Conceptualising the child through an ‘ethic of care’: lessons for family law

Abstract

In this article I critically analyse the two historical models for conceptualising the child: the protectionist model and the children’s rights model. I argue that both models are inappropriate ways in which to conceptualise the child. Protectionism is paternalistic, essentialises the child, and denies the child a voice. Equally problematic, the children’s rights model presumes the social desirability of the liberal individual, and emphasises rights over relationships, and universal principles over concrete situations. Given the flaws inherent in these models, I propose a third way in which to conceptualise the child based on a feminist ‘ethic of care’. Drawing on the work of proponents of an ethic of care, I consider how the ethic might conceptualise the child, and how it might translate into a family law context.

Why Do We Care? The Shifting Concept of Care in New Zealand and in the United Kingdom

“…16 The conceptualisation of the family in European legal tradition is moreover characterised by legal rights based on a notion of formal attachment between child and parents and an idea of 'possession'. 17 In contrast, Māori children are part of an extended family group or whānau, through whakapapa (genealogy). Whānau comprise the bottom tier of a social hierarchy that embraces both the idea of a living entity and extended family that can extend back three generations and to which members are bound.…”

Relational Autonomy and Family Law

“…The debates over the extent to which children should be able to make decisions about their medical treatment are well known and the battle lines firmly drawn (Kelly 2005;Mutcherson 2005;Herring 2013, Chap. 8).…”

Sense of coherence in late adolescence following involvement as a child in decision-making during parental separation

“…A semi-structured interview format was utilised to guide interviews and collect data during the interview. The interview guide enabled: Reciprocity between the interviewer and the participant (Galletta, 2013); follow up questions to be improvised based on the response of the participant (Polit & Beck, 2006); and space for individual verbal expression (Kelly, 2005). Invitations were sent by email and included, a detailed description of the research study, what could be expected from participating in the study including, possible risks and benefits and information regarding informed consent.…”