that it can be recognised and protected in those terms; and because of that, it speaks both to European human rights law’s vision of ‘family life’ and, more particularly, to its vision of what it is that would make a parent–child relationship of this kind qualify as a ‘family life’ relationship. What makes it interesting to consider from the perspective of the regulation of parenting is its capacity, in that light, to tell us something about the ideas and norms relating to the construction of being a parent in European human rights law.

Note from the editors: in the conversation that follows, which took place on Monday 14 October 2024, members of the project discuss the three reflection pieces that feature in the ideas and norms section of the special issue: Claire Fenton-Glynn’s paper ‘The past, present and future of legal parenthood’, Dafni Lima’s paper ‘Regulating multiple parenthood under English law?’, and Sarah Trotter’s paper ‘Reflections on the construction of the category of the “potential relationship” in European human rights law’.

This paper delves into the case law surrounding claims for legal parenthood brought by non-traditional families and sheds light on the minimalistic approach taken by the Court. After introducing the landmark case of Marckx v Belgium and the expectations of inclusion and openness to family diversity it raised, the following sections of this article highlight its questionable internal legacy in two interrelated respects. First, the positive obligation to provide legal recognition of family relationships established in Marckx has lost much of its initial intensity and substance, and has migrated from the realm of family life to that of private life. Second, the significance of legal parenthood emanating from Marckx has given way to the Court’s tendency to downplay the disadvantages faced by non-traditional families due to non-recognition. After explaining these shifts largely as a ‘matter of choice’ by the Court, the paper will conclude by questioning the purpose of legal parenthood and problematising the artificial disconnection between legal parenthood and parenting underlying the Court’s minimalistic approach.

A rich body of scholarship analyses – and laments – how family law is conceptually underpinned by the ideology of the nuclear family form rather than, for example, concepts such as dependency, care or vulnerability; or perhaps even safety or social justice. While none of these concepts are necessarily benign or straightforward to operationalise, their evocation offers us important provocations for rethinking family law’s purpose in society and the values we might want it to ‘channel’ and possibly even nurture. This short paper presents a thought experiment relating to family law in the context of surrogacy. It focuses on the regulatory interplay between legal parenthood and the child welfare principle in the context of surrogacy. In analytic terms, I am interested in how the more overtly rule-based regulatory mode of determining legal parenthood forms a prescriptive canvass for the more discretionary determinations of child welfare. While the welfare principle is rightly described as ‘flexible’ and ‘indeterminate’, family law scholarship has demonstrated how the concept is informed and delimited by family form ideology.

Academic critique of law’s regulation of parenting is most often approached through a family law lens with a practical focus on who should have parental responsibility for children. For example, Bainham and Scherpe have argued that the legal concept of parenthood should be separated out into three levels – parentage, parenthood and parental responsibility – to consider the ways in which adults should be involved in children’s lives. Within this very collection, Fenton-Glynn argues for the abolition of the status of legal parenthood in favour of a more functional approach to regulating parent–children relationships during childhood. This focus on parental rights during childhood is unsurprising as many of the problems encountered by families who do not fit law’s structures initially manifest as family law disputes, either between adults wanting to be recognised as legally responsible for a child’s upbringing and the state or between potential co-parents trying to establish parenting roles. I argue that we must look beyond family law, towards a holistic re-evaluation of how the law conceptualises the link between parents and children.

The Report of the Committee of Inquiry into Human Fertilisation and Embryology, commonly known as the Warnock Report, was published in 1984, six years after the birth of the first IVF baby, Louise Brown, who is now in her late 40s. Six years later, its recommendations were enacted into law via the Human Fertilisation and Embryology Act 1990. Substantially amended once in 2008, the Human Fertilisation and Embryology Act continues to apply today. Its regulatory model is widely believed to have stood the test of time remarkably well, proving itself to be flexible enough to accommodate scientific and social change, while also being rigorous enough to maintain public confidence.

In this short reflection, I aim to position birth registration as a regulatory tool which not only creates ‘good’ and ‘bad’ parents, but also has myriad other effects such as its ability to propagate a nation’s bordering functions. In doing this, I want to think through how we should understand birth registration as a ‘tactic’ used to create and regulate ‘ideal’ citizens, and to generally be sceptical of law reform and its ability to provide inherently meaningful change.1 Birth registration is a particularly salient discussion point through which to think these ideas, given it is a mandatory requirement in England and Wales.2 Such lines of thinking stemmed from engaging with queer and abolitionist theory and through discussions with some participants as part of the empirical data collected for my PhD which concerns birth registration reform in England and Wales.

Note from the editors: in the conversation that follows, which took place on Monday 14 October 2024, members of the project discuss the five reflection pieces that feature in the recognition and protection section of the special issue: Alice Margaria’s paper ‘What happened to Marckx v Belgium? The European Court of Human Rights’s minimalist approach to legal parenthood claims by non-traditional families’, Julie McCandless’s paper ‘Regulating parenting through legal parenthood: the case of surrogacy’, Maebh Harding’s paper ‘Reconceptualising legal recognition of the parent/child nexus through interdependency’, Emily Jackson’s paper ‘Assisted reproduction as a disruptor of legal parenthood’, and Liam Davis’s paper ‘Towards viewing birth registration as a “tactic”’.

The legal regulation of elective home education has been subject to intense debate by policy makers over the last few decades and the number of parents choosing to educate their children in this way is steadily increasing. But it has attracted little attention in child and family law writing. This may, in part, be because it affects a relatively small number of children. But the marginalisation of the issue arguably also attests to the centrality of school attendance as a contemporary social and cultural norm of childhood in richer countries. That renders elective home education a social as well as a legal anomaly. Taking a long view serves as a reminder of how recent the norm of school attendance is, and how central questions about education have been to changing legal expectations about parental responsibility. The complex political and economic motives that led to the introduction of compulsory education in 1870 echo in current debates about the purpose of education, the role of the state and, indeed, the parameters of childhood. Parental rights here are inherently complex, as education is both a social and welfare right and at the same time a civil and political right.

In the quarter of a century since the Human Rights Act 1998 (HRA) came into force, the landscape of law and policy affecting children has changed dramatically. The notion that children are rights holders and that those rights entail obligations that must be taken seriously is firmly embedded in judicial reasoning and reflected in policymaking. Despite this picture of substantial change, the legal relationship between adolescents and their parents remains just as uncertain as it was twenty-five years ago. At that point the limits of parental responsibility for adolescents appeared ‘ripe for reassessment’: the paternalism of the Court of Appeal in the ‘retreat from Gillick’ cases of Re R and Re W seemed unlikely to continue unmodified in a world in which courts were required to protect the rights of children and in which there was a greater appreciation for adolescent autonomy. It is astonishing that in an era of human rights, there remains professional, governmental, and legal uncertainty as to whether parental responsibility can be relied upon to impose unwanted medical treatment on a competent minor, or young person aged 16 or 17.

This paper reflects on the way parents with learning disabilities (international literature uses the term intellectual disabilities), are perceived by legal professionals in a research project investigating the term ‘substituted parenting’. This term was increasingly being used in family court judgments involving parents with diagnosed learning disabilities and parents with a milder or borderline learning disability, sometimes known as a ‘learning difficulty’ (hereafter parents with LD), as the reason for removing the children for example A Local Authority v G (Parent with Learning Disability). There was no research on this issue, no agreed definition, published court judgments gave no definition of the term, nor did they present any evidence of analysis of the perceived risk or options to address that risk. However, the term appeared to be deployed by local authorities (LAs) when the support parents would need was ‘extensive’.

Note from the editors: in the conversation that follows, which took place on Friday 18 October 2024, members of the project discuss the three reflection pieces that feature in the rights and support section of the special issue: Daniel Monk’s paper, ‘Elective home education: rights and their limits’, Rachel Taylor’s paper ‘The limits of parental authority’, and Beth Tarleton and Nadine Tilbury’s paper ‘Substituted parenting: assumptions, stigma and parents with learning disabilities’.

Parenting has emerged as a new and important theme within UK counterterrorism. As the reach of the ‘counter-terrorist state’ has expanded from countering terrorist violence to preventing extremist ideologies, children have become national security targets. This is reflected in the categorisation of radicalisation as a safeguarding risk within both counterterrorism and child welfare policies, and the subsequent involvement of the family justice system in counterterrorism through the radicalisation cases in the family courts. These are a cohort of cases that first appeared in the family courts of England and Wales around a decade ago due to concerns regarding children perceived to be at risk of radicalisation. Such recent developments have accorded the parent–child relationship considerable visibility within the national security landscape. Indeed, it could be said that parents, and the institution of parenting itself, have been securitised. In this piece, I look at how the securitisation of parenting reflects and reinforces pre-existing, wider trends in the regulation of parenting that have taken place over the last three decades. To that end, I explore the treatment of radicalisation as a parenting failure and the identification of ‘good’ parenting as a counter-radicalisation technique.

In this short commentary, I consider the value of Science and Technology Studies (STS) for understanding the regulation of parenting, with reference to my research on parental substance use and the family court. By focusing on ontological questions relating to ‘parents’ and ‘parenting’, as well as on the materiality of parents’ as well as children’s lives, I suggest that insights from STS provide opportunities for better understanding how ‘realities’ about parenting are understood and enacted in law.

Note from the editors: in the conversation that follows, which took place on Friday 18 October 2024, members of the project discuss the two reflection pieces that feature in the scrutiny and surveillance section of the special issue: Fatima Ahdash’s paper ‘The securitisation of parents: the regulation of parenting in the counterterrorism context’, and Simon Flacks’s paper ‘Critical drugs scholarship and the regulation of parenting’.

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The temporality of international human rights law is strikingly clear in the context of children’s rights. International human rights documents are ‘living documents’ and, whilst the text of treaties remains constant, the work of treaty monitoring bodies and States Parties can lead to adaptations of the normative content and scope of provisions. This process occurs within a system of human rights that holds its own specific temporalities. In addition to the challenge of applying human rights to an ever-evolving context, there is a unique temporality confronting children’s rights: childhood. Understandings of children and childhood are key to the application of children’s rights, yet these concepts vary in meaning both in time and space, and contain their own temporalities. This paper highlights the varying temporalities associated with childhood and children’s rights, identifying some of the challenges and opportunities they offer for the protection and fulfilment of children’s rights.

This article starts by exploring how children’s participation in research has changed since the adoption of the UN Convention on the Rights of the Child 1989 and questions well-known hierarchical models that imply that the more involved children are as co-researchers, the more valuable the research. This notion is challenged in this article and a more sociological, relational perspective is presented as a way forward in rights-informed childhood research, to broaden the notion of participation, to be more inclusive of the participation rights of children who are non-, pre- and early verbal. The article then presents the findings of literature reviews which were conducted to explore how children have been involved in rights-informed childhood research since 1989, when Article 12 of the UN Convention on the Rights of the Child 1989 was introduced as a fundamentally new participation right. Lansdown’s three forms of child participation: consultative, collaborative and child-led, were used as a framework for grouping the articles sourced in the reviews. The reviews revealed that the majority of research with children is consultative with a few collaborative studies emerging from the late 2000s onward.

This article examines how the anti-child rights movement is asserting influence on policymaking and public opinion to the detriment of all human rights in society. These initiatives, often cloaked under the banners of ‘family protection’ and ‘traditional values’, view children as objects of protection and not rights holders. The negative impact of this movement is significant, affecting the implementation and enforcement of existing child rights legislation and posing serious implications for the welfare and development of children. It also significantly impacts the work of civil society organisations and (child) human rights defenders. Eurochild, a civil society organisation, outlines an urgent need for robust child rights advocacy and mechanisms that monitor and address anti-child rights movements, where children are the most active voices in these responses. The anti-child rights movement exploits children’s temporality by focusing on vulnerability, claiming children are unable to advocate for their own lives. The United Nations Convention on the Rights of the Child1 acknowledges that children require special protection and that the family plays a crucial role in their comprehensive, balanced development. However, it also underscores that children are not mere recipients of rights but participants in their own lives, and their voices are to be heard.

Unaccompanied children seeking international protection in the United Kingdom face enormous challenges to their rights, particularly when they arrive at a port of entry without the documentation necessary to prove their age. Age assessment processes are utilised when there is doubt about the age of an unaccompanied child, usually just prior to the point of adulthood. The outcome of an age assessment will determine whether the unaccompanied child is able to access their rights and receive appropriate support, including education, care, and accommodation appropriate for their age. In recent years, a ‘robust’ approach to age assessment has been justified as necessary on the basis of safeguarding the welfare of children in care and to prevent abuse of the asylum system. However, these justifications are often over-emphasised at the expense of ensuring the rights of unaccompanied children. This article focusses on the temporality of unaccompanied children’s rights in the context of the UK’s age assessment procedures against the backdrop of recent and increasingly draconian changes to immigration legislation which have further diminished procedural safeguards for unaccompanied children in the UK. Ultimately, in this context, age acts as a barrier to rights for unaccompanied children who seek asylum in the UK.

Recent preliminary studies highlight that the COVID-19 pandemic has significantly affected children. The nature and duration of the pandemic has adversely impacted their social and emotional development because they have grown up in isolation from their peers due to school closures and social distancing measures. Studies suggest this social exclusion may have prevented them from learning positive social behaviours which would usually occur through socialisation. The United Nations Committee on the Rights of the Child (CRC) highlights the importance of state parties having protections in place that recognise the importance of neurological, biological and sociological developments. It requires, in General Comment No 20, state parties to recognise the concept of evolving capacities as an ‘enabling principle that addresses the process of maturation and learning, through which children progressively acquire competencies, understanding and increasing levels of agency to take responsibility and exercise their rights’. The CRC recommended in 2019 a minimum age of criminal responsibility (MACR) of at least 14 years old. This paper will argue that the COVID-19 pandemic has impacted children to such an extent that the CRC should review its recommendations on the MACR and consider recommending a ‘developmental immaturity defence’.

Research Handbook on Surrogacy and the Law, Katarina Trimmings, Sharon Shakargy and Claire Ahmad (eds), reviewed by Zaina Mahmoud

In England and Wales, the rights of trans people have long been intertwined with marriage. When, in Corbett v Corbett, Justice Ormrod declared that April Ashley was not legally a woman, he was actually determining her status for the purposes of marriage rather than the general law. In Goodwin v United Kingdom, the European Court of Human Rights held that an absolute prohibition on legal gender recognition violated both Article 8 and the right to marry under Article 12. Although the Gender Recognition Act 2004 broadened opportunities for trans people to marry, challenges still remain. Under section 12(1)(a), a different-sex marriage is voidable where there exists an incapacity to consummate. However, existing case law suggests that some trans individuals may never be able to consummate in their lived gender. Similarly, under section 12(1)(g) (read with the Marriage (Same-Sex Couples) Act 2013), trans individuals must annul their marriage if their spouse objects to remaining married post-Gender Recognition Certificate (GRC). Finally, under section 12(1)(h), a marriage is voidable if, upon entering that marriage, one party did not know that their spouse had obtained a GRC.

This article aims to show the differences between the literature on the foundations of the mediation process relating to ancillary matters in England and Wales, and the effective practice of this form of alternative dispute resolution. The article offers an overview of the classical approaches to the mediation process, exploring how different approaches can impact the outcome of the process. Presently, when alternative dispute resolution methods are, once again, in the spotlight, due to the recent changes in the Family Procedure Rules, it is necessary to understand the challenges faced by the mediation process. Most importantly, this article aims to demonstrate that despite the different theoretical approaches to the practice of mediation relating to ancillary matters, there is still a wide gap between the theory and the practice. There are specific causes, here discussed, for such a gap and differences between what is constructed as the mediation process and how that process is implemented in practice. This article argues that despite the great evolution of the divorce mediation process, and the several reforms of the divorce law, more needs to be done to assure parties that mediation can be a viable resolution path for their future.

This article examines the way in which consensual sex was legally significant in Scots law, from the Reformation (1560) onwards, by examining three doctrines: adultery, impotence, and breach of promise. Despite laws which generally appeared to apply equally to men and women on paper, a closer examination shows that these laws operated in a gendered fashion, and continue to do so, being heteronormative and phallocentric: women and those in same-sex relationships are therefore subject to discriminatory treatment in the civil law in relation to adultery and impotence. Law reform to remove the legal relevance of sexual intimacy is recommended, to ensure true equality in adult relationships.

Conversations with Young People in Family Mediation, Lisa Parkinson, reviewed by Maria Federica Moscati

Research Handbook on Family Property and the Law, Margaret Briggs and Andy Hayward (eds), reviewed by Chris Barton

Women’s Legal Landmarks in the Interwar Years: Not For Want of Trying, Rosemary Auchmuty, Erika Rackley and Mari Takayanagi (eds), reviewed by Rebecca Probert

Allegations of domestic abuse are raised in up to 62 percent of private law children cases and 38 percent of financial remedy cases. With increasing numbers of litigants in person in the family courts owing to legal aid cuts brought about by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the Domestic Abuse Advocacy Scheme was introduced to address situations where an unrepresented alleged victim or perpetrator of abuse is unable to directly cross-examine the other party, following a prohibition on this practice (either on a mandatory or discretionary basis) introduced by the Domestic Abuse Act 2021. The scheme provides that if is in the interests of justice, and no other satisfactory alternative is available, the court must appoint a Qualified Legal Representative (QLR) to conduct the cross-examination on a publicly funded basis. In the first study to evaluate the implementation of the scheme since its introduction in July 2022, this paper presents the findings of in-depth interviews with 12 QLRs and key stakeholders. The findings identify ‘teething’ issues relating to the administration of the scheme and more complex ongoing issues relating to its design, both of which undermine its sustainability and capacity to improve access to justice.

This article analyses the current exclusions within the donor conception framework in Ireland against the legislative proposals for reform in the Private Members Bill, the Children and Family Relationships Amendment Bill 2023 and amendments to the Children and Family Relationships Act 2015 (the 2015 Act) introduced by the Health (Assisted Human Reproduction) Act 2024. It considers the workarounds available to those who fall outside the framework of parent–child legal recognition and whether the paramountcy principle should be inserted into the 2015 Act. It also includes excerpts from interviews with parents of donor conceived children obtained within the author’s qualitative research study.

The absence of legal protections for cohabitants in England and Wales has been the subject of extensive debate by academics, campaign groups, and the media. These debates are largely focused on the legal and economic position of the parties to the relationship. It is argued in this article that the current discourse surrounding the appropriate level of protections for cohabitants fails to fully encapsulate those who are impacted by the sustained absence of protections. This article seeks to reconceptualise the cohabitation debate as a children’s rights issue. There are two reasons for this. First, it could provide a greater impetus for reform by demonstrating that greater protections for cohabitants are necessary to ensure the well-being of their children. Second, it is argued that the absence of comprehensive protections for cohabitants can have the effect of discriminating against their children. This article will argue that any economic disadvantage faced by cohabitants as a result of insufficient legal protections will inevitably be felt by their children. Therefore, by treating cohabitants less favourably than spouses, a legal distinction is made between the children of spouses and the children of cohabitants.

The most common way to establish legal parenthood following a surrogacy arrangement is by way of a parental order under section 54 of the Human Fertilisation and Embryology Act 2008. However, it is also possible to establish legal parenthood through an adoption order. The practical effect of the two orders is the same but there are conceptual differences, and the approach of the court to the use of adoption orders following surrogacy has been conflicting. This article interrogates the differences between parental orders and adoption orders, reflecting on how the courts have used – or refused – adoption orders to recognise intended parents as the surrogate-born child’s legal parents, with a particular focus on recent case law. Finding that the use of adoption orders following surrogacy is inconsistent, the article examines whether the Law Commissions’ recommendations for reform to the law on surrogacy would negate the need for intended parents to rely on adoption orders. Ultimately, intended parents may continue to need to secure their legal relationship with the child through adoption orders. As such, it is imperative that adoption ceases to be framed as an alternative, or even inappropriate, method of recognition by the courts.

Childhoods of the Global South: Children’s Rights and Resistance, Manfred Liebel, with Rebecca Budde, Urszula Markowska-Manista and Philip Meade, reviewed by Conrad Nyamutata

Muslim Marriage and Non-Marriage: Where Religion and Politics Meet Intimate Life, Julie McBrien and Annelies Moors (eds), reviewed by Mulki Al-Sharmani

There are many different approaches to answering the question what something is for – philosophical, theoretical or sociological. My approach is empirical – examining the different roles the courts have had in family relations. A review of the work of the family courts over the past 50 years, roughly from 1970, can shed some light on this question. How have parents and others used the family court? What court-based remedies have been provided, restricted or removed? What new powers have the family courts been given, and why? And what do judges appear to think their role is or should be?

This article asks whether the concept of needs should be interpreted restrictively in cases involving substantial wealth. This would mean rowing back on established common law principles that permit the scope of needs to be evaluated depending on the specific circumstances of the divorcing parties. It takes as a starting point Mostyn J’s assertion in Augousti v Matharu [2023] EWHC 1900 (Fam) – that it is not easy to identify the ethical and logical basis for generous needs-based awards – to consider four major consequences of restricting the scope of needs in big money cases. It then explores whether despite these consequences reform is still required. It concludes by proposing possibilities for statutory reform that aim to shift focus away from questioning the scope of needs to look instead to alternative ways of making of financial remedies law more accessible and logical.

Financial remedies under Part II of the Matrimonial Causes Act 1973 are intended, as far as resources permit, to achieve ‘fairness’ as between the parties. The concept of fairness as elucidated by Lord Nicholls and Lady Hale in Miller; McFarlane consists of three strands: equal sharing, meeting needs, and compensation for relationship-generated disadvantage. Over time, however, compensation has been significantly limited and generally forms only a background principle, subsumed by either sharing or meeting needs. This article offers a critical re-appraisal of the principle in light of three recent cases: RC v JC, TM v KM and Augousti v Matharu. It does so first by introducing a systems theoretical account of family life. This allows for a critical context within which the interpersonal and systemic dimensions of marriage and the consequences of divorce are disaggregated. This article identifies and critically responds to the conceptual, practical and doctrinal limits to the principle of compensation.

This article provides three snapshots of family justice – pre-pandemic, during national lockdown, and as England settled into a ‘new normal’ of hybrid justice processes. It does so by drawing upon focus group discussions with Legal Companions working in the family court, who support litigants in person in the manner of McKenzie Friends. This research points to the interacting influences of policy reform and pandemic management, such that the emergency measures introduced by the latter entrenched the longer term changes sought by the former. The study seeks to capture the compound effects of these shifts, including a deepening of social inequality, a sharp reduction in access to justice, and the decreased visibility of those who are in greatest need of support. As part of this, we explore the diffuse benefits of the emotional support provided by Legal Companions to those representing themselves in private family law cases and identify key changes to this role in the new world of online and hybrid justice.

The Legal Recognition of Same-Sex Relationships: Emerging Families in Ireland and Beyond, Brian Tobin, reviewed by Andy Hayward

Inheritance Matters: Kinship, Property, Law, Suzanne Lenon and Daniel Monk (eds), reviewed by Mark R Beuker

It is both a privilege and a pleasure to give this lecture this evening. I am delighted to have been invited back to my old university and to contribute to the events to mark this important anniversary. One-hundred and thirty years of delivering legal education to such a consistently high standard is a great achievement for which the university can be justifiably proud. Just as education, and access to education, has moved apace in the last 130 years, so have the ‘rights’ of our young people – a topic that underpins what I wish to focus upon this evening.

Universal civil marriage – in the sense of a single, state-ordained, statutorily defined marriage ceremony that is the only route to a legally recognised marriage – is regularly proposed as a simple means of addressing a number of problems with weddings law in England and Wales. This article explains why universal civil marriage is not the answer. It shows that the number of couples getting married in a register office or on approved premises cannot be interpreted as evidence of couples making an active choice that they wish to be married in a ‘civil’ ceremony. It also questions the ‘universality’ of universal civil marriage, showing that only a minority of countries have adopted this option, that religious-only ceremonies continue to take place in such countries, and that many do not make provision for same-sex couples to marry. It acknowledges the force of the argument that only universal civil marriage is likely to ensure absolute equality for same-sex and opposite-sex couples, but shows that there is now room for optimism that a religious wedding is now a realistic option for many same-sex couples. Finally, it rejects the idea that universal civil marriage would be a simple and cheap solution.

In many jurisdictions there has been a shift in substantive criminal law to try to recognise coercive control as a form of domestic abuse. Empirical research has assessed the impact of criminalisation, but the main focus has been on policing rather than judicial understandings of coercive and controlling behaviour in domestic relationships. This article reports on an empirical study which examined the implementation of the new offences of coercive control in England and Wales and, comparatively, Scotland. It examined how judicial understandings of domestic abuse might impact on the way that cases are dealt with in both criminal systems. Though small-scale, it provides a much-needed update to research on lay magistrates’ attitudes to domestic abuse in England and Wales, and gives new insights into their key role in criminal and family justice cases. It also explores how Scottish judges are influenced by their perceptions of juror understandings of coercive and controlling behaviour and the importance of professional and public education in this context.

The growing number of cases brought before family courts in England and Wales concerning end-of-life medical decisions for young patients has shown that breakdowns of trust between parents and medics are increasing with adverse implications for all the actors involved. This article focuses on withdrawal and withholding of life-sustaining treatments for very young children from the perspective of the decision-making process. Its analysis of case law and academic literature thus concentrates on parental decision-making ‘power’ and its relevance in judges’ reasoning, also comparing cases before and after the Children Act 1989 entered into force. It is argued that parents’ freedom to decide concerning their children’s medical treatments cannot be unlimited; however, parents should not sit on the sidelines at any stage of planning for their children’s medical care. To navigate the vast grey area comprising both medical and values-based assessments, the introduction of a mediator/clinical ethicist as a constant point of contact between the parents and the medics – facilitating hospital transfers and independent medical opinions and sustained support (psychological, emotional, practical) for the family from an early stage – may ease tensions when there is disagreement between the parents and the medical team and so prevent unilateral medical decisions.

Polygamy, Policy and Postcolonialism in English Marriage Law, Zainab Batul Naqvi, reviewed by Nicole Stybnarova

Article 8 ECHR, Family Reunification and the UK’s Supreme Court: Family Matters?, reviewed by Helena Wray Chris Barton

The history of marriage and divorce in the United States has been shaped by unique gendered and racialised contexts that have ushered in modern family law liberalisation. From the legal landscape of coverture in an entrenched slaveocracy to the struggle to eradicate antimiscegenation laws and usher in no-fault divorce and same-sex marriage, efforts to expand autonomy and freedom in family law have resulted in remarkable advances in recent decades. Paradoxically, these transformative events have also contributed to backlash, leading to the curtailment of hard-won victories.

As an early adopter of no-fault divorce, Australia’s divorce regime has become uncontroversial, however, as a consequence it explicitly seeks to protect the institution of marriage. Accordingly, an extended period of ‘separation’ (12 months) is required before filing an application. Determining when separation occurred can invite consideration of very personal matters for the parties, something no-fault divorce was intended to avoid. This is amplified in respect of cohabiting couples, as Australian law offers eligible couples access to property settlement provisions identical to those available to married couples. As a result, Australian law is grappling with the question of precisely when a couple meet the legal definition of a ‘de facto relationship’ and in particular when that relationship starts and ends. This requires parties to provide deeply personal and intimate evidence. Further, it raises conceptually challenging questions as to the very nature of a de facto relationship and the extent to which the law for married couples (such as in relation to divorce) should be applied in answering these questions. While English law does not provide such relief to cohabiting couples, calls for reform are longstanding.

This paper traces the law governing the grounds for divorce in Canada. Beginning with early colonial divorce law, through the introduction of the federal Divorce Act in 1968, to the current legislation and 2021 amendments, I trace the evolution through a feminist legal theory lens. In doing so, I consider the implications of removing the fault paradigm without replacing it with legislative responses to gender-based concerns, specifically the feminisation of poverty and intimate partner violence. I suggest that the remnants of the matrimonial offences theory need to be removed from the 1985 Divorce Act in order to move towards a family law regime capable of accounting for the feminisation of disadvantage.

This article maintains that the belated reform of divorce procedures after the implementation of the Divorce, Dissolution and Separation Act 2020 has paradoxically moved English law from the most conservative to the most liberal end of the spectrum. It provides a critical analysis of the radical features of the new divorce regime, but also of notable elements of legal continuity. Additionally, it investigates the reform process leading to the current divorce law and identifies the main themes emerging from the legislative debate; the analysis focuses on the rationale for the more controversial aspects of the new scheme, as well as on salient objections to reform, from ideological perspectives on the significance of marriage vows to anti-individualistic concerns about societal interests, innocent spouses and children’s welfare. It further considers the statistical evidence available to date to preliminarily evaluate some of the claims and predictions made in the public debate, such as the increase in divorce rates, faster divorces or the likelihood of amicable separation in the absence of an incentive to apportion blame in order to secure a divorce order. Finally, the article discusses the success of the recent reform when compared to prior attempts to introduce no-fault divorce in 1996.

From indissolubility of marriage to unilateral divorce on demand: a tardy revolution in English family law, reviewed by Carmen Draghici

Planning the Future of Cross Border Families: A Path Through Coordination, Ilaria Viarengo and Francesca C Villata (eds), reviewed by Le Xuan Tung

Grandparents and the Law, Rights and Relationships, Samantha M Davey and Jaime Lindsey (eds), reviewed by Christine Piper

The ‘common law marriage myth’ is a well-established phenomenon. About half of the British public believe that simply cohabiting together as a couple entitles them to rights equal to spouses. Belief in the myth may lead to significant harm if it means individuals do not take steps to protect themselves or are, due to their erroneous beliefs, more likely to make decisions within the relationship which damage their own economic prospects. Although there has been significant research into the nature of the common law marriage myth, there has been little work done on how the myth could impact litigation, particularly when claiming a remedy at the end of a cohabiting relationship. This article therefore asks whether private law doctrines may consider belief in the myth a relevant part of a claim at the end of a cohabiting relationship, on the basis this erroneous belief has induced the claimant to change their behaviour. This article will focus particularly on three claims: under the common intention constructive trust, proprietary estoppel and unjust enrichment, with the aim of considering how litigation (and negotiations prior to litigation) could utilise the myth rather than treating it as merely part of the background facts.

There exists a dichotomy between the law regulating 16- and-17-year-olds’ deceased organ donation and their lived experiences. Whilst the law appears to accord young people a right to consent to deceased organ donation, this article demonstrates that in practice they have no, or very little, power to determine what happens to their organs after their death. It examines the reasons behind the dichotomy and concludes that the law should be reformed to ensure the right to consent to deceased organ donation is accessible to young people through the extension of the opt-out system of consent to organ donation to 16- and 17-year olds in England.

Family privacy, an important ideology which informs legal and political understandings of the family and its relationship to wider society, emerged in the nineteenth century, reflecting liberal views of the family as a private institution requiring protection from an intrusive state. Whilst there has been much theoretical discussion of family privacy, few scholars have investigated it empirically. The research underpinning this article is the first empirical study to examine whether parents believe the twenty-first-century family should be afforded privacy. This study reveals that family privacy ideology remains relevant to twenty-first-century families but requires reconceptualisation. This article uses parents’ own words to formulate a novel, expanded, definition of family privacy, which acknowledges that in contemporary families, privacy is threatened both by the state and by an intrusive digital society. This study finds that whilst parents may consider privacy important, they nonetheless accept that intervention in family life is necessary to protect children from harm. It thus responds directly to academic concerns that family privacy acts as a barrier to the protection of vulnerable family members. This article proposes an alternative framework for understanding the family’s relationship to state and society.

Family privacy, an important ideology which informs legal and political understandings of the family and its relationship to wider society, emerged in the nineteenth century, reflecting liberal views of the family as a private institution requiring protection from an intrusive state. Whilst there has been much theoretical discussion of family privacy, few scholars have investigated it empirically. The research underpinning this article is the first empirical study to examine whether parents believe the twenty-first-century family should be afforded privacy. This study reveals that family privacy ideology remains relevant to twenty-first-century families but requires reconceptualisation. This article uses parents’ own words to formulate a novel, expanded, definition of family privacy, which acknowledges that in contemporary families, privacy is threatened both by the state and by an intrusive digital society. This study finds that whilst parents may consider privacy important, they nonetheless accept that intervention in family life is necessary to protect children from harm. It thus responds directly to academic concerns that family privacy acts as a barrier to the protection of vulnerable family members. This article proposes an alternative framework for understanding the family’s relationship to state and society.

Belief in Marriage, Rebecca Probert, Rajnaara C Akhtar and Sharon Blake, reviewed by Frank Cranmer

Digital Family Justice: From Alternative Dispute Resolution to Online Dispute Resolution?, Mavis Maclean and Bregje Dijksterhuis (eds), reviewed by Jessica Mant

With the legal framework governing the provision of services for children and young people (CYP) with special educational needs and disabilities (SEND), namely the Children and Families (CFA) Act 2014, subject to ongoing scrutiny, review, and reform, this article argues that little real reflection has been given to why the system is so broken in the first instance. In arguing that CYP with SEND were disproportionally and adversely impacted by the Covid-19 pandemic, this article offers a critical evaluation of the legislative and policy changes enacted pursuant to the Coronavirus Act 2020, and the wider rights-deficient context in which those momentous legal changes were implemented, which enabled the dilution of the legal rights of this already vulnerable cohort of CYP. By drawing further on original empirical evidence adduced from an online survey of 234 parents and carers of CYP with SEND, this article further highlights the detrimental de facto impact which Covid-19 exerted on CYP and their families, which was exacerbated by such changes.

This article reflects on the characteristics of divorce mediation that influence the notions of justice and fairness. It argues that the main characteristic is that divorce mediation involves individuals who may have an intimate and personal sense of justice due to their emotional state. The strong connection between the sense of justice and the emotional state of the parties is likely to prevent the mediation process from delivering justice and fairness in the same standards and terms usually expected from a court decision. Hence, concerns arise about whether mediation can allow couples to achieve just and fair settlements. This article suggests the introduction of an early neutral evaluation, immediately after the individual Mediation Information and Assessment Meeting (hereafter MIAM), to improve the fairness of the outcome. Such early evaluation, by a third party, provides a general framework of rights, duties, and legal rules to the parties and is necessary to keep the negotiation within the spirit of the legal principles.

Child protection systems, and the legal frameworks underpinning them, are central to safeguarding young people at risk of significant harm. However, their design often assumes that the risks young people need protecting from are attributable to the action or inaction of their parents/caregivers. In the UK, growing interest in significant harm that young people experience in extra-familial contexts and relationships has raised questions about the sufficiency of such child protection systems. In this paper we present the results from three English pilots of alternative child protection processes; ones intended to safeguard young people at risk beyond their family homes and relationships. We identify five features of these alternative pathways and discuss their conceptual, legal, and practical implications for child protection systems and the social workers who practise within them. While the pilots addressed some limitations of traditional child protection responses to extra-familial harm, progress was hampered by wider system features and foundations that, while not prohibitive of the approaches piloted, did not enable them. These pitfalls require attention and debate to develop/sustain effective child protection responses to extra-familial harm in the UK and internationally.

Parental child abduction to Islamic law countries: a child rights analysis of the legal framework, Nazia Yaqub, reviewed by Allison Wolfreys

Family Life, Family Law, and Family Justice: Tying the Knot, Marsha Garrison, reviewed by Rebecca Probert

This article reports the findings of a study into mediators’ perspectives on the Family Mediation Voucher Scheme. The voucher scheme aims to encourage more families to resolve family disputes relating to children through mediation. The study aimed to gather data from mediators to establish how the voucher scheme has impacted rates of participation with mediation and rates of settlement in cases where a voucher was used. It also aimed to gather qualitative data so that the reasons underlying its impact could be ascertained. This article outlines the key themes which emerged from the study and discusses how these findings could impact future policy development.

This article presents the findings of a case file review of applications for child arrangement orders which were flagged as containing a risk of harm, and to which Practice Direction 12J was applicable. It begins by examining the development of the present version of the Practice Direction and the obligations it places on courts to engage in risk management so as to ensure that any contact between a child and parent accused of harmful behaviour is safe. It then proceeds to outline the means by which the case file review was conducted, and discusses the outcomes of the 102 cases examined across three courts. It then moves to assess how fact-finding hearings are used, examining the circumstances in which they were ordered, circumstances in which holding such a hearing was rejected by the courts, and means by which they were avoided. It also highlights the interaction between fact-findings and other investigative tools at the courts’ disposal such as welfare reports. It concludes by framing the results within the context of increasing pessimism caused by recent judicial statements about fact-findings and the impact of harm allegations on contact.

Drawing on new and original qualitative empirical data, this article explores Muslim marriage practices in Australia, which has a celebrant-based system of marriage and de facto couple recognition in family law. Specifically, it investigates the impact of this dual framework on the manifestation and prevalence of religious-only (nikah) weddings. The findings are used to assess the likely impact of the Law Commission’s recommendations for weddings law reform in England and Wales, in particular the shift from the regulation of buildings to the regulation of wedding ‘officiants’. It suggests that an officiant-based system will have a positive impact on those who wish to marry legally, removing the double burden of organising separate religious and civil weddings and increasing the prevalence of legally binding marriages occurring in Muslim communities. It further shows that imam-celebrants may be more integrated into the state legal formalities for marriage in their dual roles, taking each seriously but adhering to their legal duties if in conflict. However, the findings acknowledge that reforms to weddings law will not wholly resolve the issue, as many couples will continue to voluntarily enter non-legally binding marriages.

Problematizing Law, Rights, and Childhood in Israel/Palestine, Hedi Viterbo, reviewed by Zvi Triger

Jurisdictional Exceptionalisms: Islamic Law, International Law and Parental Child Abduction, Anver M Emon and Urfan Khaliq, reviewed by Nazia Yaqub

Quiet Revolutionaries: The Married Women’s Association and Family Law, Sharon Thompson, reviewed by Dr Zainab Batul Naqvi

Fifty Years of the Divorce Reform Act 1969, Joanna Miles, Daniel Monk and Rebecca Probert (eds), reviewed by Dr Charlotte Bendall

In 2018, the intended deportation of two Armenian children who had been in the Netherlands for over a decade but never managed to gain legal residence led to widespread protests. The children were supposed to be deported to Armenia, but their mother – who had been deported earlier – seemed neither able nor willing to take care of them due to mental health issues. Their situation sparked intense social and political debates and led to a number of policy changes in Dutch migration law. In this paper, we will analyse where and how tensions arise between migration law actors and child protection law actors regarding the situation of children and families without legal residence in the Netherlands. We will argue that fundamental differences between Dutch child protection law and migration law can lead to unequal treatment of different categories of vulnerable children as well as to tensions, frustrations, and distrust between migration authorities and child protection authorities. The article is based on a combination of legal and empirical research, including interviews with child protection and migration authorities, judges and lawyers, as well as an analysis of case law.

Children’s mobility and concerns relating to child protection in the cross-border context is an emerging field of study that has hitherto largely remained unexplored. Central to the effectiveness of transnational child protection are structures that facilitate collaboration between the local child protection and welfare authorities of different countries. Under the Hague Conventions on Child Protection 1996 and Child Abduction 1980, as well as EU Regulation Brussels IIter, Member States are required to appoint a central authority to serve as a contact point for this collaboration. Drawing on a study of cases handled by the Finnish central authority from 2011 to 2020, this article provides a unique window on the concrete practices of cross-border child protection. Informed by the idea that the state is a social relation and the notion of ‘stategraphy’, the article examines how the state is brought into being in the practices of authorities who work on child welfare and protection and draw boundaries that exclude or include children. It is argued that particular ideas and normative expectations about the state lead to misunderstandings of local child protection authorities concerning jurisdiction, which may result in a failure to fulfil the positive obligations to secure protection of the child.

Studies of care proceedings in England have established a rise in the number of children placed with kinship carers at the end of proceedings, and a corresponding fall in the number of children placed for adoption. Coupled with this there has been a concern about children being placed with kinship carers with whom they have little or no pre-existing relationship. Where a child in need of protection from abuse or neglect has transnational connections, it may be necessary to explore their potential placement with a kinship carer overseas. However, there are clear challenges associated with establishing whether an international kinship care placement is in a child’s best interests and securing a legal framework for any international kinship care placement. This study draws upon a quantitative and qualitative analysis of 100 care cases heard in England between 2015–2018, together with qualitative interviews with professionals with experience of international kinship care. It identifies significant challenges for professionals and courts associated with trying to ‘fit’ cross-border situations into a domestic legal framework. It suggests that these difficulties stem from an approach in care proceedings which fails to treat international kinship care as a distinct form of care, with its own potential strengths.

In England and Wales, children involved in public law care proceedings may have significant familial connections with family abroad. In these circumstances, the English court must consider whether it has jurisdiction to make decisions over the child. Inherent to the decision on jurisdiction over the child’s welfare is the question of where the child ‘belongs’, usually determined by identifying the child’s habitual residence. This process legitimates the English courts’ decision-making over the child. This article examines the transfer of jurisdiction under the 1996 Child Protection Convention, and stays of jurisdiction under the principle of forum non conveniens for their use in child protection proceedings, considering the justifications for disrupting the primacy of habitual residence as a connecting factor and the assessment of the child’s best interests in this context. It considers how international family law implicitly engages with the concept of ‘place belonging’ when it ascribes legal meaning to locating a child subject to care proceedings. This concept is used to analyse the extent to which disruptions to the child’s habitual residence as the primary basis of jurisdiction must consider the best interests of the child.

This article discusses the scope of legal obligation for contracting states to the United Nations Convention on the Rights of the Child 1989 to realise children’s right to protection from all forms of violence in diplomat families, while simultaneously acknowledging diplomatic immunity. Based on an in-depth, qualitative study consisting of 43 written and oral accounts of former Norwegian Foreign Services children from 2015 to 2019, we show that children growing up in diplomat families experience infringement of their rights with little attention being paid to their situation by public authorities, neither in a receiving nor a sending state. The effect of being invisible to the authorities of either state is intensified by the legal framework of the Vienna Convention on Diplomatic Relations 1961 granting diplomat families and their children immunity from jurisdiction in a receiving state. The UN Convention on the Rights of the Child, however, requires that measures are taken by contracting states. We suggest certain types of actions by the receiving and sending state that are in line with the legal status of immunity of diplomat families, while still supporting the realisation of human rights of diplomat children.

Forced Marriage Law and Practice, Joshua Hitchens and Niamh Daly Dr Mohammad, reviewed by Mazher Idriss

Children and the European Court of Human Rights, Claire Fenton-Glynn, reviewed by Ruth Lamont

This article explores the methodology developed in McLaughlin and other recent cases that have seen cohabitants use the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 to gain access to legal protections originally intended exclusively for spouses and civil partners. It will be argued that whilst McLaughlin demonstrates a robust approach to discrimination affecting unmarried couples, the methodology is caveated, leading to questions surrounding whether its scope is wide enough to have any substantial benefit in future litigation. This article undertakes a systematic analysis of the stages of a claim under the European Convention to argue that the developments in these cohabitation cases should be welcomed, and that there is a role for human rights to play to alleviate the discrimination facing cohabitants. However, the continued acceptance of the legitimacy of promoting formalised relationships to justify different treatment, alongside a disproportionate weight attached to the presence of children means that the methodology may have limited application.

Female genital mutilation (FGM) according to the World Health Organisation, is a procedure that involves the total or partial removal of the external female genital organs for non-medical reasons. With only one conviction to date despite its prevalence within some communities in the country, it is apparent that the law as it stands in England and Wales is ineffectual in tackling FGM, and more must be done. Historically, the law on FGM was purely designed to penalise where an offence had occurred, and while this began to change with the introduction of female genital mutilation protection orders (FGMPO), analysis of the applications for such orders will demonstrate that the majority of girls at risk are not utilising them. It must, therefore, be considered what else can be done to tackle FGM in England and Wales. A multi-agency approach will be proposed, in which a duty to report risk, education and medical examinations are all considered as options available, alongside FGMPOs and criminal sanctions. Although criminal sanctions in relation to perpetrators are not new, proposing positive obligations and criminal sanctions on certain professionals for failing to report, will offer a distinctive contribution to the eradication of FGM.

When families are referred to local authorities, the State has power to intervene into private family life to assess whether a child meets section 17 and/or 47 Children Act 1989 thresholds. In 2019/2020 (the latest available data) nine percent of families in England and Wales were referred. Thirty-seven percent did not reach the section 17 threshold, and 88 percent did not meet the section 47 threshold. This is concerning given the available prevalence estimates, suggesting that 25.3 percent of children in the UK may have been abused. A legitimate debate is merited to consider whether State processes of referral and assessment have struck the right balance. We argue that given the apparently high number of false positives and false negatives under the existing policy framework, it is possible that the State may be failing in its primary aim of protecting sufficient abused children and risks potential harm to non-abusive families who are caught in the ‘glare’ of referral and assessment. We conclude by considering whether the balance between State power and private rights should be re-balanced to more clearly separate section 17 support from section 47 protection, as originally intended in the Children Act 1989.

This New Zealand study aims to examine the experiences of fathers in family mediation in an open, non-directive way. Qualitative, semi-structured interviews were conducted with fathers who attended family mediation. The interviews revealed a highly challenging post-separation period for fathers as they battled severe grief combined with confusing societal messages about fatherhood. The devaluation of fatherhood by mothers, mediators and often fathers themselves surfaced as a pervasive theme. The most prominent experience that transpired in the interviews was gender-based bias and a strong feeling of powerlessness as fathers perceived mothers as holding absolute power in the mediation. For most fathers, the full potential of mediation has not been fulfilled due to anger and frustration created by these difficulties. Implications for mediators include the need to be aware of the fragile state of fathers and to show respect for the different quality of fatherhood. Mediators should use techniques that maximise the potential for conflict resolution as opposed to settlement and use reflective practice and supervision, especially around gender bias and gender power issues. Increasing engagement with fathers will enable mediators to unlock the full potential of family mediation and enhance the well-being of children through enabling a meaningful relationship with fathers.

Procedural justice theories hypothesise that the fairness of a court process influences how the judiciary and the justice system is perceived, whether the outcome is regarded as just, and the extent to which decisions are accepted and followed. At a time when self-representation in family matters is the dominant mode of representation and Covid-19 has resulted in remote and hybrid hearings, whether courts can offer disputing parents a procedurally fair process is of paramount importance. Drawing on data from the author’s qualitative study of 34 litigants in person appearing in family courts, the article examines the participants’ relationship with the judiciary. Whilst procedural justice theories explain how the judiciary can provide litigants with a fairer process, in family proceedings achieving this can depend on the gender of the litigant in person and the representational status of the other parent. Ultimately, this article argues that of Tyler’s four criteria for procedural justice, the most important to litigants in person in private family matters were respect and trust. For these to develop it is imperative that the judiciary communicate in a manner that creates an inclusive atmosphere, where explanations are provided using accessible language.

Tying the Knot: The Formation of Marriage 1836–2020, Rebecca Probert, reviewed by Russell Sandberg

Trapped in a Religious Marriage: a human rights perspective on the phenomenon of marital captivity, Benedicta Deogratias, reviewed by Rehana Parveen

This article criticises the Strasbourg Court’s reluctance to recognise the familial association between a natural father and a child with whom he had no opportunity to establish effective bonds, unless the child was the product of a committed relationship (by analogy with marriage) and planned conception, whilst downgrading family aspirations to a (less protected) privacy interest if the birth resulted from an extra-marital or fleeting relationship. The author also laments the Court’s readiness to accept superficial justifications for interferences with the father’s private or ‘potential’ family life (where it finds it engaged), such as the refusal to order genetic tests or contact. The Court allows the ‘child’s best interests’ façade to accommodate the mother’s choice of partner (especially in the case of children conceived in adultery) and remains oblivious to the modern plural fatherhood (whereby the husband continues his parental role qua stepfather, without obliterating the natural father’s family life with the child). It is further argued that, to end the gender-based double standard in the treatment of natural parents, the case law must de-couple the father’s family life with the child from the quality of the adults’ relationship and the circumstances surrounding conception (save for narrow exceptions).

The registered intermediary represents an important resource in supporting young people’s participation in a criminal trial. However, in England and Wales there are significant disparities between the support provided by registered intermediaries to young witnesses and young defendants. Young defendants in criminal trials are offered much more limited support to participate in court proceedings. This article employs Fineman’s vulnerability theory and Nussbaum’s capabilities approach to investigate the provision of intermediaries for young defendants in England and Wales and throughout Australian jurisdictions. We examine failings in the provision of intermediaries to young defendants and consider the further work needed to align this provision with the right of children to be heard in proceedings affecting them contained in Article 12 of the United Nations Convention on the Rights of the Child 1989 and the right to a fair trial enshrined in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.

For separated families, the COVID-19 pandemic has impacted the making and workability of, and compliance with, court orders about shared care arrangements for children. This article presents an analysis based on the Australian experience of how COVID-19 related risks to children – such as the risk of being exposed to or contracting COVID-19, or their mental health suffering due to COVID-19 restrictions – have manifested in post-separation parenting disputes. It presents the first empirical study of published judgments in proceedings under Part VII of the Family Law Act 1975 that expressly identify COVID-19 related risks, and examines how the Family Court of Australia and the Federal Circuit Court of Australia evaluated those risks, and factors shaping the courts’ evaluation. The study findings reveal that: (i) the courts have given primacy to meaningful parent–child relationships during a time of great uncertainty, without compromising children’s safety; and (ii) limited evidence of COVID-19 related risks has made the already fraught task of assessing risk more challenging for judges. The study exposes an ongoing tension between the family courts’ protective instinct to shield children from harm or the risk of harm, and their concern to ensure that children benefit from meaningful relationship with parents.

This article explores how child neglect was criminalised during the period that the first statutory offence existed but was not enforced. The article addresses a gap in scholarship by exploring the Victorian origins of the neglect law and the ways it disproportionately penalised poor families when a child suffered from a lack of material provision. This was particularly true for biological mothers and a limited number of biological fathers who were treated more harshly by Victorian juries if they transgressed middle-class expectations of gender. Class conflict and gender bias featured heavily in the trials involving neglectful parenting which, this article asserts, provides another example of the ways that the poor were punished for their economic misfortune during the late-nineteenth century. Understanding the effectiveness of enforcement during this period is important because of the heavy reliance of modern neglect law on Victorian legislation.

International Handbook on Child Participation in Family Law, Wendy Schrama, Marilyn Freeman, Nicola Taylor and Marielle Bruning (eds), reviewed by Lara Walker 211

A History of Divorce Law: Reform in England from the Victorian to Interwar Years, Henry Kha, reviewed by Chris Barton

This commentary considers the Court of Appeal decision in Re H-N and Others (Children) (Domestic Abuse: Finding of fact hearings). The appellate court heard four conjoined appeals demonstrating what can go wrong in child arrangement proceedings where there are allegations of domestic abuse. The decision highlights a range of specific issues, including the difficulties of identifying and assessing the significance of coercive and controlling behaviour, which the court considers essential to a ‘modern’ understanding of domestic abuse. The court tackles the application of the guidance in Practice Direction 12J; including whether to hold a fact-finding hearing and, if so, determining which allegations to hear (through the formulation of directions, including Scott Schedules) and how to approach the evidence at a fact-finding hearing, including whether to have regard to criminal law concepts. In this commentary the reasoning of the court in relation to both the specific cases and the broader issues is analysed. The analysis is contextualised within recent developments, in particular the expert panel report, published in 2020, on assessing the risk of harm for children and adults in child arrangement proceedings in England and Wales.

Social science literature reports on the existence of institutional victim and mother blaming attitudes towards women who have experienced domestic abuse. Despite major law reform and a greatly improved understanding of domestic abuse, there remains a problematic victim blaming culture within children’s social care and the family courts. Women whose children have been adopted from care (referred to here as birth mothers) appear to be highly vulnerable to mother blaming by professional bodies. This study explores the personal perspectives of birth mothers who experienced domestic abuse and who were involved with children’s social care and the family courts. To achieve authentic voice, unstructured interviews were conducted with ten birth mothers. The interview transcripts were analysed using discourse analysis, with words and narratives being compared to examples of victim and mother blaming language in cases of domestic abuse. Analysis revealed that responsibility and culpability for domestic abuse was often placed on the victims by professionals, who at times adopted a ‘passive voice’ where domestic abuse is acknowledged but the perpetrator is not. This practice maintains the invisibility of the abuser, known as ‘agent deletion’, this being where the agent of the process, in this case the perpetrator of abuse, is omitted.

Continuing to vest the judiciary with very wide discretion to determine maintenance issues on a case-by-case basis, the child maintenance system applied in Ireland is now an outlier in the common law world. However, while there are currently few judicially developed or legislatively established principles or guidelines to direct the exercise of this discretion – much less any formulae or tables – reform may be on the horizon. With this in mind, this article considers the legal framework for child maintenance in Ireland before drawing on recent empirical studies to highlight the challenges in practice. It places the spotlight on the mounting calls for the adoption of a more predictable and consistent formula-based approach to the quantification of child maintenance and investigates five key issues which would have to be addressed in devising any such reform.

As a former British colony, the option of a boarding school education remains an important part of Hong Kong’s educational framework. Whilst historically intended to provide offspring with ‘a proper British education’, reasons for sending children to boarding school are diversifying. This article presents a thematic analysis of published cases in the Hong Kong family jurisdiction referencing boarding school or overseas education, aimed at uncovering motivations for sending children to boarding school. The analysis reveals two emerging themes in boarding school applications that are of relevance beyond the Hong Kong jurisdiction: first, the use of boarding school as a means to lift a child out of a high-conflict divorce setting; and, secondly, boarding proposals as a form of ‘strategic diversion’, where one parent seeks to relocate with the child and the other parent suggests boarding as a compromise. The article discusses the findings from this analysis, including from the perspective of the best interests of the child, which may be served by a child’s physical removal from entrenched parental conflict, but perhaps not by becoming a compromise-boarder.

Allegations of parental alienation have gained traction in Singapore since it was first referred to in 1995 and first accepted by the Singapore High Court as a valid argument in 2014. This article provides an empirical study of 104 reported judgments by the Singapore courts, between 1961 and 2020, in which parental alienation was referenced or alleged. This article will also distil trends from the types of cases where parental alienation was referred to, the effectiveness of the allegation for parties to obtain their prayers, the types of legal responses employed by the Singapore courts, and whether there is a correlation between parental alienation and domestic abuse allegations.

Religion and Marriage Law: The Need for Reform, Russell Sandberg, reviewed by Stephanie Pywell

Relational Vulnerability: Theory, Law and the Private Family, Ellen Gordon-Bouvier reviewed by Stephanie Coker

In this paper we highlight the inadequacies of the current legal response to killings in the course of alleged rough sex. The issues we identify demonstrate the thinness of the legal conceptions of ‘consent’, ‘violence’ and ‘intent’, which have led to controversial outcomes in some such cases. If the law struggles to find an effective response to domestic abuse and sexual violence in cases where the victim has died, then this shows the severity of the challenges in dealing with them in non-fatal cases. We will critically consider some of the reform proposals that have been enacted in response to these cases and suggest that on their own they are highly unlikely to be effective. We need a more radical rethinking of the law’s approach to consent, sex and violence; to the use of evidence in these cases; and a shift in society’s understanding of consent to sex and violence.

The relationship between ‘rough sex’ and the criminal law has recently been subject to considerable scrutiny. Much of this debate has focused on male defendants in homicide cases, who have claimed the death of the female victim resulted accidentally from consensual rough sex. As a result, more commonplace occurrences of rough sex that do not result in death have received limited attention. In particular, the role that rough sex plays in abusive relationships, whether and how this is criminalised, has been largely overlooked. This article addresses this gap by illuminating the role that rough sex can play as both an instrument and a manifestation of coercive control. We problematise the ‘stories’ that are told about rough sex and coercive control in the criminal law. Three constructions of ‘rough sex’ have historically been applied in the case law: ‘violent sexual assault’, ‘deviant sexuality’ and ‘accidental injury’. The introduction of a new offence of ‘controlling or coercive behaviour’ was an opportunity to uncover a new, more accurate narrative of abusive rough sex. We argue, however, that the courts are still telling the same old stories.

When a violent sexual assault is caught on video or results in injuries, defendants sometimes claim that the sexual activity was consensual BDSM1 or ‘rough sex’. This article seeks to understand the impact of this strategy when the complainant has previously engaged in atypical sexual activity. The study of Canadian admissibility rulings and trial decisions shows that sexual history evidence is primarily used to support the legally prohibited inference that because a woman consented to rough sex in the past, she is more likely to have consented to the sexual activity in question. Defendants rely on the argument that repeated sexual activity is less likely to be criminal: if it is routine, then it is not rape. This strategy relies on and reinforces myths and stereotypes about sexual violence, particularly partner/marital sexual violence.

Concerns about the legal landscape of BDSM are being reinvigorated today through public attention to the issue of ‘rough sex’ defences for homicide and abuse. Victim-survivors have orientated around the language of ‘rough sex’ to express concerns about practices across a variety of contexts, from established BDSM relationships to casual heterosex. As such, this paper provides victim-survivors’ everyday navigation of activities and languages around BDSM, kink and fetish. It finds the following key themes as being crucial to participants’ understandings of safe and satisfying practice: (a) communication and recognition of agentic others; (b) community learning and accountability; and (c) being playful and bounded, but not too bounded. This paper presents these as a call to understand how some ‘rough sex’ defences not only excuse or obscure abusive practices but also stigmatise and marginalise certain BDSM, kink and fetish practitioners and communities.

In Lee the New Zealand Court of Appeal laid down a new and highly innovative legal approach to the question as to when to withdraw the defence of ‘victim consent’ to physical violence. It was a ‘hands off’ approach that favoured personal autonomy, even for harm occurring at the most serious end of the spectrum. However, unlike the approach taken in England and Wales and Australia it did allow individual victim vulnerability to be considered in relation to very serious harm, whatever the categorisation of the behaviour involved. In this article it is suggested that the New Zealand approach is not well suited to the kinds of issues thrown up by the practice of ‘rough sex’ and, in particular, the gendered norms that support and render invisible male violence against women.

Global Perspectives on Home Education in the 21st Century, Rebecca English (editor), reviewed by Daniel Monk

A History of Regulating Working Families. Strains, Stereotypes, Strategies and Solutions,  Nicola Busby and Grace James, reviewed by Eugenia Caracciolo di Torella

This article reassesses feminist challenges to the Divorce Reform Act 1969, and in particular Edith Summerskill’s notorious charge that divorce without consent represented a Casanova’s charter. It argues that Summerskill did not simply oppose divorce, but instead focused on giving voice to a demographic that was virtually invisible in Parliament at that time – deserted wives. The article reveals new accounts of backroom deals and underlying tensions behind the passage of the Divorce Reform Act 1969, based on a study of previously unexplored archival documents, interview data and letters Summerskill received from deserted wives. This close inspection of an individual’s role within a much larger network of reformers can help provide alternative historical understandings of family law reform from a feminist point of view. Furthermore, the article facilitates an unique appraisal of the current legal landscape, as reform of the financial consequences of divorce is being considered following the new Divorce, Dissolution and Separation Act 2020. It is argued that Summerskill’s view can be used to determine the focus of future reform of this area.

In the year following the introduction of social distancing measures in March 2020, quarterly applications for non-molestation orders in England and Wales increased by up to 27 percent whilst applications for occupation orders increased by up to 22 percent compared with the previous year. The heightened need for recourse to the family courts during this time supports a more general concern that rates of domestic abuse have increased during the pandemic. This paper presents the findings of in-depth interviews conducted with professionals in the North East of England who have represented or otherwise supported victims of domestic abuse in the family courts since the start of the Covid-19 pandemic. The aims of this article are not to ‘name and shame’ any particular court, but rather to evaluate the capacity of the remote family court to provide a safe and fair process for victims of domestic abuse. Where appropriate, the authors will also make recommendations for improving practitioners’ and litigants’ experiences within the current restrictions.

Many studies have been undertaken into the impact of separation and divorce on children and the extent to which they want to be heard to ensure that decisions made by parents and the courts are in their best interests. Arrangements are, generally, made by parents and their lawyers working from an assumption that parents know what is in the best interests of their children, often without consulting them. Drawing from empirical research undertaken as part of a wider research project examining the effectiveness of the collaborative process as a dispute resolution mechanism in Ireland, this article will present the views of a sample of ten separating parties and fifteen young adults whose parents separated when they were children. It will document the extent to which separating parents were aware of the impact of the family transition on their children and whether they were, therefore, best placed to determine what was in the best interests of their children post-separation. From the young adults’ perspective, did they believe that their parents understood the impact of the separation or divorce on them? Did they have, or would they have liked to have had, an opportunity to ‘participate’?

This article argues for a rethinking of the dichotomy between financial contributions and non-financial or domestic contributions within the common intention constructive trust case law. Judicial notice of the concept of ‘enrichment’ when referring to domestic contributions, and therefore the imposition of market norms into discussions surrounding homemaking and caring, may provide evidence in disputes at the end of cohabiting relationships which allows domestic contributions to be compared against more conventional financial contributions. Situating domestic contributions within the current economic approach of the law would provide increased impetus for proper valuation of these contributions. Recent case law is examined in order to shed light on the current language and narratives used about domestic contributions. The economic theory of commodification and the doctrine of unjust enrichment are evaluated in order to conceive of domestic contributions as economically impactful work with a marketable exchange value.

In financial remedy cases, the Duxbury calculation is used primarily as a guide for capitalising periodical payments. It has also on occasion been controversially used to assist in the calculation of the non-pension capital to be offset against a pension. Whilst it has its roots in the pre-White v White era of ‘reasonable requirements’, it continues to be used by the courts in financial remedy cases in England and Wales, as the maxim states, as a ‘tool not a rule’. Its importance in practice means that it has attracted a considerable body of professional commentary and analysis within both legal and financial fields. However, it has attracted less academic scrutiny. This article provides the first academic exploration of Duxbury through an examination of its history and present-day use. It presents findings from an analysis of reported cases over the past 10 years and suggests that the use of the calculation has become more of a ‘rule than a tool’. It considers the longstanding appeal of the calculation and its use by the courts, exploring why the courts appear reluctant to move away from it.

Law, Drugs and the Politics of Childhood, Simon Flacks, reviewed by Sarah Corbett-Batson

Legal Recognition of Non-Conjugal Families: New Frontiers in Family Law in the US, Canada and Europe, Nausica Palazzo, reviewed by Chris Barton

This article considers the regulation of payments within surrogacy arrangements in the United Kingdom. In recent years, there has been growing academic criticism of the law governing surrogacy arrangements and repeated calls for law reform. In June 2019, the Law Commission of England and Wales and the Scottish Law Commission published a Joint Consultation Paper, ‘Building Families Through Surrogacy: a New Law’, which notes that, ‘the current law is out of date, unclear and not fit for purpose’.1 One area where such issues are apparent is the regulation of payments from the intended parents to the surrogate. The judicial approach to the granting of ‘parental orders’, under section 54 of the Human Fertilisation and Embryology Act 2008, has been criticised within the academic literature and the consultation paper recognises these criticisms in considering options for reform. However, while acknowledging that the position will likely be developed in the final report, this article argues that the equivocal approach taken in the consultation paper to the regulation of payments may result in the criticisms made against the current legal regime not being effectively addressed, because the approach regarding payments is piecemeal and lacks a clear underlying regulatory rationale.

By analysing the recent ruling reached by the High Court in R (Bell and Another) v Tavistock and Portman NHS Foundation Trust and consequent amendments to NHS England’s Service Specification regulating pubertal blocking, this article considers the impact of the decision on children’s rights in three areas: health, capacity, and involvement. It argues that the court’s narrow approach to defining health led the judges to focus on the biological outcomes of puberty blockers and overlook the psychosocial consequences of withholding or delaying treatment. In the context of capacity, the Bell judgment impacts the rights of gender diverse youth by employing age markers and disregarding parental consent. It also groups together hormone treatments as one medical pathway and hinders an individual’s right to confidential advice and treatment. In view of this, the article proposes that young capacities should be nurtured by adults, through clear dialogue and lengthy instruction. It examines these issues through a children’s rights lens, and particularly in light of the UN Convention on the Rights of the Child 1989. In doing so, the article highlights the importance of involving young individuals in decisions about puberty blocking, given internal and individualised nature of gender variance, transition, and patients needs.

Consummation and adultery were omitted from the Marriage (Same Sex Couples) Act 2013. This article explores the issue of consummation (in particular) and offers empirical evidence in support of reform. Assessing the functioning and role of relationship recognition to LGBTQ people, this article will assess the implications of the exclusion of consummation from same-sex marriage. It draws on semi-structured, in-depth interviews conducted with a group of 29 LGBTQ people following the 2013 legislation to argue that the current law contributes to a sexual hierarchy that maintains and privileges heteronormativity, and that this system should be reformed by either abolishing the consummation requirement or redefining it to include same-sex consummation, accommodating a wide range of sexual expression. Reforming marriage law to disestablish consummation’s current role would contribute both to the ongoing transformation of marriage instigated by no-fault divorce and to the queering of marriage by deconstructing heteronormativity.

Hailed as a landmark in the prevention of domestic abuse1 and the protection of victims, the much-anticipated Domestic Abuse Act 2021 was passed by the House of Commons in July 2020 and received Royal Assent in April this year. This article considers the extent to which the raft of measures introduced under the new legislation will transform the response to domestic violence and abuse in England and Wales. The paper considers domestic violence and abuse to be a gendered phenomenon with roots in broader social and cultural conditions of inequality, with women being disproportionately impacted due to the role violence and abuse have in sustaining male dominance at a societal level. Recognition of this necessitates a gendered approach to addressing domestic violence and abuse, which in turn shifts the focus away from discrete incidents and on to a full programme of behaviours aimed at disempowering victims. Through a discussion of the major provisions, the paper will argue that while the Act is a welcome addition and has clear potential to improve prevention and protection for individual victims, much more is needed in order to truly transform the response to domestic abuse in England and Wales.

Elderly Care and Upwards Solidarity: Historical, Sociological and Legal Perspectives, Elisabeth Alofs and Wendy Schrama (eds), reviewed by Ann Numhauser-Henning

It is 20 years since the Welfare Reform and Pensions Act 1999 introduced pension sharing on divorce in England and Wales. In this article, we consider three questions. First, we review what has happened in pension outcomes for divorced men and women since the Act came into force. We next turn to statistical analysis of the Wealth and Assets Survey to consider current pension accumulation among couples, what scope there might be for pension sharing in the event of divorce, and what the current situation looks like for divorced men and women. Third, we ask what the future might hold. Our analysis reveals that very widespread disparities persist between men’s and women’s accumulated pension wealth throughout the life course, and these disparities exist within couples, at all ages, and at all points on the income and pension wealth distributions. For many couples, there is a high probability that their pension wealth exceeds their property wealth. While we show that there is considerable potential for pension sharing among currently married people, there remains much we do not know about these issues. We close with a discussion of the substantial research agenda needed to provide a clear evidence base for ongoing reform.

Throughout the Pacific region, customary forms of adoption are widespread, and predominantly exist alongside formal, state-regulated adoption processes. In most countries, the state does not recognise or accommodate customary adoption, giving rise to a number of practical problems. Attempts to reform the law have rarely gone to the root of these issues, which stems partly from the contrasting perceptions of adoption. The recent passage into legislation of the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Child Rearing Practice) Act 2020 in Queensland, Australia, demonstrates an attempt to construct a bridge between customary and formal adoption. This article puts the new Act in context by highlighting key differences between customary and formal adoption and identifying the practical consequences of failing to accommodate the former. The law reform proposals from elsewhere in the Pacific are reviewed and contrasted with the Torres Strait Islanders’ initiative, with a view to assessing whether any of these offers a transferable Pacific model.

The possibility of financial repercussions for Jewish husbands in England and Wales who refuse their wives a religious divorce (Get) has now been affirmed by the Court of Appeal. Recent private prosecution attempts have also explored the avenue of criminal sanctions for Get refusers. This article analyses the consequences of state compulsion by reference to sources of Jewish law and the effects of similar developments in the state of New York. It makes two claims. First, that unilateral state action is counterproductive because divorces procured by compulsion are generally considered to be invalid by the religious courts that supervise them. Secondly, that secular coercion is constitutionally problematic because it inevitably involves the determination of contemporary religious disputes. The unilateral approach is contrasted to a proposed collaborative model involving cooperation with Rabbinic authorities, which offers an avenue to achieve the same goal in at least some cases while avoiding the issues engendered by state interference in an inherently religious process.

This article addresses one aspect of the Law Commission’s proposed reforms to weddings law: the extent to which these proposals mitigate the negative effects of the current weddings law regime for minority religious individuals and better affirm their status as both bearers of rights and religious individuals. This article is divided into three parts. First, it identifies the interaction between equality, family and religious rights, providing a summary of the current law, the Commission’s key proposals and the impacts on religious minority communities. It argues that the formalities, as they exist, have direct and indirect discriminatory effects. The second part analyses the Commission’s nascent conception of equality and argues for an express, substantive and intersectional conception against which these proposals ought to be measured. It further outlines the system and reflexive concepts that ought to inform the proposals going forward. In light of this framework, the third part analyses the proposals as they relate to religious weddings. It identifies the overarching challenges of validity and anti-discrimination, both of which form key framing concepts, and two particular challenges, relating to the place of marriage and to the officiant.

The Family Court Murders: Four Murders. Five Bombings. No Convictions, Debi Marshall, reviewed by Leslie J Moran 87