Alison Diduck, Professor of Law, Faculty of Laws, University College London
Keywords: Autonomy - ADR - justice
Family law's promotion of autonomy and its 'settlement mission' have combined to create an imbalance between public and private justice in the family justice system. In the new system autonomy has become more than simply one aspect of justice, to be considered alongside, for example, fairness, equality and the rule of law; it is becoming the very essence of family justice. I explore here how the idea of autonomy-as-justice is expressed in two ways in the new family justice system. The first is structural and procedural. It relates to the creation of an autonomous system of dispute resolution that includes mediation, arbitration and provision of information hubs. This autonomous system marginalises formal law and legal principle and prioritises only autonomy; it runs parallel with and separate from the formal system. The second expression relates to assumptions about the type of autonomy that must be activated and permitted to flourish in family justice. It is an impoverished and gendered conception of autonomy that is unrealistically opposed to an equally impoverished and gendered concept of vulnerability. I suggest that these two expressions of autonomy-as-justice may have the effect of re-constructing the problematic divide between public and private that feminist critics and judicially developed principle successfully challenged in family law years ago.
This article was published in Child and Family Law Quarterly in Issue 2, Vol 28, Year 2016. The final published version of this article was made publicly available here 24 months after its publication date, under a CC-BY-NC licence.2016_02_CFLQ_133.pdf