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Timeless Considerations: An Historical analysis of the development of residency and contact law, gender and parenting For May and Eddie Marshall, daughters Lesley and Jenny and grandchildren Daniel, Niamh and Phoebe [She] ‘comes from a world where women are fast becoming the equal of men and ought to lead lives and have occupations and responsibilities of their own.’ TIMELESS CONSIDERATIONS; AN HISTORICAL ANALYSIS OF THE DEVELOPMENT OF RESIDENCY AND CONTACT LAW, GENDER AND PARENTING ELIZABETH ANN SINCLAIR NEWCASTLE LAW SCHOOL NEWCASTLE UPON TYNE UNIVERSITY THESIS SUBMITTED FOR THE DEGREE OF DOCTOR OF PHILOSOPHY MARCH 2010. Abstract This thesis engages with historical issues of infant custody laws that have a particular focus in contemporary times. Over the last three decades, complex socio-economic changes have reshaped traditional employment patterns and challenged gender understandings of social relationships, parenting practices and the structure of the family. The outcomes have raised concerns about the effects of these changes on children, the stability of the family and questions of wider social cohesion. Social policies and legal reforms have reflected these changes, for example in relation to ideas of formal gender equality, and a rethinking of parental responsibility. This is particularly relevant after parental separation and the law now encourages shared parenting. However, gendered divisions relating to the roles of men and women as parents remain entrenched within many aspects of parenting cultures. This thesis adds to the contemporary debates through an exploration of the historical context of the development of the laws regulating the care of children post-separation. The methodology follows emerging ideas around the uncovering of personal experiences of separated parents and ways that might add depth of knowledge to research findings. The primary focus is on the inter-war period of the nineteen twenties and thirties. The implications of the massive socio-economic upheavals and legislative reforms following the First World War signalled a new age and a key period in women’s history and struggle for formal legal equality. Despite legal reforms and social change, the evidence shows for some parents the reality was different and rooted in gender politics. Via a critical analysis of primary resources, including original and up until now, unseen testamentary evidence, the case studies provide a snapshot of the experiences of mothers and fathers after separation dealing with the contradictions in their gendered roles in the care of children. The thesis sets out to argue that in the legal regulation of the care of children post-separation the issues of parenting are timeless considerations underpinned by gender politics and need to remain within political, legal and public debates. i Summary Contents Abstract i Summary Contents ii Acknowledgements v Chapter 1 The Background & Contemporary Debates 1 Introduction 1 Aims & Objectives 4 Structure 5 Section 1 7 Contemporary Contexts 7 Sociological Insights to the Family 16 Primary Concepts and Themes 29 Section 2 30 Law and Family Relations 30 Regulating the Family 32 Current Debates in Family Law 37 The Socio-Legal Approach 43 Section 3 45 Methodology 45 Literature Review 48 Primary Resources 51 Secondary Resources 52 Summary 53 Chapter 2 The Historical Roots: Marriage, Divorce & Infant Custody Laws 55 Introduction 55 Section 1 57 The Origins & Development of Marriage, Divorce and Infant Custody Laws from Antiquity to the Custody of Infants Act 1839 57 Case Studies: A Need for Reform 71 ii The Case of the Honourable Caroline Norton 77 Section 2 87 Measured Reforms: Reforms to the Laws of Marriage, Divorce Infant & Child Custody Laws from the Mid-Nineteenth Century To the Early Twentieth Century 87 The Narratives of Domesticity & the Public and Private Spheres 87 The Woman Question: the Struggle for Women’s Legal Rights 91 Legal Reforms and Case Studies 1857-1895 99 Section 3 114 Socio-Legal Changes in the Early Twentieth Century Routes to Women’s Formal Legal Rights 114 A Revolution in the Law 114 Routes to Reforms of the Divorce Laws 118 The First World War & Social Changes 122 Chapter 3 Legal Equality or Bound by the Rules? Mother’s Maternal Rights to Child Custody 1925-1958 126 Introduction 126 Section 1 128 Women’s Formal Legal Equality & The Domestic Strife Bill 128 Demographic Trends & Class Distinctions 141 Social & Political Context of the Inter-War Period 150 Gender Politics & Feminist Writings of the Inter-War Period 159 Section 2 163 The Cases of Two Families: Annot & Sam Robinson & Kitty Trevelyan & Johann Georg Götsch 163 Section 3 181 Divorce & The Children: Stabilising Society, the Debates Solving the Contradictions of Family Ideology 1945-1956 181 Social Changes: Women & Women’s Work 181 The Royal Commission on Marriage and Divorce 1956 185 iii Chapter 4 Full Circle? The Legal Reconstruction of the Post-Separated Family 1958- 2009. 191 Introduction 191 Section 1 193 The Rhetoric of Social & Legal Change 1960-1989 Social Change & Legal Changes 193 The Law Commission Working Papers: Divorce and Child Custody Laws 213 The Children Act1989 218 Section 2 225 The Politics of Parenting 225 New Labour Policies & The Politics of the Family 231 The Children And Adoption Act 2006 238 Section 3 241 The Reconstructed Post-Separated Family: Critical Questions for Fathers and Mothers 241 Chapter 5 Conclusion 249 The Future 259 Bibliography 261 iv Acknowledgments I would like to thank my supervisors Professors Richard Collier and Ian Ward for their constructive comments, time and support; Ashley Wilton, Head of School, for his thoughtful care and Ian Dawson for his enthusiastic encouragement. For the case studies, I thank Celia Caldicot for her willingness to allow me use of her grandmothers’ letters and the late Brian Caldicot for his precious time; to Robin Dower, Trustee of the Trevelyan Family Papers for permission to use the Trevelyan Papers and access to previously unseen materials. To the women in my life I am eternally grateful. I thank Professor Clare McGlynn for her lively debates in the initial stages; Dr. Alison Dunn, for her encouraging support; Linda Kelly, Law Liaison Librarian and Helen Arkwright Specialist Librarian at the Robinson Library for their guidance and interest in the thesis; Cath Dale Law Library; Irene Dunn, Inter Library Loans for her kindness and allowing me to borrow the original copies of Mrs Sarah Ellis’ works; Dorothy Smith for her time to listen and provide escape corners. I acknowledge the encouragement of the unknown women I have shared a journey with, who have in conversations, have shown a keen interest in my work. I thank my three Graces: Suzanne Johnston, Gemma Hayton and Joanne Pinnock for their practical approaches to what appeared complex problems, their encouragement, love and laughter. To my daughters Lesley and Jenny for the practical help of coping with the everyday essentials of life and listening patiently to your mother, my deepest love and thanks. v Chapter 1 The Background and Contemporary Debates ‘You don’t have to gaze into a crystal ball when you can read an open book’ 1 Introduction This thesis engages with the historical issues of infant and child custody law 2 that have a particular resonance in contemporary times. 3 Over the last three decades, there have been massive social and economic changes in the UK reflected in shifts in the women’s employment trends and challenges to familial and gender relationships. 4 Indeed, some argue that there is increasing fragility and fragmentation of adult relationships contesting ideas of parenthood and the structure of the family. 5 Statistics 6 show increases in the numbers of applications for divorce, however they also indicate a steady rise in the numbers of remarriages. Furthermore, the decrease in the numbers of marriages has been accompanied by a striking increase in cohabitation. Attitudes to same-sex partners have shifted and the law no longer criminalises homosexuality. 7 The law provides effective ways to illustrate the changes and the acceptance. For example, in 1986 in the case of Harrogate Borough Council v Simpson 8 the courts dismissed an appeal for possession of the tenancy of a council house on the grounds that living together as man and wife did not include a lesbian relationship. As Bridge LJ argued, ‘If Parliament had wished homosexual relationships to be brought into the realm of the lawfully recognized state of a living 1Lord Stoddart of Swindon, H L Deb 1.12.1998 c 432. 2Although The Children Act 1989 removed the term, child custody, from the statute books, it will be referenced to throughout this thesis in relation to the historical context of the law. 3That is post 1989 at the end of the 20 th century and the beginning of the 21 st century. 4 Boyd, S.B. ‘Legal Regulation of Families in Changing Societies’ in Sarat, A., Ed. The Blackwell Companion of Law and Society (Blackwell Publishing, 2004) p255. 5Maclean, M., ‘Introduction: Conflicted Contact between Parents and Children after Separation’ in Maclean, M.,Ed. Parenting After Partnering (Portland, Or.: Hart Publishing, 2007) p1. 6Hunt, J., & Roberts, C., Child Contact with Non-Resident Parents (Oxford: University of Oxford, 2004) p1. 7Th e Sexual Offences Act (England and Wales) 1967. 8[1986] 2 FLR 91. 1 together as man and wife for the purposes of the relevant legislation, it would plainly have so stated in that legislation, and it has not done so.’ In recent years however, legal changes to the law have endorsed the acceptance of same-sex partnerships. Same-sex partners can now register their relationship granting the partnership legal status 9 giving the same rights and responsibilities as heterosexual partners. 10 The law now allows same-sex couples to adopt unrelated children 11 or the other partner’s child. 12 This is contrast to the Adoption Act 1976 that only allowed joint adoptions to be made to married couples.
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