Family law.

The law itself provides very little statutory guidance on what a family is and up until the House of Lords ruling in Fitzpatrick v Sterling in 2000, there was even less up to date case law broaching the matter.  In the few Scottish legislative provisions that have attempted a definition of family, Kenneth Norrie points out that the definition either allows for a wide interpretation as in the Children (Scotland) Act 1995 where under s93(1) family in relation to a child, includes any person who has parental responsibility for the child and any other person with whom the child has been living.  Alternatively there is a narrow definition as found in the Rent (Scotland) Act 1984.  This allows the members of the deceased’s ‘family’ to succeed to a protected tenancy.  The similar situation arises in England and Wales by virtue of the Housing Act 1980.  The ambiguity surrounding the definitions means that in order to obtain a definition of family, they have to be read in light of the statute that they are contained in and this has usually meant that the definition of family has been construed in a restrictive context and thus has become rather ‘heteronormative’.  The inability of the legislature to explicitly adapt any definition wide enough to catch most relationships, has caused disarray amongst some.  This has been reflected in the few cases that have been heard in court.  Maybe only a minority but they still highlight the inadequacies of the present day legal interpretation of family.

 

In the case Dyson Holdings Ltd v Fox it was  recognised through judicial definition that ‘family’ could be extended beyond marriage but it was not until the case of Fitzpatrick v Sterling that this notion was once again challenged resulting in the same-sex relationship being allowed recognition in a family context. The case concerned the Housing Act 1980, which permits a public sector tenancy to be signed over to a tenant’s spouse or family member.  The Act defines a tenant’s spouse as either a person who was married to the tenant or who lived with the tenant as husband or wife.   This definition was worded in such a way as to exclude same-sex partners although the government in following years did give out guidance to local authorities suggesting that this principle could be flexible where there was evidence of a long-term relationship.  In this case Mr John Thomson, who was tenant of a flat cohabited with his partner Mr Fitzpatrick up until his death in 1994.  Mr Fitzpatrick on his partner’s death applied for a declaration to allow him to succeed to the tenancy under the Rent Act 1977.  Under the Act a person could only succeed if he was “living with the original tenant as his or her wife or husband” or was a “member of the original tenant’s family… residing with him in the dwelling house at the time of and for the period of two years immediately before his death”.  In the Court of Appeal it was held that Mr Fitzpatrick did not qualify under the schedule so therefore his claim failed.  In the House of Lords the claim under paragraph 2(2) was rejected but they decided by a majority of three to two that Mr Fitzpatrick was in fact a member of Mr Thomson’s family for the limited purposes of the Rent Act.  In his dissenting judgement Ward LJ professed that ‘The question is more what a family does than what a family is.  A family unit is a social organisation which functions through linking its members closely together.  The functions may be procreative, sexual, sociable, economic, emotional.  The list is not exhaustive.  Not all families function in the same way.’  The functional approach of the House of Lords is very similar to the approach outlined in Child and Family in defining a family and thus would fit in with the view that the definition of family is moving away from the restrictive notion of the nuclear family.  This ruling may have been seen as a break-through for same sex partnerships but in reality the interpretation of family given as emphasised by the majority was only confined to the context of the Rent Act and within that context purposive.  As Rebecca Bailey-Harris states ‘it would be quite wrong to treat this decision as binding authority for the interpretation of “family” in other statutes, where it may be given a wider or narrower meaning’.  So even though a definition of family seemed to at last extend to same sex relationships it seems only to have been ‘a response to the specific facts of the case, without creating a wider precedent’.  In his article, Kenneth Norrie regards the Fitzpatrick case as of being of ‘fundamental importance’ as it is the first time that a same–sex couple has been held to be a family by the House of Lords.  He believes that this case ‘consigns the concept of a “pretended family relationship” to the dustbin of history’ and along with other decisions in Supreme Courts around the world, this will hopefully prompt a much-needed change.  A year after the judgement in Fitzpatrick, the Housing (Scotland) Act 2001 was passed amending the Housing (Scotland) Act 1987 and under section 108 a person in a same-sex relationship can be considered as a member of their partners’ family.  This move towards same-sex recognition in a family context seems to be gaining more prominence as time goes on and no more so than in the Constitutional Court of South Africa,  where Justice Ackermann stated in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs  gays and lesbians “are capable of constituting a family, whether nuclear or extended, and of establishing, enjoying and benefiting from family life which is not distinguishable in any significant respect from that of heterosexual spouses”.  In light of this, it is a fundamental objective of a definition of family to extend to homosexual couples.  Though not spouses, same sex couples constitute a family in terms of the mutual support, financial dependence and the sexual and emotional relations shared.

The introduction of the Human Rights Act 1998 has allowed citizens by virtue of Article 8 of the European Convention of Human Rights, the right to respect for his private and family life, his home and his correspondence.  In relation to the definition of a family ‘the European court and Commission of Human Rights devotes much jurisprudence to defining ‘family life’ as opposed to “family” per se’. What constitutes family life is not entirely determined as ‘neither (the European Court and Commission of Human Rights) seeks to adopt a comprehensive regional or universal definition of family or family life’.  It has however been noted that ‘the concept of the family in the ECHR jurisprudence is very narrow and traditional, albeit with some recognition of relationships outside of marriage, particularly where they are closely assimilated to marriage’.  A relationship between a mother and a child will always amount to ‘family life’ but in relation to an unmarried father and his child, the courts will look at a number of factors to determine whether it exists.  It appears that states are afforded a reasonably wide margin of appreciation, allowing them to maintain distinctions in law between the rights and entitlements of married and unmarried fathers, thereby emphasising the privileged state of marriage. ‘Family life is essentially a question of fact rather than of genetics’.  With regard same-sex relationships, the European Commission held in the case of X. and Y. v. United Kingdom that relationships of that type qualified as ‘private life’ but did not fall within the scope of the right to respect of ‘family life’ under Article 8 of the European Convention .  The reasoning behind the decision was that the ‘European Commission considers that the family merits special protection and therefore the difference in treatment is objectively and reasonably justified’.  Geraldine Van Bueren rejects such a notion and believes that ‘the denial of equality of treatment to non-procreational relationships appears perverse’.  The unwillingness of the European Commission to recognise same-sex relationships as family life may be detrimental to the on going quest to establish equality for all.  However as Norrie observes ‘the distinction between “private life” and “family life” in art 8 ECHR is, in any case, less important than the fact that the protection given by the article must be afforded in a non-discriminatory fashion’.  In the fundamental case of Salgueiro da Silva Mouta v Portugal, the Portuguese court in deciding custody, had made a preference for the heterosexual mother against the homosexual father.  The European Court expressly held that sexual orientation fell within art 14 ECHR and thus any person treated differently with no real objective or rational justification for it because of their sexuality could be in breach of the article.  This could lead to legally complex consequences within the UK  with  courts having to interpret phrases like “living together as husband and wife” with reference to whether the Parliament intended to include or to exclude same-sex couples and ‘whether an inclusive or an exclusive definition most closely consists with the non-discrimination requirements of the European Convention’.   Given the strong public interest in avoiding discrimination, a reasonable government definition of ‘family’ would abandon the primacy of the nuclear family, incorporating the diverse rejection of society.

Referring back to Fitzpatrick, Lord Slynn regarded the term family as one that could encompass many different meanings depending on the context and whether it was construed narrowly or widely was dependant on what context it was eventually used in.  This view is echoed by Lynn Wardle who states that in law ‘ the meaning of family is not unitary’ and its definition is dependant on legislative intent.  If Fitzpatrick marks a much awaited change in public more, can it then be used as a template in which family can be defined?  Kenneth Norrie believes that the dicta in the case has clear implications far beyond the Rent Acts but as the case was decided by a three to two majority it signals that there is still some adversity towards the subject.  In the case a functional approach to defining a family was adopted and in some respects problems could arise by defining a family by what it does.  Lord Clyde’s dictum defined a family relationship by blood or marriage or a bond of love and affection yet in the case of Carega Properties SA v Sharratt,  there was evidence of devotion and commitment but no sexual activity and the heterosexual couple were held not to be a family.  If  sexual activity is a requirement in the definition of family discussed in Fitzpatrick then it still would lead to discrimination but this time against long term companions.  Again, this moves to eliminate an increased section of society from a definition of family.

Having approached the few varying definitions of family encompassed in today’s society, it is difficult to conceive one particular conclusion that could command absolute support therein.  In order to create a definition that would warrant the acceptance of society, two prominent conflicting issues would have to be balanced; those of tradition and those of the ever increasing recognition of contemporary citizen rights.  

Society’s beliefs and accepted practices are rapidly changing and even though Kenneth Norrie believes ‘outmoded bigotries and prejudices together with the spurious moralities upon which they are based are being jettisoned from the law’ there is still a great proportion of society who are adverse to change.  On analysis of the definitions of family in the latter stages of this investigation, two juxtaposing notions of a family were conveyed. The first one being described as ‘clearly-defined’ provides for the blood or marriage connections in a family thus promoting the desire to keep the family definition within the realms of marital conduct.  

Historically family law originated not through the courts and secular lawmakers but through the ecclesiastical church and was under the jurisdiction of Canon Law.  This strong connection between religion and family law has survived and is attributable to the strong moral values that exist to this day amongst a greater proportion of society.  It may be thought by some that it is appropriate then to keep the definition of family contained within this moral setting through a marital relationship. With the ever prominent increase of non-marital relationships, it could be argued has come a marked decrease in social stability and thus by conferring ‘greater rights on the unmarried couple would undermine marriage’. The Office of National Statistics projects that by 2021 there will be nearly three million people cohabiting and yet it has been observed that the fluctuating and fragile nature of this relationship means that it is perhaps not the best environment to raise children in.   Marriage is still regarded as being the most suitable framework to raise children as it appears that even if the marriage ends in divorce it still last longer than cohabitations does.  On estimation, only 48% of cohabiting couples still live together five years after the birth of their child compared with 92% of married couples.  In an article published in the Times Newspaper this every growing trend is highlighted with the author pointing out that it may be socially acceptable to have children outside wedlock but marriage still provides the most secure environment for children.  Similarly in the Government Consultation document ‘Supporting families’, the government share the belief of the majority of people that marriage remains the most reliable framework for raising children.  The belief that a family should only be identified within marriage was echoed in the dissenting judgements in Fitzpatrick v Sterling where Lord Hutton claimed that a family must always have the characteristics of a ‘de jure’ family. From both Lords Hutton and  Lord Hobhouse’s judgements, it was clear that they equated marriage with family and no alternative would suffice.  Similarly Peter Duckworth conveys his belief in his article that by recognising same-sex and cohabiting couples this would ‘irrevocably undermine’ the supports that sustain marriage and ‘a society that sanctions extra-marital sex has lost the moral authority to reprehend adultery’.   In his article he observes how the majority perceived the decision in Fitzpatrick to be a reflection of the change in public opinion.   He refers to a National Survey of Sexual Attitudes and Lifestyles which showed that 50% of men still believed that sex between two men was always or mostly wrong.  If equating that percentage to the general population then it could be that society is not actually ready for such an acceptance of same-sex relationships and limiting the definition of family could be appropriate. Lords Hobhouse and Lord Hutton were opposed to the idea that public opinion had evolved to such a stage that homosexual couples were commonly regarded as family.  By accepting a narrow notion of family which in other words banishes the same-sex relationship from its realms and thus promoting ‘a particular moral or religious view of personal relationships at the expense of others’ would satisfy the religious and traditionalists in society but would ultimately ostracise many.  The protection of a person’s human rights has been a fundamental break through in society but as noted previously the European Commission has still decided to keep same-sex relationships out with the definition of family life. It believes the difference in treatment is justified in order to provide the family special protection that it feels it rightly merits.

Perhaps instead of trying to define what a family is, it might actually be easier to clarify what a family is not.  Peter Duckworth relays a dictum by Russell LJ in Ross and Another v Collins in which he says ‘But two strangers cannot, it seem to me, ever establish…. a familial nexus by acting as brothers or as sisters, even if they call each other such and consider their relationship to be tantamount to that…. Nor, in my view, would they indeed be recognised as familial links by the ordinary man’.  It is clear in this opinion that Russell LJ believes that a family cannot be formed by any two people who though  possess some common features or are united by a common interest, are not related through blood or marriage and indeed do not share the functions of a recognisable family arrangement.

It is relatively clear that it is impossible to secure a definition of family that would command absolute support in society. The definition could have a multitude of answers depending on what circumstance it is being dealt with. Whether it be the nuclear family which discriminates against cohabitants or the functional definition that could possibly discriminate against the sexually inactive in society, it is quite clear that the law is rather illogical in its interpretation of family and this may be due to the ‘growing uncertainty about the place of the formal family in our hierarchy of national value’.  

In conclusion, this view that the definition of family should only encompass marriage or blood and not be extended to include same-sex relationships is highly controversial and would not be a true reflection of society as it is today.  Society has come to recognise, even though not entirely accept, a more varied range of personal relationships and this should be reflected in the definition of family that is accepted.  Elaine Sutherland suggests that the legal system should serve all of these people and, if it is to do so, this suggests a flexible notion of family’ should be adopted.  If in contrast to the defined notion of family, a functional approach was taken to the definition of family, its flexibility and adaptability would allow it to respond faster to the ever changing conditions although possibly to the detriment of social binding.  This would allow same-sex couples to enjoy the same legal and public recognition as married couples.  As previously noted Fitzpatrick v Sterling provides the first legal recognition of same-sex relationships in UK and Legal Rights Organisations have rejoiced at this revolutionary judgement.  Would opening the definition of family to a greater audience lead to such a social dilemma?  As previously noted, if family equates to marriage then family equals general social stability but at a cost.  By failing to recognise the rights of minority groups, future issues of discrimination will arise.  Justification of a distinction between the married state and the unmarried state might be acceptable ‘on the basis that society as a whole in the Western developed world continues to accept that the marriage relationship is a special one entitled to special protections and benefits, but it is far less tenable to hold that an opposite-sex relationship is entitled to more protections and benefits than an unmarried same sex couple.  Some regard equality as a relentless tide that will eventually bring protection from discrimination to couples as well to individuals. Although it is thought by some that discrimination in relation to same-sex relationships cannot exist as homosexuality as it is merely a choice of lifestyle and not a gender defining condition.  For a claim in discrimination to succeed Peter Duckworth states that two things must be shown.  Firstly that the damage is involuntary and secondly that the claimant has a moral right to equal treatment.     Peter Duckworth’s personal belief is that homosexuals cannot claim for discrimination because homosexuality is firstly a choice as there is no clear evidence that it is either inborn or unalterable and it is not morally unacceptable due to the length of the relationships being short, the inability to procreate and the high incidents of AIDS .  So if that is the case, is it better then to ignore the minority and concentrate on and promote the moral values of family life leaving the minority to go underground?      In his article Alan Inglis believes that the ‘appeal in Fitzpatrick succeeded because it did not have the effect of achieving equality between homosexuals and heterosexuals’.  Lord Nicholls dictum echoes this fact, that it would be irrational to withhold recognition of same-sex couples who have a stable and permanent relationship just because they are of the same sex.  It is of paramount importance then that the promotion of liberty, equality and protection within family law is achieved allowing for them to balance against one another to produce a coherent whole .  With the promotion of these laudable goals, in mind, a universal definition of ‘family’ must strive to reflect the fluctuating and multifarious arrangements in contemporary society.  Engaging a flexible approach to this investigation is arguably the best way to ensure a representative response to a dynamic area of law.

---