Child Maltreatment in Diverse Households: Challenges to Law, Theory, and Practice
| DOI | http://doi.org/10.1111/j.1467-6478.2008.00415.x |
| Date | 01 March 2008 |
| Published date | 01 March 2008 |
| Author | Julia Brophy |
JOURNAL OF LAW AND SOCIETY
VOLUME 35, NUMBER 1, MARCH 2008
ISSN: 0263-323X, pp. 75±94
Child Maltreatment in Diverse Households:
Challenges to Law, Theory, and Practice
Julia Brophy*
In the United Kingdom relatively little attention has been paid to `race'
and racism and the role of cultural, religious, and linguistic diversity
in care proceedings. This paper will look at the background, law, and
guidance on diversity in this field and explore the impact of notions of
diversity in evidence before the courts. It will look at their relevance in
allegations of `significant harm' to children and failures of parenting,
and the coverage of diverse backgrounds in expert reports and parents'
statements. It will argue that while there is no evidence that the
threshold criteria for a care order require reassessing, there is room
for considerable improvement in attention to issues of diversity in
evidence and in the experiences of parents attending court. The paper
will explore the implications of the studies for theorizing law and the
duties of the state and look at notions such as cultural relativism and
concepts imported from cultural anthropology for determining
culturally acceptable parenting. It will highlight problems with these
approaches and demonstrate why `paradigms of intersectionality' is a
more useful and robust approach.
75
ß2008 Crown Copyright. Editorial organization ß2008 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Centre for Family Law and Policy, University of Oxford, Department of
Social Policy and Social Work, Barnett House, 32 Wellington Square,
Oxford OX1 2ER, England
julia.brophy@socres.ox.ac.uk
This paper is based on a keynote lecture for an international conference on `100 Years of
Child Protection' in Amsterdam, to be included in a forthcoming conference book of the
same title edited by Meuwese et al. I would like to acknowledge the significant
contribution to aspects of this work by Dr Jagbir Jhutti-Johal, Charlie Owen, and Eleanor
Macdonald. Thanks are also due to Advisory Groups for the studies, and to the Nuffield
Foundation as funders of two earlier studies.
INTRODUCTION
The research outlined below is drawn from a stream of work in England on
issues of `race', ethnicity, religion, and linguistic and cultural diversity in
care proceedings.
1
I will however preface discussion of these findings with
some points about `law' and child maltreatment in diverse households.
First, states within the European Community have different approaches to
`multi-culturalism' and issues of integration/`assimilation' of new and
indeed long-established minority ethnic communities. Moreover, variability
in approaches to diverse populations is made more complex by recent
demographic and political changes, shifts in immigration and asylum policy,
and a resurgence of notions of what constitutes `citizenship' in member
states.
Second, outside of Europe we know comparatively little about child
protection in diverse communities.
2
Practices discussed below, therefore,
represent only one (common law) jurisdiction (England) and it may have
taken a different approach in this area to other jurisdictions. Globalization
and EU enlargement mean that states address increasingly diverse popula-
tions where lifestyles, values, and attitudes towards children and family life
differ. The degree of variability within and between communities regarding
core child protection issues remains unclear. Nevertheless, these develop-
ments require us to question the role and responsibility of the state in
addressing difference (for example, in legislation and guidance), and
consider how courts and others implement policies.
Courts address thresholds of harm and risk within the framework of the
European Convention on Human Rights (ECHR)
3
but while still prioritizing
the needs of all children to be protected from maltreatment.
I begin with some concerns underscoring my research in this field. I will
then briefly outline relevant law and guidance to demonstrate how concerns
about `race', ethnicity, culture, and religious and linguistic diversity have
informed legal and welfare policy in England and Wales. A discussion of
findings from two studies on care proceedings in diverse settings in England
will follow. Finally, I will explore the implications this work has for law and
legal discourse, notions of multi-culturalism, and issues of racism.
76
1 The Department for Constitutional Affairs (DCA), now the Ministry of Justice (MoJ),
utilizes the term `diversity' to encompass these issues. There are concerns that, as
shorthand, this term risks `sidestepping' issues of racism. The term is used here as
`shorthand', but in terms of empirical data and theoretical issues a focus on cultural/
religious diversity ± and race and racism ± is retained.
2 See J. Brophy, `Building Bridges in changing Worlds: Messages from International
Child Maltreatment Research' (2005) 17 Representing Children 116, and J. Brophy,
`Diversity and child protection' [2003] Family Law 674.
3 See, especially, Articles 6 (right to fair trial) and 8 (right to respect for family life).
ß2008 Crown Copyright. Editorial organization ß2008 Cardiff University Law School
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