What is a ‘Normal’ Family? C v C (A Minor) (Custody: Appeal)

Published date01 March 1992
Date01 March 1992
DOIhttp://doi.org/10.1111/j.1468-2230.1992.tb01876.x
March
19921
What
is
a
‘Normal’
Family?
short, the criminal courts should have almost no need to concern themselves with
these complex civil law matters.21
There is, however, one situation where the courts might still be called upon to
have resort to the civil law. Let us assume (as is perhaps arguable) that in
Kuur
there was no fraudulent misrepresentation.22 This would surely have been a
unilateral mistake as to quality and, accordingly, would have had no bearing on
the validity of the contract at all.23 Property would, therefore, have passed and the
contract could not be rescinded when the error was discovered. If it were held that
an appropriation occurred at this later stage, the defendant would be appropriating
her own property and therefore not guilty of theft.24 Accordingly, this new
approach might still require an investigation to decide whether a contract was valid
or voidable (to ascertain whether it could be rescinded, revesting property in the
other), but at least it would no longer be necessary to decide whether it was void
or voidable. Further, it is important to remember that a contract will only be
unimpeachable if there has been no fraudulent misrepresentation; in such an event,
it will be unlikely that dishonesty could be established.
It is to be hoped that, despite perhaps inevitable difficulties,
Morris
and
Gomez
will be followed. The defendant in
Lawrence
should have been charged with obtaining
property by deception. In
Philippou,
it was company law offences that should have
been employed.25
Dobson
was plainly a policy decision to ensure that the plaintiff
recovered his loss.
To
allow such ‘rogue’ cases to shape the development of the
law of theft would be an absurdity. It was thought that
Morris
had, for most practical
purposes, killed off
Lawrence.
This clearly was not
so,
but
Gomez
does raise the
hope that the final demise of
Lawrence
and its progeny is not far off.
What is a ‘Normal’ Family?
C
v
C
(A
Minor)
(Custody:
Appeal)
Susan
B.
Boyd”
A recent English Court of Appeal decision on lesbian parenting demonstrates the
continuing importance of developing a critique of dominant notions of ‘the family,’
albeit one which is sensitive to the ways in which diverse familial forms have been
treated differentially in Western states such as England. Feminist critiques of the
oppressive nature of the idealised heterosexual nuclear family, once
so
forceful,
21
Especially when they tend to get the civil law wrong.
In
Williams,
the effect of the boy’s fraudulent
misrepresentation was surely
to
render the contract voidable and not void. It is generally accepted
that in the notorious case of
Gilks
[1972]
1
WLR
1341,
the court misapplied the civil law (R. Heaton,
‘Belonging to Another’
[I9731
CLR
736).
She would be unlikely to be under a positive duty to make a declaration as to the different prices
on the shoes.
See Cheshire, Fifoot and Furmston’s
Law
of
Contract,
1
Ith ed, pp
234
er
seq.
My thanks to my
colleagues Keith Stanton and John Parkinson for their help
on
this point.
Unless the property could be deemed to belong
to
the other under
s
5(4)
of the Theft Act
1968,
because
the defendant was under an obligation to make restoration of the property.
eg
s
458
of the Companies Act
1985.
22
23
24
25
*Associate Professor, Department of Law, Carleton University, Ottawa, Canada
K
IS
5B6.
Many thanks to Julia Brophy, Peter Fitzpatrick, Didi Herman and Claire Young for their comments on
an earlier draft.
269

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