chapter  9
20 Pages

Public norms and private lives: Rights, fairness and family law


No area of law has remained untouched by the Human Rights Act 1998. While the Act has resulted in the virtual overhaul of some laws and only subtle change to others, it is true to say that all lawyers must now be human rights lawyers. Nevertheless, it was thought at the end of the twentieth century that family law would be one of those areas of the law least affected by the HRA and the rights language and rights consciousness it fostered. Writing in 2005 about the impact of the HRA 1998 on family law, Harris-Short found this to be true. She reviewed appellate level case law and observed that ‘the prediction that two key factors – the prevailing mistrust of rights and the difficult questions of public policy which arise in family disputes – would result in a cautious and minimalist approach to the 1998 Act in mainstream family law, is borne out by the post-implementation case law’.2 Her work was part of larger project on judicial reasoning and the Human Rights Act and presents a clear picture of the way in which appellate courts conceived of and applied convention rights in family law cases. This chapter aims to do something similar. It is also part of a larger pro-

ject in which I and colleagues intend to examine more broadly the judicial role in family law disputes and it is an examination of the place of rights discourse in family law. I am not interested, however, in those cases in which Convention rights have been invoked or even claimed, whether vertically or horizontally. Instead, I am interested in those cases in which the HRA has not been pleaded by the parties or referred to by the court at all, but in which nevertheless we can see evidence of its ‘culture’ or ‘values’ influencing

1 My thanks go to Shelley Day Sclater, Michael Freeman, Felicity Kaganas, George Letsas, Myriam Hunter-Henin, Colm O’Cinneide, Dawn Oliver and David Seymour, all of whom read drafts of this chapter and offered valuable comments for its improvement. Thanks also to participants at University of Sussex Responsibility and Family Law Conference July 2008 and to the editors of and other contributors to this volume who engaged at a workshop held in Oxford in critical and congenial discussion of this chapter.