Osman Unravels
| Published date | 01 January 2002 |
| DOI | http://doi.org/10.1111/1468-2230.00368 |
| Date | 01 January 2002 |
| Author | Conor A. Gearty |
Support, Pensions and Social Security Act 2000). Secondly, the court should ‘take
account’64 of any written agreement which, for the reasons rehearsed above, would
not stick per se: a curiously-complicating recommendation in a document which
bemoans the fact that,65 ‘it is not possible, from the existing legislation for the lay
person to get a clear view of what they (sic) can expect to receive on divorce’.
Thirdly, and when the first two things have been dealt with, ‘the court would then
divide any surplus so as to achieve a fair result, recognising that fairness will
generally require the value of the assets to be divided equally between the
parties’.66 So, coincidentally and independently, both Government (provisionally)
and court have come to the same two-point view about AFR. We suggest that
neither the House of Lords nor New Labour are doing much to reconcile fairness
with predictability67 in our discretion-based AFR system – and that such outcome
is more desirable than it is achievable.
Osman Unravels
Conor A. Gearty*
In the first volume in one of Enid Blyton’s finest series of stories, The Naughtiest
Girl in the School (1940), the unforgettable Elizabeth Allen faces a moral crisis.
She has committed herself to a course of action – leaving the school after half a
term – which she now realises to be both absurd and wrong-headed. The problem is
that she has loudly and publicly committed herself to it, and to recant would
therefore be to appear weak and foolish. In the pivotal scene, the little girl
considers her options while playing alone in the school grounds:
Elizabeth slowed down the swing and put her feet on the ground. She frowned and looked at
the grass. She had never thought so hard in her life. She spoke to herself sternly. ‘Elizabeth
Allen, you’re feeble! You’re a coward! .. . You aren’t strong enough to change your mind!
You’re proud and silly! Elizabeth Allen, I’m ashamed of you.’ Elizabeth spoke these words
to herself more sternly than anyone had ever spoken to her. She stopped for a moment,
thinking deeply. . . . ‘I’m stronger than I thought. I can change my mind! I will change my
mind! . . . [O]nly the strongest people [can] change their minds when they [see] they [are]
wrong – it [is] the feeble ones who [can’t]’
1
No one can accuse the European Court of Human Rights of being feeble in the
Elizabeth Allen sense.
64 ibid.
65 ibid.
66 ibid.
67 In excising the previous practice (in big money cases) ‘whereby the court’s appraisal of a claimant
wife’s reasonable requirements [had] been treated as a determinative, and limiting factor on the
amount of the award’ (n 3 above, per Lord Nicholls at 1579), it is arguable that the House of Lords
has emphasised fairness at the expense of predictability.
*King’s College London.
1 First published 1940. The quotation is from the Millennium edition: (London: Hodder Children’s
Books, 2000) 195–196.
January 2002] Z and others vUnited Kingdom
ßThe Modern Law Review Limited 2002 87
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