John Eekelaar (LL.B. (London) 1963; B.C.L. (Oxon) 1965; M.A. (Oxon) 1967, held a Rhodes Scholarship from 1963-5, and was awarded the Vinerian Scholarship in 1965. He was called to the Bar in 1968 at the Inner Temple. He was a Tutorial Fellow at Pembroke College from 1965 to 2005; he held a CUF Lecturership from 1966-91, and was Reader in Law until 2005. He was elected to a Fellowship of the British Academy in July 2001. He retired from teaching in 2005. From 2005 to 2009 he was Academic Director at Pembroke College. He continues research as Co-Director of the Oxford Centre for Family Law and Policy (OXFLAP).
- Building on Michael Freemans discussion of relativism, monism, and pluralism, the chapter considers what the terms of the debate which Freeman advocates should be. It is argued that any such dialogue should not simply compare the character and shape of communities, but must direct attention to the effects of such character and shape on the well-being of individuals within them. Then chapter then considers a criticism made by Prakash Shah of my earlier suggestion of a strategy of cultural voluntarism regarding state recognition of minority practices. It is argued that the criticism wrongly constructed my position in purely cultural terms, and that doing this makes constructive dialogue almost impossible because it is conceived of as a confrontation between cultures, rather than, as it might have been, as a debate about ideas which can have value in any cultural context, such as that which Amartya Sen calls the capability approach. I argue that such dialogue and discussion can only usefully proceed if it is accepted that the matters under discussion are individuals assessments of their own well-being, their significance to the individuals concerned, and how they are to be weighed against the interests of other members of the community and the nature of the community itself and that throughout history cultures, which seemed to their members indispensable and indestructible, have evolved, adapted, and frequently disappeared. This can be unsettling, but it is both true and important to remember, otherwise we are in danger of becoming so enamoured of the way we do things now that we fail to imagine that future generations will do things very differently, and try to obstruct these processes of change. Without the process, existing social arrangements would simply be self-justifying structures, and the opportunity for expanding sensitivity through discussion, use of evidence and hearing affected parties, would be lost.In this paper I examine how courts, and some other decision-makers, go about deciding what the best interests of children (BIC) (or welfare) principle actually are. In making this examination, I draw mainly on English legal decisions, supplemented by those of Scottish courts, the European Court of Human Rights and some other jurisdictions. I also put forward an hypothesis proposing a structure for applying the principle that seems best to reflect its purpose.The hypothesis argues that the answer is that where decisions are not about specific children, but affect children indirectly, the focus of the decision-maker should be on reaching the best solution to the issue to be decided. It is not to determine what is in the best interests of the children affected. Those interests are part of the agenda, so must be taken into account, alongside other relevant matters, and must be given primary attention among those other matters (though certain other matters may be given similar primary attention). However, they will only be considered in order to ascertain the effect any proposed solution to the issue has on such interests, not as part of the process of deciding what is best for the child in its current circumstances. In contrast, in the case of direct measures concerning a child or children, the hypothesis argues that the focus of the decision-maker should be on discovering a solution that has the best outcome for the child, or children. But while it is common for certain assumptions to be held about what such an outcome looks like, this process goes beyond routine applications of such assumptions by examining a range of possible outcomes. In doing this, the decision-maker demonstrates acceptance of the possibility that conformity to accepted social arrangements may not be best for this child in these circumstances, and therefore that a childs best interests are to be assessed by criteria other than mere social conformity. Indeed, the effect of such conformity is itself subject to evaluation.DOI: 10.1093/lawfam/ebt013The article examines the backgroubnd to the treatment of same-sex relationships in English law and the progression to the enactment of the Marriage (Same Sex Couples) Act 2013, analysing the positions advanced by participants in the debate.The article analyses the decision of the Court of Appeal which describes the process of a contact case as one of system failure, and suggests an alternative reading of the reported facts.Proposes a strategy for state law when interacting with norms of minority communities within the state which reconciles the values of respecting cultural identity with commitment to individual human rights.ISBN: 978-1-84946-400-0By comparing reported cases from 1959-60 with those in 2011, the article reveals the way family law has changed over this period, becoming much more attuned to people's real problems. This has however thrown up difficulties in its application; some of the responses to these difficulties are considered.ISBN: 0964-9069Based on observations of court proceedings the book analyses the nature of activities in the lower family courts in England and Wales, showing them to be very different from the way they are commonly perceived by policy-makers. It sets these findings within an account of the place of justice in the resolution of family conflicts.A critical account of ther law in England and Wales governing entry into marriage and suggestions for reformISBN: 0014-728This paper considers whether the positivist account of law is useful in guiding states in how they should deal with religious or customary legal orders followed by minority groups within their jurisdiction. It argues, first, that such orders can be said to exist despite the prevalence of disagreement about the grounds of law. It then argues, contrary to views advanced by Scott Shapiro and Joseph Raz, that there are good reasons for perceiving that the resolution of legal disputes by reference to moral principle involves the application of pre-existing law. However, the paper concludes by arguing that the Social Thesis has an important role in supplying the basis upon which the application of law can be deemed to be legitimate, and that this has relevance to the way states might respond to minority legal orders.A discussion of the issue of recognition of the family law of minority communities, with special reference to sharia law in England and WalesISBN: 978-1-78068-052-1The paper argues that claims that individualism has overcome normative behaviour within families are incorrect, but also that state's should be cautious about translating social norms that operate within families into legal norms. Three types of approach to the relationship between legal and social norms within families are sketched, and it is suggested that one, styled "purposive abstention",should normally be preferred.This paper centres on the distinction between norms related to family behaviour expressed through state law and practice and such behaviour itself. Such expression requires justification because it prescribes rather than describes social behaviour. It is maintained that a necessary condition for justification should be that the family-related norm enhances the well-being of individuals in the family, and that the application of this condition requires careful evaluation of empirical evidence, in particular, an appreciation of the relative effects of legal events and of social behaviour. The paper examines such evidence in regard to a number of issues.DOI: 10.1080/14754835.2011.569300This article compares the naturalistic account of human rights in James Griffin's On Human Rights (2009) with the practical account by Charles R. Beitz in The Idea of Human Rights (2009). Taking Griffin's own examples, the analysis suggests that Griffin's account of human rights with regard to children, divorce, or marriage is unconvincing. However, while the practical approach is preferred, this leaves the basis for any universal duty to take state action for human rights violations uncertain. The article concludes by proposing an analysis of human rights that retains the advantages of the practical conception but accounts for the justification of international action through the principle of universalizability of moral obligationsThe articles considers the reasons given by policy-makers for reducing legal aid for family matters and argues that they reflect a diminished sense of the role of justice in family relationships, and blindness to the role of lawyers in resolving family conflicts.An analysis of the Arbitration and Mediation Services (Equality) Bill 2011ISBN: 0014-7281This paper centres on the distinction between norms related to family behaviour expressed through state law and practice and such behaviour itself. Such expression requires justification because it prescribes rather than describes social behaviour. It is maintained that a necessary condition for justification should be that the family-related norm enhances the well-being of individuals in the family, and that the application of this condition requires careful evaluation of empirical evidence, in particular, an appreciation of the relative effects of legal events and of social behaviour.A description of empirical evidence about the effects of family law on social behaviourAccepted for the special issue on the Future of Marriage by this US publication in the Fall of 2007, the article draws on the author's research and UK legal developments to contribute to the debate over marriage in the USA.ISBN: 0014-729XISBN: 0-521-86119-5ISBN: 978-0-19-953542-2Analysis of the nature of human rights invocations, with special reference to the work of Jim HarrisISBN: 0-19-929096-2Discussion of the relationship between deciding issues about children on the basis ofrights and on the basis of welfareISBN: 1328-4576Criticism of Court of Appeal decision on allocation of assets on divorceISBN: 0014-7281A theoretical discussion of the nature of obligations in the family context, designed as providing a theoretical backgrounbd to an empirical research projectISBN: 1-841113-547-XDiscussion of Court of Appeal Decisions in Macfarlane v M. and Parlour v P.ISBN: 0023-933XReport of data from empirical study on the understanding of the purpose of marriage and obligations arising in domestic relationships, demonstrating differences between white British and ethnic minority respondents.ISBN: 0265-8240Discussion oflaw and policy when children are subjected to competing claims from cultural groupsReview of Helen Reece, Divorcing ResponsiblyDOI: 10.1111/j.1467-6478.2004.00301.xISBN: 1467-6478Full account of rsearch project into perception of personal obligations by married and unmarried peopleISBN: 0-9541 703-5-0Analysis of recent adoption reforms.ISBN: 1-84113-253-5Describing historical trends in family lawCritique of the welfare principleOverview of child protection law and policy in EnglandAssessment of policy initiative on contactDOI: 10.1093/ojls/22.3.497ISBN: 1464-3820Theorising human rights, especially in the personal domainDiscussion of methods of allocating property on divorceCase analysisRe-analysis of concept of parental responsibilitySurvey of recent developments
Family Law, Constitutional Law, Socio-Legal Studies, Jurisprudence