The Privatisation of the Public Interest in Children
| Author | Andrew Bainham |
| Published date | 01 March 1990 |
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb01805.x |
| Date | 01 March 1990 |
LEGISLATION
The Privatisation
of
the
Public
Interest in Children
Andrew
Bainharn*
1.
Introduction
The public-private dichotomy is a pervasive theme in legal writing and has been viewed
by some as central to an understanding of the role of law in family life.’ Others have
doubted the validity of a rigid demarcation between public and private spheres of activity
and in particular the existence of a private, largely unregulated, area of family life.2 They
point out that the so-called private realm is heavily influenced by structures external to
it and that its boundaries are drawn up by the State. Thus, it is not naturally preconstituted
or beyond legitimate State regulation. The far-ranging and radical reform of both the public
and private law affecting children, which will be brought about by the Children Act
1989
(hereafter ‘the
1989
Act’), provides a timely opportunity for considering the place of children
in this public-private discourse.
Those who believe in a clear divide between the public and the private view the family
as a largely unregulated area beyond the reach of law, ‘the last outpost of
Gemein-
schuf”.3
There can be no doubt, at least in theory, that the nature of family privacy
imposes significant legal and political constraints on state intervention. Mnookin4 has
explained how, in the United States, there is broad agreement between Liberal Democrats
and Conservative Republicans that there are limitations on the power of the Government
to intrude into the family and that certain ‘private’ actions should be presumed to be beyond
legitimate governmental control. The consensus there breaks down only when it comes
to the definition of which activities should be considered to fall within this private sphere.
Liberal Democrats would include within it a broad range of personal activities concerning
,
inter
ah
,
sexuality, marriage and child-rearing
.
Conservative Republicans, in contrast,
emphasise the importance of the family for the stability of society and therefore regard
it as a primary social institution appropriate for legal regulation. Although there may be
sharp political disagreement about where the boundaries of the public and private are to
be drawn, the concept of family privacy
is
itself entrenched and legally protected under
the constitution. Parents and children have constitutional rights not to be subjected to
unwarranted state interference in their family life.5
In
Europe, similar interests are protected by the European Convention on Human Rights.
Article
8(1),
in particular, upholds the individual’s right to ‘respect for his private and
family life, his home and his correspondence.’ In the English domestic context, this meant
*Senior Lecturer in Law, University of East Anglia.
I
should like
to
thank Professor Stephen Cretney
for
his comments
on
an earlier draft.
See particularly Katherine O’Donovan,
Sexual
Divisions
in
Law
(London: Weidenfeld
&
Nicolson, 1985)
ch. 1;
and
M.D.A. Freeman, ‘Towards a
Critical
Theory
of
Family Law’ (1985) 38
Current Legal Problems
153.
See John Eekelaar, ‘What is Critical Family Law?’ (1989) 105 LQR 244, 254-258; and John Dewar,
Law
and the Family
(London: Butterworths, 1989) at 4-6.
O’Donovan,
op
cit
note
1
at
11.
Robert
H.
Mnookin, ‘The F’ublic/Private Dichotomy: Political Disagreement and Academic Repudiation’
(1982) 130
U
Pa
L
R
1429, 1430.
The right of privacy arises from the notion
of
substantive due process guaranteed by the
fifth
and fourteenth
amendments. There is extensive case law
on
the protection of family privacy from state intrusion. See,
for
examples:
Meyer
v
Nebrusku
242
US
390 (1923);
Prince
v
Mussachusens
321 US 158 (1944);
Wisconsin
v
Yoder
406
US
205 (1972).
1
2
3
4
5
206
The
Modem
Law
Review
53:2 March 1990 0026-7961
March
19901
Privatisation
of
Public interest in Children
that the child care legislation had to be reformed to ensure that parents and others were
accorded procedural rights, particularly in relation to access, where local authorities
attempted
to
take their children into compulsory care.6 A basic philosophy enshrined in
the 1989 Act is that the state’s role in the family is a primarily supportive one and that
it should not intervene at all unless it is necessary to do
SO.’
There is nothing in the
reformed legislation which contradicts (and a great deal which supports) the notion that
the family, and specifically child care, is an area which ought to remain unregulated by
law unless the need for regulation can be positively demonstrated.
Yet non-regulation or de-regulation is arguably as legally significant as regulation.
O’Donovan has criticised lawyers for failing to appreciate the importance of the private
sphere precisely because they have not grasped the essence of this.* The short point is
that the state has the necessary legal authority to regulate all aspects of family life. If
it chooses not to do
so,
this amounts to an endorsement of the status quo. According to
feminist theory, deliberate de-regulation of the family reinforces structural inequalities
between the sexes.9
The very susceptibility of the family to legal regulation may lead to
a
rejection of the
public-private dichotomy as a tool of analysis. In a recent article John Eekelaar’O shows
how, historically, the family was left substantially unregulated by law while it adequately
performed functions which were thought to be in the public interest. Specifically, the
legal protection of children came about initially because of the threat to the social order
posed by large numbers of vagrant children in the early nineteenth century. This legal
regulation was in effect a response to the failure of the family to operate as a ‘sufficient
mechanism of control.’” He concludes that where the family is properly meeting the
public interest the law plays only a small role in the definition or enforcement of societal
values. But, since the family is in this sense performing a public service, it is inaccurate
to view it as operating entirely outside the public sphere. Familial obligations, on the
contrary, ‘can be viewed as integral parts of the public law system as a whole’. It
may
thus be a mistake, according to this mode of analysis, to talk in terms of state intervention
in the family as if this were an unproblematic concept. Child-rearing may be seen with
equal justification as either a private matter, subject to state involvement only when public
norms are transgressed, or as a public matter in the sense that the task of giving effect
to the community’s standards and expectations for child-rearing is delegated to parents.
Each perspective according to Eekelaar, is equally valid and contradicts the existence of
a well defined public-private dichotomy. In his view, the concept of ‘the public interest’
is a more valuable tool in understanding family law and ‘the focus should be upon the
nature of the conception of the
public interest
current at any given time within a community
and not some presupposed classification which has small legal relevance’. His preferred
approach entails examination of ‘the process of transition from the perception that behaviour,
whether within the private or public realm, adequately serves the public interest without
the invocation of law to the conviction that the public interest demands
a
legal
response.
’I2
In
this note
I
shall attempt to apply Eekelaar’s analysis to certain aspects of the 1989
Act. It will be my contention that it is possible to observe the above process of transition
6
7
See for example,
H
v
United Kingdom
Series
A,
No
120 (1987).
The non-intervention principle derives from the
Law
Commission’s Report
Review
of
Child Law:
Guardianship
and
Custody
(1988),
Law
Corn
No
172 especially paras
3.2-3.4.
It is
now
contained in
s
l(5) of the 1989 Act.
op
cit
note 1 at 19.
This issue
is
discussed in section
3
below.
Recent suggestions that parents should be criminally liable for acts committed by their children below
the age of criminal responsibility is, perhaps, a modern manifestation of the same attitude.
op
cit
note
2
at 258.
8
9
10
op
cit
note
2.
11
12
207
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