1. INTRODUCTION

John Eekelaar was probably the first scholar in the United Kingdom systematically to combine theoretical, contextual and empirical insights with doctrinal rigour, in order to explore how family law operates in practice, as well as in theory. His work has set a benchmark for everyone working in the field, and it is a great privilege to contribute to this Festschriftin his honour.

In one of his early works, Family Law and Social Policy, Eekelaar identified three ‘grounds for modern state intervention in family living’:

Most family law litigation concerns the future arrangements for family members, rather than identifying liability or responsibility for events or actions that have already taken place. The orders that the family courts make may involve all three of Eekelaar’s grounds for intervention: to adjust the parties’ arrangements, for example as to the sharing of their finances, or co-parenting their children; to protect family members from abusive relationships, for example by controlling the abuser’s behaviour; and to support the maintenance of family relationships despite changes in living arrangements, where it is safe to do so – an aim strongly evident in the approach taken in the family courts to post-separation parenting.

In England and Wales, the vast majority of families resolve these matters for themselves without involving the court, and most applications that are made to the court are settled. It does not follow that such families make ‘good’ agreements and live happily ever after. However, those cases that result in a court order, particularly a contested one, will undoubtedly include families who continue to struggle to arrive at a workable ongoing relationship, even if the court proceedings have supposedly been completed. In a proportion of these cases there may be continuing litigation, perhaps for many years, as one or the other party refuses to accept the court’s decision and seeks its variation. In others, there may be a steadfast refusal to comply with the terms of an order.

INTRODUCTION

I had the privilege of teaching Family Law at the University of Bristol with Nigel from the late 1970s. Nigel's Family Law course was rather different from others at that time, since he was absolutely clear that the law relating to the parent – child relationship should form a significant part of the syllabus rather than being confined, as was then common, to a few weeks of study at the end of the course. He rightly identified that the shift in family relationships away from marriage rendered the concept and content of legal parenthood of increasing importance and he was determined to reflect this approach in his teaching. I have had the enormous benefit of Nigel's example, advice and wisdom, to draw on for the rest of my academic career, as a colleague (first at Bristol and later, at CardiffUniversity), collaborator (on empirical projects, as co-editors – initially with Stephen Cretney – of the case reports in the journal Family Law, and as co-authors of Bromley's Family Law), and friend.

In this chapter, drawing on Nigel's original insight regarding the centrality of the parent – child relationship, I examine developments in the law in England and Wales governing the grant to, and exercise by, fathers, of parental responsibility. I seek to show that in determining this issue, the law has increasingly come to equate personal ‘commitment’ – by which is meant the emotional dedication that the father shows towards the child – with the child's best interests, confusing parental inclination with children's welfare. I illustrate this thesis through a focus on two key areas: the automatic grant of parental responsibility to unmarried fathers who are recorded on the birth register; and the allocation of caring time between separated parents in shared parenting arrangements.

PARENTAL RESPONSIBILITY

In English law, while all married or civilly partnered parents have parental responsibility automatically from the child's birth, in the case of unmarried parents, only the legal mother holds parental responsibility and the father has to take steps to acquire it to share with her.

As a young lad Nigel used to collect train numbers. That was in the 1960s in the last days of British Rail steam engines. With other boys he would travel all over the country in search of some rare engine – perhaps a GWR Castle, a LMS Coronation or an elusive ‘Black Five’. So determined was he that he would sometimes trespass on the railway and creep into some smoky old engine shed to find that much-sought-aft er missing number to complete his list. Occasionally he was caught and chased away but he would return when the coast was clear. Who would have thought such a minor juvenile delinquent would turn into the distinguished academic investigator that we all know and admire today?

But pause a moment and reflect. What are the characteristics revealed in the escapades of the young adolescent all those years ago? Three things stand out which mark his work today: first, a certain obsessive love of numbers; secondly, an unwavering determination to pursue his goals; and thirdly, a love of travelling, particularly by train. Let us explain …

Nigel began his career in the Law at the University of Sheffield (1966 – 1969), studying, inter alia, with Mary Hayes (now Professor Emeritus), who taught him Family Law. He was awarded a Duke of Edinburgh Entrance Scholarship and called to the Bar by the Inner Temple in 1972, but he began his academic career, slightly unusually for those days, by taking a post as a Research Associate at the University of Birmingham's Institute of Judicial Administration from 1969 – 1971. There, he worked with Professor Gordon Borrie on a major book, The Law of Contempt (1st edn. 1973). That period of focused concentration on exploring a complex, and at times very technical, legal subject gave him valuable experience on which to build his future independent research and scholarship: he has never been afraid to tackle difficult and large legal questions; he has always been a master of the ‘black letter law’ and he has always seen the policy and practice implications of legal developments.

Introduction

This chapter explores how, and to what extent, the three generations in our group of divorced families communicated with each other about marriage breakdown and its consequences. First, it looks at the way that parents warned their own parents about their impending separation, and then investigates what the grandchildren told their mothers, fathers and grandparents about their relationships with the ‘other side’ of their divided families. The chapter also investigates whether or not children were used as conduits for the flow of information between the two sides of the divorced family.

Telling grandparents about the planned separation

Although grandparents were not asked directly when and how they were told about the breakdown of their child’s marriage, the interview guide included questions about their relationships with grandchildren before and after the separation. Almost half the grandparents interviewed mentioned their surprise at learning of their child’s separation. It was common for parents to hide their marriage problems from their own parents and the news of the separation often came as a shock to grandparents. Parents admitted that they were reluctant to take grandparents into their confidence, but their explanations made it clear that this was neither symptomatic of a lack of affection nor a failure to anticipate the likely effects of their separation on the wider family. A rather similar conclusion, it may be recalled, was made as a result of the investigation of children’s reluctance to confide in their grandparents when they felt upset or worried about family break-up (see Chapter Three).

The deliberate concealment of problems might be interpreted as evidence that parents did not consider grandparents to be involved. However, divorced couples were also concerned about disappointing their parents; they were worried about invoking their displeasure and anxious to protect them from the pain of their divorce – feelings that are characteristic of many parent–child relationships. The interview data revealed that most mothers had worried needlessly and were pleasantly surprised by their parents’ reactions to being told that the marriage had ended. For example, Alfie’s mother recalled:

A changing relationship

In Chapter Two, we discussed some of the factors that previous studies have indicated influence the nature of grandparents’ relationships with their grandchildren. In this chapter, we ask: ‘What importance do grandchildren attach to their relationship with their grandparents and how might these relationships be affected by divorce? And, ‘is there evidence of continuity in the grandparent–grandchild relationship in divorced families as well as evidence of change as the result of family break-up?’.

Grandparent’s relationships with their grandchildren

The studies reviewed in Chapter Two made it clear that grandparent age is related to the frequency of grandparents’ contact with their grandchildren and that older grandchildren have less contact with their grandparents. But does this mean that they are not as emotionally close to their grandparents? Here, we begin by considering the views of some teenage grandchildren and their feelings about their grandparents. They reported that they have close relationships with their grandparents, but this assertion was often accompanied by apparently contradictory evidence of a growing emotional distance. Being ‘close to grandparents’ could mean seeing them regularly, enjoying their company, sharing intimacies and expressing affection. However, we discovered that the phrase need not imply anything about frequency of contact and was used on occasion to mean ‘nurturing positive feelings’. Evidence from divorced parents suggested that older grandchildren saw their grandparents less frequently than their younger brothers and sisters. Mothers, we discovered, occasionally reminded their children that they had not seen their grandparents for some time and persuaded them to accompany them on a visit to their grandparents’ home. They reported a gradual reduction in their children’s contact with their grandparents. Most felt that this did not mean that relationships could no longer be described as ‘close’ or that grandchildren and grandparents felt less affection for each other. It was, in parents’ opinions, understandable that the relationship should change.