chapter  8
30 Pages

The limitations of equality discourses on the contours of intimate obligations


Family law has not been immune to the influence of rights-based arguments and values shaping its development. The articulation of ‘rights’ can be seen most clearly in the context of the parent-child relationship. The Human Rights Act has been invoked directly to negotiate the boundaries of this relationship and, in particular, rights-based arguments have been used by fathers to underpin claims to enforceable contact with, and shared residence of, their children.1 This has undermined the predominance of welfarism under s 1 of the Children Act 1989 and has led to questions concerning the balancing exercise between the competing rights of parents and children.2

However, it is not just the parent – child relationship which has been affected by claims of equality and rights. The relationship between adult partners, both in terms of structural organisation and internal meaning, has been shaped by the emergence of rights-based agendas. While there has been little direct usage of the Human Rights Act 1998, the law governing the interaction of adult partners has been influenced by two facets of equality, that is, the desire to achieve equality between, and equality within, adult relationships.3 The purpose of this chapter is to highlight the contour of these agendas which are fuelled by the liberal ideals of choice, equality and individual autonomy. It will be argued that they have reinforced the reliance in legal policy on the structural form of relationships at the expense of a more

1 See J. Wallbank, ‘(En)Gendering the fusion of rights and responsibilities in the law of contact’, Chapter 5, in this volume.