DOI: https://doi.org/10.1080/13632752.2021.1913351-
L Ferguson, 'Children at risk of school dropout' in James G Dwyer (ed), Oxford Handbook of Children and the Law (Oxford University Press 2020)
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L Ferguson, 'An Argument for Treating Children as a 'Special Case'' in Elizabeth Brake and Lucinda Ferguson (eds), Philosophical Foundations of Children's and Family Law (Oxford University Press 2018) (forthcoming)
This article draws on the impact of the ongoing pandemic to highlight the failure of the English legal regime to adequately protect children’s right to education, particularly equal access to education by especially vulnerable children. I first outline key domestic and international legislative provisions positioned as securing children’s and parents’ rights in this context. Prior to the pandemic, there was growing recognition of the current regime’s failings regarding illegal exclusions from school, children missing from education, and the lack of inclusive education for children with special educational needs and disabilities (‘SEND’). The protection of children’s rights relied on the benevolent exercise of discretion and key decision-makers not exploiting limited oversight and scrutiny to meet results-driven accountability measures. Second, I critically analyse pandemic law-making and regulation, particularly in relation to the exclusion process, the legal duty to provide education in an online environment, the law on Education, Health, and Care Plans (‘EHCPs’), and the de-registration and fines for non-attendance. Third, I argue that the educational impact of the pandemic highlights the need for law reform, rather than merely revisions to statutory guidance and focus on best practice. Such reform may also trigger improvement via the ‘reflexive regulation’ of the education system.
This chapter begins by outlining the routes through which children ‘drop out’ of school. It then draws on the failings of the English system to suggest six key ‘lessons’ for other jurisdictions. The first centres on how academic results-driven accountability measures push schools and decision-makers into unjustifiably excluding children. The second demonstrates the vulnerability of discretionary frameworks to perverse incentives and unintended negative consequences for children at risk of ‘drop out’. The third highlights the difficulties created by increased autonomy for teachers and schools. The fourth reveals how additional protections for particularly vulnerable children are constrained by the broader exclusion regime. The fifth and sixth demonstrate the need for jurisdictions to revisit the conceptual and empirical basis of their legal frameworks for exclusion, whether grounded in ‘best interests’, competing ‘interests’, or ‘children’s rights’. It concludes by emphasising the need to develop empirical evidence to underpin decisions around ‘drop out’.
This chapter’s argument stems from the premise that legal language should speak for itself. The ‘paramountcy’ principle suggests the prioritization of children’s interests, and ‘children’s rights’ suggests some aspect of distinctiveness to children’s interests. But there is academic consensus in respect of both that children’s interests cannot and should not be prioritized over those of others. This chapter examines the justification for the contrary perspective, and for treating children as a prioritized ‘special case’ in all legal decisions affecting them.
Four key counter-arguments frame the discussion. First, the ‘social-construct’ objection: as a social construct, childhood cannot sustain the prioritization of children’s interests over those of others. Second, the ‘vulnerability’ objection: children’s vulnerability is either not unique or suggests dependency or interdependency, not prioritization. Third, the ‘family autonomy’ objection: parents’ rights and the family unit justify deference of children’s interests. Fourth, the ‘equality’ objection: equal moral consideration makes prioritization unjustifiable.
Journal Article (11)
DOI: https://doi.org/10.1080/13632752.2021.1913351
This article draws on the impact of the ongoing pandemic to highlight the failure of the English legal regime to adequately protect children’s right to education, particularly equal access to education by especially vulnerable children. I first outline key domestic and international legislative provisions positioned as securing children’s and parents’ rights in this context. Prior to the pandemic, there was growing recognition of the current regime’s failings regarding illegal exclusions from school, children missing from education, and the lack of inclusive education for children with special educational needs and disabilities (‘SEND’). The protection of children’s rights relied on the benevolent exercise of discretion and key decision-makers not exploiting limited oversight and scrutiny to meet results-driven accountability measures. Second, I critically analyse pandemic law-making and regulation, particularly in relation to the exclusion process, the legal duty to provide education in an online environment, the law on Education, Health, and Care Plans (‘EHCPs’), and the de-registration and fines for non-attendance. Third, I argue that the educational impact of the pandemic highlights the need for law reform, rather than merely revisions to statutory guidance and focus on best practice. Such reform may also trigger improvement via the ‘reflexive regulation’ of the education system.
DOI: http://dx.doi.org/10.1080/03069400.2017.1288972
ISBN: 1059-4337
DOI: 10.1080/09649069.2013.774757
In this article, I argue for caution in embracing family arbitration as a new form of private ordering for resolving parties financial disputes. I explain that family arbitration may be more successful than other forms of private ordering and final court hearings in enabling certain types of parties to resolve certain types of disputes. I consider why family arbitration may not become numerically significant despite its potential benefits, but may be much more important in normative terms. Lawyer-led negotiations remain the most common form of out-of-court resolution and constitute the de facto default form of bargaining in the shadow of the normative regime framed by ss 23-25 Matrimonial Causes Act 1973. Together with the transformation in approach to nuptial agreements, family arbitration may mark a normative shift towards autonomy and private ordering. I question whether this is a desirable step for family law, at least before we have resolved the underlying policy debate.
ISBN: 0927-5568
ISBN: 0964-9069
ISBN: 1360-9939
ISBN: 0704-1225
Chapter (6)
This chapter begins by outlining the routes through which children ‘drop out’ of school. It then draws on the failings of the English system to suggest six key ‘lessons’ for other jurisdictions. The first centres on how academic results-driven accountability measures push schools and decision-makers into unjustifiably excluding children. The second demonstrates the vulnerability of discretionary frameworks to perverse incentives and unintended negative consequences for children at risk of ‘drop out’. The third highlights the difficulties created by increased autonomy for teachers and schools. The fourth reveals how additional protections for particularly vulnerable children are constrained by the broader exclusion regime. The fifth and sixth demonstrate the need for jurisdictions to revisit the conceptual and empirical basis of their legal frameworks for exclusion, whether grounded in ‘best interests’, competing ‘interests’, or ‘children’s rights’. It concludes by emphasising the need to develop empirical evidence to underpin decisions around ‘drop out’.
This chapter’s argument stems from the premise that legal language should speak for itself. The ‘paramountcy’ principle suggests the prioritization of children’s interests, and ‘children’s rights’ suggests some aspect of distinctiveness to children’s interests. But there is academic consensus in respect of both that children’s interests cannot and should not be prioritized over those of others. This chapter examines the justification for the contrary perspective, and for treating children as a prioritized ‘special case’ in all legal decisions affecting them.
Four key counter-arguments frame the discussion. First, the ‘social-construct’ objection: as a social construct, childhood cannot sustain the prioritization of children’s interests over those of others. Second, the ‘vulnerability’ objection: children’s vulnerability is either not unique or suggests dependency or interdependency, not prioritization. Third, the ‘family autonomy’ objection: parents’ rights and the family unit justify deference of children’s interests. Fourth, the ‘equality’ objection: equal moral consideration makes prioritization unjustifiable.
What defines family law? Is it an area of law with clean boundaries and unified distinguishing characteristics, or an untidy grouping of disparate rules and doctrines? What values or principles should guide it – and how could it be improved? Indeed, even the scope of family law is contested. Whilst some law schools and textbooks separate family law from children’s law, this is invariably effected without asking what might be gained or lost from treating them together or separately. Should family law and children’s law be distinguished or treated together?
One would expect disagreement on these questions in any context. In bringing together theorists from multiple jurisdictions and at least two primary disciplines, we should not be surprised to find deep differences in approach reflecting different methodologies and foundational questions. The tension between them, we hope, can illuminate and enrich discussion on all sides. Further, through combining insights from law and philosophy, we also intend to add another layer to the current trend to focus on the empirical in family law research, and highlight how critical debates in children’s and family law are at once theoretical and empirical in nature. Understanding the nature and content of a child’s “best interests” as contained in multiple jurisdictions’ legal frameworks regulating private and/or public law concerning children, for example, requires us to approach the matter both conceptually – in order to adjudicate between frameworks – and in terms of fit with evidence from research. This immediately makes any satisfactory resolution more uncertain, contested, and subject to criticism. It is in this context that we hope that the conversations between law and philosophy, their points of agreement and divergence, can advance stalled debates.
International differences correspond, of course, to differences in law, policy, and procedure. Contrast, for example, England and Wales’ ‘single pot’ approach to the distribution of property and maintenance upon marriage breakdown to the more common, “pillarised” treatment of matrimonial property, pensions, and maintenance. The difference in system design necessarily affects the available potential justifications. As a more nuanced aspect of the impact of system design, one might consider the normative difficulties created by the variation in default regimes adopted in relation to matrimonial (or marital) property between US states. Facing jurisdictional differences – like considering historical changes within one’s own jurisdiction – can yield an awareness of the context-specificity of one’s own starting points. And awareness of how things are done differently can lead us to call into question our own ways of doing things. Such awareness might alert us to unintended consequences of legislation or to innovative solutions. And, more fundamentally, it might cause us to interrogate what we take as the core, the normal, or even the natural. This is where philosophical investigation becomes indispensable.
In Section II, we outline a number of respects in which the approaches taken by (academic) lawyers and philosophers writing in this field tend to differ, as well as how the structure of this collection seeks to cut across and highlight both these divergences and shared accounts. In Section III, we introduce the key themes that underpin the collection, which demonstrate the potential for cross-fertilisation between legal contexts as well as between legal and philosophical perspectives. When we refer to ‘lawyers’ and ‘philosophers’, we have in mind those working in family law and children’s law in particular.
Edited Book (1)
Case Note (5)
DOI: https://doi.org/10.1080/09649069.2017.1344398
In Wyatt v Vince, the Supreme Court was called upon to consider the correct interpretation of rule 4.4 of the Family Procedure Rules 2010, which governs the courts power to strike out a statement of case. The Court of Appeals 2013 decision, from which the wife appealed, was the
first reported decision on the interpretation of rule 4.4. This case commentary examines the Supreme Courts unanimous judgment in detail. Whilst the judicial interpretation of rule 4.4 resolves the matter before the court, Lord Wilsons judgment contains critical analysis of the nature of needs and contributions within the Matrimonial Causes Act 1973, section 25 exercise, both independently and as they relate to delay. The court responds to the forensic delay on the facts by narrowing its construction of needs to those generated by the relationship and treating delay as a countervailing consideration to weigh against contributions. The former reasoning raises the possibility of a more coherent, interpersonal theoretical basis for financial provision upon relationship breakdown more generally. The latter arguably constructs delay as a substantive consideration, which strengthens the social obligation basis for financial provision.
Report (2)
Internet Publication (1)
This report was commissioned by the Law Commission of Canada. However, shortly after the report was published on the Law Commissions website in 2005, the incoming Canadian government abolished the Commission and reports on pending issues were removed from the website. It is now available on the SSRN site.
Research programmes
Research projects
- Teaching and Learning Resources
- The Pivot of Positive Intervention: Local Authority Inclusion Services and School Exclusion
Research Interests
Family law theory; children's rights; welfare and wellbeing; education law
