'Michael Freeman and Domestic Violence' in
Law in Society: Reflections on Children, Family, Culture and
Philosophy, Helen Reece, Noam Peleg, Alison Diduck eds. (Brill,
2015)
'Debating Rape Myths' Law Society and Economy
Working Paper Series, WPS 21-2014 December 2014
In a recent article, I argued that the regressiveness of
current public attitudes towards rape has been overstated, suggesting that, to a
troubling extent, we are in the process of creating myths about myths. The
article itself and the arguments contained within it have provoked various
responses from feminists. While these responses proceed at times on the basis of
misunderstandings or misinterpretations of my argument, they are helpful both in
clarifying areas of disagreement and in underscoring some important points of
agreement - at times explicitly by accepting, and at other times implicitly by
leaving unchallenged, some of my core claims. In what follows, I aim to point
out the misunderstandings or misinterpretations, and to clarify both the areas
of assent and the areas of dissent in an attempt to move us towards the
productive public conversation we believe we want.
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'Leaping without looking' in Robert Leckey ed., After
Legal Equality: Family, Sex, Kinship (Routledge 2014) pp.115-133
‘The pitfalls of positive parenting’ (2013) 8(1) Ethics
and Education pp.42-54
Contemporary official parenting advice about disciplining
children can be boiled down to ‘Be nice’. I first expand on this claim, drawing
on primarily Birth to Five and secondarily Parentchannel.tv, showing that ‘Be
nice’ breaks down into the absence of punishment and the expansion of both
positive reinforcement and leading by example, these three components comprising
an approach that is popularly described as positive parenting. Second, I examine
the ways in which such apparently innocuous advice could be damaging: positive
parenting is arduous if not impossible, thereby setting parents up to fail, and
partly because of this onerousness, it is arguably destructive of the
spontaneity of the parent–child relationship. However, the difficulties of
upholding a whole-heartedly spontaneous approach to parenting have led critics
to endorse a model of the good parent as the reflective parent, and in
conclusion I warn that this is just as coercive as the positive parenting model
that it is designed to replace.
'Rape Myths: Is Elite Opinion Right and Popular Opinion
Wrong?'
Oxford J Legal Studies (2013) pp.1-29
England and Wales have recently experienced wide-ranging rape
law reform and a galloping rape reporting rate but no comparable increase in
rape convictions, leading many erstwhile law reformers to turn attention to
attitudes. In essence, their argument is that reform has proved relatively
ineffective because a range of agents hold ‘rape myths’. Despite the broad
consensus that this approach has attracted, I argue that the regressiveness of
current public attitudes towards rape has been overstated. The claim that rape
myths are widespread may be challenged on three grounds: first, some of the
attitudes are not myths; secondly, not all the myths are about rape; thirdly,
there is little evidence that the rape myths are widespread. To a troubling
extent, we are in the process of creating myths about myths. This process
functions to close down, not open up, the possibilities of a productive public
conversation about important and at times vexed questions.
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'“Unpalatable Messages”? Feminist Analysis of United Kingdom
Legislative Discourse on Stalking 1996–1997' (2011) 19(3) Feminist Legal
Studies 205-30.
North American scholarship has charted resonances between 1990s
legislative and feminist discourse concerning violence against women. Feminist
critique of official discourse surrounding the Protection from Harassment Act
1997 suggests that 1990s resonances did not reach the UK: however, an
examination of the Hansard debates suggests this under-estimates the influence
of feminist discourse. Halley’s discussion of “bad faith” helps to explain both
the tendency of feminists to under-estimate their influence and why this
matters. A commitment to an understanding of themselves as powerless may
encourage feminists to underplay similarities between feminist and official
discourse, leading feminists to find only what they expect. Such an
understanding gives feminism the capacity to change social life without
acknowledging, let alone agonising over, the full range of its distributive
effects. This is most troubling in relation to “carceral” feminism, since
under-assessment of feminist impact encourages amplification and intensification
of the carceral message.
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'"Bright line rules may be appropriate in some cases, but not
where the object is to promote the welfare of the child". Barring in the best
interests of the child?' C.F.L.Q. 2010, 22(4), 422-448.
In Re P (Adoption: Unmarried Couple) [2008] UKHL 38, [2008]
2 FLR 1084 the House of Lords held that a bar on adoption by unmarried
couples is unlawful discrimination contrary to Article 14 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms 1950
(ECHR). In R v Secretary of State for Health and Kent County Council, ex p B
[1999] 1 FLR 656, the High Court found that a bar on fostering by convicted
sex offenders is lawful. In what follows, I argue that the reasoning in Re P
applies mutatis mutandis to individuals such as those in ex p B prevented from
adopting or fostering under vetting and barring schemes, the most prominent
being the scheme introduced by the Safeguarding Vulnerable Groups Act 2006. I
first consider various ways in which such individuals could bring themselves
within the grounds protected by Article 14, and I argue that 'sex offender'
itself could be a protected status, because sex offenders have the personal
characteristic of 'risk'. I next analyse whether the bar on adoption and
fostering, and vetting and barring schemes in their entirety, would fall within
the ambit of a substantive Article of the ECHR, and I conclude that the whole
Safeguarding Vulnerable Groups Act scheme would come within the scope of Article
8. Finally, I consider whether the bar on adoption and fostering by risky
individuals is objectively justified, and I conclude that the argument that
convinced the House of Lords in Re P applies equally in this context: it is
impermissible to turn a reasonable generalisation into an irrebuttable
presumption for individual cases, given the duty to treat the best interests of
the child as paramount.
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[nb. search by article title]
'Parental Responsibility as Therapy' (2009) Family Law
1167
'The Degradation of Parental Responsibility' in Rebecca
Probert, Stephen Gilmore and Jonathan Herring (eds), Responsible Parents and
Parental Responsibility (Hart Publishing, 2009)
This
book examines the idea of 'parental responsibility' in English law and what is
expected of a responsible parent. The scope of 'parental responsibility', a key
concept in family law, is undefined and often ambiguous. Yet, to date, more
attention has been paid to how individuals acquire parental responsibility than
to the question of the rights, powers, duties and responsibilities they have
once they obtain it. This book redresses the balance by providing the first
sustained examination of the different elements of parental responsibility,
bringing together leading scholars to comment on specific aspects of its
operation.
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'Feminist Anti-violence Discourse as Regulation' in Shelley
Day Sclater, Fatemeh Ebtehaj, Emily Jackson and Martin Richards (eds),
Regulating Autonomy: Sex, Reproduction and Family (Hart Publishing, 2009) pp
37-51
These
essays explore the nature and limits of individual autonomy in law, policy and
the work of regulatory agencies. Authors ask searching questions about the
nature and scope of the regulation of 'private' lives, from intimacies, personal
relationships and domestic lives to reproduction. They question the extent to
which the law does, or should, protect individual autonomy. Recent rapid
advances in the development of new technologies - particularly those concerned
with human genetics and assisted reproduction - have generated new questions
(practical, social, legal and ethical) about how far the state should intervene
in individual decision making. Is there an inevitable tension between individual
liberty and the common good? How might a workable balance between the public and
the private be struck? How, indeed, should we think about 'autonomy'?
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'The Autonomy Myth: A Theory of Dependency' (2008) 20 Child
and Family Law Quarterly 109-124 (Review article)
'UK women's groups' child contact campaign: 'so long as it is
safe'' (2006) 18 Child and Family Law Quarterly 538-61
In this article, the author
demonstrates that, during their recent child contact campaign, UK women's groups
concentrated on violence-based feminist critiques of child contact to the
exclusion of autonomy-based critiques. While the author recognises that this
focus had a clear rationale and led to concrete successes, she argues that it
damaged mothers' interests by creating two mutually exclusive types of mothers
involved in child contact disputes, the domestic violence victim and the
unreasonable mother. The author suggests two explanations for women's groups'
exclusive concentration on domestic violence: first, a search for consensus;
and, secondly, a feminist definition of domestic violence. However, the author
concludes that there is a tension between the women's groups' demand for the law
to treat domestic violence as more determinative in contact disputes and their
demand for the law to adopt a feminist interpretation of domestic violence:
women's groups are using safety as a stand-in for autonomy, to the detriment of
all mothers.
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'The End of Domestic Violence' (2006) 69 Modern Law Review
770-91
In this article, I examine the rationales that have been given
for extending domestic violence legislation to associated persons. I argue that
the empirical and principled rationales are unfounded and that the ideological
rationale is reactionary. With regard to the empirical rationale, the extent of
violence that the aggregate of associated persons suffers is not high enough to
justify privileging associated persons over other citizens with regard to
protection from violence. In relation to the principled rationale, the impetus
for domestic violence legislation was based on isolation and inequality, which
are not experienced in particular by the category of associated persons when
taken as a whole. With regard to the ideological rationale, it is worrying that
intimacy and equality are emerging as the touchstones of a newer rationale for
domestic violence legislation, which rightly has more to do with isolation and
inequality than intimacy and equality.
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'From Parental Responsibility to Parenting Responsibly' in
Michael Freeman (ed), Law and Sociology: Current Legal Issues (Oxford
University Press, 2006), pp 459-83
'Divorcing Responsibly' (2000) 8 Feminist Legal Studies
65-91
In this article I argue that Part II of the Family Law Act 1996
gives expression to a new form of responsibility. I begin by suggesting that
responsible behaviour has shifted from prohibiting or requiring particular
actions: we now exhibit responsibility by our attitude towards our actions. I
then examine where this new conception of responsibility has come from. Through
an examination of the work of post-liberal theorists, principally Michael
Sandel, I argue that a changing view of personhood within post-liberal theory
has led to a questioning of the possibility of choice, and that the absence of
choice necessitates a shift in the definition of responsible behaviour. If we
are created by our decisions then we cannot be held to account for our
decisions, but only for the care we have taken over them. Responsibility is
therefore measured not by our level of self-control but by our level of
self-awareness. Finally I examine the consequences of this shift in the meaning
of responsibility. Within this framework autonomy is illusory therefore
decisions do not need to be respected. This explains why the implementation of
Part II of the Family Law Act 1996 has been called into question. Within this
framework responsibility is relative therefore it extends indefinitely. This
enables the Family Law Act to be uniquely intrusive and judgmental: every
divorcing couple, on being held up to scrutiny, is found lacking.
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'Divorcing the Children' in Jo Bridgeman and Daniel Monk
(eds), Feminist Perspectives on Child Law (Cavendish, 2000), pp 85-106
Feminist Perspectives on Child Law is a collection of
interdisciplinary socio-legal essays which explore the complex relationship
between childhood,gender and the law. Drawing on a wide range of feminist and
critical theories and empirical research, these original essays challenge the
gender neutrality of law; they explore the shifting constructions of childhood
by law, legal practice and popular culture; and they provide critical and timely
insights into the complex relationship between adults and children.
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