Motherhood and Family Law A thesis to fulfil the requirements of a Doctor of Philosophy, University of Otago, Dunedin, New Zealand June 2016 Fiona Mackenzie Abstract Motherhood is understood to be foundational to human relationships; the very ‘stuff’ of family law. However, rather than supported by the law, motherhood seems to exist in an uneasy tension with it. This thesis begins by exploring motherhood in the United Kingdom and New Zealand, from both legal and historical perspectives. The welfare principle, devised as a legal mechanism to protect the mother-child relationship in patriarchal 18th and 19th century England, is examined as a legal transplant into New Zealand’s younger, more egalitarian and gender-equal society. The impact of the legislative introduction of gender neutrality into New Zealand parenting laws in 1980 (in a social context that valued gender equality) is considered. Competing feminist theories, seeking gender equality by either denying or embracing gender difference, provide the theoretical framework for this thesis. Feminism’s problem with essentialism, and the difficulties that arise when the law seeks gender equality by disregarding gender difference, are also explored. Particular attention is paid to how motherhood is understood and regarded within contemporary family law. With a focus on New Zealand family law, the impact of legal developments on motherhood are reviewed in relation to the specific issues of shared care parenting, relocation (at times regarded as an infringement upon shared care), gatekeeping, imprisonment and breastfeeding. It is clear that the voice and value of motherhood appears to have been diminished and compromised. The thesis concludes by considering whether a redemptive approach towards motherhood’s relationship with family law is possible. In particular, it examines whether the welfare and best interests principle enshrined in section 4(1) of COCA would be better served by a repeal of section 4(3), a legislative provision which requires that in the application of the welfare and best interests principle, no recognition is to be given to a parent’s gender. Such repeal may then arguably allow for an unrestrained consideration of the matrix of circumstances that determine the welfare and best interests of a child “in his or her particular circumstances” as required by section 4(2). This could thereby enable the law to legitimately accommodate the differences that both motherhood and fatherhood bring to parenting and, without compromising the value of fatherhood, enable a restoration to the law of the ability to consider, and dignify, the significance of the mother-child relationship as a discrete welfare and best interests factor. ii Acknowledgements Thank you to my supervisors Professor Mark Henaghan, and Associate Professor Nicola Taylor. Your encouragement, wisdom, guidance and support enabled me to undertake this task. I have appreciated being able to work with you both very much. Thank you also to Dr Rob George whose willing advice, particularly with respect to the UK perspective, was so helpful. Thank you to my legal colleagues; your professional interest and enquiry helped to keep the endeavour fresh and interesting. Grateful thanks also to the partners and staff at Mackenzie Elvin, Tauranga. You remained supportive throughout, and ensured my other professional responsibilities were met seamlessly. Special thanks to my personal assistant Robyn Ingram, who is professionally capable, quietly steady, and a loyal colleague and friend. Thank you also to the University of Otago. I have been a grateful recipient of a Fanny Evans postgraduate scholarship; I trust I have discharged the purpose and desire of the late Dr William Evans to honour his wife through the promotion of women’s learning and scholarship. Finally, a very big thank you to my wonderful family. My husband Graeme has always believed in me, and has utterly supported me throughout. My children – Rebecca, Harriet, Thomas and Edward – have grown into fine young people taking their place in the world, and have affirmed the importance and value of motherhood, to themselves and to me. Through them, I also now experience the expanded joy of ‘mother-in-law-ness’ to James and Sara. Special thanks to Edward for your help with the technology, and to Rebecca for your outstanding care, support (both personally and academically) and understanding, especially during our time together in Oxford. My family has allowed me to experience motherhood in all its fullness. They love me, allow me to love them, and have shared relationally with me in the pleasure (and pain) of this journey through to completion. iii - For Gypsy - iv Table of Contents Abstract ii List of Abbreviations ix Chapter One 1 Introduction 1.1 What does ‘motherhood’ mean? 1 1.2 Research focus and its significance 3 1.3 Personal background to this research 11 1.4 Organisation of the thesis 14 Chapter Two 19 The History of Motherhood I: Tracing the Development of Social and Public Policy 2.1 Marriage as the social, legal and public policy context for motherhood 20 2.2 Effect of the Christian view of marriage 23 2.3 Gendered roles within marriage 24 2.4 Marriage for the purpose of procreation 25 2.5 Civil and common law challenges to canon law with respect to marriage 26 2.6 The rise of the nuclear family 28 2.7 The development of divorce 29 2.8 The development of New Zealand’s legislative regime with respect to marriage 31 2.9 The history of motherhood outside the institution of marriage ie illegitimacy 32 2.10 Adoption, whāngai and the Māori perspective in New Zealand 34 2.11 Motherhood as a gendered role, yet an issue of gender equality 35 Chapter Three 40 The History of Motherhood II: Tracing Law and Society 3.1 Roman law 40 3.2 The development of English family law 41 3.3 The development of New Zealand’s legislative framework 44 3.4 Motherhood reflected by the law 47 3.5 Early English legislative and case law developments 47 3.6 The Court of the King’s Bench and the equitable Court of Chancery 50 3.7 The reforms of Caroline Sheridan Norton 56 3.8 The strength of fatherhood’s sacred power 62 3.9 A gendered power imbalance 67 3.10 First wave feminism seeking equality for mothers with fathers 71 3.11 The compromise: the welfare principle 73 3.12 The welfare principle in New Zealand 75 3.13 20th century English case law 76 3.14 Motherhood and adoption 82 3.15 Motherhood, morality and the law 84 3.16 The development of the gender neutral psychological parent 87 v 3.17 Motherhood and poverty 90 3.18 20th century New Zealand case law 91 3.19 New Zealand Courts’ interpretation of the paramountcy of the welfare principle 95 3.20 The rise and fall of the ‘tender years doctrine’ (UK) and the ‘mother principle’ (NZ) 105 Chapter Four 113 The History of Motherhood III: Contemporary Law, Policy and Social Context 4.1 The Care of Children Act 2004 (COCA) 113 4.2 The Hague Convention on the Civil Aspects of International Child Abduction 1980 116 4.3 Children, Young Persons and Their Families Act 1989 116 4.4 The Māori perspective 118 4.5 Separating maternity from motherhood, human assisted reproduction and surrogacy 120 4.6 Current social and statistical trends 125 Chapter Five 132 Theoretical Frameworks 5.1 Feminism and feminist theory as they relate to motherhood and family law 133 5.2 Liberal feminist theory 137 5.3 Cultural feminist theory 138 5.4 Dominance feminist theory 139 5.5 Impact on the development of family law and motherhood 141 5.6 The language of gender neutrality and formal equality within family law 144 5.7 Gender theory 149 5.8 Has a theory of motherhood been developed? 149 5.9 The discipline and value of maternal practice and thinking within maternal theory 151 5.10 The problem of essentialism 158 Chapter Six 162 The Law’s Response to Motherhood: The Welfare Principle 6.1 The divergent effect of a legal transplant 162 6.2 The welfare principle as a relationship-based concept 168 6.3 The problem with rights-based approaches to the welfare principle 173 6.4 Rethinking contemporary understandings of the welfare principle 177 6.5 New Zealand’s expansion of the welfare principle to include best interests 178 Chapter Seven 180 Shared Care Parenting 7.1 The development of shared care in contemporary family law 181 7.1.1 The demographic data 184 7.1.2 Measuring the effectiveness of shared care 185 7.1.3 The place of the social sciences in Family Court decision-making 188 7.1.4 The social sciences debate 190 7.1.5 The current position 195 7.2 The development of shared care in New Zealand 196 vi 7.2.1 Family law decisions influential in the development of shared care 201 7.2.2 W v C 202 7.2.3 L v A 205 7.2.4 Comparing legal developments between New Zealand and the UK 208 7.2.5 Governmental response to political pressure 209 7.2.6 New Zealand's attempt to legislate for shared care 209 7.2.7 The Care of Children Bill 2003 210 7.2.8 Tensions between politics, policy and legislation 212 7.3 Shared care and legislative reform 214 Chapter Eight 218 Relocation 8.1 Relocation within New Zealand family law 219 8.2 Comparing legal approaches between New Zealand and the UK 219 8.3 D v S 222 8.4 Limits placed on the gender neutral W v C equality approach 225 8.5 The dissenting judgment in D v S 227 8.6 The link between D v S (CA No.