Incomplete Citizens: Changing Images of Post‐Separation Children

Published date01 November 2004
AuthorAlison Diduck,Felicity Kaganas
DOIhttp://doi.org/10.1111/j.1468-2230.2004.00519.x
Date01 November 2004
Incomplete Citizens: Changing Images of Post-Separation
Children
Felicity Kaganas
n
and Alison Diduck
nn
The image of the child as the victim of separation ordivorce is well-established in legal, socio-
legal and popular discourse.However, the authors argue,alongside this traditional image of the
child, there is a di¡erent image of the child emerging, that of the autonomous,responsible child.
This is apparent in academic discourse,pol icydocuments and legal pronouncements.This child is
included in the project of ‘remoralising’the family by building the ‘good’post-separation family.
The ‘good’ child of separation or divorce is responsible for safeguarding his or her own welfare
and is expected to make those choices that are assumedto best protect his or her best interests. In
order to ensure thatthe child makes the ‘right’ decisions, he or she,li kethe adults concerned, is the
target of education, information and therapeutic intervention. There is a blending of paradigms
in which the ideal child is both an autonomous social actor and a vulnerable object of concern.
INTRODUCTION
Many have observed that law’s constructions of families, parents and children are
constantly subject to change. The images of ‘good’ post-separation parents, for
example, that are currently discernible in law are very di¡erent from the images
promoted only 20 years ago.
1
These changes are not merely the result of changing
fashion or fad. Rather, law’s constructions adapt and respond to prevailing social,
political and economic conditions and, in turn, are implicated in policy and law
reform incentives designed to promote and entrench those constructions. The
images of ‘good’parents that populate laws discourse, therefore, are very close to
those apparent in the dominant discourse espoused by policy-makers and within
popularculture.Yet the new ideals embodied in these constructionsdo not neces-
sarily supplant the old in dominant discourse but may co-exist, albeit uneasily in
some cases, with them. And so, we see changing images of the‘good’post-separa-
tion family that take into account the newer political, sociological and cultural
ideals of individual responsibility, equality and negotiated £uidity alongside the
traditional ideals of family stability, familial roles and predetermined obligation.
2
n
Centre for the Studyof Law,the Ch ild and the Family,Dept of Law,Bru nelUniversity.
nn
Facultyof Laws,University College London.Weare grateful to Christine Piper, Shelley DaySclater
and the two anonymousreferees for their helpful comments on earlier versions of this paper.
1 C. Smart and B. Neale, Family Fragments? (Cambridge: Polity Press, 1999) 37^39, discuss the
importance of the Children Act 1989 as an experiment to promote ‘a new style of child-centred
post-divorceparenting’ (37);and se e also B.Neale and C. Smart,‘InWhose Best Interests? Theo-
rising Family Life Following ParentalSeparation or Divorce’ in S.Day Sclater and C. Piper(ed s),
Undercurrentsof Divorce(Aldershot: Ashgate,1999) in which they note the s hift in the1980s in legal
and political discourse fromthe ‘lone/reconstitutedfamily’to the ‘co-parenting, biologicalfamily’.
2 A. Diduck, Law’sFamilies (London: ButterworthsLexisNexis,20 03). H.Reece, Divorcing Respon-
sibly(Oxford: Hart, 2003)regards changes in political and legal ideals of autonomy and responsi-
ble behaviour as evidence of a shift to post-liberali sm, in which the post-liberal subject exercises
rThe Modern LawReview Limited 2004
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2004) 67(6) MLR 959 ^981
In general, it has been the adults in the family who have been targeted in the
drive to ensure that these ideals are realised. Law and policy-makers alike have
undertaken the task of impressing on parents their duty to arrange their post-
separation family lives in a way that conforms to the image of the ‘good’ post-
separation family,one in which parents areexclusivelyconcernedwith the welfare
of their children and who therefore co-operate in sharing time with and respon-
sibility for them. Reece, for example, suggests that in the ‘good’ divorce, couples
become ‘divorced to each other not divorced from each other; divorce is not the
destruction of the nuclear family but the creation of the bi-nuclear family, and so
a potential growth experience for the extended family’.
3
And it is not simply a
matter of imposing these norms of continuing and co-operative parenting. Aca-
demic writing has not only identi¢ed the images of ‘good’ fathers and ‘good
mothers that are being purveyed, but it has also observed the ways in which par-
ents have been co-opted intothe project of becoming those parents, of making those
good’ post-separation families,
4
which are to resemble as closely as possible the
‘intact’ family.
Unlike his or herparents, the child of the family traditionally has not been the
focus of such legal or policy strategies.The image of the post-separation child, it
has been observed, is that of victim.
5
This child is an object of concern, is passive,
vulnerable, and always at risk. He or she is at the mercyof the vagaries of parental
conduct and so, in this accou nt of the ‘broken home’, it is the parents alone who
are charged with the responsibility of alleviating that risk by making the good
post-separation family.
In this paper, however,we suggest that evidence is emerging of a metamorpho-
sis in this dominant image of the child. It seems thatwe may be seeing the genesis
of a new concept: the‘good’post-separationchild. This child is no longer simply a
victim, but is one who, like his or her parents, has an important role to play in
shaping the post separation/divorce life of the familyand thus has some responsi-
bility for the consequences of separation or divorce.The change may re£ect that
which Reece has describedas ‘o⁄cial government policy’
6
promoting post-liberal
responsibility, but because the autonomy of thechild subject cannot be expressed
in the same terms as that of the adult subject, it also appears to re£ect a combina-
tion of modern and traditional mythologies incorporatedinto the discourse about
families. In consequence, there is a paradox inherent in this new image of the
child. The traditional child of divorce or separation, who is vulnerable and
the passive victim of his or her parents’ choices, must also ful¢l the role of the
modernchild, who shares responsibility for him-orherself.The child, then, bears
his or her autonomy and freedom through re£ection, deliberation and participation so as to
achieve self ful¢llment and serve the public good. Hendrick in turn identi¢es what he refers to
as ‘neo-liberal governance [which] puts the emphasis on individuals bei ng responsible for their
actions and communities’ (H. Hendrick, ChildWelfare.Historical Dimensions, ContemporaryDebate
(Bristol:The Policy Press, 2003) 225^226.
3 Reece,n 2 above,159.
4 Smart and Neale, n1 above;C. Smart,TheT|esThat Bind (London: Routedge,1984); C. Piper,The
Responsible Parent: A Study in Divorce Mediation(Hemel Hempstead: HarvesterWheatsheaf, 1993).
5 See for example Piper ibid; C.Piper,‘Divorce Reform and the Image of the Child’(1996) Jof Law
and Society 23^36.
6 Reece,n 2 above,179.
Changing Images of Post-Separation Children
960 rThe Modern LawReview Limited 2004

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