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Coversheet for Thesis in Sussex Research Online A University of Sussex DPhil thesis Available online via Sussex Research Online: http://sro.sussex.ac.uk/ This thesis is protected by copyright which belongs to the author. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the Author The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the Author When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given Please visit Sussex Research Online for more information and further details The Use of Shared Residence Arrangements in English and Swedish Family Law In the Child's Best Interests or a Covert Resurrection of Traditional Patriarchal Structures? Annika Brandberg Newnham DPhil University of Sussex April 2010 I hereby declare that this thesis has not been and will not be, submitted in whole or in part to another University for the award of any other degree. Signature: UNIVERSITY OF SUSSEX ANNIKA BRANDBERG NEWNHAM DPHIL THE USE OF SHARED RESIDENCE ARRANGEMENTS IN ENGLISH AND SWEDISH FAMILY LAW: IN THE CHILD'S BEST INTERESTS OR A COVERT RESURRECTION OF TRADITIONAL PATRIARCHAL STRUCTURES? SUMMARY Shared residence was previously viewed with suspicion by the judiciary, but following D v D [2001] a line of cases has developed, where this order is said to benefit children, firstly, by helping them feel cherished, and, secondly, by improving parental cooperation and thus protect children from the harmful effects of exposure to their conflicts. This thesis reviews available research to conclude that shared residence is so unlikely to achieve either objective where it is ordered against a parent’s wishes, that the order should be restricted to families where both parents agree. Autopoietic theory is combined with feminist critique to explain the self- referential nature of law, its tendency to prioritise children’s abstract need for fathers and its inability to fully understand parents’ complex disputes. The thesis compares the preconditions for, and use of, shared residence in England and in Sweden, concluding that despite better preconditions, Swedish court-imposed shared residence arrangements are unlikely to last, and can harm children by increasing their exposure to conflict. There is also, in contested cases, a worrying focus on equal rights for parents, with children who have grown up in these arrangements complaining of feeling objectified. This, combined with a growing emphasis in English case law on sending symbolic messages about status, is a strong argument against a shared residence presumption. It seems naïve to assume that new, collaborative co-parenting patterns can develop after separation merely because law coerces the adults into a particular kind of formal arrangement. The suspicion is therefore raised that law’s agenda is in fact something very different: to mask familial and societal change by making post-separation families conform to a binuclear pattern which resembles the nuclear ideal not only in membership but also in its hierarchical structure. The Use of Shared Residence Arrangements in English and Swedish Family Law In the Child's Best Interests or a Covert Resurrection of Traditional Patriarchal Structures ? 111 INTRODUCTION ................................................................................................................................................................................... ............................................. 111 1.1 Shared Residence ................................................................................................... 1 1.2 A Developing Presumption? ............................................................................... 2 1.3 Theoretical Perspectives ...................................................................................... 3 1.4 The Comparative Approach ................................................................................ 5 1.5 The Thesis ............................................................................................................ 7 222 THEORETICAL PERSPERSPECTIVESPECTIVES ..................................................................................................................................................................... ..... 121212 2.1 Introduction ......................................................................................................... 12 2.2 Autopoiesis .......................................................................................................... 12 2.2.1 Social Autopoietic Theory ........................................................................ 13 2.2.2 Interaction between Systems .................................................................... 15 2.3 Parenthood as a Permanent Status ..................................................................... 21 2.3.1 Patriarchy and the Nuclear Family .......................................................... 23 2.3.2 Public Patriarchy ...................................................................................... 26 2.3.3 The Binuclear Family ............................................................................... 29 2.4 The Paramountcy Principle ................................................................................ 31 2.4.1 Law and Child Welfare Science ............................................................... 32 2.5 Reasonableness .................................................................................................... 35 2.5.1 Introduction ............................................................................................... 35 2.5.2 A Paradigm Shift? .................................................................................... 36 2.5.3 The Gendered Dimension .........................................................................39 2.6 Conclusion ........................................................................................................... 41 333 WHAT IS KNOWN ABOUT SHARED RESIDENCE ............................................................................ 424242 3.1 Introduction ........................................................................................................ 42 3.2 Permanent Patriarchal Parenthood ................................................................... 42 3.2.1 Shared Residence and Anxieties about Fatherlessness ........................... 43 3.2.2 The Wrong Motives: Justice ................................................................... 44 3.2.3 Shared Residence and Gender Equality .................................................. 45 3.2.4 The Wrong Motives: Power and Financial Considerations .................. 46 3.3 The Paramountcy Principle ............................................................................... 48 3.3.1 Shared Residence and Empirical Research .............................................. 49 3.3.2 Is Shared Residence too Disruptive? ....................................................... 50 3.3.3 Shared Residence and Parent-Child Relationships.................................. 51 3.4 Reasonableness ................................................................................................... 54 3.4.1 The Potential for Conflict Reduction ...................................................... 54 3.4.2 Shared Residence can be Counterproductive .......................................... 56 3.4.3 Shared Residence, Practicalities and Gendered Practices ...................... 58 3.5 Conclusion .......................................................................................................... 60 444 ANALYSING THE PRIVATPRIVATEE LAW FRAMEWORK IN EENGLANDNGLAND .......... 616161 4.1 Introduction ......................................................................................................... 61 4.1.1 The Family Courts and the Children Act 1989 ........................................ 61 4.2 Permanent, Patriarchal Parenthood .................................................................. 63 4.2.1 Introduction .............................................................................................. 63 4.2.2 Patriarchy and the Nuclear Family ......................................................... 63 4.2.3 Public Patriarchy ...................................................................................... 65 4.2.4 The Binuclear Family and Gendered Constructions of Parenting ........ 68 4.3 The Paramountcy Principle ............................................................................... 72 4.3.1 The Children Act 1989 and Interpretations of the Welfare Test .......... 72 4.3.2 From Broad Discretion to Binary Codes ................................................. 76 4.4 Reasonableness ................................................................................................... 78 4.4.1 Non Intervention: not a Carte Blanche .................................................... 78 4.4.2 Interference from Child Welfare, Mediation and Post-Liberal Communitarianism ............................................................................................. 81 4.4.3 The Gendered Dimension ........................................................................ 84 4.5 Conclusion .......................................................................................................... 87 555 THE LAW ON SHARED RERESIDENCESIDENCE IN ENGLAND ...................................................................
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