Kinship Matters

(A) Ebtehaj et al Prelims 31/8/06 13:17 Page i KINSHIP MATTERS This book is the fifth in a series by the Cambridge S...

Author: Fatemeh Ebtehaj | Bridget Lindley | Martin Richards

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(A) Ebtehaj et al Prelims

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KINSHIP MATTERS This book is the fifth in a series by the Cambridge Socio-Legal Group and is a product of a three day workshop held in Cambridge in September 2005. It concerns the evolving notions and practices of kinship in contemporary Britain and the interrelationship of kinship, law and social policy. Assembling contributions from scholars in a range of disciplines, it examines social, legal, cultural and psychological questions related to kinship. Rising rates of divorce and alternative modes of partnership have raised questions about the care and well-being of children, while increasing longevity and mobility, together with lower birth rates and changes in our economic circumstances, have led to a reconsideration of duties and responsibilities towards the care of elderly people. In addition, globalisation trends and international flows of migrants and refugees have confronted us with alternative constructions of kinship and challenges of maintaining kinship ties transnationally. Finally, new developments in genetics research and the growing use of assisted reproductive technologies may raise questions about our notions of kinship and of kin rights and responsibilities. The chapters in this book explore these changes and continuities from various disciplinary perspectives and draw on theoretical and empirical data to describe understandings and practices of kinship over time and across social groups in contemporary Britain. As will be evident throughout the book, meanings of kinship are multiple, contingent, and contested. Folk, institutional and disciplinary understandings constitute kinship in different ways, and these understandings shift with time and place.


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Kinship Matters

Edited by

FATEMEH EBTEHAJ BRIDGET LINDLEY MARTIN RICHARDS For the Cambridge Socio-Legal Group

OXFORD AND PORTLAND OREGON 2006


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Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1-503-287-3093 or toll-free: (1)-800-944-6190 Fax: +1 503 280 8832 E-mail: [email protected] Website: www.isbs.com © The editors and contributors 2006 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any mean, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing at the address below. Hart Publishing, 16C Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 51753 Fax: +44(0)1865 510710 E-mail: [email protected] Website: http://www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN-13: 978-1-84113-697-4 (paperback) ISBN-10 1-84113-697-2 (paperback)

Typeset by Hope Services, Abingdon Printed and bound in Great Britain by Biddles Ltd, King’s Lynn, Norfolk


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In memory of Alison Richards 1961–2005


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Preface This book is the fifth in a series by the Cambridge Sociolegal Group and is a product of a three day workshop held in Cambridge in September 2005. It is dedicated to our colleague, Alison Richards, who was involved in early discussions about the theme of the book and was to be a chapter author. Her work concerned care for children who were not able to live with their parents. Tragically, she died of cancer in September 2005. We are grateful for grants in support of two workshops from the British Academy and the John Hall Fund of the Faculty of Law, University of Cambridge. We would like to thank Michael Lamb who co-edited some of the chapters in this book, the discussants whose comments enriched the final chapters, Frances Murton who carefully subedited all the manuscript and Jill Brown for her support throughout the project. The Editors Cambridge, June 2006


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Contents Preface Notes on Contributors 1. Introduction: Regulating Relationships? FATEMEH EBTEHAJ

vii xi 1

Part 1: Who is Kin and What Does it Mean to be Kin in Contemporary British Society? 2. ‘Close Marriage’ in the Nineteenth and Twentieth Century Middle Strata LEONORE DAVIDOFF 3. Status Anxiety? The Rush for Family Recognition ANDREW BAINHAM

19 47

4. DNA Testing and Kinship: Paternity, Genealogy and the Search for the ‘Truth’ of Genetic Origins 67 TABITHA FREEMAN AND MARTIN RICHARDS Part 2: Kin Care of Children and Adolescents 5. Children and Their Changing Families: Obligations, Responsibilities, and Benefits JAN PRYOR

99

6. Substitute Care of Children by Members of Their Extended Families and Social Networks: An Overview JOAN HUNT

115

7. Recognising Carers for What They Do—Legal Problems and Solutions for the Kinship Care of Children 135 JUDITH MASSON AND BRIDGET LINDLEY 8. Restorative Practices: Repairing Harm through Kith and Kin LORAINE GELSTHORPE WITH LAYLA SKINNS

155

Part 3: Kin Contact and Care of Elderly People 9. Gender and Kinship in Contemporary Britain JANE NOLAN AND JACQUELINE SCOTT 10. Kin Availability, Contact and Support Exchanges Between Adult Children and their Parents in Great Britain EMILY GRUNDY AND MICHAEL MURPHY

175

195


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x Contents 11. Maintenance of the Elderly and Legal Signalling—Kinship and State MIKA OLDHAM

217

Part 4: Migrant Communities and Transnational Kinship 12. The Impact of Migration on Care: The Iranian Experience FATEMEH EBTEHAJ

239

13. Family Care and Transnational Kinship: British-Pakistani Experiences 259 KAVERI HARRISS AND ALISON SHAW 14. Kinship, Infertility and New Reproductive Technologies: A British-Pakistani Muslim Perspective NAZALIE IQBAL AND ROBERT SIMPSON

275

Afterword 15. Kinship as ‘Family’ in Contemporary Britain JANET FINCH

293

Index

307


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Notes on Contributors Andrew Bainham is Reader in Family Law and Policy at the University of Cambridge and a Fellow of Christ’s College. He has been Editor of the International Survey of Family Law since 1994, an annual publication which reviews developments in Family Law across the world. He is author of a leading textbook on the law affecting children, Children: The Modern Law (3rd edition, Jordans, 2005). He recently co-authored with Clem Henricson, The Child and Family Policy Divide: Tensions, Convergence and Rights (Joseph Rowntree Foundation, 2005) which examines the relationship between policies affecting families and those directed specifically at children. Leonore Davidoff is a Research Professor in the Department of Sociology at the University of Essex. Her research interests have included domesticity, family and kinship in the English middle class in the nineteenth and early twentieth centuries. She was the founder editor of the journal, Gender and History. Her publications include (with Catherine Hall), Family Fortunes: Men and Women of the English Middle Class 1780–1850 (Routledge, 2002 [2nd edition]); Worlds Between: Historical Perspectives on Gender and Class (Polity Press, 1995) and (with M. Doolittle, J. Fink, K. Holden) The Family Story: Blood, Contract and Intimacy 1860–1960(Longman’s, 1999). Fatemeh Ebtehaj is an associate member of the Centre for Family Research, University of Cambridge. Her research focuses on Iranian migrants and exiles, with a particular interest in issues related to gender, self and identity, narrative and discourse analysis. Her current research highlights the impact of migration on ageing and on the care of the elderly. Janet Finch is Vice-Chancellor of Keele University and a sociologist who specialises in studies of family relationships, particularly relationships across generations. She has published widely on these issues including their social policy implications. Her publications include Family Obligations and Social Change (Polity Press, 1989), Negotiating Family Responsibilities (Routledge, 1993), Wills, Inheritance and Families (Oxford University Press, 1996) and Passing On (Routledge, 2000). The last three have been co-authored with Jennifer Mason. Tabitha Freeman is a Research Associate at the Centre for Family Research, University of Cambridge, and a Research Fellow of St. Edmund’s College, Cambridge. Her main field of research is gender, reproduction and the family. She obtained a PhD in Sociology from the University of Essex for interdisciplinary


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xii Notes on Contributors research on cultural and theoretical concepts of fatherhood. Her current research interests include psychosocial and cultural aspects of new genetic and reproductive technologies. She has recently started work on a study of adolescents conceived by donor insemination, funded by the Nuffield Foundation. Loraine Gelsthorpe is Reader in Criminology and Criminal Justice at the Institute of Criminology, University of Cambridge, and a Fellow of Pembroke College, Cambridge. Her research largely revolves around discretion and discrimination in the conception and delivery of criminal justice, and youth justice. Current work includes an edited book about probation and community penalties, women offenders and resettlement, and constructions of morality in pre-sentence and psychiatric reports. Recent books include: Community Penalties: Change and Challenges (with A E Bottoms and S Rex; Willan, 2001), Exercising Discretion: decision-making in the criminal justice system and beyond (with N. Padfield; Willan, 2003) and Sexuality Repositioned: Diversity and the Law (with B. Brooks-Gordon, M. Johnson and A. Bainham; Hart, 2004). Dr Gelsthorpe is the current Chair of the Cambridge Socio-legal Group. Emily Grundy is Professor of Demographic Gerontology at the London School of Hygiene and Tropical Medicine. Emily’s main research interests are families, households, kin and social networks in later life, especially in relationship to health, and trends and differentials in health at older ages. Currently she is researching links between partnership parenting histories and later life health and is involved in collaborative European projects on family support for older people. Her teaching includes running a short course on Ageing, Health and Well-being in Later Life. Emily has published over 100 journal articles, book chapters and monographs. Kaveri Harriss is a research student at the London School of Hygiene and Tropical Medicine. She is working towards a PhD on the relationships between long-term illness, disability and poverty in British Pakistani communities, using an ethnographic approach supported by secondary analysis of national survey data. Her research focuses on intra-household relationships and allocation, gender, transnationalism, mental health and ageing. Joan Hunt is Senior Research Fellow in the Centre for Family Law and Policy, part of the Department of Social Policy and Social Work at the University of Oxford. Her research interests are the law relating to children and families, the operation of the family justice system and the interface between legal institutions, families and social welfare agencies. She is currently conducting research for the DFES into outcomes for children removed from their birth parents and cared for long term by members of their extended families or social networks. She is the author of a scoping paper on family and friends care commissioned by the Department of Health (2003) to inform policy development and a


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Notes on Contributors xiii briefing paper for social work practitioners and managers commissioned by Research in Practice (forthcoming). Nazalie Iqbal is a temporary lecturer at the University of Durham. She is currently finishing her PhD thesis, which focuses on kinship and transnationalism among British Pakistanis. Her next research is a major ESRC funded project which explores infertility and the take-up of new reproductive technologies among British Pakistani Muslems. Bridget Lindley has been a solicitor since 1986 and a family mediator since 1998. She was a senior Research Associate at the Centre for Family Research, University of Cambridge from 1997–2002 and is currently vice chair of the Socio-legal Group. Bridget has also been the Legal Adviser at Family Rights Group (FRG) on and off since 1988 and is currently deputy chief executive of FRG. She has a particular interest in public law children’s cases with a longstanding involvement in campaigning for effective information, advice and support for vulnerable families whose children are in need of statutory services. Mika Oldham is a lecturer in Law at Cambridge University and a Fellow of Jesus College. She teaches and writes on family law, property law, criminal law and succession. She is involved in various inter-country reform projects and also teaches common law courses in a number of civil law jurisdictions. Judith Masson is Professor of Socio-legal Studies at Bristol University, specialising in child law and socio-legal research in adoption, child care and child protection practice. She is co-author of a number of books on child and family law including The Children Act Manual (1992), Out of Hearing (1999) and Principles of Family Law (7th Ed, 2003), and is currently writing a book on Emergency Child Protection. Judith teaches courses on Family Law, Child Law and International Child Law to law students, social workers and doctors. She has undertaken consultancies and research for various government departments, for the Legal Services Commission and for NGOs including Voice for the Child in Care, Family Rights Group and British Agencies for Adoption and Fostering. She is a member of the Judicial Studies Board and the Family Justice Council. Michael Murphy is Professor of Demography at the London School of Economics. He is a Fellow of the British Academy and Research Secretary of the Population Investigation Committee. His main areas of research include: family, kinship and household demography; ageing; social and genetic mechanisms for the inheritance of behaviour. Recent publications include Forecasting British Families into the 21st Century with D Wang in (McRae (ed), 1999) and, with L Knudsen, The Intergenerational Transmission of Fertility in Contemporary Denmark: the Effects of Number of Siblings (full and half), Birth order, and Whether Male or Female in Population Studies (2002).


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xiv Notes on Contributors Jane Nolan is a Research Associate in the Faculty of Social and Political Sciences at the University of Cambridge and is Director of Studies at Magdalene College. Her research focuses on gender, employment and family and she has published on the themes of work orientation, job insecurity and work intensification. Her publications include ‘The Intensification of Everyday Life’ in B Burchell, D Ladipo. and F Wilkinson (eds), Job Insecurity and Work Intensification (Routledge 2002) and ‘Job insecurity, psychological well-being, work orientation and family life’ (with Brendan Burchell and Ines Wichert) in E Heery (ed), The Insecure Workforce (Routledge, 2001) Jan Pryor is an Associate Professor at Victoria University of Wellington, New Zealand, and is Director of the McKenzie Centre for the Study of Families. In 2001 she co-authored, with Dr Bryan Rodgers, the book Children in Changing Families: Life After Parental Separation’ (Oxford, Blackwells, 2001). Her research focuses on family transitions and their impact on children. As well as research, she contributes to educational programmes for professionals working in the New Zealand Family Court, and is involved in the establishment of a new longitudinal study of New Zealand children. Martin Richards is Emeritus Professor of Family Research at the Centre for Family Research, University of Cambridge. His research is focused on psychosocial aspects of new genetic and reproductive technologies. He has been a member of the Human Genetic Commission and the Law and Ethics Committee of the Human Fertilization and Embryology Authority. He has been a contributor and co-editor of earlier Socio-Legal Group volumes, What is a Parent? (1999), Body Lore and Laws (2002) and Children and their Families (2003). He co-edited The Troubled Helix (Cambridge, 1996) with Théresa Marteau. He also has historical interests in this field. ‘Perfecting People: Selective Breeding at the Oneida Community 1869–1879 and the Eugenic movement’ (2004) 23 New Genetics and Society 49. Jacqueline Scott is Professor of Empirical Sociology at the University of Cambridge and Fellow of Queens’ College. She directs the ESRC Research Priority Network on Gender Inequalities in Production and Reproduction. She was responsible for the initial design and launch of the British Household Panel Study—a longitudinal, prospective study that follows 5000 households in Britain. She is editor (with Martin Richards and Judith Treas, 2004) of The Blackwell Companion to the Sociology of Families. She has published widely on family and household change and changing family values, including articles in Sociology, the Sociological Review, the European Journal of Sociology and the British Journal of Sociology. Alison Shaw is Senior Research Fellow at the University of Oxford, in Oxford’s Centre for Ethics and Communication in Health (Ethox). She was previously a


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Notes on Contributors xv lecturer in Social Anthropology at Brunel University, where she taught on aspects of medical anthropology and ethnicity in the UK. Her research focuses on health and ethnicity, Pakistani marriage trends, consanguinity, genetic risk and social aspects of genetics. Her publications include Kinship and Continuity: Pakistani Families in Britain (Routledge, 2000), ‘Immigrant Families in the UK’ in J Scott and M Richards (eds.), Blackwell Companion to the Sociology of Families (Blackwell, 2003), ‘Attitudes to Genetic Diagnosis and to the Use of Medical Technologies in Pregnancy: Some British Pakistani Perspectives’ in Unnithan-Kumar (ed), Reproductive Agency, Medicine and the State (Berghahn, 2004) and Changing Sex and Bending Gender (with S. Ardener, Berghahn, 2005). Bob Simpson is a Reader in Anthropology at the University of Durham. His main interests centre upon kinship, new reproductive and genetic technologies and comparative bioethics. He has carried out a wide range of research both in the UK and in Sri Lanka and has published widely on topics relating to family, divorce, kinship and the new technologies. He held a Wellcome Trust Fellowship in Bioethics between 2002–03. Layla Skinns completed her Ph.D. on interagency aspects of local authority crime prevention following the Crime and Disorder Act 1998, at the Institute of Criminology, University of Cambridge in 2005. She is a currently a Research Fellow at the Institute for Criminal Policy Research, King’s College, London. She will be the Adrian Research Fellow at Darwin College, University of Cambridge, from the Autumn of 2006.


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1 Introduction: Regulating Relationships? FATEMEH EBTEHAJ 1

T

HIS BOOK IS about evolving notions and practices of kinship in contemporary Britain and the interrelationship of kinship, law and social policy. By assembling contributions from scholars in a range of disciplines, we examine social, legal, cultural and psychological questions related to kinship: Who is kin and what does it mean to be kin in contemporary British society? What are the obligations, responsibilities and benefits that may accrue from kin? How are these implemented in the arrangements for care, decisionmaking and financial responsibility by and for kin? And how do law and public policy recognise kin relationships? Recent demographic, economic, and cultural changes have led many to voice concerns about the ‘weakening’ of kin relationships and family ties. Rising rates of divorce and of sequential and alternative modes of partnership, including cohabitation and same-sex relationships, have raised questions about the care and well-being of children, while increasing longevity and mobility, together with lower birth rates and changes in our economic circumstances, have led to a reconsideration of duties and responsibilities towards the care of elderly people. In addition, globalisation trends and international flows of migrants and refugees have confronted us with alternative constructions of kinship and with the challenges of maintaining kinship ties transnationally. Finally, new developments in genetics research and the growing use of assisted reproductive technologies may raise questions about our notions of kinship and of kin rights and responsibilities. As law and policy have shaped, and are shaped by, these changes in social relations, they codify and regulate kin relationships, supporting some constructions of kinship and excluding others. The chapters in this book explore these changes and continuities from various disciplinary perspectives and draw on theoretical and empirical data to describe our understandings and practices of kinship over time and across social 1 With thanks to Martin Richards, Bridget Lindley, Frances Murton, Gudrun Klein, and Hamid Hakimzadeh for their helpful comments and editorial support.


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2 Fatemeh Ebtehaj groups in contemporary Britain. As will be evident throughout the book, meanings of kinship are multiple, contingent, and contested. Folk, institutional and disciplinary understandings constitute kinship in different ways2, and these understandings shift with time and place3. As individuals negotiate their responsibilities, duties and obligations towards kin situationally, they strategically define and redefine kinship to assess relationships, to stake claims on them, to ground their identities, and to establish moral accountability (Finch, 1989; Finch and Mason, 1993; Brannen, Moss and Mooney, 2004). Here I review some recent developments in approaches to kinship and families in the social sciences before going on to outline the contents of the book.

‘NATURALISING’ KINSHIP

Kinship has long been central to anthropology, yet a reader today will inevitably encounter, in any discussion of kinship, a reference to Schneider’s seminal study of ‘American kinship’ (1980) and to his subsequent ‘Critique of the study of kinship’ (1984). The first study shifted the analysis of kinship from structure to cultural meanings, and the subsequent critique exposed Western tendencies to naturalise kinship and to construct it in terms of biology and reproduction. Schneider argued that anthropologists had transposed their own folk notions of kinship to other social groups. He specifically disputed what he disparagingly called ‘the Doctrine of the Genealogical Unity of Mankind’ (1984, p198) which he attributed to anthropologists’ ethnocentric assumptions rather than to empirical evidence. Schneider showed that the Yapese, for instance, did not operate on the basis of genealogy, but rather valued interaction and exchange. We can see that the relationship is more one of doing rather than of being. It is based largely on the interaction, the doing, of the exchange and less on the state of being, of having some substance, quality, or attribute. (1984, p75)

As a result, Schneider reminded his colleagues that anthropology’s central task was to attend to indigenous meanings and practices and to treat kinship ‘as an empirical question, not as a universal fact’ (1984, p200). The deconstruction of the ‘natural’ basis of kinship, together with the rise of feminism, contributed to an increasing awareness of the interdependence of kinship and gender (Collier and Yanagisako, 1987; Yanagisako and Delaney, 1995). 2 At the September 2005 conference that brought the authors of this book together, Grundy commented that kinship ‘flags’ anthropology while sociology refers to ‘families’. Moreover, while family law deals with familial relations such as marriage or parenthood, neither ‘kinship’ nor ‘family’ have legal definitions (Herring, 2004). 3 See, for instance, Rapp (1987) for a brief overview, Goody (1983) and Davidoff, Doolittle, Fink and Holden (1999) for more thorough discussions of some historical and cultural shifts in definitions of ‘family’. Also see Davidoff, this volume.


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Introduction: Regulating Relationships? 3 Here too, social constructions and understandings were laid bare and the workings of power exposed. And in another challenge to kinship studies, Borneman (2001) charted the history of anthropological categories of analysis from sexuality to marriage to kinship to gender to power, and argued that while each generation subsumed the prior object of analysis into the new one, the initial object was never called into question. Borneman observed that a ‘global ideology’ of ‘marriage and the family’ led to the ‘social and legal protection of a particular form of sociation: heterosexual marriage and family’ (p 30). Instead of privileging ‘forms of communal reproduction’, Borneman advocated attending to ‘caring and being cared for as processes of non-coercive, voluntary affiliation’ (p 31). In response to these critiques, many anthropologists have tried to be more sensitive to indigenous categories of meaning and to question polarities such as ‘nature/culture’, ‘social/biological’, and ‘public/private’. Some carefully refrain from any claims to generalisation and stress that ‘notions of kinship are understood to be rooted in time, space and position within society’ (Maynes, Waltner and Solan, 1996 p5); others prefer to speak of ‘relatedness’ instead of, or in parallel to, kinship (Carsten, 2000, 2004). These new developments notwithstanding, Franklin and Ragone (1998, p3) observe that ‘assumptions about the biological basis of reproduction have proven difficult to displace’. Their contribution aims to re-examine reproduction in the light of new developments in reproductive technologies and genetics research. Ironically, however, Franklin and Ragone find that the new reproductive technologies both challenge and reinforce biological or ‘natural’ understandings of kinship, appealing, for instance, to ‘the naturalness of the desire to procreate’ (p 9)4.

THE REIFICATION OF FAMILY

Moving to sociology, we find similar attempts to move away from the reification of ‘the family’. Social constructionist approaches deconstruct folk and institutional notions of family by focusing on language and discursive strategies. ‘What is family?’ ask Gubrium and Holstein (1990, p6), and ‘what does the absence of the simple modifier ‘the’ make?’ The authors note that the ‘thing’ implied when we speak of ‘the’ family has fuzzy boundaries and that its meanings and referents vary across individuals and contexts. They note in particular that ‘family is a way of thinking about social relations’ that is ‘organisationally embedded’ (p 116) and explore instances when two sets of institutional discourses and procedures collide. In a case of involuntary mental hospitalisation, 4 For similar findings, see Franklin and McKinnon (2001), Strathern (1992, 2005), and Freeman and Richards, this volume.


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4 Fatemeh Ebtehaj for instance, the judge may evaluate the capability of a family member to take responsibility to ‘contain and control’ (p 128) the individual in question, while a therapist’s concerns rest on the family member’s ability to take care of the individual and to convey feelings of belonging and security5. The familial discourse has been analysed in other contexts. Finch (1989), for instance, describes the shifting boundaries between private and public responsibilities for the care of kin. She notes that the State draws on a naturalising discourse of family ties and obligations to relegate the care of kin to family members, creating ‘a particular moral order’ where family duties are confused with ‘natural feelings’ (p7). The State’s view of family condones a very particular set of relationships within which women tend to be framed as the primary providers of ‘the unpaid-labour which secures the reproduction of the population and the care of the sick and elderly’ (p11)6.

WHO IS KIN AND WHAT DISTINGUISHES KIN RELATIONSHIPS?

Are kin relationships ‘special’? In response to this question, Finch (1989, p113) begins with a review of theories that refute the distinctiveness of kin relationships and view kinship merely ‘as a variation on other types of social relationship, not as special or different in a qualitative sense’. This stance is exemplified by views that stress the material conditions under which people live or that centre on a notion of self-interest. Finch then reviews some theories that do view kin relationships as special. These may draw on biology (sharing genes, ‘blood is thicker than water’), on the economics of family altruism (family as ‘haven’), on emotional ties arising from bonds formed early in life (psychoanalytic theories), and finally on theories that focus on the social organisation of societies. Finch herself considers kin relationships to be special on the basis of social rather than ‘natural’ understandings. She defines kin as people ‘related through blood or marriage’, but also includes ‘others whom people treat as relatives’ such as adoptees and cohabitees, and she distinguishes between kin relationships that are regulated by law, such as marriage and parenting, and those that are not. While kinship in Britain is characterised by its flexibility, research shows that ‘the inner circle of intimate kin almost always includes “biological” parents and children, however warm or difficult the actual relationships between the parties’ (Finch and Mason, 2000, pp 10–11). Our location in our family of origin is ‘automatic’, ‘irrevocable’, and ‘lifelong’ (Finch, 1989, p 240), thereby marking our relationships within that family as distinctive and different from all others. 5 See Harriss & Shaw, this volume, for a discussion of British Pakistanis’ and immigration officers’ conflicting definitions of kin. 6 See also Nolan and Scott, this volume.


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Introduction: Regulating Relationships? 5 What characterises these relationships consists of our sense of obligation, a ‘matter of morality’ that ‘does not operate on the basis of fixed rules’ but rather operates ‘on the basis of normative guidelines or principles’ (Finch, 1989, p241) which include the principle of reciprocity, some need for individual independence, and the notion that interpersonal support is negotiated and fluctuates over time and situations7. Furthermore, kinship ties are central in the acquisition and circulation of material and symbolic resources, and in their transmission to future generations8. Such resources include names, identity and cultural affiliation, property, and social status (Maynes, Waltner, Soland and Strasser, 1996, p17). In an insightful study, Finch and Mason (2000) examine inheritance as a site for the construction of kinship. English law, in contrast to many other countries, grants full testamentary freedom9. Via an analysis of wills, the authors examine some of the ways in which individuals ‘define the contours of their own kin relationships (and) confirm who “counts” and what value is placed on each relationship’ (p11). As Finch and Mason observe, legacies have not only material, but also symbolic value; they embody and communicate notions of closeness and intimacy, of time and continuity. They can produce family solidarity or lead to family feuds. In the case of migrants and exiles, the symbolic and material aspects of inheritance are further affected by differences between the laws of the host and home countries, heightening some migrants’ psychological experience of displacement and dislocation10.

AN ETHIC OF CARE

As Brannen, Moss and Mooney (2004, p150) observe, Family responsibilities typically involve the negotiation of the ethic of care in relation to the needs of those needing care, the availability of others to offer care and so on.

An ethic of care is often identified with feminist moral theories, especially following Gilligan’s (1982) seminal analysis of women’s moral development. The economy of care is undoubtedly gendered but we must bear in mind that it is also ‘classed’11 and ‘raced’ (Tronto, 1994, p112). Despite the material social and human value of the work of kin care, carers enjoy little social status and respect 7 See Pryor, this volume, for further discussion of the notion obligations, and Grundy and Murphy for variations in contact between adult children and their parents. 8 See Davidoff, this volume, for a discussion of cousin marriages in 19th century England as a means to acquire and control financial resources. 9 See chapter by Oldham, this volume. 10 See chapters on migrants by Ebtehaj and by Harriss and Shaw, this volume. 11 For empirical studies on the power and the interaction of class and gender, see Maynes, Waltner, Soland and Strasser (1996).


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6 Fatemeh Ebtehaj in society, and the financial rewards for their care reflect as much12. It is no wonder that some women actively reject the State’s attempts to push the responsibilities of kin care back onto families after having fought so hard for equal gender rights and opportunities13. While we tend to speak positively of kinship, care and community, positioning these concepts and related practices as morally superior to ‘selfish’ individualistic trends, it is essential that we also recognise the power inequalities and tensions that are often embedded in them14. On the one hand, families and kin groups can be sites for the accumulation of power15; on the other hand, families can foster power, inequalities and conflict16. Moreover, just as some researchers (e.g. Finch and Mason, 1993, 2000) highlight our ability to choose kin and to negotiate care, we must bear in mind that family ties are essential to our construction of self, status and identity, and that they can strengthen and empower us but also add to our vulnerability. Kinship supplies among the most pervasive, and pervasively entrenched, of the various motifs and formulas of life-narration.. . . . A system of subjectivation, after all, kinship can devolve into sheer oppression, an oppression all the more severe when (as is virtually always the case) it is imbricated with class, or caste, or race, or nationality. . . . Among its many attributes, the body of kinship very often delimits the arena in which the self garners its primary legitimation . . . . Yet the body can reject those members it deems unworthy or corrupt, leaving the outcast either to cope with the intolerabilities of exile or to search out more sympathetic judges. (Faubion, 2001, p16).

Similar concerns have been voiced regarding power imbalances in a legal context. In a chapter concerned with informal disputes, for instance, Edelman and Cahill (1998) claim that these are increasingly ‘handled in the shadow of the courts, where formal rules operate only at the margins’ (p 18). The authors argue that, in such cases, an ‘ideology of community’, based on notions of social solidarity and harmony, displaces the law’s ideology of universal rights. While critical of both frameworks in terms of their failure to compensate for power imbalances, and with the observation that ‘liberal legal ideology reifies rights’ while ‘the ideology of community reifies relationships’ (p 22), the authors assert that an emphasis on harmony and compromise may clash with some public 12 See Tronto (2004) for further discussion of the moral, social and political implications of devaluing care and carers. For a discussion of ‘respect’ in contemporary Euro-American societies, see Sennett (2004). 13 Commenting on Japanese feminists successful efforts to thwart the implementation of the German kin care model in Japan, Campbell (2002, p 181) writes that their goal was ‘to finish off family caregiving, not to prop it up’. 14 In that light, Edwards & Strathern (2000, p 152) critique the ‘sentimental’ Euro-American view of kinship as community and the ‘romantic view of connections as benign and community as harmonious’. 15 See Davidoff, this volume. 16 See, for instance, the case studies in the chapters on migrants, this volume.


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Introduction: Regulating Relationships? 7 values, such as civil rights, environmental preservation, and gender equality which ‘tend to involve non-negotiable positions’ (p29). The ensuing shift from public values to private interests may be of particular concern in family mediation where it is less noticeable due to the traditional framing of family matters as ‘private’. Edelman and Cahill further argue that it would be extremely difficult for mediators to compensate for power differences and that they might be swayed by their interest in settlement. Distinctions between ethics of justice and care are widely discussed in moral philosophy. Some theorists set them up as incompatible, others attempt to integrate them, and some, like Held (2006) for instance, take a middle position and recommend that we view justice and care as ‘conceptually distinct’ and that we ‘delineate the domains in which they should have priority’ (p17). Thus, the law, for instance, would prioritise justice and rights but also attend to ‘the humane considerations of care’; correspondingly, care would take precedence in personal relationships but the ‘basic requirements of justice’ must also be met (ibid.). While no easy solutions may be offered to the justice-care debate, a careful consideration of the complexities and power relations involved must be present in our discussion of kinship understandings and practices.

SHOULD THE STATE REGULATE RELATIONSHIPS?

Another question that we must address17 relates to the extent to which the State should regulate relationships. As illustrated in the previous discussion of inheritance laws, law and social practices interact and influence each other in powerful ways and this continuous interaction shapes our social construction of reality and our individual lives and experiences18. In that context, Butler (2004) invites us to consider State legislation of kinship critically. In a discussion of the tensions between public opinion, normative behaviours, and the law, Butler questions the ‘always already heterosexual’ understandings of kinship. She observes that kinship in public opinion generally does not ‘qualify as kinship, unless it assumes a recognizable family form’ (p 102) and is conferred legal status through marriage. In practice, however, kinship relations often do not submit to the nuclear family model and exceed ‘the reach of current juridical conceptions’ (p 102). In that context, Butler acknowledges the practical and psychological cost to individuals and to relationships when a relationship lacks State legitimation. Beyond the practical 17

See Bainham, this volume, for an extensive discussion of these matters. When the law lags behind social practices, individuals may resort to subterfuge in order to fit their relationships into legally acceptable definitions. Borneman (2001), for instance, documents a 1995 case in Germany when two men disguised their relationship as lovers and resorted to adoption in order to leave property to each other. 18


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8 Fatemeh Ebtehaj difficulties that individuals may face when dealing with courts, hospitals or other institutions in times of crisis, the relationship itself becomes harder to sustain and ‘the absence of State legitimation can emerge within the psyche as a pervasive, if not fatal, sense of self-doubt’ (p 114). Nevertheless, Butler observes that such legitimation is ‘double-edged’ (p116). While she supports same-sex couples’ demands for State recognition, she also points out that this may undermine claims for ‘the viability of alternative kinship arrangements’ and ‘signal the end of a radical sexual culture’ (p 105). Therefore, Butler adds, It is crucial that, politically, we lay claim to intelligibility and recognisability; and it is crucial, politically, that we maintain a critical and transformative relation to the norms that govern what will and will not count as intelligible and recognizable alliance and kinship (p 117).

Keeping these cautionary remarks in mind, let us turn to the individual chapters and review how they variously deal, theoretically and empirically, with the themes raised so far.

CONTENTS OF THIS BOOK

This book comprises four parts. The chapters in Part 1 examine historical, social and legal shifts in the construction of kinship. They address some of the most significant constitutive and instrumental dimensions of kinship, notably kinship as an economic resource and kinship as a source of status and recognition. They also raise questions about the tension between social and biological constructions of kinship, and about the legal regulation of kin relationships. In Chapter 2, Davidoff discusses ‘close marriage’—unions between kin related by blood or marriage—in 19th and early 20th century England. Within the context of economic growth, such unions reinforced kinship ties and thereby facilitated access to capital, pools of skills and other resources. Davidoff notes that in the absence of legal regulations, economic partnerships relied heavily on the trust derived from family ties, and her examples include the Wedgwood and Darwin families. As Davidoff points out, one prerequisite for close marriage consists of a sufficient number of relatives, and the decline in fertility rates in the early 20th century contributed to diminishing numbers of close marriages. Furthermore, new institutions were designed to regulate commercial, professional and financial affairs, and these led to partnerships shifting the basis of trust from kinship ties to contractual ones. For these and other reasons, close marriages became increasingly rare by the end of the 20th century. In Chapter 3, Bainham addresses the interdependence of family status, socially and legally. Using same-sex partnerships as his example, he demonstrates that English law, in contrast to some other countries, persists in treating


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Introduction: Regulating Relationships? 9 same-sex and heterosexual relationships differently. The Civil Partnership Act 2004 conveys almost all the legal effects of marriage, but it is exclusively available to same-sex couples while marriage remains available only to heterosexuals. Another important distinction lies in the inability of civil partners to acquire legal parentage of a child who is the biological child of one of them. Bainham concludes by formulating poignant questions for policy makers, most notably about the creation and transmission of legal kinship, its importance, and how far the law should continue to regulate relationships. In Chapter 4, Freeman and Richards explore the impact of recent developments in genetics and reproductive technology on legal and social constructions of paternity and kinship. DNA testing allows individuals, for the first time, to confirm biological kinship, and it is increasingly used in courts when paternity is contested or in cases of unknown parentage. Such tests are primarily used by the State in order to enforce child support liability or to regulate immigration, but they are also increasingly available as ‘DIY’ home-testing kits designed to ensure ‘peace of mind’. DNA testing can also be used to trace individual ancestry. Freeman and Richards note that this renewed emphasis on biological kinship and ‘genetic essentialism’ competes with social trends that stress the social and care-based aspects of kinship. The authors observe that this ‘paradox’ only highlights tensions that have always been part of Western kinship ideology. In that context, they want to hold on to the social-biological distinction as it continues to prevail in popular and legal discourse. Parts 2 and 3 explore variations in kin contact and support in Britain and discuss the extent to which the State enables and assists family cohesion and care. The chapters in these sections stress the lack of consistent help from governmental institutions, the complexity of the system and the need for more transparency and clearer guidance through it. They also show how the State’s construction of kinship shifts historically, at one time transferring responsibility from families to society at large, now advocating and promoting kinship care, primarily for economic reasons. Part 2 centres on kin care in relation to children and adolescents. The chapters in this section explore children’s understandings of kinship, the experiences of kin who care for them in the absence of parents, and the introduction of ‘communities of care’ in juvenile crime or civil dispute situations. In Chapter 5, Pryor addresses the impact of ‘transitions’ such as parental separation or remarriage on children’s lives. Looking at diverse family forms including stepfamilies and families formed by artificial reproductive technologies, Pryor reviews children’s experience of these transitions and their changing views of who is kin, as well as the adults’ obligations and responsibilities towards these children, in light of three conceptual frameworks: ‘felt obligation’ (personal belief), ‘relational commitment’ (commitment to a relationship rather than to an individual), and ‘ambivalence’ (in response to changing roles and feelings). Pryor reports that children adapt to their changing circumstances in a predominantly flexible and pragmatic manner, although younger children


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10 Fatemeh Ebtehaj appear to be more accepting of step-families. Their understanding of kinship is predicated on affective bonds rather than on biological or legal ties, and they also feel obligations towards the adults who take care of them. As Pryor observes, whether family changes impact on children’s lives positively or negatively depends to a large extent on the willingness of the adults and authorities involved to demonstrate flexibility and commitment. Chapter 6 focuses on families in which children are being cared for full-time by members of their extended families or social networks. Hunt focuses on the carers’ motivation, on the impact of caregiving on their lives, and on the services and support they need to carry out their work. She finds ‘felt obligation’ (see previous chapter by Pryor) to be key in carers taking on the responsibility and commitment required, and while affective bonds with the children or their parents may not be necessary at first, the carers’ relationship with the children becomes crucial when they encounter difficulties. For some ethnic minorities, the wish to preserve and transmit cultural identity is also an incentive. In this context, Hunt claims there is insufficient research measuring the relative merits of kin versus non-kin care. She observes that arguments for kin care tend to be based on social values emphasising family cohesion rather than on direct evidence related to the well-being of the children. She therefore calls for further research while also making policy recommendations designed to recognise the value of kin care and to support it meaningfully. The kin care of children is also the theme for Chapter 7, with a focus on the ways in which the law can better assist carers. Masson and Lindley observe that while the number of children who are cared for by relatives is estimated at a quarter of a million, these carers do not automatically benefit from legal recognition and status, nor do they receive assistance from social services when they encounter difficulties with the child’s parents. The authors note that carers can obtain court orders which give them the rights and status similar to those of parents, but reliance on the courts presents several disadvantages: it may aggravate disputes between parents and carers, and carers may be reluctant, or lack the resources necessary, to apply to the court. Masson and Lindley call for less formal approaches, such as automatic recognition or private ordering. Further ways to support parents and carers more effectively include the provision of comprehensive information about their rights and responsibilities, mediators to assist them in sorting out their disagreements, and practical and financial support. In Chapter 8, Gelsthorpe (with Layla Skinns) discusses the introduction of New Zealand’s concept of restorative justice in British criminal justice and civil practices. Restorative justice aims to repair and ‘restore’ social bonds that have been disrupted by crime or conflict by locating the relationships between the various parties involved within a wider ‘community of care’, thereby emphasising collective responsibility and support. Family Group Conferencing (FGC) is one practice that derives from this approach and seeks to draw in members of the wider kin group to assist in the resolution of the concern at hand. Gelsthorpe’s review of FGCs practices and their impact on the juvenile justice


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Introduction: Regulating Relationships? 11 and child protection spheres shows mixed results. The author highlights the difficulties related to the transfer of the culturally informed notions of justice and community from New Zealand to Britain, showing, for instance, how the concept of a community of care becomes translated as a geographical community. While restorative justice appears to produce some improvement in criminal cases, the mixed findings in the civil context may also be related to inadequate follow-up services. Part 3 focuses on relationships between adults, with a particular interest in issues related to elderly kin. The gendered dimension of kin relations and care is a central component of kinship. In Chapter 9, Nolan and Scott review the impact of recent demographic, social and economic changes on gender equality and the organisation of care. The authors’ research on inter-generational relations finds that women continue to be the principal ‘kin-keepers’. The authors do report some decline in contact with relatives due to women’s increasing involvement in the labour force and to geographical mobility, but overall, family ties in Britain, especially mother-daughter ties, remain strong and the authors report no substantive decline over the 15 year period under study. In agreement with other researchers, Nolan and Scott also find that intergenerational exchanges tend to flow downward, and grandparents, particularly grandmothers, are an important source of childcare. In terms of financial help, men are more likely to provide financial support to adult children. The authors question the reality of ‘choice’ for women and increasingly for grandparents, and their findings challenge the notion that modernity has led to egalitarian gender roles. Chapter 10 centres on contact and support exchanges between adult children and their parents. Grundy and Murphy address current concerns about the impact of demographic changes on the support of older people and aim to identify groups most likely to lack intergenerational support. Arguing that demographic research must extend beyond the household, the authors draw on a nationally representative survey to examine the impact of marital status and socio-economic variations on intergenerational contact and support. Their findings show continuing high levels of contact and interaction assisted by modern means of communication between the two generations, with less proximity and contact among respondents with higher levels of education and socio-economic status. They also note that the number of siblings is inversely correlated with intergenerational contact, suggesting a greater commitment by only children. In terms of intergenerational exchange, Grundy and Murphy find large differences both by socio-economic status and by marital characteristics. While divorce does not necessarily disrupt interactions, there is some negative impact on exchanges between fathers and their adult children. Addressing future concerns for policy-makers, the authors note that while higher education is associated with reduced interaction and a higher proportion of childless women, it also enables individuals to widen their network beyond the sphere of close family.


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12 Fatemeh Ebtehaj In Chapter 11, Oldham discusses the maintenance and care needs of elderly people in the light of the trend towards individualism. Unlike most other countries, English law exempts individuals from the duty to provide for parents and grandparents, and grants full testamentary freedom. Thus, the reciprocity encoded in the law of countries where care for parents and inheritance rights are regulated does not exist in Britain, and in terms of ‘legal signalling’, the older generation is excluded from family law and relegated to social welfare law. With the establishment of the welfare state, responsibilities for the maintenance and care of elderly people were moved from the family sphere into the public domain. While this move assures a minimum level of care and autonomy for the older generation, Oldham is concerned that it does not support family cohesion. Within the context of the State’s efforts to contain public expenditure, Oldham recommends the promotion of voluntary and private support by providing tax incentives, by introducing a reciprocity dimension in inheritance law, and by re-emphasising the familial ties of grandparents with a right to apply for contact. The chapters in Part 4 concentrate on the experiences of Iranian and British Pakistani migrants living in Britain and show that kinship ties remain central in their lives, but also illustrate the difficulties involved in caring for kin when family members and friends are dispersed over several countries. Additionally, all migrants must face the host country’s immigration legislation, the restrictions it imposes on qualifications for citizenship and its construction of kinship ties. While the similarities are many, these chapters also point to significant differences between groups of migrants due to the distinctive circumstances of migration and to the specifics of the historical relationship between home and host countries. The main difference between the Iranians and British Pakistanis relates to their different position as exiles versus transmigrants. For Iranian exiles, visiting kin in Iran can entail personal risks that many are reluctant to consider; British Pakistanis, on the other hand, are restricted by economic rather than political concerns. Ebtehaj focuses on Iranian exiles’ care of elderly parents and spouses, both in Iran and in Britain in Chapter 12. She reports that her research participants’ experience is predominantly one of dislocation and loss due to the fragmentation of their kinship network. Within this context, Ebtehaj distinguishes between the challenges related to caring for elderly kin in the UK and caring for them in Iran. Despite the exiles’ ongoing emphasis on kinship ties, Ebtehaj notes the prevalence of intra-familial disputes and uses two case studies to highlight both personal and circumstantial differences in her research participants’ accounts. Among other findings, she illustrates the different stance that her research participants take towards legal authorities in Iran and in the UK. Ebtehaj argues that the challenges involved in caring for elderly kin are heightened by the stress, vulnerability and multiple losses of exile, and that these must be viewed within the context of the social, political and historical specificities of home and host countries.


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Introduction: Regulating Relationships? 13 In Chapter 13, Harriss and Shaw highlight the transnational links of British Pakistanis. The British Pakistani community continues to be shaped by normative notions of kinship, and care remains a family affair. Displaced communities generally have an interest in promoting solidarity19 and holding on to traditional values. As British Pakistanis endeavour to fulfil their duties and responsibilities towards transnational kin, however, they encounter difficulties due to the mismatch between their views and those of British immigration officers. Harriss and Shaw argue that care, in Britain, tends to be relegated to the public sphere and to professionals. Moreover, the cultural understanding of families as primarily nuclear units extends to immigration laws and policy. In addition, the efforts of British Pakistanis to bring over extended kin are thwarted by mistrust on the part of immigration officers, coupled with their reliance on simplistic cultural stereotypes about Pakistani kinship customs and practices. Several case studies illustrate individual and circumstantial variations and show how shortterm migration and marriage can be strategically used to assure care for kin in a transnational context. Chapter 14 also explores transnational kinship notions and practices among British Pakistanis, with a focus on infertility and the use of new reproductive technologies. The authors note that British Pakistani kinship continues to be embedded in traditional notions of ‘blood’ and ‘honour’, and that having children and family life are highly valued. In that context, concerns about a couple’s infertility become a family matter that extends beyond the couple to involve wider networks of transnational kin and community. It is not just the couple’s desire for a child that is of significance here, but also the wider community’s stake in the maintenance and transmission of cultural values and identity. While polygamy and informal adoption have traditionally been used to resolve a couple’s childlessness, the new reproductive technologies offer new ways to attain parenthood. Drawing on three case-studies, Iqbal and Simpson demonstrate how their research participants draw on the various options available to them and how they strategically deploy the notion of ‘blood’ to locate their choices within a normative framework consistent with their cultural heritage. Nonetheless, the recourse to IVF treatment moves couples towards more individualistic understandings and management of their predicament, thereby minimising their reliance on, and participation in, the sense of solidarity and co-responsibility shared by extended kin. The book concludes with an afterword from Finch which returns to key issues of family and kin. The chapters in this book lead us to ask some fundamental questions: How do we recognise human interdependency? How do we value and recognise care? How should individual and collective responsibilities be assigned, and to what extent do we want the state to regulate care? 19 While this is generally true, some migrant populations are known to differ in their efforts to promote solidarity. See Bozorgmehr (2000), for instance, for a discussion of the lack of solidarity among Iranians migrants.


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14 Fatemeh Ebtehaj As various groups, including same-sex couples, grand-parents and kin carers, lobby for legal rights and recognition, we are reminded that we live in the ‘shadow’ of the law (Mnookin and Kornhauser, 1979) and that law and policy impact on our notions and experiences of family and of gender equality, and thus shape in important ways our sense of identity and our stance as moral beings.

REFERENCES

BORNEMAN, J, ‘Caring and Being Cared For: Displacing Marriage, Kinship, Gender, and Sexuality’ in J D Faubion (ed), The Ethics of Kinship: Ethnographic Inquiries (Oxford, Rowman and Littlefield, 2001) p 29. BOZORGMEHR, M, ‘Does Host Hostility Create Ethnic Solidarity? The Experience of Iranians in the United States’ (2000) 1 Bulletin of the Royal Institute for Inter-Faith Studies p 159. BRANNEN, J, MOSS, P and MOONEY, A (eds) Working and Caring over the Twentieth Century: Change and Continuity in Four Generation Families (Basingstoke, Palgrave Macmillan, 2004). BUTLER, J, Undoing Gender (London, Routledge, 2004). CAMPBELL, J C, ‘How Policies Differ: Long-Term-Care Insurance in Japan and Germany’ in H Conrad and R Lutzeler (eds.), Aging and Social Policy—A GermanJapanese Comparison (Munich, Indicium, 2002) p 157. COLLIER, J F, and YANAGISAKO, S Y (eds), Gender and Kinship: Essays Towards a Unified Analysis (Stanford, Stanford university Press, 1987). CARSTEN, J, (ed) Cultures of Relatedness: New Approaches to the Study of Kinship (Cambridge, Cambridge University Press, 2000). —— After Kinship (Cambridge, Cambridge University Press, 2004). DAVIDOFF, L, DOOLITTLE, M, FINK, J and HOLDEN, K (eds), The Family Story: Blood, Contract and Intimacy, 1830–1960 (Harlow, Longman, 1999). EDELMAN, LB and CAHILL, M, ‘How Law Matters in Disputing and Dispute Processing’ In B Garth and A Sarat (eds), How Does Law Matter? (Evanston: Northwestern University Press, 1998) p 15. EDWARDS, J and STRATHERN, M, ‘Including Our Own’ in J Carsten (ed), Cultures of Relatedness: New Approaches to the Study of Kinship (Cambridge, Cambridge University Press, 2000) p 149. FAUBION, JD (ed), The Ethics of Kinship: Ethnographic Inquiries (Oxford, Rowman and Littlefield, 2001). FINCH, J, Family Obligations and Social Change. (Cambridge, Polity Press, 1989). —— and Mason, J, Negotiating Family Responsibilities (London, Routledge, 1993). —— —— Passing On: Kinship and Inheritance in England (London, Routledge, 2000). FRANKLIN, S and RAGONE, H (eds), Reproducing Reproduction: Kinship, Power, and Technological Innovation (Philadelphia, University of Philadelphia Press, 1998). —— and MCKINNON, S (eds), Relative Values: Reconfiguring Kinship Studies (London, Duke University Press, 2001).


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Introduction: Regulating Relationships? 15 GILLIGAN, C, In a Different Voice: Psychological Theory and Women’s Development (Cambridge, MA, Harvard University Press, 1982). GOODY, J, The Development of the Family and Marriage in Europe (Cambridge, Cambridge University Press, 1983). GUBRIUM, J F and HOLSTEIN, J A, What is Family? (Mountainview, CA, Mayfield, 1990). HELD, V, The Ethics of Care: Personal, Political, and Global (Oxford, Oxford University Press, 2006). HERRING, J, Family Law (Harlow, Pearson Education Ltd, 2004). MAYNES, M J, WALTNER, A and SOLAND, B (eds), Gender, Kinship, and Power: A Comparative and Interdisciplinary History (London, Routledge, 1996). MNOOKIN, R H and KORNHAUSER, L, ‘Bargaining in the Shadow: The Case of Divorce 1979’ (88) Yale Law Journal 950. RAPP, R, ‘Toward a Nuclear Freeze? The Gender Politics of Euro-American Kinship Analysis’ in J F Collier and S Y Yanagisako (eds), Gender and Kinship: essays Towards a Unified Analysis (Stanford, Stanford University Press, 1987) p 119. SCHNEIDER, D, American Kinship: A Cultural Account (Chicago, University of Chicago Press, 1980). —— A Critique of the Study of Kinship (Ann Arbor, University of Michigan Press, 1984). SENNETT, R, Respect: The Formation of Character in an Age of Inequality’ (London, Penguin Books, 2004). STRATHERN, M, After Nature: English Kinship in the Late Twentieth Century (Cambridge, Cambridge University Press, 1992). —— Kinship, Law and the Unexpected: Relatives are Always a Surprise (Cambridge, Cambridge University Press, 2005). YANAGISAKO, S, and DELANEY, C (eds), Naturalizing Power: Essays in Feminist Cultural Analysis (London, Routledge, 1995). TRONTO, J C, Moral Boundaries: A Political Argument for an Ethic of Care (London, Routledge, 1994).


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(C) Ebtehaj et al Ch2

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Part 1

Who is Kin and What Does it Mean to be Kin in Contemporary British Society?


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2 ‘Close Marriage’ in the Nineteenth and Twentieth Century Middle Strata LEONORE DAVIDOFF

‘It was the family that married, and one married a family’ Pierre Bourdieu

O

N 13 NOVEMBER 1838, the physician Robert Darwin wrote to his wife’s brother, Josiah Wedgwood, the pottery owner whose own parents had been cousins. The occasion was the engagement of his son, Charles, to his cousin, Emma, Josiah’s youngest daughter. This was the second time these two fathers of large broods had exchanged felicitations on the marriage between two of their offspring for only a year earlier, Robert Darwin’s elder daughter, Caroline, had married Josiah’s eldest son (also Josiah, usually called Jos). Thus Emma and Charles were united not only as first cousins but also in an exchange of siblings. In addition, Jos’ and Emma’s brother, Henry, had already married Jessie Wedgwood, a double cousin through both his mother’s and father’s side. Two years later, their younger brother, Hensleigh Wedgwood, had married his maternal first cousin, Frances MacIntosh. Thus four out of the six of Josiah Senior and Bessy’s nine children who married had chosen first cousins as their spouses (Wedgwood and Wedgwood, 1980: xxvi). The Wedgwood and Darwin pattern of marriage, far from being some anomaly, was a typical, if somewhat more extreme, example of a widespread pattern among the middle strata occurring across Europe, North America, and their colonies in the late eighteenth and nineteenth centuries. Far from confirming the usual received wisdom about the decline of the extended family, that period is beginning to emerge as a time of rich and dense kinship relations. Steven Ruggles has maintained that ‘the frequency of extended families in England and the USA roughly doubled between 1750 and 1900’ (Ruggles, 1987: xvii) and according to Martine Segalen, kinship relations that had supposedly been overstretched by the effects of industrialization were, in fact, maintained and certain forms even strengthened (Segalen, 1986: 5). David Sabean and his colleagues have pinpointed the growing incidence of marriage among kin from the


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20 Leonore Davidoff Josiah I Wedgwood of Etruria (1730) Sarah Wedgwood

(1734)

Susannah (1765) m. Robert Waring

John (1766) m. Lousia Jane

Darwin

(Jane) Allen

(1766)

Sarah Elizabeth (Eliza) (1795)

Marianne (1798)

Caroline Sarah (1800) m. Josiah III Wedgwood (Jos)

(1764)

Mary Anne (1796)

Katherine Elizabeth Sophy (1842)

Caroline (1836)

m. Elizabeth (Bessy) Allen

Thomas Josiah Caroline (Tom) Louisa Jane (1797) (1799)

Sarah Elizabeth Josiah III (Jos) (Elizabeth) of LeithHill Place (1793) (1795) m. Caroline Sarah Darwin (1800)

Lousia Frances (1834)

Josiah II of Maer (1769)

(1766)

John Allen (Allen) (1796)

Sophy Marianne (1838)

Richard (1767)

John Darwin (1840)

Sarah Elizabeth (1803)

Chart I: Wedgewood-Darwin Genealogy

2nd wife Emily Darwin

Henry Allen (1799) m. Jessie Wedgwood (dau. of John W.)

Mararet Susan (1843)

Erasmus (1804)

Robert (1806)

m. Henry Allen Wedgwood

Charlotte (1797) m. Charles Langton

Anne Jane (1841)

Jessie (1804)

Charles (1800)

Lucy Caroline (1846)

Arthur (1843)

Charles (1809) m. Emma Wedgwood

Rowland (1847)

Emily Catherine (1810) m. Charles Langton, her double brother-in-law


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‘Close Marriage’ in Nineteenth and Twentieth Century Middle Strata 21

Thomas (1771)

Francis (1800)

Catherine (1774)

Sarah Elizabeth (1776)

Hensleigh (1803) m. Frances Mackintosh

Frances Julia (Snow) (1833)

Godfrey (1833) m. 1st Mary Hawkshaw m. 2nd Hope Elizabeth Wedgwood (dau. of Hensleigh W.)

James Mackintosh (1834)

Amy (1835)

Mary Ann (1778)

Frances (Fanny) (1806)

Emma (1808) m. Charles Robert Darwin

(1809)

Ernest Hensleigh (1838)

Cicely Mary (1837)

Clement (1840)

Katherine Euphemia (Effie)

(1839)

Lawrence (1844)

Alfred Allen (1842)

Hope Elizabeth (1844) m. Godfrey Wedgwood (see family of Francis W.)

Constance Mabel Frances Rose (1852)

1st cousins marriage (each partner highlighted within box, to avoid impression that there were double number of marriages) Double 1st cousins marriage (each partner highlighted within box, to avoid impression that there were double the number of marriages) Double sibling or sibling exchange marriage


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22 Leonore Davidoff mid-eighteenth to late nineteenth century in Europe.1 In relation to cousin marriage in particular, for example in Italy, from a seventeenth-century low their frequency had begun to build and rapidly increased during the nineteenth century.2 In Sweden, although cousin marriage was illegal until 1844, exemptions could be bought and the practice among factory owners especially appears to have been relatively widespread (Goransson, 1993). What evidence there is confirms the rise and twentieth-century decline of these unions across Europe, including Catholic societies where they were nominally prohibited (Smith, 2001). However, these scattered observations do not yet seem to have been generally appreciated as an integral part of the history of modern societies. For example, in discussing the commercial organization of nineteenth-century Parisian merchants, David Garrioch comments that the ‘surprising’ spate of first cousin marriages he noted had been rare before 1789, but fails to query the significance of this shift (Garrioch, 1996: 223). Nor do Garrioch and most others note another, even more obscure, aspect of these dense kinship networks, that of double sibling and sibling exchange marriage; that is where two brothers marry two sisters or a brother and sister from one family marry a sister and brother from another as in the Wedgwood-Darwin connection. This practice flourished among bourgeois families generally across Europe at this time, including the marriage of Sigmund Freud whose eldest sister, Anna, married Eli Bernays, the brother of Freud’s wife, Martha Bernays (Davidoff, 2004).

1. UNDERSTANDING CLOSE MARRIAGE IN HISTORICAL CONTEXT

A major change in the regulation of sexual relations was the shift from the authority of the Church to the State, a long and uneven process in which incest and inbreeding became central issues (Kuper, 2002: 160). Old Testament prohibitions about who could marry had been the basis of regulation, enforced through Church law. Because in the Bible marriage was believed to literally create ‘one flesh’ between husband and wife, all in-laws were included in incestuous relations. Thus if it was wrong for a brother and sister to marry it must be equally wrong to marry a wife’s sister, the particular relationship which was transferred into state legislation from 1835 in England and that created the controversy over ‘Deceased Wife’s Sister’ (Cretney, 2003; Anderson, 1982). However, although Canon Law had also forbidden marriage between cousins, this was legalized by Henry VIII to suit his own purposes. Prohibited degrees were then set within the Levitical restrictions, which did not include 1 Borrowing from anthropologists, what he called close marriage (Sabean, 1998: 444). See also Davidoff and Hall (2002 [1987]); Tadmor (2001); Perry (2004). 2 A. Moroni, cited in Roberts, (1974: 680).


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‘Close Marriage’ in Nineteenth and Twentieth Century Middle Strata 23 cousins (Anderson, 1986: 285). Thus Catholics were left to follow the Law but with generous dispensations, while Jews, following Leviticus, have always allowed cousins to marry; given their often-small communities, it was many times encouraged. The position of Quakers on this issue is intriguing here. Quakers, like Jews, were at the forefront of capitalist enterprise in finance and manufacture and built much of their success on extensive kin networks. Nevertheless, in the late seventeenth century the founders of the Society of Friends were particularly strict in building prohibition of cousin marriage into their regulations (Milligan, 1994; Lloyd, 1950: 58). However their small, scattered communities and the intensity of their commercial activities made close kin marriages attractive.3 The issue obviously created tensions within both the Meetings and families. In 1807, John Gurney, from the banking family of Norfolk, married his cousin, Elizabeth Gurney from Keswick. Richard Gurney, father of the bride ‘had to walk away during the marriage ceremony so as to be seen to disapprove of the match’ (Rose, 1980: 55). By the 1840s, there was a growing feeling among Quakers against a prohibition that could not be justified by Scripture or by the terms of civil marriage introduced in England in 1836 (Hodgkin, n.d.). As one campaigner wrote: ‘Legislate as we will, we cannot create between cousins that instinctive horror of matrimonial connections . . . or to compel such parties not to love’ (S.W., 1843: 8). It was pointed out that many who had contracted such marriages and been forced to leave the Meetings were often later quietly reinstated thus bringing the authority of the Society into disrepute. The rumblings continued until, at the Yearly Meeting in 1883, with reluctance it was decided to rescind the regulations on cousin unions.4 Confusion and unease about close kin marriage were not confined to Quakers. Nevertheless, they remained a popular option until the end of the nineteenth century. What was it that made this period so ‘rich’ in cousin marriage as well as sibling exchange and double sibling marriage? In Europe, these marriage forms are found in a wide variety of places and strata, from peasants, to groups of émigrés, to the gentry and aristocracy, although hard evidence only comes from isolated studies. For example, while Scottish clans had not been particularly prone to these marriage practices before the Clearances, they became much more common when these families were forced to emigrate to the New World and Antipodes where they formed up to a quarter of all marriages. In these often hostile surroundings, it ensured that ‘strangers who married became “family” with strong multiple bonds’ (Molloy, 1986: 240).The pattern of close marriage within emigrant communities is well demonstrated within the waves of Jews seeking refuge in North America where it seems to have lasted well into the twentieth century. Many of these were artisans or set up small businesses as 3 4

In America, William Penn actually advised Quakers to ‘marry within themselves’ (S. W., 1843). Extracts From the Minutes and Proceedings of the Yearly Meeting of Friends, (1883: 23).


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24 Leonore Davidoff did, for example, a brother and sister, Becky and Abe, who went to Canada (where cousin marriages remained legal) around 1900. Both married in the New World and of Becky’s two sons, Frank married Abe’s daughter, Estelle, and Davy married Abe’s other daughter, Gertie.5 In this family, we have two first cousins who were also a pair of brothers and sisters marrying in the 1920s, followed by another double sibling marriage in the 1930s. We may accept that isolated or emigrant communities might have indulged in such outlandish practices but often do not recognize that ‘between our own systems [of marriage] and those operating in exotic societies there is a difference of degree, but not of kind’ (Segalen, 1996: 123). In fact, the historical record indicates that it was among the more articulate and culturally sophisticated bourgeoisie that these kin related marriages were especially prevalent and increased rapidly over the nineteenth century (Emher, 2002: 296).6 Thus, while the practice may have been protective for groups under some kind of threat or pressure, it may also have been advantageous in the use and retention of resources, as in the ownership of land, capital, education, and access to office or occupations. As Peter Dobkin Hall said in relation to eighteenth and early nineteenth-century Massachusetts merchants, there were two basic forms of marital selection that favoured concentration of resources; one involving first-cousin marriage, the other sibling exchange (Hall, 1972: 42). For those whose capital—cultural as well as financial—was spread over long distances, such marriages were crucial in creating ties of trust. No family illustrates this as well as that of the Rothschilds, who from the late eighteenth century used close marriages and cousin alliances strategically placed all over the capital cities of Europe.7 It was the Rothschild generation born around the turn of the nineteenth century who began to practice close marriage in earnest. Of the 21 marriages between 1824 and 1877 involving descendants of the family firm’s founder, Mayer Amschel Rothschild, no fewer than 15 were of this type including first and second cousins, sibling exchange, double sibling and uncle with niece (Ferguson, 1999: 184). After the death of the senior grandchild, Lionel, in 1879, a ‘conclave of cousins’ was convened consisting of the twelve partners in four European banking houses who were all related through cousin and sibling marriage (Weintraub, 2003: 28). In England, Noel Annan noted as early as 1955 the links of mutual obligation, patronage and emotional involvement between those in what he labels the ‘intellectual aristocracy’; that is the public school educated, Oxbridge civil servants, scientists, educators, and writers. Although friendships between the men laid down at school and, for some, at university, were important, it was mainly through kinship ties established through marriage that such relationships were 5

My thanks to R.S. for this information from personal family history. It is significant that in Russia, Eastern Europe and parts of the Balkans, cousin marriage continued to be prohibited. 7 There was even a word for marrying within the family: ‘mischpocheh’. 6


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‘Close Marriage’ in Nineteenth and Twentieth Century Middle Strata 25 created and maintained (Annan, 1955: 244).8 It is thus paradoxical that these dense kin linkages seem to have been increasing in the mid to late-nineteenth century, just when reforms towards meritocracy were being instituted: Civil Service examinations were being introduced, officer class positions in the armed services were no longer open to purchase and more managers in larger commercial firms had begun to be recruited outside the family (Pollard, 1968). Yet by the mid-twentieth century, within only three or so generations, more general and individual recruitment to office, to jobs and other positions had increased and the use of kinship ties became negatively defined as nepotism.

2. CLOSE MARRIAGE IN THE ENGLISH CONTEXT

In investigating these phenomena it should be kept in mind that a basic prerequisite for their presence on any scale is simply possessing enough relatives. Throughout the mid-nineteenth century, despite high mortality levels, high fertility meant that many people had large networks of siblings, aunts, uncles, and cousins. One estimate puts this as high as around twenty five for each person in the general adult population (Zhongwei, 1996: 255). This abundance would even have increased after that period when child mortality started to fall around mid-century, a decline more prevalent among the more affluent. Families of six or seven and up to fifteen children meant there simply were more siblings to exchange marriage partners with; more aunts and uncles to produce more cousins to choose from. Unfortunately, it is impossible to give any exact figures for the incidence of close marriages. They can only be reconstructed from family trees or internal evidence from family papers such as diaries and letters. Cousin marriages through the maternal line are particularly difficult to chart since women changed their name on marriage while sibling exchange or double sibling marriage has to be plotted for each case. Obviously, the more literate and those committed to their family history will be over-represented in what sources we have. However, even a cursory trawl through a sample of local English records reveals a steady, if small, incidence of close marriage. Almost every family examined had at least one case of these marriage forms. Take the Essex farmer’s daughters, Maria and Lucy Wyncoll, seventh and ninth children of the 1800s generation, who married the farmer brothers, Nathan and George Mortlock. In the next generation, Thomas Wyncoll and his wife Sarah had five children and of these, two sons, Thomas and Francis Henry, born in the 1860s, both married their Page cousins. In the same generation, Emily Jane Wyncoll took as her 8 What Annan had called ‘the intellectual aristocracy’, sociologists might refer to as ‘opinion leaders’, but significantly the latter are unrelated individuals.


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26 Leonore Davidoff second husband her first cousin John William Wyncoll (Wyncoll, c.1927). Among artisans, Isaac Gale, heel and patternmaker, and Mary Bostock of Whitby were married in 1791. Of their eleven children, six survived, and among them, two of their daughters married brothers who were also their first cousins, despite the fact that this was a Quaker family.9 Through the nineteenth century, a sample of records for Essex and Suffolk brings up close marriage in families among preachers, farmers, publicans, physicians, shopkeepers and attorneys. These included marriage between an uncle and niece as well as to a deceased wife’s cousin (or to move from the inevitable male centred form, when a woman married her dead cousin’s widowed husband) (Higgs, 1906; Fidgett, 1991; Barlow, n.d.).10 The instances of these marriage patterns nationally can also be traced among many well known nineteenth century names. For example, Josephine Butler’s third son, Stanley, married his maternal cousin, Edith. Elizabeth Gaskell’s daughter, Marianne, married her first cousin, Thurstan Holland, who was not only Mrs. Gaskell’s nephew and son-in-law but also her legal adviser (Jordan, 2001; Gerin, 1980). Nancy Anderson calls up a list of notable cousin marriages but this hardly touches on the most obvious, never mind the even more common, sibling exchange and double sibling mode (Anderson, 1986: 290). These marriages were not necessarily arranged by elders; there is little suggestion of the partners coming together under duress. Nevertheless, ‘free choice’ of spouse was set in a carefully controlled context of mutual values and religious concerns. Such alliances created a dense matrix of overlapping and doubling of in-laws as well as aunts, uncles, cousins, grandparents at a time when there was a dearth of economic and financial infrastructure so that familial relations became a touchstone of probity and trustworthiness (Davidoff and Hall, 2002 [1987]: Part II). The basic form of commercial and manufacturing enterprise, the partnership, was not recognised in law but regarded more as a ‘personality’ that rested on the reputation of the partners, the most common forms being fathers and sons, brothers, uncle and nephew or male in-laws. Farmers and professionals might not have even this level of formality but they often joined forces in similar arrangements. In any case, all families might benefit from the skills and contacts of their kinfolk. Thus what was seen as a profoundly non-market institution, the family, came to bear the ‘contextual morality’ for the amoral workings of markets (Rose, 1994: 82). The very survival of the mass of individual proprietor firms—the vast majority at this time—was ‘conditioned by their capacity to call on informal support and assistance from family members’ (Nenadic, 1994: 93). A further reason for favouring close marriage in the strata below the English gentry was as a counter to the centrifugal tendencies of their usual practice of partible 9

Gale Family Tree compiled by Rosamond Porter (1981). Keer Family Tree compiled by John A. Keer (1976), by permission of his cousin, David Ransome. 10


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‘Close Marriage’ in Nineteenth and Twentieth Century Middle Strata 27 inheritance.11 In a variety of ways, intra-marriage played a key role in the web of kinship that provided a form of security in binding together not only families, but also members of the middle strata in local, regional and national networks (Davidoff and Hall, 2002 [1987]).12 These points are illustrated in the case of the manufacturing Unitarian family of Courtauld. In the late eighteenth century, George Courtauld I and William Taylor, who had been apprenticed together, formed a partnership in a silk milling enterprise. George’s sister, Catherine Courtauld I, then married William Taylor, thus representing the common pattern where in-laws became business partners or business partners became in-laws. George had been engaged to William’s sister, Anna, a potential sibling exchange marriage, but the engagement was broken. In the next twenty years, William Taylor and Catherine Courtauld I Taylor produced 14 children, of whom 10 survived. Ties between the families were renewed when a son, Alfred Peter Taylor married Catherine Courtauld II, the daughter of George Courtauld and his wife Ruth Minton, while their daughter, Ellen Taylor married George and Ruth’s son, Samuel Courtauld. As with the Wedgwoods and Darwins, we have here a sibling exchange marriage between people who are also first cousins. However, in this case, there was a further fusion for Alfred Peter Taylor became a partner in the mill with Catherine II’s brothers, namely his cousins and brothers-in-law, Samuel, George II and John Minton Courtauld.13 In setting up the Essex silk mills, William Taylor and George Courtauld had entrusted their legal business to a London attorney, William Bromley. This relationship was strengthened when William Taylor and Catherine Courtauld Taylor’s daughter, Catherine III, married William Bromley’s son, also William. Two of this couple’s daughters, Sarah Bromley and, after her death, Elizabeth, married John Minton Courtauld, youngest son of George I and Ruth Minton, that is marriages between second cousins. These sequential marriages of John Minton Courtauld to his second cousins, the Bromley sisters (technically an illegal deceased wife’s sister alliance), again illustrate the overlap of generations in these large families. George I and Ruth Minton Courtauld’s eight children matched William and Catherine II Courtauld Taylor’s brood of 10. John Minton had been the youngest end of his family and Sarah Taylor Bromley at the elder end of hers for he was born in 1807 only seven years before his first cousin, Catherine Taylor Bromley, gave birth to his future wife, Sarah in 1814. These ties were renewed in the next generation when Alfred Peter Taylor’s 11 Similar to the use of sibling marriage among peasants: In Poland ‘Of course it is best to hold on to your women and your land. But if you have to lose one, it is better to lose your women and keep your land. In nafimak (sibling exchange) marriage, it is the woman who moves while the land stays still’ (Pine 2004). 12 For similar factors in the Swedish case, see Goransson (1993). 13 Another of George I and Ruth Minton’s daughters, Elizabeth, had married Joseph Ash, the resident manager at the mill. Her younger sister, Sophia, only decided to reject the offer of marriage from his brother, George Ash, because of her persistent ill health (Courtauld, 1975).


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28 Leonore Davidoff Samuel Courtauld (1720) m. Louisa Ogier (1719)

Augustine (1750)

Samuel (1752)

Sophia (1763)

Louisa (1754)

Esther (1757)

Catherine I (1760) m. William Taylor

Catherine Anna Sophia (1797) (1793) m. William m. Philip Bromley

Walleson

Alfred m. Catherine II Coultauld Peter (1795) Talor (1790)

William m. Catherine Ellen Taylor (1829) Walleson

Henry (1831)

Ellen m. Samuel Taylor Courtauld (1801) (1793)

3 others

and others

George III (1830) m. 1st Mina Bromley (1832)

2nd cousins

2nd cousins and others

Sarah (1814) m. John Minton Courtauld

Elizabeth (1829) m. John Minton Courtauld

Chart II: Courtauld-Taylor Genealogy

Minna (1832) m. George III Courtauld

and 9 others


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George I (1761) (engaged to Anna Taylor, William Taylor’s sister) m. Ruth Minton

Son (1790)

Samuel (1793) m.

Catherine II (1795) m.

Ellen Taylor

A. P. Taylor

cousins

Louisa (1791)

Elizabeth (1797) m. Joseph Ash

Sophia (1799)

George II (1802)

engaged to George Ash

John Minton (1807) 1st m. Sarah Bromley

(1814) 2nd m. Elizabeth Bromley

2nd

(1829)

Samuel Augustine (1833)

Katherine (1856)

Louis (1834)

Susanna (1838)

Sydney (1840) m. Sarah Sharp

George IV (1859)

William (1870) m.

Sydney (1873)

Constance Cicely Courtauld

Constance Cicely (1875) m. 1913 to William Juilen Courtauld

Cousin marriages (each partner highlighted separately within boxes, to avoid impression that there were double the number of marriages) Double sibling or sibling exchange marriage Business partnership Sibling exchange engagement, not marriage


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30 Leonore Davidoff niece, Mina Bromley, married George II’s son, George Courtauld III—that is her double first cousin, already a partner and brother-in-law of Sarah’s uncle, Alfred Peter Taylor. Almost a century after the eighteenth century TaylorCourtauld alliance began, their families were again joined by yet another first cousin marriage (Courtauld, 1975; Coleman, 1969; Taylor, 1875; see CourtauldTaylor chart). A similar pattern of interlocking personal and commercial relations but with more fraught results, was followed in Birmingham, where the originator of a prosperous buckle making business, Archibald Kenrick, took his nephew, Samuel, into the business in the period when his own sons were too young and Samuel became a partner in 1811. Close proximity and daily interaction with the Kenrick family resulted in Samuel soon becoming engaged to his cousin, Marianne. After their marriage, a later disagreement led Samuel to leave the buckle business and go into direct competition. Not surprisingly this produced tensions and unpleasantness between Samuel and his uncle and male cousins, now also in business with their father. This situation was particularly acute for Marianne Kenrick, torn between her husband, on the one hand, and her father and brothers on the other. Rebecca Kenrick, Marianne’s sister found herself wishing that the increasingly miserable Samuel had a male friend he could talk to but his friends up to then had been precisely those cousins—and brothers-inlaw—with whom he was now at loggerheads (Davidoff and Hall, 2002 [1987]: 219). Even when business relations were not involved, close marriage could have reverberations for the social standing of a family. In 1877, Blanche Potter, the ‘difficult one’ among the nine daughters of a cotton magnate married William Cripps, a struggling surgeon, an occupation regarded by her parents and elder sisters as ‘not quite the thing’ so that the Cripps family received a frosty welcome. But when Theresa, the ‘family jewel’ among the Potter sisters, became engaged to William’s brother Charles, a more acceptable successful advocate, an elder Potter sister wrote to a younger ‘there is the whole Cripps family to be re-embraced . . . We must not make such a fist of it this time. They are worthy people, quite as good as we are.’14 These examples point to possible negative effects of dense kinship networks especially when interacting with commercial or professional relationships. Despite the advantages, there were times when relatives could tear families apart or become a burden on resources by extracting commitments that might not have been in the best interests of an enterprise or professional practice.

14

Quoted in Caine, (1986: 74).


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3. THE MEANING OF CLOSE MARRIAGE

As well as having consequences for the economic and social position of these intertwined families, there was a further emotional dimension. A prime example from this group that well illustrates the interplay of emotional and professional interaction overlaying kinship ties is in the case of Charles Darwin and his cousin Hensleigh Wedgwood [see chart p. 21]. These two men, of similar age and upbringing were also, as we have seen, not only first cousins themselves but in-laws for Charles was married to Hensleigh’s sister, Emma, whilst Hensleigh’s wife, Fanny, was not only his maternal first cousin but also Emma Wedgwood Darwin’s. After Charles and Emma’s marriage in 1837, they settled in London in Gower Street, four doors down from Hensleigh and Fanny Wedgwood who had married five years earlier, a household including Fanny’s older, unmarried and deeply religious half-sister. There was continual interaction between the two households. As Emma wrote ‘we find it a constant pleasure having them [the Hensleighs] so near . . . They often walk in to drink tea with us and vice versa’. The Hensleighs already had four children, ending up with seven, while the young Darwins quickly overtook them with their eventual ten. This next generation grew up together, continuing contact with long visits after the Darwins moved to Kent, for the two families ‘shared the same social life, had the same friends and read the same books’ as well as having ties and obligations to the same sets of parents and other siblings (Wedgwood and Wedgwood, 1980: 236–237). Biographers have been aware how important both Charles’ elder brother Erasmus and his cousin Hensleigh were to the development of his ideas. Hensleigh himself was working on a major project, The Dictionary of English Etymology, that was eventually published the same year as Charles’ similarly long gestated Origin of the Species. The cousins/brothers-in-law had been able to discuss the progress of their mutual projects and Charles found Hensleigh a crucial listener with whom to ponder his doubts about Biblical authority. What is missing in these biographical accounts is the embracing kinship milieu which he had known since childhood, in which a man like Charles Darwin was mired; not only his own wife and quiverful of children but the web of relations who were almost as close to him emotionally. Fanny Wedgwood, even more than his wife, Emma, was deeply Christian, much under the influence of her resident half-sister’s almost mystical beliefs. Charles Darwin’s torment over the implications of his scientific research has to be understood within this context where he, Hensleigh and his brother, Erasmus, took a variety of liberal views whilst the women closest to them held fast to their religious faith. Unlike some other societies, for instance in the Middle East or South West Asia, close marriages were not prescribed or arranged. The idea of ‘being in love’ had permeated well down the social scale although for men love often


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32 Leonore Davidoff came only when they felt in a position to support a wife. In those groups where young women were kept protected within the home wherever possible, one of the prime methods of meeting a spouse was through friends of brothers and sisters or sometimes in the homes of uncles and aunts. Propinquity, compatible religious views, the comfort and trust of having grown up in close touch, knowledge of the future spouses’ financial and social position as well as personality, were the crucial mechanisms involved, since often these people had been playmates and friends from childhood. The sheer amount of interaction between relatives encouraged emotional closeness that could eventually spill over into erotic attachment and possible marriage. Charles Darwin had spent much of his time as a boy and young man at the home of his Wedgwood uncle and aunt for his mother had died when he was only nine years old. When soon after his return from the voyage of The Beagle he began to weigh up the pros and cons of marriage, his thoughts turned naturally to the Wedgwood cousins nearest to him in age, among one of whom his elder sister, Caroline, had already found a spouse. Further down the social scale, the common practice of sending adolescents and young adults to the households of aunts and uncles as apprentices or household helps resulted in many cousin marriages. For example, around 1801 Margaret Cock was sent from London as helper and companion to her Aunt Catherine, wife of John Thomas Ruskin, an Edinburgh small time merchant. Catherine, who had no daughters, came to regard Margaret as ‘the half of myself’. While in their household Margaret fell in love with her cousin, John James, then 16 years old, and they eventually married, producing the eminent John Ruskin whose genius as well as madness have subsequently been attributed to his parents’ cousin marriage (Hunt, 1982). A substitute for a child who was either dead or for some reason unsatisfactory could also be brought into the family through a cousin marriage. Take the case of John Dickinson, a paper manufacturer whose nephew, John Dickinson Evans, was also his godson. Young John Evans had come to work in the mill at age 17 in lieu of John and Ann Dickinson’s own disappointing son who refused all interest in the business. The nephew stayed on to become a partner and marry the daughter of the house, his cousin, Harriet. Uncle and nephew, who were also father-in-law and son-in-law, godfather and godson, worked together harmoniously for many years (Evans, 1955).

4. ATTITUDES TO CLOSE MARRIAGE

We have seen how tensions between incompatible personalities as well as struggles over resources could sour relations within the rubric of accepted types of marriage. Despite the legality of cousin and sibling exchange marriage, they could undoubtedly have disturbing psychological overtones. These intimate ties with their feelings of duty and obligation overlying the emotional reverberation


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‘Close Marriage’ in Nineteenth and Twentieth Century Middle Strata 33 of childhood jealousies could make relations intensely hostile, as was the case with Sigmund Freud’s relationship with his wife’s, brother, Eli Bernays, permanently part of the family as husband of Sigmund’s sister, Anna. Sigmund had described Eli as his most dangerous rival during his prolonged courtship of Martha and cordial relations were never re-established. These feelings were inextricably mixed with Sigmund’s attitude towards his sister Anna, Eli’s wife, the surviving sibling nearest to him in age and whose birth had displaced his special position within his family as ‘Golden Siggy’, oldest beloved child (Davidoff, 2004: 40). In the nineteenth century in particular, sibling relations attracted a vibrant literary and symbolic significance from high Romanticism to a major theme in pornographic representations. In the middle strata, siblings spent much of their early youth at home with each other so that intense relationships developed among same sex pairs as well as brothers and sisters. Analysts have suggested that much of the furore about marriage to Deceased Wife’s Sister was actually displaced attraction to a real sister. In literature a cousin could become a standin for the forbidden attraction to a brother. Even more deeply hidden erotic bonds between same sex siblings or in-laws could be channelled through a third person (Brown, 2003: 114; Sanders, 2002). All these ramifications represent the underlying drive to fuse several, even contradictory, parts of the ‘Self’ into a unified whole. Through the century a thicket of cross-gender, good sibling–bad sibling, strong sibling-weak sibling and many other contrasts were explored around these emotive ties, redolent of unspoken incestuous feelings (Davidoff, 2006). On a more rational level, the particular belief that cousin marriage was wrong and might lead to defective offspring, had been widespread since antiquity. However, this had then been based not on biological arguments but on the belief that this was retribution for disobeying some divine law (Wolfram, 1987: 45). From the late eighteenth century unease about cousin marriage was more publicly expressed in scientific literature. In the first half of the nineteenth century while some agriculturalists recommended the rewards of inter-breeding, others advocated breeding stock ‘in and in’. However medical men, in particular, highlighted fears about individual ‘blood lines’, especially connected to hereditary diseases afflicting the European nobility. General concern over moral as well as physical attributes favoured marriage between opposite temperaments and constitutions (Hilts, 1982: 66). These ideas were well publicized and ‘virtually all commentators on the issue of hereditary disease condemned cousin marriage with particular fervour’ (Waller, 2001: 464). Given these preoccupations, the striking fact about attitudes to actual cases of close marriage is the almost complete absence of comment by individual family members. Such ties seem to have been simply taken for granted as a natural and eminently practical way of obtaining a trustworthy spouse of known quality. In regard to sibling exchange, in Jane Austen’s novel, Emma, the heroine’s mentor and eventual husband, George Knightly, is introduced as ‘not only a very old and intimate friend of the family, but particularly connected with it as


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34 Leonore Davidoff the elder brother of Isabella’s (Emma’s sister) husband.’ (Austen, 1963: 5). When at the denouement of the novel, Mr. Knightly and Emma are engaged to be married, both his brother, John Knightly, and Isabella, are enthusiastic and ‘in general it was a very well approved match’ (Ibid.: 413). The response to Charles Darwin’s and Emma Wedgwood’s (already in-laws as well as cousins) decision to marry was also enthusiastic. Charles’ father wrote that ‘Emma having accepted Charles gives me as great happiness as Jos having married Caroline’.15 When Emma told the news to her various relatives she reported that ‘they were very full of joy and sympathy’.16 Emma’s favourite maternal aunt, exclaimed: I knew you would be a Mrs. Darwin from your hands; and seeing Charles did not come on . . . I began to fear it was Erasmus (Charles’ indolent elder brother). Everything I have ever heard of C. Darwin I have particularly liked, and have long wished for what has now taken place, that he would woo and win you.17

Where there was hesitation or even opposition to such unions, it was usually in terms of doubts about one of the pair’s financial security, social position or personal qualities. The gap of almost two decades between the pledge of love and the actual marriage of John James Ruskin and his cousin Margaret was due to his father’s unease about her mother’s—his own sister’s—social standing: she and her husband kept a pub (Hunt, 1982). In 1840, the daughter of an attorney was sent off to Germany to separate her from her first cousin, a clergyman to whom she had become attached. The father’s strong objection to the match was because the clerical nephew was the son of his wife’s brother, a man with whom he had a long and bitter quarrel.18 If anything, close marriage increased through the third quarter of the nineteenth century and continued to be an accepted, if not always welcome, form of alliance between families. Yet within two or three generations it had come to be regarded as abhorrent and unnatural. This shift from positive acceptance to revulsion at the very idea of marriage with relatives has to be seen in the context of general changes around marriage and the status of women. Throughout the second half of the nineteenth century there had been intense debate about the middle class tendency to postpone marriage for economic reasons as the ideal of the husband being the sole provider became a central tenet of masculinity (Robson, 1995; Southall and Gilbert, 1966). Meanwhile, feminists’ campaigns had raised consciousness about married women’s property as well as more general inequities imposed on women by indissoluble marriage particularly with regard to authority over their children. 15

Quoted in Litchfield, (1915, Vol II: 2). Quoted in Litchfield, (1915, Vol 1: 278). 17 Quoted in Browne, (1995, Vol I: 391). 18 She finally did marry her cousin. ‘The family of Rebecca Shaen Solly’, private communication from GH Wicksteed. 16


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‘Close Marriage’ in Nineteenth and Twentieth Century Middle Strata 35 By the 1880s, with the continued but ineffectual efforts to win the vote, campaigns became more explicitly focused on both prostitution and women’s bodily integrity within marriage. These had raised central issues around sexuality in scientific, medical, and clerical circles as well as among the general public. This deep anxiety about sexual issues, especially homosexuality, culminated in the Oscar Wilde trials followed by a spate of regulatory legislation (Weeks, 1989; Levine, 1989: 151). Such discussions undoubtedly found an audience among the upper and middle classes, where concern to regulate their own fertility was evident in the significant fall in their birth rates at this time (McLaren, 1992; Szreter, 1996; Bland and Doan, 1998). A similar disquiet about sexuality combined with the rapid decline in births within marriage was occurring in other European countries (Smith, 2001; McLaren, 1997: 513). Within this emotive atmosphere the discussion of marriage partners had been brought to attention by dissatisfaction with the Deceased Wife’s Sister law. In the campaign to have the law rescinded, the anomaly of allowing cousins to marry while marriage to in-laws was banned as incestuous was repeatedly pointed out, for during this period of open questioning, the spectre of incest constantly surfaced (Anderson, 1982). It is often assumed that by the close of the nineteenth century it was the dawning of scientific knowledge about the negative effects on offspring of unions with close relatives that caused the decline in cousin marriage. However, as we have seen, these were not new concerns among the scientific and intellectual community and opinions were far from definite on the topic. It is true that from around the 1870s there had been a growing unease about the topic of ‘inbreeding’ and its effect on the general condition at a national level. For Darwin himself, an undercurrent of worried self-interest ran through his researches into plants and animals, for he was never sure if reproduction between close relatives might inadvertently bequeath to the offspring a series of innate weaknesses, infertility, or a tendency towards disease (Browne, 1995: Vol II, 279). In 1870, Charles’ friend and neighbour, the M.P. and anthropologist, Sir John Lubbock, convinced that inbreeding was harmful, introduced a Bill to have a question concerning cousin marriage put in the 1871 census. Although almost all who had spoken on the Bill, including several doctors, were in favour, it was rejected by the majority (amidst hilarity) on the grounds that it would stigmatize certain marriages. A few years later Charles’ son, George Darwin, carried out the first statistical enquiry into incidence of cousin marriage (only of the upper and middle classes), and he supported arguments for race improvement through selective breeding as advocated by Francis Galton, his father’s second cousin, coiner of the word ‘eugenics’ (Anderson, 1986: 294; Darwin, 1875). However, from the sparse evidence available to him, George Darwin could not prove any deleterious effects and he felt that the evil ‘has been often much exaggerated’. Francis Galton agreed for, in fact, this position fitted well that of many turn-of-the-century eugenicists since for them cousin marriage represented merely the most intense purity of bloodlines and was favoured as a


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36 Leonore Davidoff means of ‘race improvement’. This position had been set out in 1877 with the publication of Alfred Henry Huth’s influential book, The Marriage of Near Kin, a work whose impetus, no doubt, related to his own cousin marriage. For him marrying outside one’s own group was a form of miscegenation and produced ‘half breeds’ that were nearly always inferior to their parents (Anderson, 1986: 295). Whatever the outcome of these deliberations, the issue of cousin marriage was undoubtedly beginning to spark off anxieties at this time across Europe and the USA (Wolfram, 1987: 139). Significantly, the influential American anthropologist, Lewis Henry Morgan, who, like Darwin, had married his first cousin in the mid-nineteenth century, was drawn into the emerging evolutionary framework which was becoming widely accepted; for him, cousin marriage began to seem ‘animal-like behaviour’ (Ottenheimer, 1990: 329). But Morgan’s unambiguously hostile stance was in the context of a republic without hierarchy of ‘blood and semen’. In Britain, ambivalence may have been connected to the knowledge that cousin marriage was practised by much of the aristocracy and nobility, not least Queen Victoria’s marriage to her beloved first cousin, Albert. Thus although uncertainty remained, by the second decade of the twentieth century there was more general as well as scientific acceptance that cousin marriage was to be avoided now on the grounds that it would lead to morally as well as physically defective children (Kevles, 1985: 177). In John Galsworthy’s popular trilogy, The Forsyte Saga, (1906–1922) the hero and his antagonist are first cousins. When two of their descendants unite the family in marriage,’ being cousins they decided . . . to have no children’ (Galsworthy, 1928: 843). Meanwhile, the debates around issues of sexuality had resulted in the introduction of the first Punishment of Incest Bill that became law in 1908 when sexual union between full and half siblings as well as father and daughter, whether inside or outside marriage, was made criminal. At the same time, marriage to a Deceased Wife’s Sister at last became legal again. In all these debates the focus was less on eugenic anxieties but more centrally on fears of incest among the poor. This is not surprising at a time of economic distress, labour unrest, and an increasing gap between the continued large working class families and the markedly fewer children among the middle and upper classes (Soloway, 1995). Over the next few decades, it was clear that moral as well as scientific views highlighted ‘blood’ or physiological relationships as the significant factor in the forbidden. Concerns around marriage increasingly centred on themes of racial and ethnic ‘interbreeding’ (Stone, 2002). In 1934 the Genetics Committee of the Medical Research Council organized a large survey of hospital patients asking for information about consanguineous marriage among their parents but with few conclusive results (Bell, 1940). As one doctor noted, ‘clearly social and cultural considerations are more important than the possible biological ill-effects of these unions’ and with the general fall in early mortality and incidence of illhealth, ‘these cases might simply appear more obvious’ (Roberts, 1974: 676, 680). Anthropologists, who by then had achieved more of a professional status,


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‘Close Marriage’ in Nineteenth and Twentieth Century Middle Strata 37 were especially concerned with forms of cousin marriage considered an exotic practice irrelevant to Western society.19 After the experience of fascism and the Second World War, eugenics became discredited and concern over genetic results of marriage selection faded. The effects of nurture and family culture on offspring were emphasized in explanations of achievement as well as failure.20 During this time, a series of Parliamentary Acts had gradually enlarged the pool of possible legitimate spouses, all of them of in-law status, starting in 1921 by allowing marriage with a ‘deceased brother’s widow’ and in 1931 between a man and his deceased wife’s aunts, nieces, nephews’ and uncles’ widows (note, usual male-centred language). In 1960 marriage with relatives of a divorced spouse was now permitted as if the spouse were deceased. 1978 brought attempts to legalise marriage between in-laws in the direct line, that is son-inlaw or daughter-in-law, but this did not become law until 1980 with a Private Members Bill. In 1984 the Criminal Law Revision Committee even recommended that sexual relations between brothers and sisters over 21 years should cease to be ‘incest’ and thus an offence, but the recommendation was not carried out and was opposed by the Church among others (Wolfram, 1987: 232–233). However, in the last few years, sexual relations among stepsiblings leading to marriage have been openly discussed.21

5. THE DECLINE OF CLOSE MARRIAGE

These legal changes reflected as well as contained what was happening in people’s lives. From the mid-Victorian average of six live births per married woman, there had been a steady decline over the generations to the midtwentieth century when the two-child family had become the overwhelming norm.22 The pool of potential sibling exchange marriage partners had shrunk to unworkable levels. For those coming to maturity in the inter-war period it has been estimated that a young adult could expect to have only around an average of half-a-dozen siblings and cousins (Zhongwei, 1996: 255). The myriad aunts

19 As early as the mid–1920s attention had been drawn to the effects of Western society’s own patrilineal descent on the way this subject was understood (Seligman, 1925). Cross-cousin marriage erupted into a full-scale debate in the 1950s, rumbling on into the next decade. One eminent anthropologist assumed the sentiment of ‘Ego’ for his mother’s brother’s daughter in terms of ‘patrilineal authority and matrilineal nurturance’. Not only does this configuration inevitably assume the masculine ‘Ego’ as the main element in the transaction, but takes for granted general assumptions about masculinity and femininity that may not have been appropriate to non-Western societies (Spiro, 1964: 31). 20 See, for example, for the 1950s, the conclusions in Annan, (1955: 284). 21 ‘Step Kids in Love’, Channel 4 television documentary, 27 July, 2005. 22 Royal Commission on Population Report (1949), quoted in Szreter (1996); but note his emphasis on the unevenness of this shift and the effects of differential mortality on chances of surviving to adulthood.


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38 Leonore Davidoff

FIG 1: A Contemporary Double Sibling Marriage*

and uncles that had produced flocks of cousins were gone.23 Marriage with close kin was simply no longer a practical option quite aside from its ‘unnatural’ overtones. By the start of the Second World War, there was a feeling that at the very least ‘there is nothing very romantic in marrying one’s cousin’ (Bramwell, 1939: * Photograph by Louise Bobbe. Despite our efforts, we have been unable to contact the photographer to obtain permission to use this image. 23 But see, for a 1930s example, when two brothers married to two sisters and one of the couples died within a few years of each other, the other couple took over their son and daughter (Hobsbawm, 2003).


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‘Close Marriage’ in Nineteenth and Twentieth Century Middle Strata 39 306). Until recently, this attitude has continued and at present, in the very rare cases when it occurs, marrying a cousin seems somehow to be a last resort for those incapable of otherwise finding a spouse. Within a century, the contrast between the taken for granted status of intrafamilial marriage and the unease it now evokes is illustrated by the 1999 cover story in a Sunday broadsheet magazine which blazoned the photograph of a family worthy of note—why? Because in 1986 the sisters Johanna and Camilla Awdry had married the brothers Wilf and Philip Stephenson. Their six children were thus double cousins. The article accompanying the picture highlighted the ‘spooky symmetry’ surrounding the families and the fact that they were all ‘best friends’ and went on holiday together every summer. They met when Camilla, the younger sister by two years, was involved with Philip whom she had met at university. After graduating he was sharing a flat with Wilf in London, the brothers living close by the sisters, the two couples joining in various activities. But Camilla claimed that: ‘a romance between Wilf and Johanna was the last thing on my mind; it would have seemed incestuous’. Johanna agreed that at the time, ‘if I had thought about it at all, it would have seemed like fancying my cousin’. Wilf and Johanna felt the situation was so fraught that they almost gave up the idea of marriage (Allott, 1999). By the 1960s and 70s, the fears aroused by fascist eugenics policies were receding and new developments in genetics emerging. The first rumblings of what has evolved into the new behavioural genetics and evolutionary psychology were returning ‘mating behaviour’ to a biological base (Kerr and Shakespeare, 2002). From prohibited degrees of marriage, the focus had shifted to the presence of erotic desire and where this might lead, an issue going back to the nineteenthcentury concerns of Freud and Westermarck. In the 1960s the anthropologist, Robin Fox, was one of the earliest to throw down the gauntlet with the notion of ‘instinctive avoidance’, a crucial part of the socio-biological understanding of the incest taboo as a cornerstone of cultural evolution (Pastner, 1986: 573). In the last decades of the twentieth century, with increases in pre-marital sex, co-habitation, new reproductive technologies and, above all, the separation of sexuality and reproduction, academic interest had narrowed to concern with reproductive potential assumed to be driven by genetic forces. Yet even detailed studies have only concluded that ‘biological relatedness per se, should not be considered a factor in the ontogeny of sexual avoidance’ (Bevc and Silverman, 1993: 171). Despite the aggressive stance of the evolutionary scientists, unease remains about the role of culture. For one thing, as the neo-evolutionists have had to be reminded, the smaller number of children in modern societies severely restricts the possibility of near kin as marriage partners (Bittles, 1994). With sex now seen as an unrestricted opportunity, the view has increasingly been mooted that, as one newspaper article put it: ‘to ban sex between two people because their offspring may be ‘defective’ is to adopt a eugenicist’s standpoint’ (Hari, 2002). Gradually the work of geneticists themselves has begun to undermine the basis


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40 Leonore Davidoff of evolutionist arguments as more accurate understanding of physiological inheritance is undertaken and disseminated to the public. In 1996, the professor from University College London in charge of a ‘revolutionary database’ is reported as saying that the overstatement of the risks for cousins marrying is often more to do with tradition and religious practice than scientific fact (McHugh, 1996). In the United States, where prohibition of cousin marriage had been introduced since the end of the nineteenth century, it is still illegal in 30 out of 51 states. But even there popular opinion may be turning against the interdict. In 2002, the President of the National Society of Genetic Counseling announced that cousin marriages are not significantly riskier than any other, a statement that made the front page of The New York Times. A follow up article cited the Rothschilds, and, yet again, Charles and Emma Darwin, as cases where cousin marriage had not had any negative effects. ‘This phobia is distinctly American, a heritage of early evolutionists’ misguided notions about the upward march of human societies’ (Conniff, 2003).24 Meanwhile, the factors that increased close kin ties in the West in the nineteenth century may also be at work in other parts of the world, especially when emigration, combined with the continuation of large families, once again disrupts the notion of a smooth transition to the modern family form. In these situations the proportion of marriages between close biological kin can actually expand. The explanation partially mirrors the English experience; that as greater numbers of children survive to marriageable age, ‘the traditional social preference for consanguineous unions can be more readily accommodated’.25 But it may also be fostered by reinforced mutual aid and obligation when kin lines are stretched across continents. For example, it has been estimated that within some U.K. Pakistani immigrant communities, between one-half and three-quarters of marriages are between cousins or other close relatives, a situation that has caused concern about the level of mortality and disability of their offspring in the context of a modern society (Shaw, 2001).26 The Middle East is another part of the world where consanguinity is common. While it is often perceived to be influenced by religion, it is rather a matter of culture and tradition with, for example, cousin marriage remaining frequent among both Christian and Muslim Arabs. While these marriage patterns may be seen to have social advantages as well as following a cultural tradition, they do carry slightly raised genetic risks with higher frequency of recessively inherited disorders and some congenital abnormalities in children (e.g. Teebi and Farang, 1997; Teebi and El-Shanti, 2006). When two carriers of a recessively inherited genetic disorder (who themselves are normal) have children together, there is a one in four chance that a child will have the disorder. 24

See also Willing (2002). Report of First South American Workshop on Genomics and Community, Brazil, September 2005, www.consang.net 26 Also reported on ‘Newsnight’, BBC2, 16 November, 2005. 25


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‘Close Marriage’ in Nineteenth and Twentieth Century Middle Strata 41 Carriers of such genetic conditions are rare in all populations, but if parents are blood relatives there is a higher chance that they may both be carriers of the same recessive condition—hence the raised incidence of such conditions in the children of parents in a cousin marriage. How long close marriage, especially between cousins, will continue is open to question. Cultural shifts and more precise genetic information combined with a steady fall in the birth rate may work to discourage the practice. For one thing, with increased availability of artificial reproduction technology, the need to make up for a wider family’s infertility through adoption by close relatives is less necessary. Then, too, the power of a human rights mentality as well as Human Rights legislation sweeps away both prohibition and prescription in the choice of marriage partners. Even in places where first cousin marriages are actively sought, gradual shifts away from familial based organization of property and public life combined with modern medical beliefs about the negative genetic effects may be slowly discouraging the practice.27 In contemporary society, especially within the caring professions and among legal commentators, the focus has shifted from what is now considered an oldfashioned notion of incest to a concern with child abuse not necessarily among kin. For example, 2003 legislation re-introduced prohibition on sexual relations between step-siblings under the age of 18 living in the same household, despite the obvious lack of a genetic relationship.28 Such thinking is part of the paradoxical situation where some scientists would have us believe that genetic drives are behind more and more of our behaviour, while sexual desire, reproduction, and its social corollary, marriage, are more than ever seen as matters of free, individual choice. Such contradictory positions are not new whether garnered from scriptural authority, folk ideas or medical/scientific findings. The nineteenth-century case considered here, echoes more general tensions found in most societies. As the anthropologist Robert Simpson has said, there is on the one hand ‘a tendency to genetic essentialism; on the other, the possibility that kinship relations can be made and creatively re-ordered . . . the bare facts of biology are incidental to the primary business of making and maintaining relationships of one kind or another’ (Simpson, 2006).

This complicated and emotionally fraught subject—that is the rules dictating who may reproduce with whom—reaches into the most fundamental organizing principles of any society. Expectation of negative effects from certain unions (deformed offspring) then becomes a basis for forbidding them; expectation of positive effects (intra-kin solidarity) promotes them (Heritier, 1999: 10–12). Once rules have been laid down, the availability of the requisite pool of those defined as desirable potential partners becomes a secondary factor to the 27 28

For Afghanistan, see Aizenma (2005). Sexual Offences Act 2003, Ch 42.s 27.


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42 Leonore Davidoff feasibility of sticking to them. In the long run this situation may conspire to change the rules themselves, as with the turn of the twentieth century dramatic fall in fertility in cutting short the supply of partners. In modern Western society, the rules of kinship have been regarded as a type of ‘primordial identity and inevitable relations’, part of the natural world that is the basis of social life (Strathern, 1992: 198). Our knowledge of other cultures and other times demonstrates that even such a basic view of the world may fade and be replaced in the future, bringing novel forms to our ‘culture of relatedness’ (Carsten, 2000).

6. REFERENCES

Extracts From the Minutes and Proceedings of the Yearly Meeting of Friends (Edward Marsh, London, 1883). AIZENMAN, N C, ‘Taking a Genetic Gamble’ (2005) 25 April–1 May The Washington Post National Weekly Edition, 18. ALLOTT, S, ‘Sister Act’ (1999) 7 August The Telegraph Magazine, 34. ANDERSON, N F, ‘The “Marriage with a Deceased Wife’s Sister Bill” Controversy: Incest Anxiety and the Defense of Family Purity in Victorian England’ (1982) 21(2) Journal of British Studies 62. ‘Cousin Marriage in Victorian England’ (1986) 11(1) Journal of Family History 285. ANNAN, NG, ‘The Intellectual Aristocracy’ in J H Plumb (ed), Studies in Social History: A Tribute to G.M. Trevelyan (London, Longmans, Green and Co., 1955), 243. AUSTEN, J, Emma (London, J M Dent, 1963, [1815]). BARLOW, L A, ‘The Barlow’s in Essex 1730–1924’ (typescript, n.d.). BELL, J, ‘A Determination of the Consanguinity Rate in the General Hospital Population of England and Wales’ (1940) 10 Annals of Eugenics 370. BEVC, I and SILVERMAN, I, ‘Early Proximity and Intimacy Between Siblings and Incestuous Behaviour: A Test of the Westermarck Theory’ (1993) 14 Ethology and Sociobiology 171. BITTLES, A H, ‘The Role and Significance of Consanguinity as a Demographic Variable’ (1994) 20 Population and Development Review 561. BLAND, L and DOAN, L (eds), Sexology in Culture: Labelling Bodies and Design (Cambridge, Polity Press, 1998). BRAMWELL, B S, ‘Frequency of Cousin Marriage’ (1939) 8 The Genealogists’ Magazine 304 BROWN, SA, Devoted Sisters: Representations of the Sister Relationship in NineteenthCentury British and American Literature (London, Ashgate, 2003). BROWNE, J, Charles Darwin: Voyaging Vols 1 and II (London, Pimlico, 1995). CAINE, B, Destined To Be Wives: The Sisters of Beatrice Webb (Oxford, Oxford University Press, 1986). CARSTEN, J, ‘Introduction’ in J Carsten (ed), Cultures of Relatedness: New Approaches to the Study of Kinship (Cambridge, Cambridge University Press, 2000) p1. COLEMAN, D C, Courtaulds: An Economic and Social History (Oxford, Oxford University Press, 1969).


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‘Close Marriage’ in Nineteenth and Twentieth Century Middle Strata 43 CONNIFF, R, ‘Go Ahead, Kiss Your Cousin: Heck, Marry Her if You Want To’, (2003) 24 Discover (New York). COURTAULD, S L, The Huguenot Family of Courtauld 3 Vols (London, privately printed, 1975). CRETNEY, S, ‘The Prohibition of Marriage With Relations’ in Family Law in the 20th Century: A History (Oxford, Oxford University Press, 2003) 41. DARWIN, G, ‘Marriage Between First Cousins in England and Their Effects’ (1875) 38 Journal of the Statistical Society 153 ——, and HALL, C, Family Fortunes: Men and Women of the English Middle Class (London, Routledge, 2002 [1987]). DAVIDOFF, L. ‘The Legacy of the Nineteenth-Century Bourgeois Family and the Wool Merchant’s Son’ (2004) 6th series, Vol XIV Transactions of the Royal Historical Society p25 ‘The Sibling Relationship in Historical Context’ in P Coles (ed), Sibling Relationships (Karnac Press, 2006) 17. EMHER, J, ‘Marriage’ in D Kertzer and M Barbagli (eds), Family Life in the Long Nineteenth Century, 1789–1913 (New Haven, Yale University Press, 2002) 282. EVANS, J, The Endless Webb: John Dickinson and Co. Ltd: 1804–1954 (London, Jonathan Cape, 1955). FERGUSON, N, The House of Rothschild: Money’s Prophets 1798–1848 (London, Penguin, 1999). FIDGETT, J, ‘The Fidgett Family history’ (Manningtree, Essex, typescript, 1991). GALSWORTHY, J, The Forsyte Saga (London, William Heinemann, 1928). GARRIOCH, D, The Formation of the Parisian Bourgeoisie (Cambridge, Mass., Harvard University Press, 1996). GERIN, W. Elizabeth Gaskell: A Biography (Oxford, Oxford University Press, 1980). GORANSSON, A, ‘Gender and Property Rights: Capital, Kin and Owner Influence in Nineteenth and Twentieth-century Sweden’ (1993) 25 Business History 11. HALL, P D, ‘Family Structure and Economic Organisation: Massachusetts Merchants 1700–1850’ in Tamara Hareven (ed) Family and Kin in Urban Communities 1700–1930 (New York, New Viewpoints, 1972) 38. HARI, J, ‘Forbidden Love: Can Sex Between Close Relatives Ever Be Acceptable?’, (2002) 1 September The Guardian 8. HERITIER, F, Two Sisters and Their Mother: The Anthropology of Incest (New York, Zone Books, 1999). HIGGS, WM, The Spurgeon Family: Being An Account of the Descent and Family of Charles Haddon Spurgeon (London, Elliot Stock, 1906). HILTS, V L, ‘Obeying the Laws of Hereditary Descent: Phrenological Views on Inheritance and Eugenics’ (1982) 18 Journal of the History of the Behavioral Sciences 62 HOBSBAWM, E, Interesting Times: A Twentieth Century Life (London, Abacus, 2003). HODGKIN, T, On the Rule of the Society of Friends Which Forbids the Marriage of First Cousins (privately printed, n.d., Track Volume 464, Pamphlet 17, Friends House Library). HUNT, J D, The Wider Sea: A Life of John Ruskin (London, J M Dent, 1982). JORDAN, J, Josephine Butler (London, John Murray, 2001). KERR, A and SHAKESPEARE, T, Genetic Politics: From Eugenics to Genome (Cheltenham, New Clarion Press, 2002).


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44 Leonore Davidoff KEVLES, D, In the Name of Eugenics: Genetics and the Uses of Human Heredity (New York, Alfred Knopf, 1985). KUPER, A, ‘Incest, Cousin Marriage and the Origin of the Human Sciences in 19th Century England’ (2002) 174 Past and Present 159. LEVINE, P, ‘“So Few Prizes and So Many Blanks”: Marriage and Feminism in Later Nineteenth Century England’ (1989) 28 Journal of British Studies 150. LITCHFIELD, H, Emma Darwin: A Century of Family Letters 1792–1896, Vol I and Vol II (London, John Murray, 1915). LLOYD, A, Quaker Social History 1669–1738 (London, Longman Green, 1950). MCHUGH, N, ‘Gene Bank Cuts Risks for Kissing Cousins’ (1996) 20 October The Observer. MCLAREN, A, A History of Contraception from Antiquity to the Present Day (Oxford, Blackwell, 1992). —— ‘Contraception and Its Discontents: Sigmund Freud and Birth Control’ (1978) 12 Journal of Social History 513 MILLIGAN, E, Quaker Marriage (Kendal, Cumbria, Quaker Tapestry Books, 1994). MOLLOY, M, ‘“No Inclination to Mix With Strangers”: Marriage Patterns Among Highland Scots Migrants to Cape Breton and New Zealand 1800–1916’ (1986) 11 Journal of Family History 221. NENADIC, S, ‘The Small Family Firm in Victorian Britain’ (1993) 35 Business History 86. OTTENHEIMER, M, ‘Lewis Henry Morgan and the Prohibition of Cousin Marriage in the United States’ (1990) 15 Journal of Family History 325. PASTNER, C M, ‘The Westermarck Hypothesis and First Cousin Marriage: The Cultural Modification of Negative Sexual Imprinting’ (1986) 42 Journal of Anthropological Research 573. PERRY, R, Novel Relations: The Transformation of Kinship in English Literature and Culture, 1748–1818 (Cambridge, Cambridge University Press, 2004). PINE, F, ‘Memories of Movement and the Stillness of Place’ (December 2004) Paper given at Kinship and Memory Workshop, University of Edinburgh. POLLARD, S, The Genesis of Modern Management: A Study of the Industrial Revolution (Harmondsworth, Penguin, 1968). ROBERTS, D F, ‘Cousin Marriage’ (1974) 213(1277) The Practitioner 674 ROBSON, J M, Marriage or Celibacy? The ‘Daily Telegraph’ on a Victorian Dilemma (Toronto, University of Toronto Press, 1995). ROSE, M B, ‘The Family Firm in British Business 1780–1914’ in MW Kirby and MB Rose (eds) Business Enterprise in Modern Europe From the Eighteenth to the Twentieth Century (London, Routledge, 1994) 1. ROSE, J, Elizabeth Fry: A Biography (London, Macmillan, 1980). RUGGLES, S, Prolonged Connections: The Rise of the Extended Family in Nineteenth Century England and America (Madison, University of Wisconsin Press, 1987). S. W. An Inquiry into the Rule of the Society of Friends Which Forbids First-Cousins to Marry (London, Charles Gilpin, 1843). SABEAN, D W, Kinship in Neckerhausen, 1700–1870 (Cambridge, Cambridge University Press, 1998). SANDERS, V, The Brother-Sister Culture in Nineteenth-Century Literature, (Houndsmills Hampshire, Palgrave, 2002).


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‘Close Marriage’ in Nineteenth and Twentieth Century Middle Strata 45 SEGALEN, M, Historical Anthropology of the Family (Cambridge, Cambridge University Press, 1986). SELIGMAN, B Z, ‘Cross Cousin Marriage’ (1925) August Man 114. SHAW, A, ‘Kinship, Cultural Preference and Immigration’ (2001) 7(2) Journal of the Royal Anthropological Institute 315. SIMPSON, R, ‘Scrambling Parenthood: English Kinship and the End of Affinity’, 2006, forthcoming) Anthropology Today. SMITH, M T, ‘Estimates of Cousin Marriage and Mean Inbreeding in the United Kingdom from “Birth Briefs”’ (2001) 33 Journal of Biological Science 55. SOLOWAY, R A, Geography and Degenerations: Eugenics and the Declining Birthrate in Twentieth Century Britain (Chapel Hill, University of Carolina Press, 1995). SOUTHALL, H and GILBERT, D, ‘A Good Time to Wed? Marriage and Economic Distress in England and Wales’ (1966) 49 Economic History Review 35 SPIRO, M E, ‘Causes, Functions and Cross Cousin Marriage: An Essay in Anthropological Explanation’ (1964) 94 Journal of the Royal Anthropological Institute 30. STONE, D, Breeding Superman: Nietzsche, Race and Eugenics in Edwardian and Interwar Britain (Liverpool, Liverpool University Press, 2002). STRATHERN, M, After Nature: English Kinship in the Late Twentieth Century (Cambridge, Cambridge University Press, 1992). SZRETER, S, Fertility, Class and Gender in Britain 1860–1940 (Cambridge, Cambridge University Press, 1996). TADMOR, N, Family and Friends in Eighteenth-Century England: Household, Kinship and Patronage (Cambridge, Cambridge University Press, 2001). TAYLOR, P A, Some Account of the Taylor Family (London, privately printed, 1875). TEEBI, A S and EL-SHANTI, H I ‘Consanguinity Implications for Practice, Research and Policy’ (2006) 367 The Lancet 970. TEEBI, A S and FARANG,T I (eds) Genetic Disorders among Arab Populations (New York, Oxford University Press 1997). WALLER, J C, ‘Ideas of Heredity, Reproduction and Eugenics in Britain, 1800–1875’ (2001) 32 Studies in Philosophy, Biology and Biomedical Science 457. WEDGWOOD, B and WEDGWOOD, H, The Wedgwood Circle: 1730–1897: Four Generations of a Family and Their Friends (London, Studio Vista, 1980). WEEKS, J, Sex, Politics and Society (Harlow, Longman, 1989). WEINTRAUB, S, Charlotte and Lionel: A Rothschild Love Story (New York, Free Press, 2003). WILLING, R, ‘Research Downplays Risk of Cousin Marriages’ (2002) USA Today (available at: www.usatoday.com/news/science/2002-04-04-cousins.htm). WOLFRAM, S, In-Laws and Outlaws: Kinship and Marriage in England (London, Croom-Helm, 1987). WYNCOLL, C E F, The Wyncolls of Suffolk and Essex (privately printed, c.1927). ZHONGWEI, Z, ‘The Demographic Transition in Victorian England and Changes in English Kinship Networks’ (1996) 11 Continuity and Change 243.


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(D) Ebtehaj et al Ch3

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3 Status Anxiety? The Rush for Family Recognition ANDREW BAINHAM

1. INTRODUCTION

‘Status anxiety’ is the term coined by Alain de Botton (2004, pp 3–4) to describe ‘a worry . . . that we are in danger of failing to conform to the ideals of success laid down by our society and that we may as a result be stripped of dignity and respect; a worry that we are currently occupying too modest a rung or are about to fall to a lower one’.

Status is defined by de Botton as ‘one’s position in society’. Deriving from the Latin statum or standing, in the narrow sense it refers to ‘one’s legal or professional standing within a group’ but in the broader sense it refers to ‘one’s value and importance in the eyes of the world’. Legal status was defined by Lord Simon of Glaisdale in The Ampthill Peerage1 as ‘the condition of belonging to a class in society to which the law ascribes peculiar rights and duties, capacities and incapacities’. This paper is concerned with status in the context of the family. How important is family status, socially and legally? One prevalent view is that status is of decreasing importance and the new emphasis is rather on contract and on the private ordering of family affairs. At its most basic, this is an approach which would treat those connected by personal, intimate relationships as if they were not so connected. What people agree between themselves would be the key consideration and not the particular relationship which they have, whether formal or informal. The limitations of private ordering in family relationships in relation to such matters as protection of the vulnerable, unforeseen changes of circumstances and so on, have been explored many times before and I do not intend to add to this literature. My focus is rather on the continued, indeed 1

[1977] AC 547, 577.


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48 Andrew Bainham increased, relevance of status in family relationships. I will contend that this reflects a pervasive concern about the social acceptability of personal and family relationships and the need to secure for them the imprimatur of the law. In short, de Botton’s phenomenon of status anxiety can be clearly observed in the context of the family, not altogether surprisingly, given that the family is one of the two great spheres of activity which dominate the lives of most of us2. The issue of status permeates recent debates and legal reforms concerning the family across the developed world, whether we are looking at relationships between adults or those between adults and children. I consider some of the legal trends affecting adult relationships in the third section and those concerning adults in their relationships with children in the following section. In the final section, I offer the view that a coherent family policy needs to be constructed which would, inter alia, address the question of why status is important and which values should underscore the ascription of a particular legal status to some but not to others.

2. STATUS AND ITS CONSEQUENCES

In looking at this question of legal status in the family context, one cannot fail to be struck by the apparent lack of significance attached to family membership as such. With limited exceptions (the transmission of tenancies being the most important3), being a ‘member of a family’ gives rise to few legal consequences. This failure to attach legal importance to family membership no doubt reflects in part the reluctance on the part of Parliament, and successive governments of all persuasions, to define ‘the family’, despite stressing how important to society it is. The Blair government attempted to engage with family policy in its consultation paper ‘Supporting Families’ (Home Office, 1998). Ostensibly a declaration of the government’s commitment to all families, it had a strong flavour about it of maintaining traditional support for marriage as the preferred statusgiving institution. Little has been heard since and what we therefore have is a vacuum in family policy itself, a vacuum which is filled by special pleading, ad hoc solutions and an emphasis on outcomes for children (Henricson and Bainham, 2005). Traditionally under English law, the great status-giving institutions have been marriage, parentage and adoption4. We can now add to this list civil partnership.5 This is not to say that the law has been unwilling to attach con2 The other is the sphere of employment and few would argue that status is unimportant in that context. 3 See especially FitzPatrick v Sterling Housing Association [2001] 1 AC 27. 4 Other legal institutions, notably guardianship, give a considerable legal status but fall short of the standing of these three. Specifically, guardianship does not alter legal kinship relations. 5 Governed in the UK by the Civil Partnership Act 2004 brought into force in December 2005.


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Status Anxiety? The Rush for Family Recognition 49 sequences to relationships which are not constituted by consanguinity, affinity or adoption but, where it has, these consequences have generally fallen short of conferring what we may call the ‘full status’ attaching to those related by blood, marriage or adoption. Most importantly in the context of a book on kinship, until recently it was only marriage, legal parentage or adoption which could generate legal kinship links, or disrupt them. One of the reasons why the recent Civil Partnership Act 2004 is therefore important, beyond the obvious legal recognition of committed, same-sex relationships, is precisely because it confers this ‘full status’, and affects kinship relations going beyond the partners themselves. It would be wrong to conclude from this that outside these status-giving institutions the existence of personal relationships, whether between two adults or between adults and children, is of no legal significance. Important legal effects now attach to being recognised as a ‘cohabitant’, whether heterosexual or homosexual, and they attach too, for example, to someone possessing ‘parental responsibility’ for a child. These legal effects are automatic and imposed by operation of law. There is no choice in the matter. I think we might reasonably say in these two cases that while the cohabitant or the social parent with parental responsibility do not have, respectively, the ‘full status’ attached to marriage or legal parentage, they do possess elements of legal status. We might view them as having a kind of ‘intermediate status’ falling short of ‘full status’ but adding up to distinctly more than ‘no status’. Even where it is clear beyond doubt that the legal consequences attaching to a certain relationship are so few and so specific that it could not be said that they possess a legal status at all, this is not to deny the importance of certain legal consequences. Take, for example, the case of home-sharing. Sharing a home may be something which takes on the character of family life, but the mere fact of home-sharing will not give rise to the legal effects attaching to those regarded by the law as ‘cohabitants’.6 In relation to one matter, however, home-sharing is legally important. The test for those relationships which trigger the special remedies for protection from domestic violence is now very wide and it is sharing a home with the alleged assailant which gives rise to perhaps the most noteworthy qualification to be regarded as an ‘associated person’.7 Beyond this, home-sharing does not (yet) attract the other legal consequences of cohabitation. Much the same point could be made in relation to the so-called ‘living apart together’ relationships where,

6 Until recently the term ‘cohabitants’ was exclusively heterosexual in English law, referring to those who might be classified as ‘living together as husband and wife’. Following the decision of the House of Lords in Ghaidan v Godin-Mendoza [2004] 2 FLR 600 it is increasingly likely that the legal notion of ‘cohabitants’ will be interpreted to include a same-sex as well as opposite sex couple. 7 Under S 62 (3) Family Law Act 1996 a person is ‘associated’ with another person if, inter alia, ‘they live or have lived in the same household otherwise than merely by reason of one of them being the other’s employee, tenant, lodger or border’.


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50 Andrew Bainham for example, two longstanding lovers have never in fact shared a home together and do not, for that reason, qualify as cohabitants8. The choice for policy makers in determining what recognition to give to the many and varied relationships which might broadly be viewed as ‘familial’ would seem to fall into these three categories—to confer a full legal status equivalent to that achievable through marriage, parentage or adoption and designed to affect kinship relations; to give an intermediate status designed primarily to regulate practical problems and potential areas of dispute, but which will not affect kinship relations; or to ignore the relationship completely, leaving the parties to have recourse to the ordinary law including private ordering, except in very special circumstances where specific legal remedies are necessary as in the case of protection from domestic violence. The most clearly discernible trend in English law and in other countries at the present time is a clamour for what we have called full status, seen most strikingly in the reforms affecting same-sex partners but clearly evident also in, for example, the apparent preference for adoption over other alternatives for permanence. In the eyes of many, these other alternatives offer less to those looking after a child permanently than adoption does. Such claims for a recognised status equivalent to that of marriage or parenthood are grounded to an appreciable extent in principles of equality and non-discrimination (Glennon, 2005). The argument at its most basic is that cohabiting relationships resemble marriage and that social parents resemble biological parents in terms of the functioning of these relationships. This approach is summed up in a well known ditty which goes something like this: ‘If it looks like an Elephant, If it feels like an Elephant, And if it smells like an Elephant, Then it must indeed be, An Elephant!

If it looks, feels and smells like a family, then, to paraphrase, it must indeed be a family and be treated as such by the law. Such an approach, if carried to its logical conclusion, has the potential for greatly altering existing understandings of kinship and creating a whole new legal network of kinship relations. But before concluding that a full legal status ought to be conferred on all those who can lay claim to be in familial relationships, there surely needs to be some investigation of whether there is in fact a functional equivalence between, for example, married and unmarried cohabitation or legal and social parenthood. Should the creation of legal kinship relations still be dependent on, and attended by, a high degree of formality? What, in any event, should be the legal significance of kinship? Who should be admitted to these highly formalised status-giving 8 For a dramatic illustration of this kind of relationship see Kroon v The Netherlands (1995) 19 E.H.R.R. 263, where the parties had no less than four children together but never cohabited.


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Status Anxiety? The Rush for Family Recognition 51 institutions, who should be left to an inferior, intermediate status and whose relationships should be ignored completely and on what basis? These are questions which need to be addressed in a properly thought out family policy and they are questions with which the Law Commission may have to engage in its review of the law of cohabitation.9

3. ADULT RELATIONSHIPS

Throughout the developed world, the debate over the legal treatment of samesex partnerships has been raging for some years (Wintermute and Andenaes, 2001). It is a debate which has excited passions everywhere and has led to widely differing legal responses ranging from the opening up of marriage, through the creation of a new legal status known variously as civil partnership, registered partnership, civil union or domestic partnership, to outright hostility and the total rejection of the claim that there is any equivalence between heterosexual marriage and gay partnership. It may be useful to review briefly this range of political and legal reaction. A small number of States—the Netherlands, Belgium, Canada and (alone in the United States) Massachusetts—have at the time of writing permitted samesex marriage as such. Much the more common response, especially in continental Europe, has been the creation of a ‘marriage-like’ status, though the particular institution varies from state to state. The early Scandinavian model was the ‘registered partnership’(Broberg, 1996) and this remains the most common terminology. In English law the new institution is known as ‘civil partnership’ but it has the same essential purpose as the continental registered partnership which is to enable a same-sex couple to complete a public act of registration of their relationship with a view to achieving almost all the legal effects normally reserved for marriage, including those which govern breakdown of the relationship. Similar schemes have been established in various American States, usually consequential upon constitutional rulings at the state level that the state provide a ‘marriage-like’ status for same sex couples (Oldham, 2006). The Vermont Supreme Court led the way. Following its decision in 199910, Vermont became the first US state to create an opt-in status known there as a ‘civil union’. From the beginning of 2005, California has revised its ‘domestic partner’ legislation so that this status becomes, in almost every respect, similar to marriage. From October 2005, Connecticut has enacted a ‘civil union’ scheme similar to the Vermont scheme. Despite these vigorous moves to assimilate the status of registered same-sex couples with that of marriage, we ought not to leave the United States without 9 Details of the review are provided on the Law Commission’s website at www.lawcom.gov.uk/ cohabitation.htm 10 Baker v State, 744 A.2nd 864 (Vt.1999).


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52 Andrew Bainham noting that the picture, countrywide, provides evidence of a furious battle over the issue. In most parts of the United States, there is open hostility to the very suggestion of equivalence between heterosexual marriage and gay partnership. Fearful that their own legislatures might follow the example of Massachusetts, as many as forty states had by early 2005 enacted or amended laws to provide expressly that the institution of marriage be reserved for heterosexuals and that their own states should not recognise any same-sex marriage entered into elsewhere (Oldham, 2006).11 There is in particular at the present time a striking contrast between the legal position in Canada, (Bailey, 2006) which has now entirely accepted same-sex marriage, and the United States which, Massachusetts apart, has not (Oldham, 2006). The opt-in schemes of Vermont, Connecticut and California have, as we have noted, largely assimilated marriage and registered same-sex unions in terms of their legal effects. However, it is also worth noting that other states have created less far-reaching institutions in the sense that the rights created by the status are significantly inferior to those given to the married. Such schemes, which we might see as falling within the general notion of an ‘intermediate status’ discussed above, have been established for ‘domestic partnerships’ in New Jersey and ‘reciprocal beneficiaries’ in Hawaii. Finally, there is the intriguingly-termed ‘meretricious relationship’ of the state of Washington which depends not on formally opting-in but on being in a relationship which possesses certain characteristics. Where these exist, the parties are treated as if married (Oldham, 2006). This approach is similar to that followed in other jurisdictions outside the United States, notably New Zealand (Atkin, 2003). The English response to the issue of same-sex relationships has come (typically) later than that in most of the significant states of Western Europe and North America. It is the ‘civil partnership’ established by the Civil Partnership Act 2004 and brought into force late in 2005 (Harper, Downs, Landells and Wilson, 2005). The new status of civil partnership has been deliberately constructed to resemble marriage closely, but without extending marriage as such to same-sex couples, principally because of the religious connotations of holy matrimony. The government seems to have been determined to strike a balance between its steadfast refusal to accept same-sex marriage and its anxiety to comply with human rights obligations. It has however been noted that its central aim in this respect may be frustrated if, in the course of 2006, a lesbian couple legally married in Canada succeed in their legal challenge to the government’s refusal to recognise their marriage (Welstead, 2006). The civil partnership, in terms of legal effects, is said to be marriage in all but name but it nonetheless remains a different and distinctive institution, the difference principally being that it is available only to same-sex couples while marriage is available only to heterosexuals. Before leaving this point, it should be 11 It should be said in passing that many complex issues of private international law arise from the legal recognition or non-recognition of same-sex relationships where one or more of the parties moves between jurisdictions (Curry-Sumner, 2005).


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Status Anxiety? The Rush for Family Recognition 53 noted that it is not inevitable that it should have been restricted to those of the same sex. It would have been possible, for example, to follow the Dutch approach which makes both marriage and registered partnership available to both heterosexual and same-sex partners (Schrama, 2002). A Private Member’s Bill introduced by Lord Lester, which would have extended partnerships to both same-sex and heterosexual partners, was withdrawn when the government agreed to introduce its own Bill in 2003. The English scheme is to have two mutually exclusive institutions, though the extent to which the general public, or even the popular press, fully appreciate this may be doubted. When Elton John ‘tied the knot’ with his long-term partner David Furnish, in the popular imagination they were ‘getting married’12, a perception likely to have been reinforced by their choice of venue (the Guildhall, Windsor), the same as that recently chosen for the marriage of the Prince of Wales and Duchess of Cornwall. A civil partnership is concluded by two people, who have capacity, signing a civil partnership document in the presence of each other, the registrar and two witnesses.13 It therefore closely resembles a civil wedding. Like marriage, civil partnerships are exclusive. No one who is already married or already a civil partner may enter into a civil partnership.14 Clearly, they are also intended to be monogamous, though the notion of fidelity is tricky since the concept of adultery does not easily travel. It is one of the rare legal features of marriage which does not apply to civil partners since adultery, involving vaginal penetration, is an exclusively heterosexual activity. That this is not the inevitable interpretation of adultery is however demonstrated by the willingness of the Supreme Court of British Columbia to amend the definition to include an extra-marital homosexual affair in 2005 (Welstead, 2006) and by the law of the Bahamas which, appropriately enough, has quite an exotic definition of adultery extending well beyond vaginal penetration15 (Thompson-Ayhe, 2005). For the same reason, there is no requirement of consummation in the case of civil partnership.16 But otherwise, the requirements relating to capacity, formation and dissolution of civil partnerships involve the wholesale transportation of marriage and divorce law into the new institution.17 This is also largely the case in relation to legal effects of a civil partnership. Among the more important to note are that civil partners, like spouses, have 12

See ‘Elton’s Wedding: Exclusive!’, The Daily Mail, Wednesday, December 21st 2005 at p9. Civil Partnership Act 2004, s2. Ibid, s3. 15 Under s 2 of the Bahamian Matrimonial Causes Act adultery is defined as ‘any voluntary act of an intimate sexual nature, other than that regarded as an act of mere familiarity, between one party to a marriage with another party of the opposite sex who is not the other spouse and which act is inconsistent with that sexual fidelity that is presumed in the interest of public policy to exist between parties to a marriage, or any conduct between a party to a marriage with another person as aforementioned whereby a strong presumption arises that such sexual act occurred between them’. 16 Thus, non-consummation is not a basis for annulment of civil partnership as it is for marriage (Civil Partnership Act 2004 s50 cf Matrimonial Causes Act 1973 s 12 (a) and (b). 17 A civil partnership is essentially dissolved on all the same grounds, technically ‘facts’, which form the basis of divorce except for adultery. 13 14


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54 Andrew Bainham occupational rights in the home18; are liable to support one another19 and are subject to the wide-ranging jurisdiction of the courts to make property and financial orders, previously reserved to the context of divorce 20. They may succeed to tenancies on the death of one civil partner21 and will be treated similarly to spouses in the tax and social security systems.22 But most importantly in the context of this book, a civil partnership creates new legal kinship links and is accompanied by those legal effects which depend on establishing these kinship relations. Thus, the civil partner will, for example, have the same rights on intestacy as a surviving spouse23 and the same preferential claim, normally reserved for spouses, under the Inheritance (Provision for Family and Dependants) Act 1975.24 The rules relating to the prohibited degrees of relationship for the purposes of marriage will now apply to civil partners25 as they do to spouses since the network of legal kin, arising from the conclusion of a civil partnership, will be the same network as would have arisen from marriage. Put at its most basic, the mother, father, or brother of a civil partner will have an in-law relationship with the other civil partner. In short, like marriage, parentage and adoption, the broad effect of civil partnership is to create new family relations, like those arising from affinity, a result which takes us well beyond the immediate relationship of the couple and into the extended family. Likewise, step-relationships will be created by civil partnership. One of the more interesting questions therefore is precisely what legal, as opposed to social, significance ought to attach to legal kinship relations like this. For the moment, it is sufficient to note that, for the first time, a legal institution other than marriage, parentage or adoption will have a direct effect on the creation of legal kinship. What about the legal relationship between civil partners and children? So far as an existing child of a one civil partner is concerned, the other will find himself or herself in a position closely analogous to that of a step-parent. Thus, like a step-parent, there will be no automatic acquisition of a legal status in relation to that child by virtue of civil partnership any more than there is by virtue of marriage. But, like the step-parent, the civil partner will now be able to acquire parental responsibility for the child by agreement with both natural parents or by court order.26 It should be noted carefully that this will not make the civil partner the legal parent or, put another way, establish kinship between him and the child; for that adoption will be necessary. Hence, it was the Adoption and Children Act 2002, rather than the Civil Partnership Act 2004, which introduced

18 19 20 21 22 23 24 25 26

CPA 2004 s101. Ibid Sched 5 Part 9. Ibid, s 72 and Sched 5. Ibid Sched 8. Ibid s 254 and Sched 24. Ibid Sched 4. Ibid. Ibid s3 and Sched 1. Ibid, s 75 (2).


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Status Anxiety? The Rush for Family Recognition 55 the radical change. Same-sex couples are now eligible to adopt27 but this does not depend in any way on their being civil partners. Indeed, it is quite possible that a same-sex cohabitant, who is not a civil partner, may enjoy a legal status in relation to a child (through adoption) which is superior to that enjoyed by a civil partner. It is adoption which alters kinship relations here more effectively and more comprehensively than civil partnership. There are two other ways in which the existing child of a civil partner may have a legal connection of sorts with the other civil partner. First, the definition of ‘child of the family’ in the Children Act 1989 has been amended to include children who are ‘treated’ as children of the family by civil partners as well as by married partners.28 Again the analogy with step-parenthood is a strong one since usually, but not exclusively, children of the family are step-children and the issue is their financial support by a step-parent following divorce. The court’s jurisdiction to order that support is important because such children fall outside the child support scheme. In future there will be a need to address support issues for such children on the dissolution of a civil partnership. Secondly, the definition of ‘relative’ in the Children Act 1989 29 has been amended to include civil partners. Once again, in this context, step-parents had fallen within the definition, perhaps somewhat surprisingly given that there was no kinship relationship between the step-parent and the child of the sort which would, for example, have given rise to inheritance rights. In practical terms, this means that a civil partner will have legal standing in relation to his or her partner’s child in certain instances in which the local authority has become involved with the family and in which there are care issues relating to the child. It is of course impossible for civil partners to have a child together other than through adoption, mentioned above, or with the assistance of reproductive technology. It is in relation to the latter that we find one of the other rare differences of treatment between civil partners and spouses and indeed between stable same-sex and heterosexual cohabitants. Under the Human Fertilisation and Embryology Act 1990, where a married or unmarried woman undergoes fertility treatment involving donated sperm, any resulting child may be treated in law as the child of the husband30 or extra-marital partner31 where, in the case of a husband, it is not shown that he did not consent to the procedure and, in the case of a partner, that he and the mother were receiving treatment services provided for them together. These provisions have caused a great deal of difficulty but what is clear is that they are not extended to civil partners by the 2004 27 Adoption and Children Act 2002, s50 and s144. It may however be an advantage to be a civil partner for the purposes of eligibility to adopt since the civil partner, unlike the ‘unregistered’ same-sex cohabitant, will not be required to establish that the partners are in an ‘enduring family relationship’ (CPA 2004, s 79 (2)). 28 Children Act 1989, s 105 (1). 29 Ibid. 30 HFEA 1990 s 28 (2). 31 Ibid, s 28 (3).


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56 Andrew Bainham legislation. In terms of kinship, this means that civil partners will not be able to become legal parents together of a child who is the biological child of one of them. Parental responsibility may be obtained but this will not generate legal kinship. Adoption by the other partner will again be an option but some may regret that a rather easier procedure for acquiring legal parentage has not as yet been established for these cases of joint enterprise in the context of a civil partnership or a stable same-sex relationship. The close assimilation of civil partnership to marriage, leaves undisturbed the legal position of those who decide not to opt in to the new status and focuses attention on what has often been called the ‘default position’. It must be remembered in this respect that the overwhelming majority of stable, same-sex relationships are unlikely to be formalised into civil partnerships. So far as heterosexuals are concerned, the choice between formal marriage and informal cohabitation is more evenly balanced but it seems highly unlikely that marriage will ever acquire again its former level of popularity and that we are set to experience high levels of cohabitation for the foreseeable future. Unlike the law in some other common law jurisdictions, English law has never attempted to create a special status for cohabitants of whatever sexual orientation. Where such a status has been created, the purpose has generally been to provide for practical issues and to regulate potential areas of disputes between cohabitants, especially over property and financial issues (Atkin, 2002). But these statutory schemes, even where they exist, have invariably fallen well short of equating the legal effects of marriage and cohabitation. In England, we have had for many years, a typically English piecemeal and pragmatic approach which has not involved the creation of a special status but which has been characterised by ad hoc pieces of legislation to deal with particular problems such as domestic violence, fatal accidents, inheritance claims32 and so on, whilst others were largely left to the courts, notably the issue of transmission of tenancies on the death of one cohabitant. In recent years, the novel question has been how far the statutory provisions applying to heterosexual cohabitants should also be interpreted to apply in equal measure to same-sex cohabitants. After initial reluctance in the courts, the House of Lords33 has now given a strong indication that it will be difficult to justify interpreting these provisions in a way which differentiates on the basis of sexual orientation and the position could hardly be any different given the Human Rights Act 1998 and the incorporation of the ECHR into English law.34 The Canadian experience is particularly instructive in this respect, as constitutional litigation under the Canadian Charter of Rights and Freedoms made it

32 Under, respectively, the Family Law Act 1996, the Fatal Accidents Act 1976 and the Inheritance (Provision for Family and Dependants) Act 1975. 33 Ghaidan v Godin-Mendoza [2004] 2 FLR 600. 34 See particularly the decision of the European Court of Human Rights in Salgueiro da Silva Monta v Portugal [2001] 1 FCR 653.


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Status Anxiety? The Rush for Family Recognition 57 progressively impossible to apply legislation in a discriminatory manner as between same-sex and opposite-sex partners. The English Law Commission has now embarked on a review of cohabitation35 and will need to address a wide range of questions concerning cohabitants’ legal status. In the final part of this paper, I will suggest some of the central issues which are worthy of consideration. For the moment it is sufficient to note that cohabitants occupy a legal position significantly inferior to that enjoyed by married partners and now civil partners, but are affected by a range of legal provisions which create automatically some important rights and obligations. In that sense, it is inaccurate to say that they lack a legal status and more accurate to describe their position as having an intermediate or partial status. One of the chief characteristics of this status is that it does not affect legal kinship and it is perhaps primarily this which distinguishes the cohabitant’s position from that of the spouse or parent. Legal kinship, for all the modern emphasis on functional relationships, remains heavily dependent on formal public procedures. Civil partners do not achieve their status and all the rights and obligations which go with it, because they have a stable relationship, or because they have commitment or because they behave as if they were married or because they have been together for a specified period of time. None of these things matter one jot. They achieve it through a public and formal procedure; if any of these other things are present (as we assume they usually will be) they are certainly not necessary. Ironically, realistic tests of commitment, stability, marriage-like-behaviour and duration are much more likely to be demanded outside the context of civil partnership or marriage in determining whether a statutory provision can or cannot be applied to a particular relationship. It has always been the case that the oneday-old marriage is of far greater legal significance than the forty year cohabitation. The wife of one day, for example, has ‘home rights’ which are denied to the cohabitant who has lived for forty years with her male partner in a home owned solely by him.36 We can now say with equal force the same about the oneday-old civil partnership and the forty-year gay cohabitation.

4. RELATIONSHIPS WITH CHILDREN

When we look at legal relationships between adults and children we can uncover much the same issues of status which we encounter in adult relationships. First, there are those who have what we have described earlier as ‘full status’ in relation to children. Full status in this context largely turns on being regarded as a legal parent, though the position of the unmarried father is anomalous in this respect and requires separate discussion. Secondly, the full status of 35 36

Supra, note 10. Family Law Act 1996, s. 30.


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58 Andrew Bainham legal parentage is again attended by formality and the requirements of some public procedure, usually but not invariably birth registration. Thirdly, there are those who occupy what we have called an ‘intermediate status’ in relation to children. This involves acquiring parental responsibility37, though this too requires formal steps to be taken either by agreement with legal parents or by court proceedings.38 Fourthly, there are those in social parenting or de facto relationships with children who effectively have no legal status and no parental responsibility, yet are subject to the general principles and legislation governing children. They are, for example, legally bound to take proper care of children being looked after by them and also have the legal power to take those decisions involved in that care.39 Finally, we can observe the same phenomenon that legal kinship is closely tied to acquiring the full status of legal parentage and in particular that the acquisition of parental responsibility does not at present have implications for kinship. What I will seek to demonstrate in this brief review of relationships with children is that there is a pervasive concern among those caring for children that their status be improved and a strong desire to gain the full status associated with parenthood. The law has responded to this pressure, most recently in the Adoption and Children Act 2002 (Bridge and Swindells, 2003), by amendments which enhance the legal status of such carers but which generally fall short of giving to them this full parental status. I will also seek to illustrate that it is the issue of kinship which is again at the heart of the debate about status. Those who are seeking full status are, it is argued, seeking it because they wish to have their position recognised as a legal family generating the network of kinship relations and support which such recognition would bring (for further discussion of this see Masson and Lindley, chapter 7, this volume). The law’s resistance to this is also founded first and foremost in a concern about kinship. The concern here, hugely bolstered and indeed mandated by human rights considerations, is for the preservation of existing kinship links which would be destroyed, or at least greatly diluted, by the acquisition of the status of legal parent by the social parent.40 Let us then take some examples to illustrate these arguments. First, full status depends on being a legal parent and is attended by legal formality. The legal position of a parent is made up essentially of two components—establishing legal parentage and possessing parental responsibility. It is the notion of legal parentage which encapsulates the kinship relationship, or filiation, between the child and the parent and of course beyond that to the wider family. It is parental responsibility which gives to the parent all those powers and duties which are required to look after and raise the child (see further discussion of this in 37 This is defined in the Children Act 1989, s 3(1) as ‘all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child and his property’. 38 Principally by obtaining a residence order under the Children Act 1989, s 8. 39 Children Act 1989, s 3 (5). 40 This ‘transplant’ effect of adoption, replacing one legal family with another, has not been affected by the Adoption and Children Act 2002.


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Status Anxiety? The Rush for Family Recognition 59 Masson and Lindley, Chapter 7, this volume). If either of these components is missing, it can be said that the adult in question lacks full legal status in relation to the child. Establishing legal parentage therefore becomes the gateway to this full status and this can only be effectively achieved through birth registration or a finding in legal proceedings. So far as the mother is concerned, it is true that her legal parentage is not dependent on birth registration since the European Court of Human Rights has found that the legal relationship between mother and child arises at birth41, a position supported by Article 7 of the UNCRC. Nonetheless, English law does require the mother, where unmarried, and both parents where married, to register the birth of the child within 42 days.42 So far as the unmarried father is concerned, although the same article appears to envisage the right of the child to recognition of paternal filiation at birth, the reality is that legal paternity has to be established by formal procedure (Bainham, 2006). In civil law jurisdictions this is generally achieved by a formal act of recognition or acknowledgment, while in English law it requires a joint registration of the birth by the mother and the father, or a finding in legal proceedings. Even where the father’s legal paternity is established, however, he will not automatically have full status since the other component of full status, the acquisition of parental responsibility, is not an inevitable consequence. It is the position since December 2003 that a joint registration of the father’s name on the child’s birth certificate will now automatically give parental responsibility43, or full status, to the father. But it should not be overlooked that when official consideration was given to the appropriate trigger for the acquisition of parental responsibility, it was the formal public procedure of birth registration which was chosen and that the alternative of cohabitation with the mother was specifically rejected (Lord Chancellor’s Department, 1998). This reform still leaves a significant minority of fathers with only an intermediate status. This form of intermediate status is, however, quite unlike the other examples of intermediate status in family law since, unlike the others, it does carry with it a kinship relationship. This is because it is legal parentage and not parental responsibility which is the vehicle for kinship recognition. The case of the unmarried father does perhaps beg the question of whether there are other examples of intermediate status, either in adult-adult or adult-child relations, which should have implications for legal kinship. Before leaving the issue of the unmarried father, it should also be noted that much of the debate about his position has been concerned with yet another question of status—whether it is possible to abolish completely the status of illegitimacy, or rather the dual concepts of legitimacy and illegitimacy, without also equalising the position of married and unmarried fathers.44 41

Marckx v Belgium, Series A/31, (1979) 2 E.H.R.R. 330. Births and Deaths Registration Act 1953, s 10. Adoption and Children Act 2002, s 111 amending Children Act 1989, s 4. 44 For a detailed account of legitimacy and illegitimacy historically, tracing the incremental reforms of the 20th century, see Cretney (2003). 42 43


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60 Andrew Bainham Secondly, there is plenty of evidence that those having long-term social relationships with children would wish to have the full status which comes only with being a legal parent. The best example is perhaps the constant demand for adoption which far outstrips the supply of available babies and has given rise to a major, and controversial, market in international adoption. A central feature of much of this activity has been to obliterate links between the child and the birth family which legal adoption can achieve (Bainham, 2003). In domestic law we can also find reported examples of foster carers who give all the impression of being fundamentally unhappy about long-term foster care and who are satisfied only if they are allowed to adopt. It is adoption for them that makes them ‘real parents’ with a ‘real family’ and it is, as they see it, a fundamentally insecure position to be given merely parental responsibility for the child even where accompanied by other legal safeguards.45 In my view, this sort of attitude also has a great deal to do with status—the low status which we in England attach to long-term foster care as an alternative for permanence. Foster care is perceived, probably rightly, as low-paid, unattractive and low-status work. It is also clear that the government itself has championed adoption as the best, one could say high-status, solution for children in long-term care (Department of Health, 2000). The Adoption and Children Act 2002 has a number of provisions which are designed to enhance the status of various categories of those looking after children but which fall short of adoption. In this way it is hoped that greater legal security may be provided without the drastic effects on existing kinship relations which adoption entails. The measures include a power to extend residence orders to the child’s majority, better mechanisms for the acquisition of parental responsibility by step-parents (and now civil partners) and, most importantly, the creation of a new status of special guardian (discussed more fully in Masson and Lindley, Chapter 7, this volume).46 What is perhaps interesting in the context of the present discussion, is the large degree of scepticism with which the new regime of special guardianship has been received. There was no shortage of those who were quick to say that it would not be much used or even that it might suffer the fate which the related notion of custodianship suffered in the 1980s.47 Why is this? I suggest that it again has a great deal to do with the prevalent concern about status. The fact is that however secure special guardianship is, it is clearly not the equivalent of adoption and again the central issue is kinship. Unlike adoption it will not change the legal family of the child and this appears to be what some long-term carers really want. It is certainly arguable that in any thoughtful formulation of family policy, a great deal more needs to be done to increase awareness about 45 The best example being Re M (Adoption or Residence Order) [1998] 1 FLR 570 where the foster parents indicated that they would cease to look after the child altogether unless allowed to adopt. 46 New s 14 A-G Children Act 1989. 47 The custodianship order, introduced by the Children Act 1975, took a decade to implement, was little used and then quickly abolished.


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Status Anxiety? The Rush for Family Recognition 61 the requirements of the ECHR which strongly militate against the destruction of birth relations48 and also to improve significantly the status of foster care. The ‘pro-adoption’ policy in the UK, following that in the US49, is simply not accepted elsewhere in Europe (Warman and Roberts, 2003) and has comparatively recently been rejected in Australia too (Parkinson, 2003). Perhaps the fundamental issue in the law governing relations between adults and children is when (if at all) social parents, in their many manifestations, should become legal parents and thus occupy a full legal status in relation to the child, when they should be limited to the intermediate status of possessing parental responsibility and when they should effectively be left with no status at all, beyond that occupied by anyone who physically has a child with him or her. One of the most interesting cases is that of the step-parent. Given the rate of divorce, we are of course talking about a very large number of people. What should their legal status be and should they have a recognised kinship relationship with the child? Much the same questions can now be posed in relation to civil partners. Those who believe that step-parents have an inferior legal status will point again to the functions which they perform and will argue that many step-parents are fulfilling a role in relation to children which is in all but name that of a parent (Engel, 2005). It can accordingly be argued that the step-parent should possess a legal status equivalent to that of the parent-spouse, parent-civil partner. Against this it can be argued that step-parents become step-parents in a widely differing set of circumstances and that, for example, the position of the step-father who marries an unmarried mother where the genetic father left the scene before the child’s birth, is very different from that of the step-father who marries the divorced mother when the child is older and has an established relationship with the biological father. The case of step-parenthood perhaps illustrates that caution is required in assuming too readily that what looks like a parent must be a parent, or that it is appropriate to hand out a full status to all those looking after children who may, given the propensity for serial relationships, be only in that position for a limited time before being replaced by another parent figure. Finally, before leaving the issue of relationships with children, we should surely reflect on the whole children’s rights debate. What is this if it is not principally another manifestation of commitment to the importance of status? In essence children are no longer viewed merely as the possessions of their parents. They are seen as legal subjects with rights and not merely objects of concern. Looked at in this way, the recent arguments about the place of the welfare principle in the new era of human rights are essentially arguments about the status of the child, specifically in legal proceedings.

48 49

A consequence of the right to respect for family life under Article 8 ECHR. Under the Adoption and Safe Families Act 1997.


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62 Andrew Bainham

5. SOME QUESTIONS FOR POLICY-MAKERS

This paper has been about the importance of status in family law. It has not been my intention to deny the significance of private ordering, or to deny that in the real world people will live out their family lives often oblivious of what the law may say and not caring very much about it either. My purpose has been rather to draw attention to the continued, and in my view, increased significance of legal status in the context of the now very wide range of formal and informal family arrangements. Many more examples could be given of this concern about status, a recent and important one being the law’s belated recognition of gender change in the case of transsexuals by the enactment of the Gender Recognition Act 2004 (Welstead, 2006). I have also sought to demonstrate the connection between status and kinship relations which, at least in law, are closely intertwined. The higher the legal status, the more likely it is that kinship relations are affected. Those family arrangements which are at or near the top of the legal hierarchy are also those which establish or alter kinship and may well be perceived by some as the only real families or, to take an historical perspective, the only legal families (Cretney, 2003). Socially too, it seems highly unlikely that the same people who are obsessed with the value of their homes, their promotion prospects at work, the age and make of their cars, the size of their bank balances and where their children’s schools are in the national league tables, will be indifferent to the social acceptability and standing of their family arrangements. If it is accepted then that status matters in family life, the following broad questions might be posed for policy-makers, not least the Law Commission as it embarks on its review of cohabitation: (1) How should legal kinship be created and transmitted? Should it continue to depend on the conclusion of formal legal procedures, which doubtless have an importance in terms of legal certainty, or should the law lend its support to a looser network of kinship relations arising from more informal family associations? (2) What legal importance ought to be attached to kinship? At the present time, the legal effects which turn exclusively on kinship are quite limited, though important, and do not extend much beyond inheritance rights, liability for child support and the prohibited degrees of relationship for marriage or civil partnership. Indeed it could be said with some force that the social significance of kinship exceeds the legal significance. It may not matter a great deal in law, if at all, that someone is one’s uncle. But if that uncle were to become seriously ill, with no other close relatives to arrange for his care, it is more than likely that one might feel some sort of social or moral obligation to take an interest in his situation. And, unlike the situation of friends who are chosen, this is likely to be the case whether or not there is a close bond of affection between uncle and nephew. More research is needed on the nature


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Status Anxiety? The Rush for Family Recognition 63 of these social and moral obligations arising from kinship and the extent to which these may vary across different cultures. (3) Are the current legal effects arising from kinship relations appropriate or in need of review? To take just one example, is it any longer appropriate that English law should maintain the very strong preference for the surviving spouse in the case of intestacy, the effect of which may be to cut out completely the biological children of the deceased’s former marriage?50 And is it appropriate that step-relationships should be completely ignored? Rules enacted in 1925 need to be regularly revised to ensure that they keep up with changes to family structures in society, in this case the high incidence of divorce and remarriage. (4) How far should the law continue to attach automatic legal consequences to personal intimate relationships? What underlying values should govern the question of the appropriate legal status to be accorded to different kinds of relationship? It seems likely that commitment and stability would rank high on the list of such values but, as has been pointed out, a legal system which attaches the greatest importance to formality is in a sense undercutting these other values. And if commitment and stability are what really matters, then there must surely be concern about the low status currently occupied by those in long-term but informal family arrangements. (5) Should the principal focus of attention be on the nature of the relationship in question or should it rather be on the specific issues which need to be addressed? An issue-based approach would come at things from an entirely different angle. Instead of seeking to formulate a comprehensive, catch all, status for various familial associations, the law would instead focus on the particular problem requiring resolution. To take just one example, earlier it was noted that the test for standing in the context of the protective remedies for domestic violence is now principally a household test. Few, apart from some ultra-conservatives and readers of the Daily Mail, would argue that there should be nice distinctions drawn between relationships when the need for protection clearly arises first and foremost because of proximity between assailant and victim. But suppose that the issue is the quite different one of whether someone who shares a household should, by reason only of moving in, automatically acquire occupational rights in, or ownership of, that property. Many people would recoil from any such implication and that is the view that has also consistently been taken by parliament51 and the courts.52 What this example shows is that it is not sufficient to ask the question, ‘what is the nature of the relationship’? We must also ask, ‘what is the issue’?

50

Under the Administration of Estates Act 1925. Occupational rights in the home arise by virtue of marriage (s 30 FLA 1996) or civil partnership (s 101 Civil Partnership Act 2004) but not from cohabitation or home-sharing however long such arrangements have lasted. 52 For a good example see Layton v Martin [1986] 2 FLR 227 51


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64 Andrew Bainham (6) As regards relationships with children, perhaps the key question is whether the current conceptual distinction between parentage, which affects kinship, and parental responsibility, which does not, should be maintained. I have argued elsewhere that it should, and that there should continue to be a clear distinction in law between parents on the one hand, and social carers on the other, principally to uphold the significance of the birth family as required by international obligations. A balance needs to be struck between the status of the birth family, which should be preserved wherever practically possible, and that of the social family in its need for legal security (Bainham, 2006). These then are some of the broad issues relating to family status and kinship which a properly constructed family policy might need to address. In the absence of such a policy there is plenty of scope for de Botton’s ‘status anxiety’ to persist.

REFERENCES

ATKIN, B, ‘New Zealand: From Parental Relocation, Rights and Responsibilities to “Relationship” Property’ in A Bainham (ed), The International Survey of Family Law, 2003 edition (Bristol, Family Law, 2003). BAILEY, M, ‘Canada: Same-Sex Marriage, Faith-Based Arbitration, and Child and Spousal Support’ in A Bainham (ed), The International Survey of Family Law, 2006 edition (Bristol, Family Law, 2006). BAINHAM, A, ‘International Adoption from Romania: Why the Moratorium Should Not be Ended’, (2003) 15 Child and Family Law Quarterly 223 BAINHAM, A, ‘Birthrights?’ The Rights and Obligations Associated with the Birth of a Child’ in J Spencer and A Pedain, Freedom and Responsibility in Reproductive Choice (Oxford, Hart publishing, 2006). BRIDGE, C and SWINDELLS, H, Adoption: The Modern Law (Bristol, Family Law, 2003). BROBERG, P, ‘The Registered Partnership for Same-sex Couples in Denmark’ (1996) 8 Child and Family Law Quarterly 149. CRETNEY, C, Family Law in the Twentieth Century: A History (Oxford, Oxford University Press, 2003). CURRY-SUMNER, I, All’s well that ends registered?: The Substantive and private international law aspects of non-marital registered relationships in Europe (Mortsel, Intersentia, 2005). DE BOTTON, A, Status Anxiety (London, Hamish Hamilton, 2004) DEPARTMENT OF HEALTH, Adoption: a New Approach: A White Paper (cm 5017, 2000). ENGEL, M, ‘Stepfamily Tribulations under United States Laws and Social Policies’ in A Bainham (ed) The International Survey of Family Law, 2005 edition (Bristol, Family Law, 2005).


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Status Anxiety? The Rush for Family Recognition 65 GLENNON, L, ‘Targeting the Exclusionary Impact of Family Law’ in M Maclean (ed), Family Law and Family Values (Oxford, Hart publishing, 2005). HARPER, M, DOWNS, M, LANDELLS, K and WILSON, G, Civil Partnership: The New Law (Bristol, Family Law, 2005). HENRICSON, C, and BAINHAM, A, The Child and Family Policy Divide: Tensions, Convergence and Rights (York, Joseph Rowntree Foundation, 2005). HOME OFFICE, Supporting Families: A Consultation Document (London, The Stationery Office, 1998). LORD CHANCELLOR’S DEPARTMENT, Consultation Paper: The Law on Parental Responsibility for Unmarried Fathers (London, LCD, 1998). OLDHAM, JT, ‘The United States: The Struggle for the Creation of a Status for SameSex Partners’ in A Bainham (ed), The International Survey of Family Law, 2006 edition (Bristol, Family Law, 2006). PARKINSON, P, ‘Child Protection, Permanency Planning and Children’s Right to Family Life’(2003)17 International Journal of Law, Policy and the Family 147. SCHRAMA, W, ‘The Netherlands: Reforms in Dutch Family Law during the course of 2001: Increased Pluriformity and Complexity’ in A Bainham (ed), The International Survey of Family Law, 2002 edition (Bristol, Family Law, 2002). THOMPSON-AHYE, H, ‘A View of Some Aspects of Family Law in the Commonwealth of the Bahamas’ in A Bainham (ed), The International Survey of Family Law, 2005 edition (Bristol, Family Law, 2005). WARMAN, A, and ROBERTS, C, Adoption and Looked after Children—an International Comparison (Oxford, Centre for Family Law and Policy, University of Oxford, 2003). WELSTEAD, M, ‘Reshaping Marriage and the Family—The Gender Recognition Act 2004 and the Civil Partnership Act 2004’ in A Bainham (ed) The International Survey of Family Law, 2006 edition (Bristol, Family Law, 2006). WINTEMUTE, R and ANDENAES, M, Legal Recognition of Same-Sex Partnerships (Oxford and Portland, Hart publishing, 2001).


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(E) Ebtehaj et al Ch4

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4 DNA Testing and Kinship: Paternity, Genealogy and the Search for the ‘Truth’ of our Genetic Origins TABITHA FREEMAN & MARTIN RICHARDS 1

1. INTRODUCTION

NE OF THE most significant developments arising from the so-called ‘genetic revolution’ of the late-twentieth century is the possibility of identifying individuals and the degree of genetic relatedness between individuals through DNA analysis. Amid widespread claims that social practices, discourses and relations are being geneticised by the developing knowledge and technologies (Lippman, 1991, 1992; Finkler, 2000, 2001), we might expect DNA testing to have profound conceptual and practical implications for socio-legal and cultural understandings of kinship. Our aim in this chapter is to evaluate the significance of DNA testing as a method of confirming the genetic basis of paternity and kin relationships. We will discuss how far this technology may reinforce or undermine the socio-legal and cultural status traditionally attributed to ‘biology’2 in defining paternity and kin relationships. DNA testing has provided the first definitive method of confirming the genetic basis of paternity and other close familial relationships (e.g. grandparent, aunt, uncle, twin, sibling, half-sibling). It is based on the principle that each individual (with the exception of ‘identical’ or monozygotic twins) has a unique

O

1 The authors’ research on lay understanding of inheritance and kinship has been supported by a grant from the Wellcome Trust. We would like to thank Thomas Nutt and Leonone Davidoff for helpful comments on earlier versions of this chapter. 2 Whilst the focus of this chapter is on the role of genetics and genetic relatedness in defining socio-legal and cultural concepts of paternity and kinship, it is clear that notions of kin relationships as being formed through procreation and biological connectedness (e.g. being related by ‘blood’) predate contemporary understandings of genetic inheritance. For this reason, the following discussion assumes that the implications of DNA testing can be interpreted more widely in terms of the traditional importance ascribed to procreative and ‘biological’ relationships (however conceptualised) in defining socio-legal and cultural concepts of paternity and kinship.


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68 Tabitha Freeman & Martin Richards genome or genetic ‘fingerprint’ of DNA sequences composed of the contributions in the egg and sperm from the two parents. While we all have the same genes, DNA sequences of genes and other parts of our genome vary. Identifying and comparing elements of that variation allows for the determination of genetic relationships because, as each parent contributes to their child’s genome, there will be familial similarities.3 Using similar techniques, DNA testing can also be used to trace male and female bloodlines of individual ancestry and the likelihood of ancestors coming from particular populations. Consequently, there are new tools for tracing genealogical genetic lineages in relation to family surname and, to some extent, to possible ethnic or geographical origins. The unique capacity of DNA testing to uncover genetic connections within existing family groups and across past generations is of fundamental significance, given the primacy ascribed to notions of blood relationships in defining western kinship systems. Within western societies, kin relationships are deemed to be acquired by marriage and procreation, with generational ties being structured along bloodlines, most typically according to patrilineal descent. DNA testing thus offers a scientific means of reifying the biological basis of kin relationships that has, at least until relatively recently, been assumed to provide the bedrock of kinship structures in western societies. The practical and cultural appeal of an accessible technology for verifying paternity or exploring the genetics of genealogical descent has been reflected by the rapid uptake of DNA relationship testing in the UK. Since the development of DNA testing in the late 1980s, paternity tests have swiftly become one of the most prevalent applications of all the new genetic technologies and are now widely available as an increasingly routine procedure for settling cases of unknown or disputed parentage across a range of familial and legal settings. The State has fast emerged as the principal UK user of paternity testing, with the majority of tests being conducted on behalf of the Child Support Agency (CSA), for determining paternal liability, and the Home Office, for regulating immigration.4 There are, however, strong indications that such institutional applications are being outpaced by a substantial growth in individual testing fuelled by the commercial availability of ‘DIY’ home-testing kits. Paternity testing is currently the leading product in an expanding internet market of direct-to-

3 In testing, DNA is extracted from any cellular sample which contains DNA (e.g. saliva, blood, hair roots or skin cells). Comparative analysis of DNA from a man (or woman) and a child will provide positive evidence of the genetic relationship with over 99.9 per cent accuracy; a level that can be treated as certainty for all practical purposes (barring accidental errors such as the muddling of samples). This is a fundamental change from the former methods based on blood group analysis which could only rule out paternity or indicate its possibility. For further discussion of the scientific basis of DNA testing, see Jeffreys (1993) and Richards (2001). 4 Estimates of uptake of paternity testing in the UK range from 8,900 to 20,000 tests per year, with approximately 5,000 conducted for the CSA (Bellis et al, 2005). To these figures must be added a significant but largely unknown number of tests carried out overseas for UK residents by companies trading on the internet.


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DNA Testing and Kinship 69 consumer genetic testing services.5 Most companies presently offer two kinds of paternity testing: the ‘legal’ court approved service which has consent requirements and cheaper ‘personal’ tests using DIY home sample collection kits.6 These latter tests are popularly marketed as ‘peace of mind’ and ‘curiosity’ kits that offer a cheap, accurate and trouble-free means of relieving the nagging uncertainty of paternity and protection against the perils of ‘paternity fraud’. The recent addition of prenatal paternity tests to the array of available services means that it is no longer necessary to wait for the birth of a child to verify parentage.7 Other forms of relationship testing are likewise readily available within this open consumer market, including genealogy, surname and ‘infidelity’ tests of various kinds. As DNA testing promises to unveil the ‘truth’ of our genetic origins and put longstanding assumptions about the importance of biology in determining kinship to the test, it is timely to ask how far parentage and kin relationships can in fact be understood as reducible to matters of genetic relatedness and shared DNA sequences. This chapter addresses this question by examining the relative claims of the ‘biological’ and ‘social’ in framing socio-legal and cultural understandings of parentage and kinship, exploring these concepts from both traditional and contemporary perspectives. By uncovering the complex interplay between biological and social dimensions of kinship in relation to past and present notions of parentage and genealogical descent, this chapter also points towards how we may make sense of kin relationships in the future. 5 It is estimated that paternity tests currently account for approximately 80 per cent of the internet market of direct-to-consumer genetic tests, which also include a range of health and lifestyle related products. For further discussion, see Gollust et al (2003) and Williams-Jones (2003). 6 The existence of a two-tier system of ‘legal’ and ‘personal’ tests is clearly discernable in the marketing on the numerous commercial websites that offer paternity testing services. Within the UK, ‘legal’ paternity testing must be carried out by accredited companies that conform to a voluntary Code of Practice (Department of Health, 2001). This Code is designed to ensure the consent of involved adult parties and maintain technical standards. Legal tests are intended to be valid for court use and are linked with the potentially significant financial benefits of avoiding child support payment on many of the websites. In contrast, ‘personal’ tests commonly flout the voluntary Code by advertising ‘motherless testing’ (i.e. testing with a man and child’s DNA sample only) and explicitly detailing ways of covertly collecting DNA samples. However, once the ‘truth’ of paternity is known, there may well be legal and financial implications and thus the distinction between ‘personal’ and ‘legal’ testing may not be so clear-cut in practice. The Human Tissue Act (2004) introduced the first legal provision by making the non-consensual collection and holding of tissue samples for DNA analysis a criminal offence. However, this may have limited impact in practice, particularly given the global reach of the internet market. There is no reliable information available about the extent of use of the ‘personal’ tests, but it seems likely that the uptake of these has now outstripped that of the ‘legal’ tests. 7 Prenatal testing services employ both invasive procedures (i.e. amniocentesis or chorionic villus sampling) and, more recently, non-invasive techniques based on comparative analysis of DNA from fetal cells or free DNA in maternal blood samples and DNA sample(s) from the putative father(s). These tests raise a number of ethical concerns, not least because the invasive techniques involve the compliance of a medical practitioner and carry the risk of miscarriage. Whilst seeming to offer a technical solution to these ethical problems, the accuracy of the non-invasive techniques involving maternal blood samples may be open to question. Moreover, one might assume that anyone wishing to test during pregnancy is likely to be contemplating termination of that pregnancy should the result indicate the ‘wrong’ man is the father (see Human Genetics Commission, 2006).


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70 Tabitha Freeman & Martin Richards The central premise of our discussion is that the concept of paternity can be understood as providing a lynchpin of western kinship systems which are structured around notions of marriage, blood relations and patrilineal descent. In Section Two, we provide a conceptual framework for the chapter by examining the cultural and socio-legal status of paternity. In particular, we explore the cultural significance of the hitherto uncertain link between biological and social fatherhood and trace the evolution of socio-legal mechanisms for determining male parentage. In doing so, we uncover what is identified as the paradoxical place of biology in traditional kinship systems; as such, the assumed priority given to biological relatedness in defining socio-legal and cultural understandings of parentage and kinship is itself brought into question. Such deeply embedded conceptual fault lines have been visibly exposed in recent years, where an apparent decline of the traditional nuclear family has brought longstanding tensions between biological and social constructs of kinship to the fore. The growth of DNA testing has occurred amid wider cultural and demographic transitions that are perceived to have far-reaching implications for the nature of parentage and kinship; not least, the rising rates of divorce, separation and cohabitation and the development of assisted reproductive technologies (ARTs). In Section Three, we turn to an examination of recent academic and public debates concerned with the nature of paternity, kinship and identity within the contemporary age of genetic testing, where a critical focus on the ‘fragmentation’ of the traditional family bound by genetic relatedness has been met by a visible reassertion of the fundamental importance of the biological as a key determinant of kinship identities and relationships. We examine these two contradictory trends of ‘genetic essentialism’ and ‘social constructionism’ by evaluating the extent to which underlying demographic and cultural developments have transformed or maintained traditional ideologies and structures of kin relationships in order to highlight some of the wider implications of the rapid growth of the DNA relationship testing. In Section Four, the relative claims of genetics and socially constructed meanings in shaping our understandings of kinship are further explored through a consideration of the potential significance of utilising DNA relationship testing to elucidate the nature of kin relationships and genealogical descent within different substantive contexts. We focus our discussion here on the use of DNA analysis to trace genetic ancestry and ethnic origins in order to illustrate some of the limitations of this technology for describing the nature of our kin relationships. We conclude by returning to the central aim of this chapter: that is, to assess the significance of DNA testing as a means of establishing the genetic basis of paternity and kin relationships by evaluating ways in which this technology might challenge or confirm ideological assumptions that kinship is founded upon blood relatedness. To this end, this chapter attempts to understand how far DNA testing contributes to an increasing genetic essentialism in cultural and socio-legal concepts of parenthood and kinship, and how far uncovering the


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DNA Testing and Kinship 71 tenuous status of the ‘truth’ of our genetic origins opens up paths for reconceptualising the nature of kinship.

2. SOCIO-LEGAL AND CULTURAL FRAMEWORK: PARENTAGE AND THE PARADOXICAL PLACE OF BIOLOGY

Whilst procreation, blood relationships and marriage have long been understood to define the structure of western kinship systems, the ‘truth’ of genetic relatedness has hitherto remained impenetrable owing to the inherent uncertainty of paternity. Until the advent of DNA testing, the impossibility of establishing paternity and patrilineal descent with absolute certainty created an implicit tension in western understandings of kinship between the primacy attributed to bloodlines and the unverifiable nature of genetic relatedness. Western kinship systems have therefore rested on a deep-seated paradox: the intangible realities of paternity posing intractable conceptual problems for traditional socio-legal and cultural kinship frameworks that are legitimated by notions of blood relatedness and patrilineal descent. The problem of ‘paternal uncertainty’ has not escaped critical attention and indeed, has carried enormous explanatory weight across the academic domain to account for a variety of social and psychological phenomena. For example, the problematic relationship between biological paternity and social fatherhood has long been recognised as being intrinsically linked to the origins of patriarchy. A classic statement is given in Friedrich Engels, The Origin of the Family, Private Property and the State (1884).8 According to Engels, the rise of capitalism compounded the perils of paternal uncertainty; this ‘natural’ problem for a male seeking to ensure the continuance of his bloodline being realised as a social problem of determining the rightful inheritance of private property. For Engels, the attempted resolution of this predicament underlies the institutionalisation of female monogamy within marriage, as enshrined within the patriarchal family; a kinship structure that is based on the supremacy of the man, the express purpose being to produce children of undisputed paternity; such paternity is demanded because these children are later to come into their father’s property as his natural heirs Engels (1986 [1884]), p 92.9 8 There is also a significant feminist literature on the role of paternal uncertainty in the evolution of patriarchy, including the seminal account given in O’Brien (1981). Other salient uses of paternal uncertainty include evolutionary accounts of male behaviour as being shaped by uncertainty over progeny and the drive to ensure genetic inheritance (e.g. Trivers, 1972; Schuiling, 2003). Whilst DNA testing has fundamental implications for these theoretical frameworks as the first definitive ‘solution’ to the problem of paternal uncertainty, the conceptual implications of this technological breakthrough have not been adequately theorised in these terms. For further discussion, see Freeman (2005). 9 The premium placed upon female monogamy is illustrated by Engels’ chilling statement of the absolute rights engendered upon the husband within the patriarchal family: ‘In order to make


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72 Tabitha Freeman & Martin Richards However, the risk of falsely attributed paternity persists as an awkward tension within this patriarchal scheme, especially given the sexual freedom tacitly bestowed upon men.10 Thus whilst the capitalist model of patrilineal kinship is founded upon the ideological significance of biological paternity, the social definition of fatherhood as being legally identified with marriage is effectively prioritised; a paradox that is illustrated by Engels’ citing of the Napoleonic Code which states that ‘the father of a child conceived during marriage is the husband.’11 An examination of the legal tradition likewise confirms that the principal socio-legal means of establishing paternity has long been marriage, with the uncertain link between social and biological fatherhood being negotiated by the common law assumption of a husband’s paternity.12 In English law, paternity is a matter of social status and is contingent upon a man’s relationship with the mother of his child; a relational concept that contrasts with the naturalised constant of maternity which is legally constructed through the act of birth (Richards, 2006). The socio-legal association of motherhood with birth rests on a tacit assumption that there is an irrefutable biological bond between a mother and her offspring that is visible at birth, whilst the father-child relationship can be understood as being socially constructed through marriage. More specifically, a husband’s putative paternity has historically bestowed legitimacy upon a child born within wedlock; an assumption that conversely rendered the legal status of a child born outside marriage as filius nullius (‘nobody’s child’). In effect, an illegitimate child was deemed to have no father.13 As with Engels’ account, we can once again point to the immediate fallibility of this system in leaving open the conceptual loophole of concealing misattributed paternity within the legal institution of marriage. Furthermore, whilst in practice, the marital presumption has been interpreted as rebuttable, the possicertain of the wife’s fidelity and therefore of the paternity of the children, she is delivered over unconditionally into the power of the husband; if he kills her, he is only exercising his right’ (Ibid, p 88). 10 A classic account of the sexual double-standard of female monogamy and male promiscuity, and the intrinsic problems this poses for the patriarchal order, is given in Thomas (1959). For further discussion, see Freeman (2004). 11 Article 312, ‘L’énfant concu pendant le mariage a pour pere le mari’ (Ibid, p 98). 12 The presumption of paternity within marriage is not absolute and may be rebuttable in exceptional circumstances. However, at least historically, this was rare and rested upon circumstantial evidence as to the impossibility of paternity. As the eighteenth-century legal commentator, William Blackstone, described: ‘As bastards may be born before the coverture or marriage state is begun, or after it is determined, so also children born during wedlock may in some circumstances be bastards. As if the husband may be out of the kingdom of England (or, as the law somewhat loosely phrases it, extra quatuor maria) for above nine months, so that no access to his wife can be presumed, her issue during that period shall be bastard. But, generally, during the coverture access of the husband shall be presumed, unless the contrary can be shewn; which is such a negative as can only be proved by shewing him to be elsewhere: for the general rule is, praefumitur pro legitimatione’ (1770), p 457. 13 To quote William Blackstone again, a child born outside wedlock ‘hath no father’ (1770, p 455). For further discussion of the socio-legal determination of paternity and legitimacy, see Nutt (2005), Collier (1995), Smart (1987) and Lowe (1982).


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DNA Testing and Kinship 73 bility of contesting paternity within marriage only serves to expose the vulnerabilities of a socio-legal framework that is legitimated on the tenuous conflation of paternity with marital status. Therefore, whilst patriarchal kinship systems have traditionally been founded upon the language of ‘natural’ rights associated with paternity,14 this rests upon the socio-legal fiction of the marital presumption that conveniently glosses over the thorny problem of paternal uncertainty. The intrinsic limitations of marriage for defining parentage are further exacerbated by the fact that maternity is likewise not necessarily confined within the marital relationship, with the history of unmarried motherhood and illegitimacy revealing the long-standing problem of enforcing paternal economic responsibility outside this legal framework. In this context, it is interesting to note that the biological basis of paternity has in fact long been viewed as the decisive rationale for enforcing paternal responsibility in cases of unmarried motherhood. Indeed, long before the advent of DNA testing, the attempt to establish paternity by recourse to the circumstances of conception in order to enforce financial responsibility for bastard children was commonplace; a practice that can be illustrated by the operation of the affiliation system from the sixteenth century onwards (Nutt, 2005; Gowing, 2001). The significance of DNA testing as the first definitive method of verifying the genetic basis of kin relationships must therefore be set against the historical heritage of the determination of parentage within legal discourse, where social constructions of marriage and legitimacy effectively take precedence over the illusive ‘truth’ of biological paternity in defining the socio-legal status of fatherchild relationships.15 This is not to say, as in the majority of cases, that a husband may not likewise be the genetic father of a child conceived during marriage.16 Indeed, it is quite feasible that the realities of genetic relatedness 14 Patriarchal kinship systems rest upon a particular conception of paternity defined by origination and ownership, by which a man’s position as father and head of household effectively renders his wife and children his property. For further discussion of the concept of paternity as origination, see Franklin (1996). Empirical examples of the natural rights associated with paternity can be found in Murray’s detailed account of the patriarchal conceptualisation of women as property (1995, Ch. 7), and Pateman’s description of the common law doctrine of coverture (1988). 15 A contemporary illustration of this paradox is given in the Warnock Committee report on assisted reproduction, which refers to the importance of the birth certificate as a ‘true genetic record’, as follows: ‘We recommend that the law should be changed so as to permit the husband to be registered as the father [of a child conceived by artificial insemination by donor (AID)]. We are fully aware that this can be criticised as legislating for a fiction since the husband of a woman who has conceived by AID will not be the genetic father of the child and the register of birth has always been envisaged as a true genetic record’ (Department of Health and Social Security, 1984: para 4.25). 16 It is commonly claimed that a significant minority of men are raising children whom they falsely assume to be their genetic children. For example, a recent survey of available research conducted across many countries found an average 4 per cent rate of ‘paternal discrepancy’ (Bellis et al, 2005), with the ‘fact’ that up to 1 in 25 fathers could be unwittingly bringing up another man’s child attracting widespread media attention. Such estimates readily lend themselves to becoming something of an urban myth and are frequently picked up by paternity testing companies who play on fears about the secret promiscuity of women in order to sell their personal ‘peace of mind’ testing kits. However, the limited empirical evidence supporting these claims is highly problematic, not least because rates of misattributed paternity are likely to show great variation across different


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74 Tabitha Freeman & Martin Richards may concord with the socially defined status of father-child relationships and in this light, the significance of DNA testing as resolving the problem of paternal uncertainty should not be over-played.17 Rather the point is that, in practice, socially ascribed meanings may paradoxically be taken to be definitive of male parentage within kinship systems that are legitimated upon the primacy of blood relationships. Where the legal fiction of paternity is overtly challenged, whether through the rebuttal of a husband’s paternity or what was once perceived as the illegitimate birth of a fatherless child, there is an inevitable attempt to restore order by retrieving the biological facts of paternity. In this light, the advent of DNA testing can be viewed as a landmark tool for settling cases of disputed paternity with unprecedented accuracy, efficiency and certainty. However, the radical potential of this technology should not be over-stated in this context, as the application of DNA testing for establishing parentage can be understood as an extension of a well-established legal tradition of working to define the contestable link between paternity and social fatherhood when the constraints of the marital framework breaks down. What is perhaps more disruptive for the traditional patriarchal order is the potential for DNA testing to challenge the ideological foundations of the marital framework itself by rendering the hidden paradoxes of paternal uncertainty visible to scrutiny. Indeed, paternity testing presents a double-edged sword for the patrilineal basis of traditional kinship structures, with its rapid exploitation for legal and commercial purposes both demonstrating the resilience of biological definitions of kinship based on paternal descent whilst uncovering the essential weakness of this ideological system through confronting the problem of paternal uncertainty head on. It is evident that DNA testing has the potential both to reinforce and destabilise longstanding assumptions concerning the socio-legal status of paternity and throw a priori claims about the primacy of biology in determining western kinship systems into question. By creating an accessible means of establishing the presence or absence of a genetic relationship between a man and child and indeed, between generations of kin, DNA relationship testing provides a litmus test for traditional concepts of western kinship defined by patrilineal descent and brings the paradoxical place of biology within this system to the fore. If kinship systems have traditionally been legitimated by recourse to the socio-legal status of paternity and biological relatedness, what happens when this ‘legal fiction’ can be challenged by the ‘genetic facts’ of DNA testing? Is it likely that samples and social groups. For further discussion, see, for example, Macintyre and Sooman (1991) and the ensuing debate in later issues of The Lancet. 17 Moller Okin is one of the few commentators to respond critically to the explanatory weight placed upon the concept of paternal uncertainty by posing reasonable doubts over the empirical applicability of this theoretical concern, as follows: ‘It is extremely difficult to believe that actual historical male consciousness has been obsessed with the issue of paternity . . . Have actual, historical men really had no sense of genetic continuity, in spite of having ancestors, in spite of having children that they generally had little cause to doubt were their own biological offspring?’ (Moller Okin, 1983 p 444).


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DNA Testing and Kinship 75 paternity testing will undermine the marital presumption of paternity in English Law, as already seems to be happening in the USA (Glennon, 2000; Rothstein, et al, 2005)? How can claims of parental rights based on social contact and parental involvement be weighed against the traditional status attributed to paternity? As DNA testing looks set to become part of the socio-legal fabric of determining parenthood, providing answers to these questions becomes increasingly pressing. At present, it may be observed that, although the common law assumption of a husband’s putative paternity remains operative, the potential to establish the biological truth of paternity offered by DNA testing has been reflected by an increasing legal emphasis on the importance of verifying paternity (Bainham, 2005). There are growing indications that determining paternity is becoming a paramount concern, with UK case law interpreting knowledge of the ‘genetic truth’ of one’s origins as being in the ‘best interests’ of a child in cases of disputed parentage.18 This essentialist discourse is exemplified by the strong association between paternity and economic responsibility enshrined in the Child Support Act (1991), as implemented by the Child Support Agency. Indeed, the notoriously unpopular and unsuccessful nature of the CSA’s practices can be partially explained by the reductionist fervour underpinning the use of shared DNA sequences to determine a man’s obligation to pay child support and the corresponding absence of any automatic legal link between financial responsibility and the rights (e.g. of access and contact) associated with fatherhood. Similarly, DNA paternity tests are becoming an increasingly frequent feature of divorce settlements, where they may be used to determine child maintenance obligations. It is hard not to speculate that the increased reliance on paternity testing could act to undermine the marital presumption, and there are signs that the importance placed upon an intact family life implicitly preserved by this legal doctrine is being trumped by what is now viewed in terms of the right to knowledge of one’s genetic identity. How far the paternity testing industry is itself leading this transition remains open to question, but it seems likely, given the widespread accessibility of paternity tests, that this technology has played some role in the current movement towards uncovering genetic truth. Despite the genetic essentialism being promoted within contemporary sociolegal discourse, the tacit importance placed upon social relationships in defining fatherhood has not been sidelined. Rather, it is perhaps more accurate to say that recent cultural and demographic change has led to a visible exposure of the socially constructed nature of the link between social fatherhood and paternity. Institutional and individual use of DNA testing has gained pace alongside wider transitions in cultural and socio-legal concepts of kinship, with the rights and responsibilities ascribed to biological and social fathers becoming a particular 18 Both the primary consideration of the child’s best interests and the right to knowledge of one’s identity are contained in the United Nations Convention on the Rights of the Child (1989). The right to private and family life (Human Rights Act 1998) has also been cited in this context.


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76 Tabitha Freeman & Martin Richards focus of concern. In particular, rising rates of divorce, remarriage and cohabitation and the availability of ARTs involving sperm donation have led to an increasing proportion of men assuming parental relationships with children known to be genetically unrelated and/or born outside marriage. Within this context, the significance of the biological basis of fatherhood is potentially undercut by the import ascribed to social relationships between men and children in constituting parenthood. For example, the contingency of fatherhood is reflected by the legal ascription of parental status to the social, rather than the genetic, father in cases of donor insemination; indeed, a man’s mere presence at a fertility clinic with his partner is enough to confer parental status upon him of any child born of that procedure.19 Likewise, men’s parental rights are no longer deemed to be contingent upon marriage and biological relatedness in all cases.20 It is somewhat ironic that, alongside the advent of DNA testing and the promise of paternal certainty, the increasing numbers of children living with social fathers has contributed to a more widespread questioning of the traditional significance bestowed upon biology as the principal determinant of kinship identity. In part, the multiple routes to parenthood within contemporary western societies has helped to facilitate more expansive definitions of fatherhood beyond men’s traditional procreative and economic contributions.21 However, in spite—or because—of the contested nature of fatherhood, the traditional socio-legal and cultural status ascribed to biological paternity remains strong.22 Within this changing cultural climate, socio-legal and cultural concepts of fatherhood have become riddled with tensions and contradictions (Freeman, 2003), with the relative claims of the biological and the social being continuously played off against one another in an attempt to hold onto the ideological and practical importance of family and kinship.23 In the next section, we will further explore the impact of recent demographic and cultural 19 See Jackson (2001) and Lee and Morgan (2001). Men within heterosexual partnerships participating in ARTs involving sperm donation are recognised as the legal fathers of any child born of this procedure (Human Fertilisation and Embryology Act 1990). In this context, it is of interest to note that the longstanding naturalised association of motherhood with pregnancy and childbirth means that birth, rather than genetics, determines maternity in cases of surrogacy involving egg donation. In cases of maternal surrogacy, the birth mother is recognised as the legal parent in UK law rather than the commissioning mother, regardless of which of them provided the egg. The commissioning mother must therefore go through a formal procedure to assume parental status. 20 The legal status of unmarried fathers is now effectively equivalent to that of married men, so long as they are registered on the birth certificate (Adoption and Children Act 2002). 21 This is most vividly expressed in the contemporary cultural rhetoric surrounding ‘equal parenting’ and the rise of the ‘new father’ who is intimately involved in childcare. For further discussion see, for example, Lupton and Barclay (1997), Henwood and Proctor (2003) and Dienhart (1998). 22 Another salient example of this trend is the recent removal of donor anonymity within the UK, which came into effect from April 2005. 23 One widely documented recent example that brings these issues to the fore is the case of Leeds (The Leeds Teaching Hospital NHS Trust v Mr A, Mrs A and Others [2003] EWCA259 (QBD)), involving the accidental mix-up of two couples’ gametes in their respective IVF procedures that came apparent through the mismatch of the skin-colour of the corresponding parents and infants. For a critical discussion of this case, see, for example, Sheldon (2005) and Richards (2006).


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DNA Testing and Kinship 77 change for contemporary understandings of kinship in order to make sense of some of these contradictions.

3. GENETICS AND KINSHIP

Whilst the advent of DNA testing has the potential to shed light upon the biological dimension of familial relationships, this technology initially ran against the tide of what has been described as a move away from such essentialist determinants of kinship and identities in both socio-demographic and academic terms since the late 1960s. This anti-essentialist current can be illustrated by considering salient trends within contemporary anthropological discourse; anthropology itself being the natural home of kinship studies since its foundation in the nineteenth century. Indeed, whilst kinship has long been the mainstay of anthropological work, the onset of late-modernity (or, as some would describe, post-modernity) witnessed a fundamental transition in the theoretical and empirical concerns of this discipline. In part, the rejection of biological essentialism and the universalising tendencies that such a framework promotes was an inevitable consequence of the nature of anthropology as a cross-cultural enterprise; the influential work of Schneider in particular (e.g. Schneider, 1972, 1980, 1984) being attributed with a pivotal role in throwing light upon the cultural relativity of the hence tenuous claim to the universal primacy of biology in constructing kinship relationships in the west. By exposing a diversity of kinship structures and cultural understandings of procreation across different societies and ethnic groups, anthropological research negates the existence of a universal kinship structure based on monogamous heterosexual partnerships formalised through marriage and patrilineal descent; an assumption that had hitherto been embedded in the foundations of both this discipline and, as such anthropologists would claim, of western culture itself.24 From this perspective, the implicit dualism between ‘nature’ and ‘culture’ by which the biological ‘facts’ of reproduction were once held to be mapped onto social constructions of kinship centred around the nuclear family has itself been called into question. The recognition of the cultural relativity of western concepts of kinship thus led to a critical consideration of the dualism between nature and culture and, by implication, of the category of nature itself (e.g. Strathern, 1992a). Likewise, the empirical diversity of kinship observed across different social and ethnic contexts has become ever apparent within the increasingly fluid boundaries of western societies, where demographic transitions appear to challenge 24 The significance of Schneider’s work and associated re-evaluation of the universalising claim to the biological basis of kinship structures is widely documented, representing as it does a ‘paradigm shift’ in the anthropological discipline. For further discussion, see, for example, Strathern (1992b), Peletz (1995), Carsten (2000) and Finkler (2001).


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78 Tabitha Freeman & Martin Richards the primacy bestowed upon biological relatedness in founding and legitimising kinship structures. Indeed, the changing patterns of partnership and procreation that are evidenced by increasing levels of divorce, separation, remarriage and cohabitation have created a cultural climate in which the socio-legal and cultural institutions of marriage and the nuclear family are perceived to be in ‘crisis’.25 Whilst the apparent fragmentation of the traditional familial structure has caused alarm across many political and cultural circles, within anthropology, the potential to reconfigure concepts of kinship has been met with the reinvigoration of this topic as a fruitful arena of enquiry. In particular, by providing insights into the gendered, heterosexual preconceptions underpinning the traditional privileging of the patriarchal family and laying claim to the visibility of alternative forms of kinship relationships, feminist and gay/lesbian studies have both reawakened interest in, and challenged monolithic concepts of, the family and kinship. This democratic embrace of diversity has led to the expansion of definitions of kinship beyond the traditional concerns of marriage, fertility and patrilineal descent to include a range of intimate relationships and ‘cultures of relatedness’ (Carsten, 2001) that may transcend or subvert the naturalised boundaries of legal and blood ties. One of the most widely debated influences on the nature of contemporary kinship across the social sciences has been the advancement of new forms of reproductive technology. Whilst the use of contraceptives to prevent conception had a significant impact in separating traditional links between sexuality and procreativity, the development of ARTs designed to aid conception went one step further in untying socio-legal and cultural definitions of parenthood from the reproductive process. It is therefore no surprise that contemporary kinship studies remains engrossed with this topic, with the implications of ARTs for concepts of kinship and parenthood likewise being a familiar feature of recent social policy and public debate.26 In characterising the essence of this debate as it has entered anthropological work, it is hard not to be struck by a sense of theoretical consensus: namely, that the advancement of reproductive technologies has led to a collapse of the distinction between natural and cultural aspects of human reproduction, exposing the artificiality and mutability of what is perceived as the entirely socially constructed nature of kinship.27 The theoretical abandonment of essentialist claims to the ‘natural’ origins of family structures evident in the ARTs literature should not belie the continued concern with the significance of biology to cultural understandings of kinship 25 For a critical discussion of the contemporary ‘crisis’ of the family, see, for example, Smart and Neale (1999) and Wright and Jagger (1999). 26 The impact of ARTs on the family and parental relationships have received wide attention across the academic disciplines; see for example, Fenwick (1998), Golombok (2000) and Richards (2003). On the impact of ARTs on concepts of fatherhood in particular, see, for example, O’Donovan (1998), Donovan (2000) and Wallbank (2004). 27 There is a large body of literature in this area; see, for example, early works in Stanworth (1987) and more recent edited collections such as Franklin and Ragoné (1998), Edwards et al (1999).


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DNA Testing and Kinship 79 within much contemporary anthropological work. Likewise, despite the fragmentation of sexuality, reproduction and parenthood proffered by ARTs, procreation and kinship remain closely interlinked within cultural and socio-legal discourse, with the traditional nuclear family bound by biology and marriage retaining central place as the tacit norm against which the diversity of intimate relationships are measured. Indeed, recent demographic and technological challenges to essentialist concepts of the family have done little to displace prevalent assumptions that our biological origins are a significant determinant of identity and kin relationships in both practical and symbolic terms. Moreover, the persistence of such beliefs has in some senses been heightened by our entrance into the new genetic era, marked by the Human Genome Project. By promising to unveil the transparency of our genetic makeup, this pivotal scientific moment has provided a new language for kinship relations and identity based on genetic relatedness and inheritance, creating an upsurge of genetic essentialism within different sectors of academic and cultural discourse. The most notable example of such genetic essentialism in relation to cultural and academic concepts of kinship is the discussion of the ‘geneticisation’ (Lippman, 1991, 1992; Petersen and Bunton, 2002),28 ‘biologization’ (Franklin, 2001), or ‘medicalization’ (Finkler 2000, 2001) of family life and identity. The geneticisation argument is principally used to describe the cultural and psychosocial implications of medical applications of biotechnologies; for example, Finkler (2001) argues that increasing attention to the role of genetics in the aetiology of specific diseases, behaviours and personality traits encourages people to perceive their family history through a medicalised lens of genetic inheritance. However, empirical evidence suggests that such shifts in perceptions and discourse may be very over-played. For example, in a recent study of hypercholesterolaemia (a dominantly inherited disease caused by a gene mutation which can be revealed by a DNA test and is strongly linked to heart disease), both patients and the professionals who treated them did not perceive the disease in a strong genetic frame (Weiner, 2006). Rather, patients emphasised the role of diet and lifestyle as well as drug treatment in discussing the disease and made little of its genetic nature. Here it would seem that, because the disease is treatable and there are widely articulated cultural ideas about causation and the role of diet and lifestyle in heart disease, there is ‘resistance’ to geneticisation. Despite such resistance, there has been a rather over-ready and uncritical acceptance of the geneticisation thesis by many social scientists.29 28 The concept of ‘geneticisation’ was coined by Lippman to describe a process by which both professional and public discourses about health and illness were increasingly drawing on genetics and genetic differences, and focusing on biological rather than social factors associated with disease. These claims were based on the rhetoric surrounding the Human Genome Project at the time, which often focused on the possibilities for the prediction and prevention of common diseases of adulthood. These notions have been very widely articulated within social science writings about health and illness, which has often accepted such changes as self-evident. 29 A critical discussion of Finkler’s medicalisation thesis follows her article on the topic in Current Anthropology (2001), 42, pp. 250–260. See also Konrad (2005).


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80 Tabitha Freeman & Martin Richards Whilst in itself, the claim that such genetic reductionism has become a predominant paradigm for conceptualising kinship deserves critical questioning, perhaps the most striking feature of this thesis in the context of the present discussion is the analytical focus on disease and medical discourse and the conspicuous absence of any consideration of the impact of DNA paternity and relationship testing on constructions of the family and kinship. Finkler is not alone in neglecting DNA testing in her discussion of genetic technologies. Indeed, whilst DNA testing is empirically and symbolically one of the most significant products of the new genetics for concepts of family and kinship, medical uses of biotechnology for the enhancement of human health and the prevention and treatment of heritable disease have received by far the most academic and public policy attention.30 In conjunction with the medicalisation of procreation through the ART clinic, such a focus on the genetic origins of human life reduces perceptions of the reproductive process to the molecular mechanics of conception and genetic inheritance. However, in contrast to the fluidity and complexity of contemporary parenthood signified by the impact of ARTs and the weakening cultural script of the permanency and necessity of marriage, the geneticisation of family relationships may implicitly emphasise continuity in kinship structures rather than change by appealing to traditional ideologies of the primacy of biological relatedness. The emergence of two distinct trends within anthropological theory towards the prioritisation of social and genetic aspects of kin relationships evidenced by the ARTs and geneticisation literature respectively may initially appear to be something of a paradox. However, it is possible to interpret this divergence as reflecting wider tensions in contemporary understandings of kinship shaped by the demographic and technological developments outlined above. Indeed, the reassertion of the biological basis of kinship facilitated by the language of genetics can be understood as resisting the tide of anti-essentialism beckoned by the fragmentation in traditional family structures, as illustrated by the stark equation of paternity with economic responsibility in current child support policy. The open association of paternal responsibility with paternity (regardless of marital status) can be seen as both a consequence of, and reaction to, the moral panic surrounding the apparent decline of the traditional nuclear family. Such concrete attempts to assert the socio-legal significance of paternity by determining parentage outside the boundaries of marriage act to reinforce the ‘natural’ legitimation of this threatened cultural institution. 30 The social science and bioethics literature on new genetic technologies focuses almost entirely on medical applications (e.g. Marteau and Richards, 1996). Likewise, the tendency to overlook DNA paternity and relationship testing is also evident in policy debates, with regulatory frameworks being tailored towards concerns about the commercialisation of genetic testing for healthrelated conditions or lifestyle purposes (e.g. Human Genetics Commission, 2003; Expert group on Ethical, Social and Legal Implications of Genetic Testing, 2004). The striking lack of empirical and policy-related research on DNA testing has only recently become the focus of critical attention; see, for example, Anderlik and Rothstein (2002), Rothstein et al (2005) and Forseca (2006).


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DNA Testing and Kinship 81 In more general terms, holding onto ideas about the importance of our genetic origins may take on particular psychosocial and cultural significance given the potential dysphoria that emanates from the apparent diversity and fluidity of contemporary kinship relationships; an argument that Catherine Nash convincingly makes in relation to the current popularity of genealogy testing (Nash, 2002). However, as the example of the robustness of the socio-legal status of paternity suggests, claims that traditional kinship structures are in a state of dissolution should be expressed with some degree of caution. Indeed, whilst the widespread assumption that the contemporary period marks a time of radical transition in the nature of kinship often goes unquestioned across the social science and anthropological literature, it is important to consider how such claims may mask continuities in the nature of family life in symbolic and empirical terms. As demonstrated above, the argument for change is commonly made with reference to contemporary technological and demographic developments, particularly in terms of the impact of ARTs and rising rates of divorce. In empirical terms, one can question the widespread significance of these developments for kinship. For example, despite the high levels of media and policy attention given to ARTs, and to assisted conceptions involving gamete donation in particular, these practices are still relatively uncommon: births by IVF and donor insemination currently account for only approximately one per cent of all births in UK, and of these, the vast majority do not involve donated gametes.31 Furthermore, amid claims that these technologies have revolutionised the nature of kinship, it is easy to lose sight of the fact that the use of artificial insemination and sperm donors is not in itself a novel practice.32 Similarly, with regards to discussions about the impact of divorce and separation, it is also important to question the empirical reach and historical novelty of this phenomenon. For example, despite the moral panic incited by ‘fatherless families’, current studies show that over 80 per cent of fathers live with all their biological children under the age of 18 years in the UK (Burghes et al, 1997; Lewis, 2000). Furthermore, although contemporary concerns about lone parents are often assumed to represent a modern day malaise, there is good evidence that there was the same level of single parent households in the mid-nineteenth century as now (Snell and Miller, 1987). As the discussion of cousin-marriage in the nineteenth and twentieth century in Leonore Davidoff’s chapter in the present volume further illustrates, any assumption that kinship can be understood as evolving in a clear-cut transition from simple to complex family forms is therefore highly questionable. 31 For example, annual figures produced by the HEFA for 2005 show 7505 successful births arising from IVF (amounting to 8544 children) and only 767 successful births from donor insemination (amounting to 818 children). 32 The first recorded birth of a child conceived by artificial insemination (with the sperm of the husband) was in 1790 in London and in 1866, in the USA. The first insemination using a donor (i.e. with sperm other than the husband’s) was reported in the late 1800s by William Pancoast (Cooper and Glazer, 1998; Wilmot, 2006).


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82 Tabitha Freeman & Martin Richards Beyond these empirical questions, it is also important to identify ways in which contemporary policy and legal frameworks work to reproduce traditional definitions of family and kinship at an ideological level. To take the IVF example again: the original regulatory frameworks were clearly underpinned by implicit assumptions about the importance of the traditional nuclear family, with the limits placed on granting access to lesbian couples and single women being enacted in terms of welfare considerations recognising a child’s ‘need for a father’.33 Thus it may be more accurate to say that whilst IVF marks a fundamental transition in the circumstances of conception, this does not necessarily undermine existing familial structures. Indeed, the very existence of IVF pays testament to people’s desire to have their ‘own’ children. Where children are conceived through gamete donation, the ‘natural facts’ of procreation and family relatedness may be re-constructed to accord with social meanings of kinship (Thompson, 2001; Hargreaves, 2006). Likewise, policies concerned with single parents and ‘absent fathers’ work to restore kinship links by tying paternity to financial responsibility and problematising lone parenthood. Therefore, whilst the contemporary period has opened up sites of real change, such examples demonstrate how claims that traditional familial structures are being ‘fragmented’ must be balanced by an assessment of underlying continuities in patterns of kinship relations. The complex constellation of continuities and transformations in the nature of kinship offers a means of understanding why both biological and social dimensions of familial relationships are emphasised within different spheres of contemporary academic and socio-legal discourse. In the case of anthropological theory, our discussion has illustrated how the alternate appeal to culture and genetics is manifest in distinct characterisations of kin relationships, in relation to the impact of ARTs and biotechnologies respectively. Despite focusing upon different sides of the dualism between biology and society in shaping perceptions of kinship, these two countervailing trends are united by their implicit collapse of the ontological distinction between nature and culture. Indeed, there is a danger in both instances of undoing the complexity of kinship and identity in place of either a social or genetic form of reductionism. We argue instead that kinship is not reducible to either social or genetic relationships and further, that preserving a conceptual distinction between biological and cultural aspects of kinship is both an unavoidable and important component of understanding the nature of contemporary kinship. Despite the well-documented intractable pitfalls of employing an analytical dualism between ‘nature’ and ‘culture’ (not least the traditional gendering of these 33 See clause s.13(5) in the Human Fertilisation and Embryology Act (1990) which states that: ‘A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for a father), and of any other child who may be affected by the birth.’ The controversial phrase, ‘the need of that child for a father’, has received widespread critical attention; see, for example, Donovan, (2000), Haimes and Weiner (2000) and Sheldon (2005).


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DNA Testing and Kinship 83 spheres),34 it is undeniable that this distinction is still widely operative in both socio-legal and cultural terms and for this reason, we would argue that it is still of relevance for describing the nature of contemporary kinship. As our earlier discussion of the current socio-legal framework illustrated, the distinction between ‘social’ and ‘genetic’ aspects of fatherhood is evident within legal discourse, with alternative definitions of parental responsibility across different procreative contexts betraying the difficulties of balancing the relative claims of genetic and social relationships in determining parentage. Similarly, in everyday understandings of kinship, people commonly employ a distinction between their genetic or ‘real’ father and their social father or ‘dad’ (e.g. if brought up by adoptive or step-parents), even where the identity of the former is not known. In such instances, perceptions of the relative significance of the genetic and social basis of relatedness may take on different subjective meanings for the individuals involved.35 As Jan Pryor describes in the present volume, the definitive feature of kinship for children may commonly be identified as love, emphasising the importance of subjective evaluations of family relationships. In the following section, the multi-levelled nature of kinship is further explored by examining the relative claims of genetics and social relationships in constituting our kin identities and genealogical histories.

4. GENETIC GENEALOGIES

Thus far in our discussion, we have largely focussed on paternity testing. However, as was noted in the introduction, DNA tests can be used to determine a much wider range of relationships. So, for example, siblings can be tested to see whether or not they are full siblings without involving DNA samples from putative fathers. The same sorts of tests have also been used by groups of adults who know they were conceived by donor insemination at the same clinic to see whether or not they may be half-siblings sharing the same donor. Given that in the period before donation was regulated by the Human Fertilization and Embryology Act 1990, it was common for clinics to use the same donor on many occasions, the chances of finding a half-sibling may be quite high. Techniques of DNA analysis employed by population geneticists to examine human genetic diversity and biological relatedness within and between human populations are being harnessed by the commercial sector and packaged, promoted and sold to the public as novel ways of understanding our individual 34 For a classic account of the gendering of nature and culture as female and male respectively, see Ortner (1974). For further discussion, see MacCormack and Strathern (1980). 35 For further discussion, see Edwards, Gillies and Ribbens McCarthy (1999) and Ribbens McCarthy et al (2003). This study found that the importance placed on biological relatedness may vary according to class, with middle class families tending to give stronger emphasis on biological relatedness and working class families, on the significance of social bonds.


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84 Tabitha Freeman & Martin Richards family histories, kinship and identities. There are three broad types of product that are being marketed in a variety of ways: testing concerned with the identification of family ancestry based on father-son lineages, those following maternal lineages and testing concerned with biogeographical ancestry analysis.36 For example, companies now offer to provide genetic snapshots of an individual’s ancestral heritage by locating their ethnic origins within the population groups of the world created by human migration patterns thousands of years ago. However hypothetical and fallible these claims may be, the appeal of identifying kinship links with distant ancestors and gaining new insights into our genetic inheritance has made recreational DNA relationship testing a significant growth industry that shows no sign of losing popularity in societies where family history has become a major leisure activity. For some, at least in the US, the interest in DNA relationship testing is not simply recreational. For example, one company urges its potential customers to use its services, ‘whether your goal is to validate your eligibility for race-based college admissions or government entitlements.’ Others have tried to use tests to establish their first national status and so gain access to casino profits and other entitlements. The potential applications of DNA testing for establishing inheritance rights has also become incorporated into the marketing of these tests in the UK and elsewhere. A well-known situation where Y chromosome lineage testing was employed concerned the Jefferson/Hemmings families. There is an old story that the American President, Thomas Jefferson, fathered a child with one of his slaves, Sally Hemmings. Y chromosome analysis has been carried out on samples from contemporary male Jefferson and Hemmings descendants. Patterns of variation 36 Male lineage testing uses Y chromosome (patriline) analysis. The Y chromosome is passed down the male line, usually unchanged. Mutations in the DNA sequence occasionally arise and so then a slightly changed Y chromosome is transmitted down the male line through the generations. DNA tests can reveal these variations in the Y chromosome so an individual can be placed in the lineage of descent of particular patterns of variation. In Euro-American culture with patronyms, the Y chromosome will often, though not always, run with surnames. So these lineages among individuals with the same or similar surnames can be compared to identify previously unconnected genetic relatives. Testing companies have set up databases for this purpose. Maternal (mt DNA, matriline, umbilical or uterine line) lineage testing uses the DNA in mitochondria. These are minute organelles in cells which have their own DNA and are only passed between generations in eggs, and so follow a maternal line. Variations in the mt DNA are used in an analogous way to Y chromosome markers. As well as following lineages, maternal and paternal lineage analysis can provide information that is relatively specific to a particular region, or population. Thus companies offer tests to determine whether an individual has paternal or maternal lineages that originate from European, African, native American or Asian populations. The accuracy of these tests depends on the size and sampling of the database used, and the populations in the particular region. It is also important to note that lineage analysis can only use male or female ancestral lines, so will not include most of an individuals’ ancestors. Another approach, which avoids this major limitation, uses biogeographical ancestry analysis. This uses a variety of genetic markers in an individual and compares these with databases of different populations. However, much will depend on the numbers of markers used, the particular populations involved and the quality of the comparison databases. Individuals are likely to get rather different results depending on which company they entrust with their DNA sample. For a review of these techniques, see Shriver and Kittles (2004), see also Simpson (2000) and Bamshad et al (2004).


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DNA Testing and Kinship 85 in the Y chromosome DNA strongly suggest that the contemporary Hemmings are Jefferson’s descendants (or descendants of a close male relative of Thomas Jefferson). Of course, the techniques can only be used to explore male lines of descent. In Euro-American culture with patronyms, Y chromosome variation will often, but not always, run with surnames. This has led to the setting up of surname groups among family history enthusiasts who have then used patriline analysis to see whether members share common (male) lines of descent. More distant descent lines may be illuminated by comparing an individual’s Y chromosome variation with those typical of different populations. So, for example, British men of Afro Caribbean descent can determine whether their paternal line leads back to Africa or to Europe so suggesting the intervention of a white slave owner or another European man. Clearly this technique depends on having reference samples of Y chromosome variation from different populations and, as yet, some of these remain quite small, making it difficult to assign origins with much precision. Potentially, there are other ways of tracing origins using the genetic variation which is typical of a particular population. By examining the patterning of variation in an individual’s DNA across a number of parts of the genome and comparing this with population samples, it is possible to provide a probability of an individual coming from a particular population. This kind of testing is offered by some of the companies providing recreational genetic testing for family historians. This is also the basis of the ‘ethnic profiling’ that sometimes is attempted by the police using DNA samples collected from crime scenes, essentially trying to predict the ethnic background of the person from whom the sample comes. However, given the nature of genetic population variation and that within-group variation is greater than between groups, such profiling is little more than an informed guess. So, for example, claims of ‘Viking blood’ might be more accurately described as probably originating in north western Europe. Mitochondrial DNA (mt DNA) allows analysis of female lines of descent. In a popularising book on mt DNA, Bryan Sykes (2001), an Oxford University population geneticist,37 promotes the idea of seven (fictional) ‘daughters of Eve’ who lived in Europe or the Middle East and who may be the ancestral mothers of most European women. He locates these ‘clan mothers’ geographically: for example, Ursula from Greece, Helena from the Dordogne, Tara from Tuscany and Jasmine from Syria. Less colourfully, we might say that analysis of mt DNA variation among women in Europe could be categorised into about ten groups, each of which is associated with a particular part of Europe or the Middle East which will have descended from a common ancestor some 15–30,000 years ago. But there is an important point about the sense in which we may speak of these groups as being relatives—‘clans’ as Sykes terms them—or the Y chromosome ‘brotherhood’. Of course, if we go back far enough, all human kind is related. We each have two parents, four grandparents, eight great grandparents and so 37

He also founded and runs Oxford Ancestors, a company that sells genetic genealogical tests.


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86 Tabitha Freeman & Martin Richards on. If we go back fifteen generations we each have half a million ancestors so the sense in which a shared biological relationship is being demonstrated is very weak.38 We should also note that tracing these ancestral roots depends on the size and quality of the database that is being used for comparison. Not long ago the BBC produced a documentary about black Britons tracing their Y chromosome and mt DNA roots. One woman was shown being introduced to her ‘cousins’ on the island of Bioko off the coast of Cameroon. Her mt DNA matched that of samples from eight people who live on this island, although this was from a very small database of African mt DNA. Among later additions to the database was a sample from Mozambique, which also matched her mt DNA. Perhaps one of her ancestors was enslaved on Bioko, but equally likely it could have been from almost anywhere in central Africa. The ‘truth’ about our ancestors which these techniques reveal, with their apparent scientific precision, may be highly conjectural. As yet, these uses of DNA testing by those interested in family histories and origins has received very little research attention from social scientists. A pioneering exception is the work of Catherine Nash, who has provided an analytic case history of Y chromosome and mt DNA analysis and the production of Y chromosome ‘brotherhoods’ and mitochondrial DNA ‘clans’: As genetics is commodified and consumed within popular genealogy, the globalised rhetoric of technologies meets the intimacy of personal genealogies, identities and family relatedness. Nash (2004, p 2).

Nash considers how the popularisers of this genetic science and the providers of genetic genealogy tests shape and deploy ideas of gender, reproduction, nation, ‘race’ and relatedness in their presentations of genetic kinship and have produced new versions of kinship with Y chromosome genetic brotherhoods, mitochondrial DNA clan membership and a global genetic kinship. But what of the consumers of these genetic kinship tests? Nash suggests that ‘the genetic answers supplied by these tests [may] reinforce, challenge or leave unchanged existing personal and collective notions’ of identity, family, ethnicity and so on. As she says, kinship cannot be genetically tested. There is no simple process of creating new relatives. Even in terms of biological relationships, they can only map chains of mother/daughter or father/son connections rather than the coming together of mothers and fathers and the branching trees of their descendants. Certainly sometimes they can create new stories of family history—or add weight to old ones as in the case of the Jeffersons and the Hemmings. But the kinship genealogies of these two families remain—the Hemmings do not overnight become Jeffersons. Or, to take the example of a 38 This figure of half a million ancestors is a maximum: if parents are themselves related, as will often be the case, it will be significantly smaller.


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DNA Testing and Kinship 87 participant in the aforementioned BBC TV documentary about genetic genealogies, a young Afro-Caribbean man who had grown up in south London was interviewed. His Y chromosome trail led to Europe rather than Africa but, as he said after hearing the test result, he remains the same person, black British and living in Brixton. Social identities would seem resistant to change through DNA analysis. And far from emphasising a genetic kinship, this testing may reinforce the disjunction of biological relationship and kinship. Surname group analyses may well tend to emphasise the point that surnames are not simply passed from father to son like copies of DNA. There are many reasons of course: names may ‘daughter out’ and are passed to others not biologically linked, names are sometimes changed, there may be adoptions and co-options and what in this world of genetic testing are often referred to as ‘non-paternity events’. This is typical of the stories we learn about our own families, as I (Martin Richards) can illustrate from my own. During my childhood, I came to understand that the family of my maternal grandparents—at least the male line—could be traced to a knight who came over with William the Conqueror and that the family name came from the name of a village where this knight was granted land. Later, I realised that there was disjunction in the family stories I had assimilated. My grandfather grew up on a tenanted farm on an estate, but why did he have the same name as those in the big house who were said to be descended from that Norman knight? I asked relatives. Was it that my grandfather descended from a different family? But how did they come to share a surname, particularly a rather uncommon English surname? What was the link between the two families? Living on the estate of the big house surely could not be a coincidence. My mother had always spoken as if the two families were the same, although she never explained the link. More recently, she told me of an occasion when she went on a guided tour around the big house. The then incumbent met with the tour party. When my mother told him that they shared a family name, he said that she looked just like his aunt. Could the link be a son from the big house whose descendants came back to work on the estate, or perhaps an illegitimate birth (that is, assuming there is indeed a genetic link)? So here perhaps is a case for the genetic genealogist truth tellers. Collect DNA samples from those on both sides of the blanket (as it were) and see what connections might exist. However, that would not tell me what I (at least) would find interesting in my family history: that is, how, if there is a genetic connection, did this other branch of the family come to be established and have the same surname? There are many possibilities and a DNA test result would do little to yield any meaningful answers. We all make and remake the histories of our families, our genealogies and our kinships. Genetic genealogies provide a post-genomic entrepreneurial opportunity and an extension of the ways in which we can do family histories. For those who indulge, it may provide new material—as might the discovery of a marriage record or a previously unheard story from a relative. However,


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88 Tabitha Freeman & Martin Richards family history is about the lives and actions of our forebears, not the transmission of DNA sequences. Any illumination DNA analysis provides is rather sparse and stark, itself needing to be reworked—or rejected—in our family stories. In contrast to paternity testing where the identification of genetic relatedness may affirm or disprove socially identified parental relationships, with genealogy testing (leaving aside the issues concerning the specificity and grounding of the companies’ claims), there is no simple correlation between the rather meagre level of genetic information that may be obtained and the social meanings ascribed to genealogical descent and ethnic origins. Perhaps the overriding feature of the current fascination with seeking to establish genetic connections with our more or less distant ancestors is the ambivalent place of biology in determining any individual’s social identity. Occasionally, genealogy testing may have significant implications for an individual. Recently, a case was reported of a young man in the USA, who knew he was born through donor insemination, who found his sperm donor father through a genealogy test of surname group (Motluk, 2005). A DNA test suggested that his donor father had a relatively rare surname.39 The young man knew where he had been born, and assumed that this might also be where the donor had lived, and perhaps still lived. Searching with the surname he had learnt through the test led him literally to the door of his donor father. Thus sometimes, new forms of kin relationships may be created through genealogy testing, as with shared surname groups or the half siblings that may identify each other among the donor insemination offspring conceived in a (preregulation) clinic.40 These might represent, albeit limited, examples of the new biosocialities that some social scientists have envisaged (Rose, 2001; Rose and Novas, 2004). Likewise, using DNA analysis to trace our ethnic origins has the capacity to create alternative meanings of race and ethnicity, whilst illuminating the commonality of our shared genetic heritage as human beings. However, this would seem to fall short of a new post genomic kinship structure, as some claim (Finkler, 2001). Indeed, the creation of new forms of genetic fraternities based on shared surname strengthens traditional notions of kinship defined by marriage and patrilineal descent, particularly given that, like the Y chromosome, the family surname is only passed down the male line.41 More generally, the notion that our social identities and kinship networks are founded upon genetics and genetic relatedness has the capacity to destroy as many social relationships as it creates. 39 This was established by comparing the young man’s Y chromosome variation with those in a surname database. 40 There are also websites specifically dedicated to people conceived by gamete donation who wish to establish contact with half-siblings (i.e. others who share the same donor) and/or the donors themselves. For example, the ‘Donor Sibling Registry’ (http://www.donorsiblingregistry.com/) in the USA uses the numerical identification of donors and clinics to facilitate uniting such ‘donor siblings’ (and/or their donors). 41 As such, a woman wishing to explore her ‘genetic origins’ based on surname has to rely on using the DNA sample of a close male relative.


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DNA Testing and Kinship 89 5. CONCLUSION: PATERNITY AND KINSHIP IN A GENETIC AGE

Our discussions of cultural, socio-legal and personal constructions of parentage and ancestry show that there is a place for DNA testing in both contesting and reaffirming these accounts. In particular, DNA testing appeals to the illusive quest of verifying our biological ‘origins’ that underlines the importance ascribed to paternity and genealogy in western constructs of kinship. With regards to paternity, DNA testing has undoubted significance in providing an accessible tool for verifying the hitherto intangible ‘biological facts’, and yet there has been no radical transformation in the socio-legal and cultural meanings ascribed to fatherhood. Rather, DNA testing provides a new solution to the very old problem of socially identifying the relationship between father and child when and if this relationship is contested, whilst highlighting the limitations of conflating paternity with marriage in both practical and ideological terms. The apparently conflicting ideas about the importance of ‘biological’ and ‘social’ aspects of fatherhood and kinship that we have identified in contemporary socio-legal, cultural and academic discourse have a long history, and DNA testing does not provide a simple resolution of these contradictory trends. Rather, the paradox is built into the ideological foundations of western kinship systems, where the primacy attributed to biology rests on a tacit assumption that social relationships may take precedence in defining parenthood and kinship. Ultimately, the genetic underpinnings of kin relationships that may be revealed through DNA analysis will only gain meaning when placed in the complex web of psychosocial, legal and cultural frameworks through which kinship is defined. Indeed, despite the popularity of DNA testing, kin relationships cannot be reduced to shared DNA sequences, with rhetorical claims that we are entering an era of ‘genetic essentialism’ telling only one side of a more complicated story. As the empirical diversity of paths to procreation and parenthood within contemporary western societies demonstrates, there is now a wide recognition that kin relationships are not necessarily tied to the naturalised boundaries of the heterosexual, nuclear family and that more fluid notions of social relatedness should be positively and openly embraced. However, legally and culturally, the ‘genetic origins’ of identity and kinship remain important, as evidenced by the socio-legal discourse promoting an individual’s ‘right’ to knowledge of the genetic ‘truth’ of their parentage. Indeed, it can be argued that it is precisely because the vulnerability of biology in determining kinship relationships has become apparent that the drive to hold onto the significance of our ‘genetic origins’ can be so widely felt. Within this contradictory climate, it can be expected that genetics will continue to become both more and less important for constructions of kinship, with DNA testing providing one means of arbitrating the relative significance we attribute to biological and social relatedness in the multiplicity of contexts in which parentage and kin are defined.


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94 Tabitha Freeman & Martin Richards O’DONOVAN, K,’Who Is the Father? Access to Information on Genetic Identity’, in G Douglas and L Sebba (eds), Children’s Rights and Traditional Values (Aldershot, Dartmouth,1998) ORTNER, S, ‘Is Female to Male as Nature is to Culture?’ in M Rosaldo and L Lamphere (eds) Woman, Culture and Society (Stanford, Stanford University Press, 1974). PARKIN, R, Kinship: An Introduction to Basic Concepts (Oxford, Blackwell, 1997) —and STONE, L, Kinship and Family: An Anthropological Reader (Oxford, Blackwell, 2004). PATEMAN, C, The Sexual Contract (Stanford, California, Stanford University Press, 1988). PELETZ, MG, ‘Kinship Studies in Late Twentieth-Century Anthropology’ (1995) 24 Annual Review of Anthropology 343. PETERSEN, A and BUNTON, R, The New Genetics and the Public’s Health (London, Routledge, 2002). PICKFORD, R, Fathers, Marriage and the Law (London, Joseph Rowntree Foundation, Family Policy Studies Centre, 1999). RIBBENS MCCARTHY, J, EDWARDS, R and GILLIES, V, Making Families: Moral Tales of Parenting and Step-Parenting (Durham, Sociology Press, 2003). RICHARDS, M, ‘How Distinctive Is Genetic Information?’ (2001) 32 Studies in the History and Philosophy of Biological and Biomedical Sciences, 663. ——, ‘Assisted Reproduction, Genetic Technologies and Family Life’, in J Scott, J Treas and M Richards (eds), Blackwell Companion to the Sociology of the Families. (Oxford, Blackwell., 2003). ——, ‘Assisted Reproduction and Parental Relationships’, in A Bainham, B Lindley, M Richards and L Trinder (eds), Children and Their Families: Contact, Rights and Welfare (Oxford, Hart, 2003). ——, ‘Genes, Genealogies and Paternity: Making Babies in the Twenty-First Century’, in J Spencer and A Pedain (eds), Freedom and Responsibility in Reproductive Choice (Oxford, Hart, 2006). ROSE, N, ‘The politics of life itself’ (2001) 18 Theory, Culture and Society 1. —and NOVAS, C, ‘Biological citizenship’, in A Ong and SJ Collier (eds), Global Assemblages (Malden MA, Blackwell, 2004). ROTHMAN, BK, ‘Women as Fathers: Motherhood and Child Care under a Modified Patriarchy’(1989) 3 Gender and Society 89. ROTHSTEIN, MA, MURRAY, TH, KAEBNICK, GE and MAJUMDER, MA, Genetic Ties and the Family: The Impact of Paternity Testing on Parents and Children. (Baltimore, John Hopkins University Press, 2005). RUBIN, G, ‘The Traffic in Women: Notes on “Political Economy” of Sex’, in RR Reiter (ed.), Toward an Anthropology of Women. (London, Monthly Review Press, 1975). SCHNEIDER, D, ‘What is Kinship All About’, in P Reining (ed), Kinship Studies in the Morgan Centenary Year (Washington DC, The Anthropological Society of Washington, 1972). ——, American Kinship: A Cultural Account (Engelwood Cliffs, Prentice Hall, 1980). ——, A Critique of the Study of Kinship (Ann Arbor, University of Michigan Press, 1984). SCHUILING, GA, ‘The Terrible Uncertainty of Paternity’(2003) 24 Journal of Psychosomatic Obstetrics and Gynaecology 205.


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DNA Testing and Kinship 95 SHELDON, S, ‘Fragmenting Fatherhood: The Regulation of Reproductive Technologies’(2005) 68 The Modern Law Review 523. SHIVER, MD and KITTLES, RA, ‘Genetic Ancestry and the Search for Personalized Genetic Histories’(2004) 5 Nature Reviews: Genetics 611. SIMPSON, R, ‘Imagined Genetic Communities: Ethnicity and Essentialism in the Twenty first Century’ (2000) 16 Anthropology Today 3. SMART, C, ‘“There is of course the distinction dictated by nature”?: Law and the problem of paternity’ in M Stanworth (ed), Reproductive Technologies. Gender, Motherhood and Medicine (Cambridge, Polity, 1987). ——, and NEALE, B Family Fragments (Cambridge, Polity, 1999). SNELL, KDM and MILLAR, J, ‘Lone Parent Families and the Welfare State: Past and Present’ (1987) 2 Continuity and Change 387. STANWORTH, M, (ed) Reproductive Technologies: Gender, Motherhood and Medicine (Cambridge, Polity Press, 1987) STONE, L, New Directions in Anthropological Kinship (Oxford, Rowman & Littlefield Publishers, 2001). STRATHERN, M, After Nature: English Kinship in the Late Twentieth Century (Cambridge, Cambridge University Press, 1992a). —— Reproducing the Future: Essays on Anthropology, Kinship and the New Reproductive Technologies (Manchester, Manchester University Press, 1992b). SYKES, B, The Seven Daughters of Eve: The Astonishing Story That Reveals How Each of Us Can Trace Our Genetic Ancestors (Reading, Corgi, 2002). THOMAS, K, ‘The Double Standard’ (1959) 20 Journal of the History of Ideas 195. THOMPSON, C, ‘Strategic Naturalizing: Kinship in an Infertility Clinic’, in S Franklin and S McKinnon (eds), Relative Values: Reconfiguring Kinship Studies (Durham, NC, Duke University Press, 2001). TRIVERS, R, ‘Parental Investment and Sexual Selection’, in B Campbell (ed), Sexual Selection and the Descent of Man (Chicago, Aldine, 1972). TURNER, BS, (ed), Readings in the Anthropology and Sociology of Family and Kinship (London, Routledge, 1998). TURNEY, L, GILDING, M, CRITCHELY, C, SHIELDS, P, BAKACS, L and BUTLER, K, ‘DNA Paternity Testing: Public Perceptions and the Influence of Gender’(2003) 1 Australian Journal of Emerging Technologies and Society, 1. WALLBANK, J, ’The Role of Rights and Utility in Instituting a Child’s Right to Know Her Genetic History’, (2004) 13 Social and Legal Studies 243. WEINER, CM, ‘Patient and Professional Contructions of Familial Hypercholesterolaemia and Heart Disease: Testing the Limits of the Geneticisation Thesis’ (Unpublished PhD thesis, University of Nottingham, 2006). WILLIAMS-JONES, B. ‘Where There’s a Web, There’s a Way: Commercial Genetic Testing and the Internet’ (2003) 6 Community Genetics 46. WILMOT, S, Doctors, Artificial Insemination and Eugenics: the Interweaving of Reproductive Medicine and Agriculture in the Mid-Twentieth Century Britain. (2006, in preparation). WRIGHT, C, and JAGGER, G, ‘End of the Century, End of the Family?: Shifting Discourse of Family Crisis’, in G Jagger and C Wright (eds), Changing Family Values (London, Routledge, 1999).


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Part 2

Kin Care of Children and Adolescents


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5 Children and their Changing Families. Obligations, Responsibilities, and Benefits JAN PRYOR

1. INTRODUCTION

W

HEN PARENTS SEPARATE, the network of kin relationships and their attendant obligations, responsibilities and rights are thrown awry. The re-ordering that follows is usually complex and confusing, in part because external guidelines with regard to obligations are withering in their impact. Family restructuring has become both more common and more complicated than it was in the first half of the 20th century. Increasing numbers of children experience multiple transitions through households as parents re-partner, with each transition bringing with it new groups of potential or actual kin. Each transition, too, may involve the loss of previous relationships. The notion of ‘kin’ is variable, as can be seen by its different usages in the chapters of this book. In this chapter, kin will be used to refer to family members around the locus of the child. Kin becomes a dynamic concept when individuals enter and leave children’s lives as they do when transitions happen in families. And as with other situations, there is no longer a direct link between kin and obligations, including those to children. There are two perspectives on obligation and commitment that are relevant to the ways in which we might think about children and kin when parents divorce. The first is that of felt obligations. These are internal, personal beliefs held at an individual level about what should be done in regard to other family members. Ganong and Coleman (1999p5) describe ‘felt obligations’ as ’personal commitments to help another family member that are arrived at through a process of overt and covert negotiations’. This is in contrast to externally imposed obligations that are becoming less influential, especially as adults disengage from one partnership and enter a subsequent one. Negotiations amongst adults involved with children as family structures change are more relevant


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100 Jan Pryor when families go through transitions than when there are more static obligatory frameworks based on assumptions of family stability. The second framework that is helpful in understanding obligations and commitments when families change is that of moral-normative or relational commitment (Lewis, 2001). This is the ‘ought’ component of commitment— previously also externally imposed, but now more likely to be negotiated internally by the partners. It encompasses a personal obligation to continue the relationship, the development of a ‘structure of understanding’ (Mansfield, 1999) that is future-oriented. The complexity and ambiguity of kin relationships that result when families go through transitions, suggest that these components of commitment and obligation might be central to the establishment of new kin relationships and the renegotiation of those still existing. They underpin the dynamic aspects of relationships that characterise family change and restructuring. A third conceptual framework that helps to illuminate relationships amongst kin when families change has been proposed by Luescher and others. They propose a framework of ambivalence, given that the ‘observable forms of intergenerational relations . . . can be . . . interpreted as the expression of ambivalence and as efforts to manage and negotiate these fundamental ambivalences.’ (Luescher and Pillemmer, 1998, p414). Luescher and Pillemer note the importance of status transitions as points at which ambivalence might be heightened. Family transitions and kinship ambiguity would seem to be particularly striking instances of ambivalence, in which negotiation, re-negotiation, and redefinition are needed for roles and responsibilities. Ambivalence in these instances involves not only uncertainty or dilemma about what one’s role is (for example step-grandparents), but also and maybe especially for children, ambivalence about what they feel or should feel toward former and current kin. What people actually do in relationships is driven partly by social expectations (albeit less explicit than in the past). Normative beliefs about obligations continue to exert their influence on individual behaviour, through mechanisms of approval and disapproval. The balance of influence between normative beliefs and personally or interpersonally negotiated obligations is hard to gauge, and will vary amongst individuals and contexts. The rise in the importance of children, the era of the ‘emotionally priceless child’ (Beck, 1995) adds further complexity to the ways in which obligations and responsibilities are manifest when families change. This chapter argues that kinship obligations and responsibilities in changing families are dynamic and fluid. It uses evidence from studies of children’s perspectives on families to infer notions of kinship in children, and reviews the extant literature on adults’ attitudes and behaviour toward children after divorce and in stepfamilies. It concludes by noting the reduction in salience of biological and legal ties, and emphasises the need for flexibility and negotiation in establishing kin obligations when family transitions have occurred.


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Children and their Changing Families 101 2. CHILDREN’S VIEWS OF KINSHIP

By the time they reach school age, and often before, children are able to articulate their views about families. Several studies in New Zealand, Canada and the UK have used vignettes with young children as a way of eliciting their perceptions (Anyan and Pryor, 2002; Gilby and Pederson, 1982; Morrow, 1998; O’Brien, Alldred and Jones, 1996; Rigg and Pryor, in press). Almost all young children see the ‘traditional’ family (married heterosexual parents with children) as a family, and are less likely to regard a couple without children as a family. Sole-parent households and non-resident extended family members are considered to be part of families, although New Zealand children appear to be more likely than those in the UK to endorse sole-parent households (Rigg and Pryor, in press). New Zealand children seem not to regard legal marriage as important, although Morrow reported low levels of agreement in the UK that unmarried parents and their children were a family in her sample of eight- to ten-year-olds. Adolescents and young adults are more likely than younger children to endorse a diversity of family forms (Rigg and Pryor, in press). Non-resident parents, same-sex parents and children, and extended family members are widely seen as families or family members. The family ‘without love’ is the least likely to be acknowledged as a real family at all age groups, and this reflects the finding that affective factors such as love and support are overwhelmingly more often mentioned by children in their definitions of families than any other criteria, including biological relationships, cohabitation, and legal status. This is a powerful indication that affective considerations may underpin their determinations about where their obligations might lie, especially toward older generations. It is evident that children’s and adolescents’ attitudes to kinship reflect the diversity of family forms they see around them. Traditional constraints on who family members might be do not appear to be important, and it is notable in Rigg’s study that the most frequent response to the question ‘who do you think the members of a family are?’ was anyone the individual considers to be a family. This is remarkably similar to the adult notion of fictive kin, and although children do not talk about negotiating relationships, they hold a sense of reciprocity about them. One in Morrow’s study said ‘Families are for giving me stuff; food, clothes, presents. Loving, caring for me, and for giving things back to’ (italics added) (Morrow, 1998). The fact that most work on children’s views of families has been done fairly recently makes it difficult to know whether their perspectives reflect social change such as family diversity, or that what studies tell us indicate the way that children have always viewed kin. Cross-cultural comparisons suggest few differences in how children perceive families (Anyan and Pryor, 2002; Morrow, 1998); in New Zealand, Mäori children endorsed a wider range of family forms


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102 Jan Pryor than did New Zealand Europeans, possibly reflecting the existence of informal, whänau-based (extended family group) legitimisation of marriage.

(a) Children’s views of stepfamilies Children’s views of stepfamilies are age-related, with young children being more accepting of them as ‘real’ families than adolescents. In a US study of five to ten year-olds, Mazur (1993) found that a majority of five- to ten-year-olds thought that remarriage was good, with 70% viewing stepmothers favourably and 77% seeing stepfathers the same way. In Rigg’s study of nine to 13-year-olds, 94.6% saw an established stepfamily as a real family, with 85% seeing a newly formed stepfamily the same way. In Funder’s Australian study (Funder, 1996) almost all children who lived in stepfamilies included stepfathers (who were usually resident) in their families, although only 63% of stepmothers were regarded as family members. They were, too, more likely to want a more distanced relationship with their stepmothers than with their stepfathers. This may indicate the importance of coresidence for having kinship status, although it is also the case that stepmothers generally have more vexed relationships with stepchildren than do stepfathers (Pryor and Rodgers, 2001). Because contemporary stepfamily formation usually results from the separation and divorce of children’s biological or adoptive parents, children frequently have multiple parenting relationships as stepparents become added to the group of adults in their lives. As non-resident fathers increasingly remain involved with their children after separation, there are potential dilemmas of loyalty for children. How are these relationships negotiated by the children and adults involved? Three models have been suggested to explain children’s experiences of having two (usually) fathers (White and Gilbreth, 2001). One, the loss model, suggests that children lose their biological father but do not ‘gain’ a stepfather. The second is the substitution model, in which their biological father is replaced by a stepfather. The third is the accumulation model, in which children add a parent to their lives when they acquire a stepfather. In situations where the non-resident father loses contact with his child the substitute model can apply, and it is common for the stepfather to adopt the stepchild (Malia, 2005), creating a legal relationship between them. Most jurisdictions do not allow more than two legal parents, so these kinds of adoptions involve voluntary or involuntary relinquishment of parenthood by the nonresident parent. Children, though, appear to be able to accumulate parents psychologically and emotionally (Funder, 1996; Pryor, 2004; White and Gilbreth, 2001). From their own assessments of closeness to non-resident parents and stepparents, it is apparent that although they do not feel as close to stepparents as to non-resident


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Children and their Changing Families 103 parents, there is a positive association between the two relationships. Closeness to one is correlated with closeness to the other (Pryor, 2004). This can be seen as further evidence that for children, kin and kin relationships do not conform to a static tableau of mother, father, and biological children.

(b) Children and grandparents Children’s inclusion of grandparents as members of their families increases with age, with 100% seeing grandparents as family members by young adulthood (Pryor and Rodgers, 2001 p 127). After separation they both see more of matrilineal grandparents, and are more likely to include them as members of their families than patrilineal grandparents (Cockett and Tripp, 1994; Funder, 1996; Kruk and Hall, 1995; Lussier et al 2002). Grandfathers appear to be particularly important for children in lone-parent households, with many of them feeling closer to maternal grandfathers than to maternal grandmothers (Clingempeel et al, 1992). If children live with a biological mother and stepfather, they see more of their step-paternal grandparents than of their biological paternal grandparents and feel just as close to them. These patterns of contact and closeness in childhood are likely to have repercussions for obligations between children and grandparents as they grow into adulthood. Overall, children hold pragmatic views of kin that reflect their social realities and, with increasing age, their experiences. Although children express a sense of obligation toward kin (Smart and Neale, 1999), we have little understanding of how that develops and the usual assumption is that obligations are from adults to children, rather than the other way around. There are many anecdotal accounts of children being in positions of responsibility toward ill parents, and after separation some feel responsible for their distressed parents. Children are often, too, in positions of responsibility for younger siblings. In the main, however, we can draw conclusions only about whom they see as kin, not about any obligations and responsibilities they may feel. There are, though, inferences that can be made from these findings that reflect at least two of the three conceptual structures mentioned earlier: felt obligation, relational commitments, and ambivalence. Felt obligation, with its connotations of arising from individuals and of overt and perhaps especially covert negotiations, is likely to be fostered when individuals are in co-residence and have positive affect toward each other. Children define family primarily in terms of people who love each other, and co-residence with stepfathers appears to encourage the likelihood that they will be included in depictions of their families. Similarly, children report feeling closer to grandparents with whom they have frequent contact. Family change also brings with it many opportunities for ambivalent relationships for children. Animosity between two equally-loved and separated parents is one instance, especially toward the parent who has left the household.


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104 Jan Pryor The acquisition of a stepparent is another obvious example, when a child is encouraged to feel warmly toward a person for whom she may have few positive feelings and no particular reasons to develop them. For parents, negative feelings toward the ex-partner will conflict with their desire to foster the relationship between their children and their father, while for children warm feelings toward a non-resident parent may not accord with what he or she perceives other adults to feel. However, children’s endorsements of diverse family forms, and the fact that they can and do assimilate several parenting figures into their lives, are indicators of the flexibility they bring to families. This suggests that future kin obligations for children will be diverse, flexible, and multi-faceted. Their experiences of changing and multiple kin may confer both resilience and vulnerability in their willingness to make commitments and to fulfil obligations.

3. ADULT OBLIGATIONS AND FAMILY CHANGE

When households change, the obligations to children held by the adults who are natural or social parents present challenges for the law, families, and individuals. In most countries economic obligations to children are subject to legislation of some kind, and although difficult to enforce are probably more straightforward than are parenting obligations. Social norms remain powerful; they are, though, not as influential as in the past as societies become more secular and families find their own ways of re-organising their lives. MacLean and Eekelaar (1997) note the decreasing importance of marriage as a framework for obligation, and the shift toward parenthood as the construct within which obligations might be understood. Marriage has, in the past and to a limited degree, determined both the rights and responsibilities of parents in regard to their children. However, legal marriage, like many other external restraints, is no longer a relevant basis for considering parental obligations since the links between marriage and parenthood have weakened. The increase in the numbers of births outside marriage, and the fragility of marriage as an ongoing status, have contributed to its demise as a way of determining parental obligation. Although in many places the law attempts to encourage biological and adoptive parents to have continuing non-financial responsibilities for their children after separation, the social aspect of parental obligation, like other kin-based relationships, is likely now to be negotiated rather than accepted without question. It is difficult, for example, to force a father to maintain contact with his child. It was noted earlier that the best we can do in illuminating children’s obligations and commitments is to make inferences from the literature on their views of kin, and from contact patterns. With regard to adults, we can draw on


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Children and their Changing Families 105 literature addressing both social attitudes and behaviour. The first gives an indication of the social norms that prevail in determining adults’ commitments to children after divorce. The second offers a partial window on other motivations that may be driving commitments.

(a) Social attitudes to adult obligations Normative beliefs about financial and other obligations on the part of fathers have been explored in the United States (Ganong and Coleman, 1999) and in the UK (Maclean and Eekelaar, 1997) by examining attitudes toward obligations using vignettes. In line with the law in many countries, it is widely believed that after divorce fathers should have ongoing financial obligations toward their children, although Ganong and Coleman found that the amounts participants thought should be paid fell below the amounts laid down by the State in which they carried out their study. These views do not appear to change if the resident mother re-partners, although current obligations to children living with a stepfather are seen by men but not women as a reason for reducing the amounts paid. It is perhaps not surprising that women are less likely than men to believe that the presence of stepchildren should change support for her children of the man’s first union. The obligations of fathers to their children are not seen to change if the father re-partners. Re-partnering for men is seen as a choice that does not negate their financial obligations to their children. Interestingly, given that men are seen to retain their obligations to their children from their earlier union even though they have entered a stepfamily, one respondent in Ganong and Coleman’s study said that if a mother remarries ‘the stepfather should assume some financial responsibility’ for the children. Stepparents, it seems, may be deemed financially responsible for multiple households. Normative views about social obligations to children after divorce appear to be somewhat gender-based (Ganong and Coleman, 1999). Mothers were viewed in vignettes as being better parents than fathers, and more obligated to care for children, although it was felt that boys needed the attention of their fathers more than do girls. Unfortunately the vignette used in this project was specific to the situation where a child wanted to move from one parent’s house to the other’s, so it cannot inform a broader view of non-resident parent obligations.

(b) Contact and behaviour One way of at least partially determining internally-influenced obligations is to look at the actual behaviour of non-resident parents. McLean and Eekelaar (1997) did this by examining the patterns of contact in situations where the nonresident parent had never lived with his child’s mother; where he had cohabited


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106 Jan Pryor with her; or had been in a legal marriage with her. They found that a third of the fathers who had never lived with their child maintained regular contact with the child, and this was particularly likely in cases where the father lived with his own parents. Of the unmarried fathers who had lived with their child’s mother, 45% were in continuing contact, and 69% of the formerly married men were in committed contact at the time of interview. Contact was associated with the age of the child (the older the child the more likely that contact was continuing) and the length of time the child and father had lived together. If contact is taken as an indication of obligation to a child (as well as an exercising of individual rights), then it may be that the fact of biological parenthood had some bearing on the behaviour of some men who had not lived with their children. However, it is also possible that the fathers’ parents exerted some pressure on them to maintain contact so that they themselves could have relationships with their grandchildren. They had not developed obligations based on social parenthood by living with the child over time; this was more strongly predictive of continuing commitment to their children for these fathers, suggesting the importance of the quality and length of relationships for determining commitment. Legal commitments appeared to have some bearing on contact, given that men who were married to the mothers of their children were most likely to stay in contact. What can we conclude? Social attitudes toward the involvement of and obligations held by non-resident parents in regard to children have moved steadily beyond being limited to financial support, toward endorsing significant personal involvement after divorce. This is reflected in legal moves in some countries toward assumptions of equal responsibility for parenting. Biological relationships seem to be important in relation to normative attitudes toward responsibility; actual behaviour, though, may be under greater influence from the nature of the relationship established over time by the non-resident parent.

(c) Skipping generations: grandparents and step-grandparents. In much of Europe and the English-speaking world, the role of being a grandparent is both discretionary and changing. Grandparents may welcome or dread their status, one over which they have no control; their responses to the role of grandparenthood vary on a continuum that stretches from being heavily involved with their grandchildren at many levels to the other extreme of being distant and infrequent visitors. When family transitions occur, however, grandparents are very likely to become involved with their grandchildren. Several factors have a bearing on the nature of grandparent-grandchild relationships. Geographical proximity allows more frequent contact, which has been associated with closer relationships (Bulic, 2003; Uhlenberg and Hammill, 1998). Financial resources are also important in determining the affordability of travel to visit their grandchildren, for example. The ages of both grandparents


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Children and their Changing Families 107 and grandchildren are also significant. Whilst younger grandparents may still be in the work force and hence unavailable for daytime caregiving, they also have comparatively high levels of energy for involvement. Older grandparents may have time, but may have reduced physical resources to give to grandchildren. And while young children may have frequent contact with grandparents that is mediated by their parents, adolescents are often somewhat bored by spending time with their grandparents (Douglas and Murch, 2002).

(d) Normative attitudes What obligations do grandparents have to their grandchildren after divorce? Scholars have identified a ‘norm of non-interference’ that holds on the part of grandparents when families are intact, whereby they provide emotional and sometimes financial support but respect the autonomy of their adult children to parent in the ways they wish. Douglas and Murch (2002) described a sense of family obligation replacing the norm of non-interference in grandparents after divorce, which led them to take up caregiving roles despite the disruption in their own lives, and what they saw as contamination of their previous relationship with their grandchildren by virtue of becoming caregivers. The benign and generous visiting grandparent is replaced in this situation by someone in a parenting role who monitors and disciplines as well as being loving and supporting. There is little evidence to call on that examines social attitudes to the obligations of grandparents after parental separation. However, Ganong and Coleman’s study of normative obligations indicates that the biological link between grandchildren and grandparents is an important factor nominated in determining that grandparents have at least financial obligations to their grandchildren.

(e) Contact and behaviour In intact families, children tend to have more contact with maternal than with paternal grandparents (Bulic, 2003; Cherlin and Furstenberg, 1986) perhaps because women continue to be kin keepers in families and maintain more frequent contact with their own parents than with those of their partner. This difference in contact patterns is exacerbated when parents separate (Lussier et al, 2002) because children are more likely to be resident with their mothers than their fathers. Some studies have suggested that children who have experienced divorce are closer to their grandparents than those who are in intact families because of increased grandparental involvement at the time of separation (Douglas and Murch, 2002; Kennedy and Kennedy, 1993), although this was not the case in the ALSPAC study (Lussier et al, 2002).


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108 Jan Pryor The role of grandparents when their adult children separate has been variously described as being that of latent fire-fighters, and as watchdogs. One grandparent described the role at the time of separation as ‘providing a safe and anxiety-free space where acceptance is above all.’ (Bulic, 2003). In practice, grandparents often step in as caregivers and providers when parents separate, and because most children reside with their mothers, maternal grandparents are the most likely to provide support in this way. Douglas and Murch noted, however, that involvement by grandparents pre-separation predicted involvement after separation, and that for many grandparents the experience was a considerable burden for them both financially and temporally. In sum, kinship ties between grandchildren and grandparents change in diverse ways when parents divorce. Children tend to lose contact with patrilineal grandparents, while their involvement with maternal grandparents increases. Grandparents may become caregivers, at least for a time, of younger children and this may increase their mutual feelings of closeness at the same time as being a mixed experience for grandparents. The mediation of the middle generation has a considerable influence on the quality and quantity of contact between children and grandparents after divorce. For those who are young adults when their parents separate, however, there does not appear to be a divergence in contact or solidarity between maternal and paternal grandparents (Cooney, 1996). Compared with their counterparts from intact homes, young adults whose parents had recently divorced were also more likely to initiate contact with grandparents, suggesting the importance for them of maintaining links that had been established in childhood. They are at less risk of losing contact with paternal grandparents since they are able independently to foster those relationships without the mediation of their fathers.

(f) Step-grandparents If the role of a biological grandparent is diverse, then that of a step-grandparent is even more ambiguous and unstructured. The majority of adults re-partner or remarry after divorce, so that step-grandparents are an increasingly common form of kin. In the US, for example, 39% of families have step-grandparents (Szinovacz, 1998). Children, then, may have four sets of grandparents involved in their lives, coming with both biological parents and two step-parents. Individuals can become step-grandparents in three ways (Ganong and Coleman, 1999). A grandparent may re-marry, in which case their new partner becomes a step-grandparent. An adult child may partner with someone with children from a previous union, so that the new partner’s children become step-grandchildren. Or, a stepchild may have children of her own. The links between step-grandchildren and step-grandparents are neither legal nor genetic, so that any obligations that might occur are very likely to be felt


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Children and their Changing Families 109 obligations based on personal feelings, chosen and negotiated within the context of the relationship. That context, in turn, will be widely diverse ranging from no acknowledgement or contact, through to closeness and affection. When children are young, obligations where they exist will tend to be from grandparents to grandchildren. They will also be heavily mediated by the stepparents, who have biological links with the grandparents and social links with the children. If children lose contact with a stepparent, they will almost certainly lose contact with step-grandparents. Obligations held by step-grandparents to step-grandchildren appear to depend on the relationship a child has with a step-grandparent (Ganong and Coleman, 1999). Compared with the obligations of grandparents, stepgrandparent obligations are seen as much reduced if the middle generation divorces, Step-grandparents are seen as having more choice about whether or not to support a step-grandchild, depending on the quality of their relationship. Closeness between step-grandparents and step-grandchildren was a major factor in determining obligation. There is a paucity of research that addresses contact and closeness between step-grandparents and step-grandchildren. One study, carried out in the late 1980s, indicated that on a range of measures young adult step-grandchildren had less contact with and lower levels of closeness toward step-grandparents compared with biologically related grandchildren and grandparents (Sanders and Trygstad, 1989). The step-relationship was mediated by the child’s relationship with his or her stepparent. Interestingly, nearly half of the young adults rated the relationship as important or very important to them, and 63% indicated that they would like more contact than they had. We do not know, though, what the dynamics are that determine closeness between stepgrandchildren and step-grandparents. Any obligations and responsibilities that step-grandparents may hold toward step-grandchildren depend heavily on factors associated with the relationship, since there are no legal or biological ties to have an influence. If stepgrandparents have a long and close relationship with their step-grandchildren then they may make personal commitments to them that encompass obligations. We might expect that these kinds of kin ties will increase as stepfamilies increase in numbers and as relationships become more likely to be based on choice and negotiation than on legal and biological factors.

4. LEGAL FRAMEWORKS FOR OBLIGATIONS

Legal frameworks that are salient for families in the UK and the United States have, in the main, foci that are fiscal and biological. Family policy makers have an interest in ensuring that children are financially supported by their parents, the latter of whom are by legal definition biological or adoptive. Hence child


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110 Jan Pryor support is well regulated, and efforts to encourage contact between non-resident parents and children may have a fiscal spin-off since contact appears to be positively correlated with financial support by non-resident parents. The social realities of families are not so well recognized in law, and this is true in particular of stepfamilies. Stepparents rate scant mention in UK legislation (Edwards, Gillies, and Ribbens, 1999), and the situation is similar in the US (Malia, 2005). For example, in most states of the USA, if a biological parent dies, custody is awarded to the non-resident biological parent rather than to a stepparent, regardless of the quality of the relationships the child has with them. In the UK, a stepparent can be given parental responsibility, but only for as long as a parenting order is in place. Legal frameworks, then, are not designed or equipped to confer legal statuses that reflect the social families in which many children live .

5. DISCUSSION AND CONCLUSIONS

Although many children grow up in intact families where kin ties are comparatively clear and stable, they are very likely to have external family members and almost certainly friends, for whom such ties become susceptible to re-definition and negotiation as a result of divorce and stepfamily formation. Longevity and the fragility of parental relationships mean that multiple family transitions are now common, bringing with them a multiplicity of possible relationships. For many of these, the associated obligations and commitments are far from apparent and, as discussed in this chapter, require negotiation by and between individuals. There are, too, fewer external scripts and frameworks for children and adults as they re-order their obligations and responsibilities toward each other. Perhaps more significant, though, than the reduced influence of external restraints and scaffolds is the bewildering range and diversity of possible kin networks. There have been periods of similar diversity in the past, but the need to define the networks and individuals within them may not have been so strong. People were accepted as aunties or grandfathers without scrutiny of their actual kinship status. In this chapter, three frameworks have been suggested as being useful in thinking about kin relationships when families go through change. Felt obligation is a central aspect of kinship ties as the impacts of legal, biological, and structural imperatives weaken over time and with the number of transitions experienced by family members. Responsibilities assumed by nonresident parents, grandparents, and step-grandparents depend to an increasing extent on obligations arising from individuals that are negotiated and (usually) agreed. Closely related to this is the concept of relational commitment in which a personal commitment is made to a relationship rather than to an individual; in this


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Children and their Changing Families 111 case to the parent-child relationship, usually by adults and without coercion from law or biology. Ambivalence is a third characteristic of the kin ties and obligations that arise for children when families change. Children experiencing parental separation sometimes do not know how they feel (Smith, 2002). They will express a mixture of contradictory feelings including relief and sadness, anger and love. For them, the re-definition and negotiation of previous and new relationships with kin will be a slow process that may continue and change into adulthood. Other examples include the feelings about involvement that grandparents have when their children separate, and the feelings that both adults and children have about the relationships between child and non-resident parent and child and stepparent. How much influence do children have in the establishment of new kin ties and the sustaining of former ones? While it is clear that they hold realistic views of what families are, their ability to determine with whom they have relationships is considerably limited by the choices and actions of adults. They may, though, have significant influence on the nature of those relationships. In stepfamilies, for example, children play a greater role in determining the quality of the relationships with stepparents than do the stepparents (Hetherington, 1992). Their conceptualisations of obligation and responsibility are, though, probably less well developed than those of adults.

(a) The role of biological ties In this chapter it has been suggested that biological links are playing a decreasing role in determining obligations and responsibilities amongst kin. This is particularly evident in behaviour, rather than in normative attitudes, and it has been noted elsewhere that parenting behaviour is not particularly influenced by genetic ties (Pryor, 2004). Rosalind Edwards and her colleagues (Edwards et al, 1999) interviewed stepfamily members and found that for stepfamilies there was a tension between two concepts; the children’s need for biological parents, and their need for social families. They also noted that middle class adults mainly expressed concern with biological relationships, whereas social families were paramount for working class adults. For many stepfamilies, the juggling of these often-competing frameworks is a considerable challenge. It is becoming a normative belief that children should have ongoing relationships with their nonresident parents. As we have seen, children appear to benefit from that relationship and the one they have with their stepparent; the onus is on adults to make these often complicated arrangements work. The importance of biology, and of knowledge of or contact with biological kin is evident in other family scenarios. There is an emphasis on the importance of knowing about genetic identity for adopted children, and those conceived by artificial reproductive technologies. This is based in part on medical grounds and the risk of inherited diseases. (See chapter 4, Freeman and


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112 Jan Pryor Richards in this volume). Anecdotal evidence suggests that children vary widely in the importance they place on knowing about their biological parents. Some go to considerable and often unsuccessful lengths to discover these parents, while others have no interest in knowing about them. In these regards the law has been slow to acknowledge the importance of biological relationships; only recently has it become compulsory for fertility clinics to hold information about gamete donors. Do children benefit when families change? The prevailing and dominant paradigm in regard to divorce and stepfamily formation is one of risk, and there is no doubt that multiple transitions from one set of kin to another do pose risks to children in many ways. The possible benefits, then, tend to be overlooked. For many, the dissolution of a dysfunctional and toxic household is of marked benefit to children, so long as it distances them from conflict and abuse. It may offer the opportunity to form functional relationships that foster their wellbeing and, in the most optimal scenario, help them to learn relationship skills and to develop resilience that will be of benefit in the long term. Furthermore, if adults get it right, having several people who love and care for children is beneficial for them. There are numerous instances where children have multiple parenting figures, in extended or stepfamilies, all of whom provide resources for their development and wellbeing. In this chapter it has been argued that family change engenders both crises and opportunities for children. Loss of kin may be devastating or a relief; gaining new kin may be troubling and stressful, or enriching and stabilising. Family transitions call for and are increasingly characterised by flexibility, negotiation, and individual commitment to relationships. Obligations to kin are less and less determined by blood and law and increasingly more by the nature and quality of the relationships involved. Whether or not children are the beneficiaries of these changes depends primarily on the ability of adults to develop their own skills of negotiation and commitment as relationships are re-ordered, and then to foster these skills in their children. The diverse and flexible attitudes of children suggest that, when supported, they are able to be resourceful in negotiating and establishing healthy kin relationships.

REFERENCES

ANYAN, S and PRYOR, J, ‘What is in a Family? Adolescent Perceptions.’ (2002) 16 Children & Society 1. BECK, U and BECK-GERNSHEIM, E, The Normal Chaos of Love (Cambridge, Polity Press, 1995). BULIC, K, ‘Grandparents and Grandchildren in New Zealand: An Exploratory Study.’ Thesis, Victoria University (Wellington, New Zealand 2003). CHERLIN, A and FURSTENBERG, F F, The New American Grandparent: A Place in the Family, a Life Apart (New York, Basic, 1986).


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Children and their Changing Families 113 CLINGEMPEEL, W G, COLYAR, J J and HETHERINGTON, E M, ‘Children’s Relationships With Maternal Grandparents: A Longitudinal Study of Family Structure and Pubertal Status Effects.’ (1992) 63 Child Development 1404. COCKETT, M and TRIPP, J, The Exeter Family Study (Exeter, University of Exeter, 1994). COONEY, T and SMITH, L, ‘Young Adults’ Relations with Grandparents Following Recent Parental Divorce.’ (1996) 51B(2) Journal of Gerontology: Series B: Psychological Sciences and Social Sciences S91. DOUGLAS, G, and MURCH, M, The Role of Grandparents in Divorced Families (Cardiff: Family Studies Research Centre, University of Wales, 2002). EDWARDS, R, GILLIES, V and RIBBENS, J, ‘Biological Parents and Social Families: Legal Discourses and Everyday Understandings of the Position of Step-parents.’ (1999) 13 International Journal of Law, Policy, and the Family 78. FUNDER, K, Remaking Families (Melbourne: Australian Institute of Family Studies 1996). GANONG, L and COLEMAN, M, Changing Families, Changing Responsibilities. Family Obligations Following Divorce and Remarriage. (Mahwah, N.J. Lawrence Erlbaum Associates 1999). GIDDENS, A, The Transformation of Intimacy: Sexuality, Love, and Eroticism in Modern Societies(Cambridge, Polity Press, 1992), GILBY, R L and PEDERSEN, D R, ‘The Development of the Child’s Concept of Family’ (1982) 14 Canadian Journal of Behavioral Sciences, 111. HETHERINGTON, E M, HENDERSON, S H and REISS, D (1999). ‘Adolescent siblings in Stepfamilies: Family Functioning and Adolescent Adjustment’ (Maldon, MA, Society for Research in Child Development 1999). KENNEDY, G E and KENNEDY, C E, ‘Grandparents: A Special Resource for Children in Stepfamilies (1993) 19 Journal of Divorce and Remarriage 45. KRUK, E and HALL, B L, ‘The Disengagement of Paternal Grandparents Subsequent to Divorce.’ (1995) 23 Journal of Divorce and Remarriage 131 LEWIS, J, The End of Marriage? Individualism and Intimate Relationships (Cheltenham, UK: Edward Elgar, 2001). LUESCHER, K and PILLEMMER, K, ‘Intergenerational Ambivalence: A New Approach to the Study of Parent-Child Relations in Later Life. (1998) 60 Journal of Marriage and the Family 413. LUSSIER, G, DEATER-DECKARD, K, DUNN, J and DAVIES, L, ‘Support Across Two Generations: Children’s Closeness to Grandparents Following Parental Divorce and Remarriage.’ (2002) 16 Journal of Family Psychology, 363. MACLEAN, M and EEKELAAR, J. The Parental Obligation. A Study of Parenthood Across Households. (Oxford, Hart Publishing, 1997). MALIA, S, ‘Balancing Family Members’ Interests Regarding Stepparent Rights and Obligations: A Social Policy Challenge.’ (2005)54 Family Relations 298. MANGEN, D J and WESTBROOK, G, ‘Measuring Intergenerational Norms’ in D J Mangen, V Bengston, L and P H Landry (eds), Measurements of Intergenerational relationships (Newbury Park, Sage, 1998) p 156. MANSFIELD, P, Developing a Concept of Partnership (Marriage and Divorce Seminar Group, London 1999). MAZUR, E, ‘Developmental Differences in Children’s Understanding of Marriage, Divorce, and Remarriage.’(1993) 14 Journal of Applied Developmental Psychology 14, 191.


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114 Jan Pryor MORROW, V, Understanding Families: Children’s Perspectives (London, National Children’s Bureau, 1998). O’BRIEN, M, ALLDRED, P and JONES, P, ‘Children’s Constructions of Family and Kinship’ in J Brannen and M O’Brien (eds), Children in Families: Research and Policy (London, Falmer Press, 1996) 84. PRYOR, J, Resilience in Stepfamilies. (Wellington, New Zealand, Ministry of Social Development, 2004a). —— ‘Parenting in Reconstituted and Surrogate Families’ in M Hoghughi and N Long (eds) Handbook of Parenting: Theory, Research and Practice (London, Sage, 2004). —— and RODGERS, B, Children in Changing Families. Life after Parents Separate. (Oxford, Blackwell Publishers, 2001). RIGG, A and PRYOR, J, ‘Young People’s Experiences of Families and Family Change.’ Childhood and Society, in press. SANDERS, G F and TRYGSTAD, D W, ‘Stepgrandparents and Grandparents: the View from Young Adults’ (1989) 38 Family Relations 71. SMART, C and NEALE, B, Family Fragments? (Cambridge, Polity Press, 1999). SMITH, AB, TAYLOR, N J and TAPP, P, ‘Rethinking Children’s Involvement in Decision-making after Parental Separation’ (2003) 10 Childhood 203. SZINOVAC, M, ‘Grandparents Today: A Demographic Profile’ (1998) 38 The Gerontologist 37. UHLENBERG, P and HAMMILL, B G, (1998) ‘Frequency of Grandparent Contact with Grandchild Sets: Six Factors That Make a Difference’ 38 The Gerontologist 276. WHITE, L and GILBRETH, L W, ‘When Children have Two Fathers: Effects of Relationships with Stepfathers and Noncustodial Fathers on Adolescent Outcomes’ (2001) 63 Journal of Marriage and the Family 155.

(G) Ebtehaj et al Ch6

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6 Substitute Care Of Children By Members Of Their Extended Families And Social Networks: An Overview JOAN HUNT

1. INTRODUCTION

T

HIS CHAPTER FOCUSES on the full-time care of children by members of their extended families or social networks, most commonly called kinship care, although in the UK the officially preferred term is ‘family and friends care’. While in some cultures this may be a mainstream tradition, in the UK it is more likely to be a response to family crisis or breakdown. For some families these care arrangements may be temporary, whilst others last for years, indeed until the child becomes an adult. A minority family form, which has been largely invisible until comparatively recently, it is now attracting policy and research attention here, as in many other jurisdictions.

2. THE RESURGENCE OF INTEREST IN KINSHIP CARE

Growing interest in kinship care, particularly kinship foster care, is an international phenomenon. A number of reasons are cited in the literature (Hunt, 2003): — A rising demand for out of home placements, a shortage of foster homes, particularly for minority ethnic children, and increasing numbers of hard to place children; — Evidence of poor outcomes for children in public care, and the potential benefits of kinship care; — Changing theories about family functioning, from dsyfunction and the intergenerational transmission of abuse to ecological and strengths-based theories; — Increased sensitivity to the needs of ethnic minority children and communities;


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116 Joan Hunt — Political philosophies aimed at reducing the role of the State and the costs of public services. The relative power of these factors varies between countries and across time. In New Zealand the primary ‘driver’ was pressure to keep Maori children in their communities, and in USA, Canada and Australia the first legislation prioritising kinship care was focused on ‘first nations’ communities. Subsequently, in New Zealand, minimising the role of the State and keeping the costs of public services low would seem to have become at least equally important. In the USA there was a powerful mix of factors. The impact of crack cocaine and subsequently AIDS, both thrust more children into private kinship care and brought them to the attention of over-burdened child welfare agencies. There was pressure from African-Americans to discard Euro-centric concepts of family and recognise the strengths of black extended families, with their more fluid boundaries and cultural traditions of kinship care. Legal ‘class’ actions were also brought by carers to secure the right to become foster carers and receive equivalent benefits as stranger carers. The UK is unusual in that research was a major factor in early policy development and it directly influenced the Children Act 1989, which prioritised the use of kin for children requiring substitute care. Although it had long been possible for local authorities to approve kin as foster parents, the use of such placements had substantially declined before implementation of the 1989 Act (Rowe et al, 1984). It was data emerging from a number of studies, albeit none focusing specifically on kinship care, which questioned this neglect (especially Rowe et al, 1984, 1989). However, despite this early research influence, kinship foster care in England and Wales has been slower to take off than in some other countries, though it now accounts for around 18% of foster placements (DfES, 2005). In the USA, in contrast, though the proportion has substantially declined, it still stands at almost a quarter on average, with much higher proportions in some states (Geen, 2003). Moreover the prioritisation of kinship care appears to be embedded into social work practice in the USA—‘almost all US welfare agencies seek out and give preference to kin’ (Jantz et al, 2002). In contrast a study of four English authorities (Farmer and Moyers, forthcoming) found that only 4% of placements were instigated by social workers and that in 57% of stranger foster placements kinship care had not even been considered. Cases may even reach court before the extended family has been explored (Hunt, 2001). There are also big differences in use between authorities (Farmer and Moyers, forthcoming; Sykes et al, 2002; Waterhouse, 1997) although it is not clear how far this represents differential use of other ways of supporting kinship placements. There are, however, signs of change. At a national level the government commissioned a scoping paper to inform policy development (subsequently published as Hunt, 2003), issued a discussion document (Department of Health,


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Care of Children by Extended Families and Social Networks 117 2001a) and initiated both research and development work. Locally just over half of local authorities have written policies on kinship foster care (Morgan, 2003) and many are developing information leaflets and ‘starter packs’ for carers. Specialist kinship worker posts are burgeoning and some larger authorities have kinship ‘teams’. Some are facilitating support groups for carers, tailoring training and carrying out carer surveys. While all this is fairly embryonic it does seem to represent a late burgeoning of the interest it was expected would follow implementation of the Children Act 1989. It is possible that the implementation of key principles in the Adoption and Children Act 2002, which require adoption agencies and courts to consider potential placements within the family network before making any decision relating to adoption,1 will provide further legal impetus.

3. PROFILE OF CHILDREN AND CARERS

UK data about the whole population of children in kinship care is extremely limited. There are no national statistics, and research studies focus mainly on sub-groups of children known to social services (now known as children’s services). It is therefore impossible to present a comprehensive profile in terms of age, gender or ethnic background. One area of uncertainty is whether, as in the USA, kin-placed children are disproportionately drawn from minority ethnic groups. Research reports conflicting findings (Broad, 2001; Hunt, 2001; Farmer and Moyers, forthcoming). The reasons for children living in kinship care seem to be fairly similar irrespective of the status of the arrangements: abuse, neglect or desertion; parental problems such as psychiatric illness, drug/alcohol abuse; violence; separation and divorce and young people’s behaviour problems (Richards, 2001; Broad, 2001; Farmer and Moyers, forthcoming; Hunt et al, forthcoming). Farmer and Moyers also found the children in kinship foster care to be strikingly similar to those entering non-related care, the only statistically significant differences being that kin-placed children were less likely to have prior emotional difficulties, multiple health problems or a parent who had been in care themselves, and had spent less time in care prior to placement. This contrasts with much research in the USA, which reports that kin-placed children have less troubled histories; are more likely to be placed because of neglect and parental substance misuse rather than abuse and display fewer difficulties prior to placement (for example Beeman et al, 2000; Benedict et al, 1996; Grogan-Kaylor, 2000). It is clear, however, that as in the USA, children placed with kin are likely to have higher levels of difficulty than those in the general population (Ehrle et al, 2001). UK research also suggests fewer differences between related and non-related foster carers than the American literature, in which carers are typically lone 1

S.1(4)(f) Adoption and Children Act 2002


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118 Joan Hunt females (mainly maternal grandmothers or aunts) from ethnic minority groups and are older and less well-educated, with high levels of health difficulties and incomes below poverty levels (Hunt, 2003). Grandparents and aunts/uncles are the principal providers of foster care in the UK too and carers are similarly reported to be less well-educated than non-related carers, more disadvantaged, less likely to have a partner in employment, more likely to experience financial hardship and overcrowding (Farmer and Moyers, forthcoming). However they are no older on average and are just as likely or only marginally less likely to live with a partner. Levels of health problems are higher (Farmer and Moyers, forthcoming; Rowe et al, 1984; Sykes et al, 2002). It is important to bear in mind, however, that these findings relate primarily to kinship foster carers and that the profile of carers in arrangements not sanctioned by social services (Masson and Lindley, this volume) may be rather different. In one such study (Richards, 2001), 48% of grandparent carers reported long-standing health problems or disabilities which limited their activities.

4. CARER MOTIVATION

Why do carers decide to take on this enormous responsibility and maintain their commitment, often in the face of considerable problems and little support? Surprisingly, given the interest in other forms of kin support (Grundy and Murphy, this volume), the question has attracted little attention from sociologists and is only tangentially covered in empirical research. What has been described as ‘felt obligation’ (Pryor, this volume) appears to be a key driver: Because of the way I was raised, you look out for your kin. I think I should take care of my own. I could not sit back and ignore that I had a home and these children were just out there and they were my relatives. I felt a commitment. (Geen, 2003) I didn’t consider it a huge commitment; I considered it my duty as his grandmother to care for him. (Hunt et al, forthcoming).

Obligation is often interwoven with affectional bonds, with the child and/or parents (Broad, 2001; Geen, 2003). The decision to care is more likely where there is a pre-existing relationship with the child, and a good relationship with one or both parents (Geen, 2003). However neither are necessary requirements. Both are likely to be underpinned by a belief that their own families are the best place for children, both intrinsically and in comparison with the alternative of stranger care (Broad, 2001; Hunt et al, forthcoming; Spence, 2004). A social worker rang out of the blue asking if I would have him, she said if you don’t have him he’ll have to go to a foster home. I said I’ll have him—no foster home for my grandson. (Hunt et al, forthcoming).


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Care of Children by Extended Families and Social Networks 119 Carers may also be motivated by their own need to keep in touch with the children, or more broadly by a desire to keep the family together or to preserve its continuity. They were my grandchildren and I couldn’t see them going into care and being adopted and never seeing them again. (Hunt et al, forthcoming). She was our granddaughter. She belongs to us. Family should stay together. (Hunt et al, forthcoming).

For ethnic minority groups this may be amplified by a need to preserve cultural identity. These drivers may be so powerful that relatives may not conceptualise their decision as a ‘choice’, rather as something which is just ‘natural’. Indeed, social workers may find it difficult to get them to look carefully at the implications of what they are taking on: A lot of relatives don’t really look at the factors that impact their taking care of the children. They operate on their ‘gut’—it’s blood—it’s family, its blood, we can’t let the children live in the foster care system. (Geen, 2003).

Nonetheless there are indications that other factors may impinge, suggesting that at least some relatives may weigh up the costs to them of caring. These include the likely duration of stay; characteristics of the child such as age and severity of problems; the nature of the parents’ problems and likely impact on the kinship family; the carers’ circumstances and resources; and the availability of services (Geen, 2003). Even if many carers take on care without anything like a dispassionate costbenefit analysis, why do they continue when things get difficult? The commitment carers show to the children is a consistent theme in the research literature (in the UK, Farmer and Moyers, forthcoming; Malos, 1991; Russell, 1995; Pitcher, 1999; Tan, 2001). Obligation again may be important: ‘Just because it gets difficult you can’t jack it in, it’s children’s lives. If you’re fostering you could hand them back; you can’t with family; they’re your own flesh and blood’ (Hunt et al, forthcoming).

One study in the USA (Testa, 2002) which examined, among other factors, the impact of concepts of moral duty on placement breakdown, found that breakdown was less likely where carers were regular church-goers or had been raised in the southern states. Carers also derive positive benefits from caring: companionship, new interests and the satisfaction of seeing the child develop (Broad, 2001). Studies comment on the delight carers show in the children (Hatmaker, 1999; Pitcher, 1999)—one carer is reported as saying ‘this is not a task, it is a pleasure’ (Gordon et al, 2003). The quality of the relationship with the child is critical: placements


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120 Joan Hunt where relationships were described as only poor to fair are almost three times as likely to disrupt subsequently as those rated as good to excellent (Testa, 2002). This study also found, somewhat controversially, that placements were more likely to end (either through reunification with parents or placement in stranger foster care) where payment rates had been reduced. What is striking, however, is that the effect was quite modest, suggesting again that factors other than a balancing of costs are operating to sustain placements.

5. IS KINSHIP CARE GOOD FOR CHILDREN?

(a) The Presumed Benefits of Kinship Care There are many reasons to think that kinship care is likely to be beneficial. The Child Welfare League of America, which has been highly influential in the development of kinship care in the USA, argues (CWLA, 1994) that it: — Enables children to live with people they know and trust; — Reduces the trauma of placement with strangers; — Reinforces children’s sense of identity and self-esteem; — Facilitates children’s connections to their siblings. From the UK, Greeff (1999) states that it is an ideal way of minimising disruption to the child and working in genuine partnership with the family, while Broad (2001) suggests that kinship placements represent a breakthrough in terms of the prevention of system abuse, provision of on-going, familiar and willing support, and sustaining individual and family identities. What is striking, however, is that few of these presumed benefits refer to the actual impact on child well-being. Some reflect general social values, such as building on family strengths and preserving families. Most are ‘proxy’ outcomes, factors which are believed or have been shown to produce good outcomes for children in non-related substitute care, such as placement stability, placement with siblings, and parental contact. Before examining the research evidence on these, a more direct question needs to be asked: is there good evidence that kinship placements actually promote the well-being of children?

(b) The research evidence on the impact of kinship care on outcomes for children ‘The most fundamental research gap . . . is evidence that kinship care has a positive effect on children. I am not aware of a single well-designed, controlled, longitudinal study that the field can depend on to support the efficacy of kinship care’ (Geen, 2003, p 246)


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Care of Children by Extended Families and Social Networks 121 One can almost guarantee that at every conference on kinship care someone will claim that ‘research shows that kinship care is better for children than stranger care’. In fact research does not yet give a definitive answer. Studies which attempt to measure this tend to have limitations: cross-sectional rather than longitudinal designs; samples of on-going rather than completed placements; and, perhaps most importantly, no baseline measures of functioning so that it cannot be determined whether any differences are attributable to the nature of the placement or variation in the children. As noted earlier, much American research suggests that kin-placed children have less problematic profiles than those going into stranger care. There is the problem that since kinship placements (both here and in the US) typically receive less support than stranger placements, like is not being compared with like. Thus it is possible that if higher levels of support were provided outcomes for kinship placements would be better. Finally children arrive in kinship placements through a variety of routes (direct from home, via one or more short-term placements, or after lengthy stays in care). As yet research has not factored in those differences. Even without these caveats the evidence is quite mixed. On a range of measures -health, education, emotional and behavioural development- there are studies indicating that children do as well as those in stranger care, better, or even, occasionally, worse (Hunt, 2003). Recent UK research reports outcomes to be remarkably similar with the same proportions under-performing at school and displaying emotional and behavioural problems, though kin-placed children were slightly more likely to have a positive self-image but to have poorer school attendance (Farmer and Moyers, forthcoming). There appears to be only one study examining adult outcomes (Benedict et al, 1996). Since the children had displayed higher levels of functioning during placement, the researchers hypothesised that this would be maintained into adulthood. In fact outcomes were very similar in most respects while those previously placed with kin were somewhat more likely to be using heroin or trading sex for drugs and tended to have more arrests and convictions though fewer prison sentences. It clearly cannot be said therefore that research has demonstrated that kinship care is better for children than non-related foster care. Nonetheless the evidence is broadly positive: children appear to do at least as well and possibly better and there is little to suggest that they do worse. Moreover, as explored in the next section, there are certain aspects of kinship placements which are likely to promote children’s welfare.

(c) Are kinship placements likely to promote children’s well-being? (i) Attachment and placement stability Security of attachment and continuity of care are recognised to be important to children’s long-term well-being. The capacity of kinship placements to deliver


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122 Joan Hunt these is a strong theme in the research (Hunt, 2003). Children are reported to feel secure, happy and integrated into the family, with most studies reporting that this is more common than for children placed with stranger carers. Research also highlights the commitment demonstrated by carers and their strong bonds with the children. Indeed one UK study reports that they were twice as likely to be highly committed as stranger foster-carers (Farmer and Moyers, forthcoming). In contrast, a Dutch study (Strijker et al, 2003) found no difference in the quality of relationships while a New Zealand study (Smith et al, 1999) reported there was not the ‘irrational commitment’ found in ideal parenting situations nor necessarily a ‘forever’ feeling of children being totally incorporated into the family. Emerging evidence on placement stability is suggesting a more complex picture than previously thought, when no matter how it was measured, kinship fared better than stranger care (Hunt, 2003). The weight of the evidence still supports that conclusion. Kinship foster placements last longer and children have fewer moves both overall and before entering placement (Department of Health 2001b; Farmer and Moyers, forthcoming). A large American study of children entering care under six and still in care eight years on found that 71% of kin-placed children were still in their first or second placement, compared with 48% of other children (Webster et al, 2000). It is the evidence on disruption which is now less clear-cut. Reported rates in previous UK research range from less than 10% to around a third (Hunt, 2003). Few studies suggested higher rates than non-related foster-care; and the perception was that they were lower. Two recent English studies, however, indicate that over time rates may be very similar (Farmer and Moyers, forthcoming; Sykes et al, 2002). The data in the first study is particularly interesting in that while a higher proportion of stranger foster placements ended, the majority did so for positive reasons (return home or a planned move). Breakdown rates were identical. There is also recent research in the USA which indicates that while kinship placements are more stable in the early years, after about three years kin and non-kin placements have the same chance of disrupting (Testa, 2001). (ii) Continuity of experience and the maintenance of relationships Kinship care can contribute to children’s sense of security and personal identity through minimising other forms of disruption. Children usually go to people they know, with whom they share a culture (Farmer and Moyers, forthcoming; US GAO, 1999). They are more likely than children entering traditional foster care to remain in the same school and/or neighbourhood (Bergerhed, 1995; Doolan et al, 2004; Farmer and Moyers, forthcoming; US GAO, 2000). It is more probable they will be placed with siblings or have contact with siblings living elsewhere (Hunt, 2003). Links with the rest of the extended family are more likely to be maintained (Brown et al, 2002; Farmer and Moyers, forthcoming;


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Care of Children by Extended Families and Social Networks 123 US GAO, 1999), and if carers cannot continue, other family members may take over (Courtney and Needell, 1997; Farmer and Moyers, forthcoming; Iglehart, 1994; Worrall, 2001). Most research reports that parental contact is more likely and highlights the commitment carers show to maintaining contact, usually taking responsibility for organising it and persisting despite difficulties and lack of support from social services (Hunt, 2003). It should be noted, however, that there are at least five studies which have not found higher levels of contact in kinship placements (Burnette, 1999; Terling-Watt, 2001; Mosek and Adler, 2001; Strijker et al, 2003; Worrall, 2001). Contact may also not necessarily involve both parents, which may depend on with which side of the family the child is placed (Doolan et al, 2004; Farmer and Moyers, forthcoming; Hunt and Macleod, 1999). There is also considerable evidence that contact can be problematic (Hunt, 2003). One study in the USA (Browne and Moloney, 2002) found that 53% of children had negative reactions to parental contact while recent UK research reports that contact which was damaging for the child was occurring in 31% of placements (though in non-related placements the proportion was even higher [45%, a statistically significant difference] (Farmer and Moyers, forthcoming). Carer attitudes towards parents are not necessarily more favourable (Strijker et al, 2003) and relationship difficulties are more common than in stranger placements (Farmer and Moyers, forthcoming). This carries the risk that children will be exposed to conflict between their carers and their parents, with consequent impairment to their well-being. (iii) Quality of care and child safety While, as demonstrated earlier, the research evidence does not always support kinship care to the extent its proponents may claim, on the other hand it also suggests that the most common concerns—about quality of care and child safety—may be exaggerated. Carers do, on occasion, abuse children—the public inquiry into the death of Victoria Climbié provided a salutory warning against an unduly rosy picture of the extended family (Laming, 2003). There are also references to this possibility in a small number of research studies, including a study in the USA of sexual abuse involving grandparents which found that 10% of the children had been living permanently with their abuser (Margolin, 1992). There is, however, little focused research and the findings are mixed in relation as to whether children are more or less at risk than in stranger care. In one large study in the USA, allegations of maltreatment, half of which involved relative carers, were made in 12% of cases with 21% of these being substantiated. These figures were noted to be higher than in other studies of foster care (Dubowitz et al, 1993). However, other studies report lower rates of confirmed abuse (Benedict et al, 1996; Gleeson, 1999). Recent research in the UK reports


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124 Joan Hunt the same rates of substantiated abuse (4%) although more allegations were made against kinship carers (Farmer and Moyers, forthcoming). Carers can also expose children to risk through breach of restrictions on parental contact or care, as demonstrated by the death of Tyra Henry (London Borough of Lambeth, 1987). Carers may find it difficult to enforce rules around contact because of their emotional involvement with the parents (Chipman et al, 2003) or they may not share agency concerns. One study in the USA reported that 36% of carers disregarded contact restrictions because they did not believe parents presented a risk, while another found that half a sample of drugexposed infants were actually being cared for by their mothers ((Terling-Watt, 2001; Rodning et al, 1991). A small English study reported breach of court orders in 18% of cases (Hunt and Macleod, 1999). These figures suggest it is crucial that carers are helped to fully understand any concerns about contact. This is even more important given that where contact has to be supervised, the carer will typically be responsible (Farmer and Moyers, forthcoming). There is little evidence to support concern about the quality of care provided in more than a minority of cases. Research in the USA indicates that standards may be variable (Dubowitz et al, 1993) and lower than the average stranger foster home (Berrick et al, 1999). However, an American government investigation reported that in more than 90% of both related and non-related foster care almost all parenting tasks were carried out adequately. UK research has been quite positive (Hunt and Macleod, 1999; Harwin et al, 2004; Rowe et al, 1984) although one study is more cautionary, finding that family and friends carers were significantly more likely to have poor parenting skills and substantially more were struggling to cope (Farmer and Moyers, forthcoming). Nonetheless the researchers judged that the majority of placements (66%) were satisfactory. While the figure for stranger foster care was higher [73%] the difference was not statistically significant).

6. THE IMPACT OF CAREGIVING

(a) Kinship Care Presents Unique Challenges Since kinship care is a naturally occurring family form, often arranged without any state involvement, it is easy to assume that it is also unproblematic. In fact, in addition to the ‘normal’ challenges of parenting, it is likely to present unique challenges, particularly for grandparents (Hunt, 2003): — It is not a normative life-event but one for which carers may not be either personally or culturally prepared and which dramatically changes their life. Grandparents are likely to have to adjust to a variety of losses (a traditional grandparent role, peer group friendships and activities, freedom). Existing relationships—with adult children, other members of the extended family,


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Care of Children by Extended Families and Social Networks 125 friends and partners—may come under strain or even fracture and relationships with the birth parents, possibly already tense, may worsen. — Assuming care is likely to come on top of other stressful factors such as the circumstances which precipitated it. Carers may be struggling with a turmoil of feelings—guilt, failure, anger, grief, and resentment—combined with a sense of relief that the child is now safe. At the same time they may have other care-giving responsibilities, for partners or for elderly relatives. — The task is inherently difficult. The children may be deeply affected by the separation, the events leading to it and earlier trauma, and may find it difficult to adjust to different routines and possibly values. They may present a range of special needs: physical disabilities and chronic illness, developmental delay; learning disabilities, behavioural problems. Some may be physically violent towards their carers (Brownell, 1998, cited in Barnard, 2003). — Some of the ‘benefits’ of kinship care for children—such as sibling placement and increased contact—may place additional burdens on relative carers. At the same time other relatives or even the children, may hold them responsible for obstructing contact. — Unlike traditional foster parents, who make a deliberate decision to offer care and will have been assessed to ensure that they have the resources to do so, relative carers may take on care despite the strain this will put on already limited capacity.

(b) Social Support May Be Limited Social support is one of the factors considered to buffer against stressful life experiences. Although the findings in relation to kinship care are somewhat mixed, they suggest that carers cannot necessarily rely on helping networks with several studies reporting carer isolation and loneliness (Hunt, 2003). Perhaps most significantly, help may not be forthcoming from other family members. Worrall, for instance (1996), writes of the ‘myth’ of the New Zealand legislation that the extended family will be collectively responsible. In reality, she argues, care by the extended family just means care by one of the related nuclear families.

(c) Psychological stress There is also much direct evidence demonstrating that kinship care-giving is psychologically stressful for at least a proportion of carers (Hunt, 2003). In a nationally representative American sample, 26% of carers described it as very or extremely stressful (Giarrusso et al, 2000). Indeed the stress experienced by kinship carers has been found to be higher than that associated with other forms of care (Strawbridge et al, 1997). Care-taking grandparents have been found to be


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126 Joan Hunt almost twice as likely as those without care-giving responsibilities to be categorised as depressed (Minkler et al, 1997) with some studies reporting that more than 50% were suffering from depressive symptoms (Minkler and Roe, 1993; Janicki et al, 2000). Relatives caring for children with disabilities or special needs are likely to be particularly vulnerable (Burnette, 2001; Janicki et al, 2000).

7. SUPPORTING KINSHIP PLACEMENTS

(a) The service gap The gap between the needs of kinship care families and service provision is a consistent theme across several jurisdictions (Hunt, 2003). In England it is clear that this extends across the full range of circumstances, from families who have had limited or no contact with social services, to children placed by the courts on care orders, and that it is not necessarily related to need or legal status. Carers are uncertain as to what help is available and how to access it (Doolan et al, 2004; O’Brien, 1999; Richards, 2001). They may be reluctant to press their case (Bourne and Porter, 2001; Malos and Bullard, 1991) or worried that they may be seen to be failing (Hunt et al, forthcoming). Those who do seek help may find the response variable (Pitcher, 1999).

(b) What kind of help is needed? There is a striking congruence in the international literature on the kinds of help needed. Hence this section refers only to UK research. Undoubtedly the most pressing need is financial- start-up and on-going costs, help with special requirements and legal expenses (Bourne and Porter, 2001; Broad, 2001; Doolan, et al, 2004; Flynn, 1999; Laws, 2001; Pitcher, 1999; Richards, 2001; Russell, 1995; Waldman and Wheal, 1999). There are problems with all the different ways in which families can be currently supported. These form a complex and far from transparent ‘system’ which carers find arbitrary, confusing and inconsistent (see Masson and Lindley, this volume) and which leaves them struggling to cope, as has been highlighted recently by Frank Field, MP (Blaiklock, 2005). Family Rights Group is leading a well-supported campaign for the creation of a state benefit to meet the costs of care, either an unsupported child element in the tax credit or an extended guardian’s allowance (Richards and Tapsfield, 2003). Another key need is for information, advice and sometimes advocacy to help navigate the complexities of the legal, benefits, education and social services systems (Bourne and Porter, 2001; Doolan et al, 2004; Pitcher, 1999; Richards, 2001; Russell, 1995). Different forms of practical help would be welcome. Help


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Care of Children by Extended Families and Social Networks 127 with accommodation; transport; equipment; and child care—varying from regular respite care to holiday clubs (Bourne and Porter, 2001; Doolan et al, 2004; Farmer and Moyers, forthcoming; Hunt et al, forthcoming; Laws, 2001; Pitcher, 1999; Richards, 2001; Russell, 1995). Families would appreciate signposting and ready access to services, whether broadly based ones such as Sure Start or more specialised ones such as therapy and counselling (Russell, 1995; Pitcher, 1999). Carers need help so they can help the children—with school work, which will be unfamiliar to many grandparents (Richards, 2001); dealing with their feelings about their situation (Flynn, 2001) and above all, managing behaviour (Doolan et al, 2004; Flynn, 2001): 23% of carers in Farmer and Moyers’ study were struggling with this. They would also like help to deal with parents, managing what can be strained relationships and coping with contact, often a major issue (Doolan et al, 2004; Farmer and Moyers, forthcoming; Laws, 2001; Richards, 2001; Russell, 1995). The extent to which carers would like support to be provided through social services is not clear (Waldman and Wheal, 1999). Some might prefer an alternative form of provision, perhaps through contracting out to a voluntary agency. Others would like better access ranging from having their own social worker and more visits from the child’s worker to occasional calls and access to a named social worker in a crisis (Bourne and Porter, 2001; Hunt and Macleod, 1999; Laws, 2001; Pitcher, 1999). It is also unclear what proportion of carers would welcome some form of training or the opportunity to attend support groups or take part in a mentoring system. Although there is some support for these in the literature and support groups operate successfully in some parts of the country (Pitcher, 1999; Richards, 2001; Russell, 1995) in others they have failed to get off the ground. In addition to the specific needs identified, the literature suggests that service provision needs to meet a number of cross-cutting requirements. It should, for instance, be customised—tailored not only to the unique needs of kinship families in general but to the needs of the individual family in particular: kinship carers are a heterogeneous group (Sykes et al, 2002) and needs will change over time. It needs to be holistic, addressing the needs of the whole family, not just the child or the carers. The aim should be to develop ‘wrap-around’ services, which address the whole range of need. It should be culturally attuned, recognising the specific needs of different ethnic minority groups. Finally it should be enabling, building on the family’s strengths. However, it is not just a question of specific support services but of the way kinship carers are regarded and treated. An insistent message emerging from the research on carers is the desire to be valued, and to be shown respect and consideration (Bourne and Porter; 2001; Laws, 2001; Richards, 2001; Wheal, 2001). In the words of carers: It is a mountain that we are climbing, it is really really high. We keep plugging on because of the love but you expect a bit of backing along the line. (Bourne and Porter, 2001).


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128 Joan Hunt (We would like) acknowledgement that the people who are doing the caring are doing a full-time stressful job and that if they want them to carry on doing it and not the government taking on responsibility, then they do need looking after themselves (Hunt et al, forthcoming).

8. MOVING FORWARD

I think the government should be aware of the situation, how many people do care for people within the family, and they need to think hard about some help for the carers (carer cited in Hunt et al, forthcoming). ‘The government should now set in hand a national survey on the extent to which grandparents play the role of parents to their grandchildren, the level of financial and other help they need to carry out their responsibilities and the role that the new children’s centres should play in ensuring that more effective support is given.’ (Blaiklock, 2005) p 11.

As mentioned in section 2 of this chapter, the present author prepared a scoping paper for the Department of Health (2003) to assist in the development of policy on kinship care. This concluded that although the research evidence for the benefits of this form of care was not strong, there was no reason to question the philosophy of the Children Act 1989 that wherever possible children needing substitute care should be placed with their extended families or social networks. Nor was it sensible to ‘mark time’, awaiting better ‘proof’. Rather: ‘What appears to be needed is a policy which reinforces the Children Act objectives of keeping children within their extended families wherever this is in their interests but acknowledges and addresses the dilemmas and difficulties which that policy entails and enables it to be delivered to the benefit of children and their carers. It cannot be said that such a policy framework is currently in place ‘(Hunt, 2003)p 84.

The report identified a number of action points for central government, including: a cross-government initiative; addressing the issue of financial support; developing a framework for service provision; collecting information on the whole population of children living with relatives; commissioning and disseminating research. At a local level, policies should be developed on an interdepartment and inter-agency basis. There was a need for better information, allocation of responsibilities for developing this area of work and creative thinking about service delivery. Social workers needed training in this challenging practice area. Above all, effective policies and practices had to grow out of valuing what kinship carers do, appreciating their difficulties and understanding that this form of care is unique and should not be forced into existing structures and practices.


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Care of Children by Extended Families and Social Networks 129 The fact that the scoping paper was commissioned was itself an indicator that at least some civil servants in central government were concerned to promote this area of work and as indicated earlier, some progress has been made. However, much more is needed. Kinship care needs to become much more high profile and move up the agenda of government policy.

(a) Developing a strategy for kinship care Three overall goals are suggested as a starting point for developing a strategy on kinship care: — Every child who cannot be cared for by birth parents has the opportunity to be cared for safely and effectively within their family/social network; — Outcomes for all children cared for by relatives or friends are as good as possible and compare well with children in non-related care; — Systems for dealing with all forms of family and friends care are transparent, family-friendly, experienced as fair and supportive and minimally intrusive. These could be supplemented by a set of objectives: — National/local policy covers the spectrum of care arrangements. — Kinship care is recognised/responded to as unique, in terms of opportunities and challenges. — Policy and practice is evidence-based and clear-sighted, not clouded by prejudice, romanticism or determined primarily by budgetary considerations. — Services and supports are adequate, appropriate and needs-led, encompassing the whole family with an element of user choice. They should be based on participation and partnership and be community-based. Establishing a dedicated working group or task force would still seem to be a productive first step, not least because it would give a clear message that kinship care is on the policy agenda. This needs to have cross-government membership because of the range of issues facing carers and its remit should cover all forms of kinship care, not just foster care. The task force should identify the issues to be addressed and establish a timescale and strategy for addressing them. It should in particular make recommendations for mapping the prevalence of different forms of kinship care across the country. Another clear priority would be addressing the financial issues. Work needs to be done (either by the Task Force or the Department for Education and Skills) with relevant government departments to ensure their services are sensitised to kinship care, address issues relevant to their service; and are able to act as information and referral points for families. It is imperative that kinship care is included in central and local government thinking about family support and in the creation of new systems such as children’s centres and extended schools.


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130 Joan Hunt Local authority departments with responsibility for children’s services need to be given a stronger policy steer. There should be clear expectations about written policies and information for families, detailed operational guidance and appropriate decision-making structures. Advice should highlight the need for services, staff training and support, reliable data across the range of arrangements and sensitising and working with other agencies. Government should work towards developing detailed, dedicated guidance and, where necessary, regulations, for kinship care as a distinct form of care. This needs to cover assessment, standards, decision-making processes, support services, monitoring and finance. There is also much that could be done in the way of facilitating local developments, for instance by collecting and disseminating examples of innovative practice, evaluating existing schemes and setting up action research projects. An electronic national information network would enable practitioners to share experiences, problems and creative solutions. Kinship care needs to be included in social work training at both a basic and post-qualifying level and accessible training events run across the country. Finally, funding is needed for a dedicated programme of research. It is ironic that, as mentioned earlier, the pro-kinship thrust of the Children Act 1989 was substantially due to unexpected research findings which pointed to the benefits of kinship care for children. Had this been treated as a fruitful starting point for further exploration and hypothesis testing, there might now be a solid basis for the development of policy. Instead no major research was commissioned for more than a decade. Because the use of kinship care did not develop as rapidly as had been anticipated post Children Act 1989 we have not reached the position of jurisdictions such as the USA, Australia and New Zealand where researchers have cautioned that the use of kinship care has far outstripped the knowledge base to support it. A number of studies have now been completed or are in progress. But they remain pitifully small and we are still over-reliant on studies carried out in other countries to help fill the many gaps which remain. Since kinship care takes many forms, with creative thinking it can be squeezed into research programmes in which it is not the central focus. In reality it is more likely to be marginalised. Given that both adoption and residential care, neither of which affects substantial numbers of children, have had their own research programmes, the time is long overdue for kinship care to receive its fair share of research scrutiny.

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134 Joan Hunt SMITH A B, GOLLOP, M M, TAYLOR, N J and ATWOOL, N R, Children in Kinship and Foster Care (Dunedin, Children’s Issues Centre, University of Otago, New Zealand, 1999). SPENCE, N, ‘Kinship Care in Australia’ (2004) 13 Child Abuse Review 263. STRAWBRIDGE, W J, et al, ‘New Burdens or More of the Same? Comparing Grandparent, Spouse and Adult Child Caregivers.’ (1997) 37 The Gerontologist 505. STRIJKER, J, ZANDBERG, T and VAN DER MEULEN, B F, ‘Kinship Foster Care and Foster Care in the Netherlands.’ (2003) 25 Children and Youth Services Review 843. SYKES, J, et al, ‘Kinship and Stranger Foster Carers: How Do They Compare? (2002) 26 Adoption and Fostering 38. TAN, S, Friends and Relative Care: The Neglected Carers. Unpublished dissertation for the PQ Award in Social Work (London, Brunel University, 2000). TERLING-WATT, T, ‘Permanency in Kinship Care: An Exploration of Disruption Rates and Factors Associated with Placement Disruption.’ (2001) 23 Children and Youth Services Review 111. TESTA, M F, ‘Kinship Care and Permanency.’ (2001) 28 Journal of Social Services Research 25. TESTA, M F and SLACK, KS, “The Gift of Kinship Foster Care.’ (2002) 24 Children and Youth Services Review 79. US GENERAL ACCOUNTING OFFICE, Foster Care: Kinship Care Quality and Permanency Issues (Washington DC, GAO, 1999). WATERHOUSE, S, The Organisation of Fostering Services: A Study of the Arrangements for the Delivery of Fostering Services in England (London, NCFA, 1997). WALDMAN, J. and WHEAL, A, ‘Training Needs of Friends and Families who are Foster Carers’. In R Greeff (ed), Fostering Kinship: An International Perspective on Kinship Foster Care (Aldershot, Arena, 1999)p 135. WEBSTER, D, BARTH, R and NEEDELL, B, ‘Placement Stability for Children in Out of Home Care; A Longitudinal Analysis.’ (2000) LXXIX Child Welfare 615. WORRALL, J, Because We’re Family: A Study of Kinship Care of Children in New Zealand. Unpublished Masters Thesis (Palmerston, NZ, Massey University, 1996). ——, `Kinship Care of the Abused Child; The New Zealand Experience.’ (2001) 80 Child Welfare 497. YOUNG, D and SMITH, C J, ‘When Moms are Incarcerated: The Needs of Children, Mothers and Caregivers.’ (2000) 81 Families in Society 130.

(H) Ebtehaj et al Ch7

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7 Recognising Carers for What They Do—Legal Problems and Solutions for the Kinship Care of Children JUDITH MASSON AND BRIDGET LINDLEY

1. INTRODUCTION

S

OME CHILDREN HAVE always been brought up by people who are not their parents. In most societies, relatively few parents now die whilst their children are dependent.1 However, family breakdown, drug and alcohol abuse, or illness leave many children without parents able or willing to care for them, and being looked after by relatives or friends. These are not necessarily negotiated arrangements; some carers offer help, some take over and others are left ‘holding the baby’ (Parker et al, 1990; Richards, 2001; Hunt, this volume). When social services become involved, for example when there are child protection concerns, social workers may turn to the family to find a safe environment for the child. Relatives and friends are often approved as foster carers and provide temporary or long term care for children who are in public care.2 Social workers also look to relatives for permanent placements so children need not remain in care.3 Although child care arrangements in England and Wales are highly regulated, care by close family members is not, except if it amounts to private fostering.4 The State has an obligation to secure the protection of children; and 1 This is not the case in communities with a high incidence of HIV/Aids such as those in subSaharan Africa. 2 Local authorities have the power to place children with members of their family, Children Act 1989, s. 23(2)(a); unless such people are parents or have parental responsibility, they are local authority foster parents, s. 23(4). However, social workers sometimes broker arrangements between parents and relatives whereby children are cared for by relatives without being looked after by the local authority s. 23(6)(b). 3 Where a carer obtains parental responsibility through a residence order or special guardianship, the care order is discharged, Children Act 1989, s. 91(1), (5A). 4 Children Act 1989, Part IX as amended by Children Act 2004, s.44; Children (Private arrangements for fostering) Regulations 2005 (2005 S.I. 1533); DfES, 2005).


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136 Judith Masson and Bridget Lindley children who are not being cared for by their parents are considered to be potentially vulnerable (Utting, 1997; DfES, 2005). However, since family privacy is highly valued, State intrusion into family arrangements is not always acceptable. Parents are considered competent to choose carers for their children from their close relatives without the need for social services’ supervision. Grandparents, aunts and uncles, siblings, step-parents and anyone with parental responsibility5 may care for children without any requirement to notify social services. But in all other cases and regardless of whether they are paid, carers are ‘private foster carers’ and are subject to monitoring by the State. The Family Rights Group, a voluntary organisation which provides advice to parents and carers when they are involved with social services, has estimated that there are a quarter of a million children in England and Wales living with a grandparent, other relative or friend who takes responsibility for their care (Richards and Tapsfield, 2003). Few of these arrangements are formalised through the courts.6 Some children in state care are placed with a relative or friend; such placements now account for more than 1 in 6 foster placements (ONS and DfES, 2005). In the majority of cases, relatives and friends caring for children have no formal legal status and do not have the local authority social services department acting as a buffer between them and the parents. Recognition and support for such carers are crucial—they need to know what they can and cannot do, what help is available to them and who can assist if problems arise. This chapter examines the legal structures and arrangements where children are looked after by relatives or friends and considers to what extent these meet the needs of all those involved.

2. PARENTS, FAMILIES AND THE STATE

The legal relationship between parents, families and the State has developed over time through the common law, but is now substantially governed by statute, particularly the Children Act 1989 and the Human Rights Act 1998. As greater emphasis has been given to children’s welfare, parents’ power over their children’s lives has been cut away. Indeed family privacy has diminished as the State has taken a greater role in protecting children, providing remedies for disputes and guaranteeing rights for family members. These shifts have provided space for the legal recognition of diverse families, and for non-parental carers, as required by the European Convention on Human Rights. 5

Children Act 1989, ss. 66(1) and 105(1). In a recent study of private law residence order applications, fewer than 5% were made by relatives, mostly grandparents, see Smart et al., (2003). In a study of 77 care cases, 7 resulted in residence orders, 3 in favour of parents and 4 in favour of relatives, Masson et al., (2004). Overall nearly 3000 residence orders were made in public law proceedings in 2004, DCA, 2005: table 5.2. 6


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Legal Problems and Solutions for the Kinship Care of Children 137 Article 8 of the Convention requires states to respect ‘rights to private and family life’. Respect involves the State not only refraining from unwarranted interference, but also taking positive action to support family ties.7 The Convention seeks to protect ‘real’ relationships. ‘Rights to family life’ are held by those with a close personal relationship with a child, including step-parents and carers.8 Moreover they are not held automatically merely because of a biological link with a child; a factual relationship is required.9 Where there is a conflict, for example between the rights to family life of parents and carers, the European Court of Human Rights has emphasised the importance of the child’s welfare in balancing competing claims.10 English law recognises parents in a number of different ways—through the laws relating to parental responsibility, guardianship, child support, adoption, inheritance and much more.11 It maintains family privacy by restricting who can question parental care in court proceedings. For example only those who have parental responsibility, are married to a parent12 or have cared for the child for a substantial period can apply for a section 8 order without the prior permission of the court unless they have the consent of everyone with parental responsibility.13 However, the courts take a fairly liberal approach to applications for contact or residence by carers, former carers and those with a close relationship with the child.14 Once children’s care is before the court, the welfare principle applies and the child’s interests determine the outcome.15 Although the courts have stressed the particular value of being brought up by parents,16 there is no statutory protection of the parents’ position as their child’s carer. This contrasts markedly with the approach taken in the USA where the Supreme Court has upheld the parents’ fundamental right to make decisions about their child’s upbringing without interference, except in cases of harm.17 The State has a general role in supporting families through the structures of the welfare state, particularly health services, nurseries and schools and financial support. Parents are expected to support their own children, but it has long 7

Kroon v. Netherlands (1994) 19 EHRR 263. Marckx v Belgium (1979) 2 EHRR 330, para 45; Söderback v. Sweden [1999] 1 FLR 250. 9 Lebbink v. The Netherlands [2004] 2 FLR 463. 10 Söderback v. Sweden [1999] 1 FLR 250; Johansen v. Norway (1996) 23 EHRR 33. 11 See Cretney et al., (2003). 12 Identical provision is made by the Civil Partnership Act 2004 for a parent’s civil (same sex) partner. 13 Children Act 1989, s. 10. However, a local authority can only intervene in the child’s care if it can establish that a child ‘is suffering or likely to suffer significant harm’ s.31. 14 Re J. (leave to issue application for residence order) [2003] 1 FLR 114 C.A. 15 ‘The child’s welfare is the paramount consideration’ Children Act 1989, s.1; J. v. C. [1970] A.C. 668. 16 Re D. (care: natural parent presumption) [1999] 1 FLR 135 CA; Re N. (Residence: appointment of a solicitor: placement with extended family) [2001] 1 FLR 1028 17 Troxel v. Granville 530 U.S. 57 (2000) The Supreme Court struck down a Washington statute which allowed any person to apply for contact with a child at any time. This has major implications for laws in the USA to recognise carers and enable them to take over from parents, see Barker Brandt, (2004). 8


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138 Judith Masson and Bridget Lindley been accepted that the additional costs of raising children justify some state subsidy. All those caring for children are entitled to receive Child Benefit18 and additional provision is made through tax credits and welfare benefits, subject to various conditions and according to means. For those entirely dependent on benefits, the State provides only a poverty level income. The government promotes employment as the way of reducing family poverty, and supports those in low-paid, part-time work through tax credits. Despite the government’s commitment to promoting care by family and friends, there is no specific scheme to support all relatives and friends who are looking after children who are not their own, with the result that support needs often go unmet. Relatives or friends who care for children by arrangement with their parents are expected to obtain financial support from the parents. Only where the parents are dead or one parent has died and the other is divorced and without a current support obligation, untraceable, or detained is a further benefit, Guardian’s Allowance, paid (Inland Revenue, 2005). Support from local authorities varies according to the status of the child. Local authorities have powers to safeguard and promote the welfare of children in need,19 duties to protect children from harm20 and responsibilities for regulating and monitoring care outside the family in private foster homes and children’s homes.21 Child protection is the focus of the work of social services departments with children and families. Although local authorities have wide powers to provide support services, including financial support, for children in need and their families and carers,22 the provision of support is closely linked to child protection. In practice, family support is focused on children at risk of significant harm. Help for other families in difficulty is severely limited, and is provided only for short periods (D.H., 2001). Attempts to force local authorities to provide family support more widely have largely failed: the House of Lords has held that there is no duty to provide such support and, except in the most extreme cases of destitution, local authorities can choose whether and how to make provision.23 When children are looked after and placed with related carers, the local authority is under a duty to provide support for their care.24 Fostering allowances, which the government has committed to standardising across the country,25 are paid for children placed with carers, including close relatives26 18 Carers only receive Child Benefit if they report the matter to the Benefits Agency or the parents notify the change in circumstances, see Blaiklock, (2005):18. 19 Children Act 1989, s.17 20 Children Act 1989, Parts IV and V. 21 Children Act 1989, Parts VIII and IX. 22 Children Act 1989, s. 17(3), (6), (10). 23 R. (G) v. Barnet LBC; R. (W) v. Lambeth LBC; R. (A) v. Lambeth LBC [2004]] 1 FLR 454 H.L. 24 s. 23 (3) Children Act 1989. 25 See http://www.thefostering.net/news/?article=5013101 accessed 17.08/2005. 26 In theory the cost can be recouped from the parents, Children Act 1989, Sched 2, pt 3. It is not lawful to pay lower amounts to foster carers who are relatives: R. ota L v. Manchester City Council [2002] 1 FLR 43.


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Legal Problems and Solutions for the Kinship Care of Children 139 but only whilst the child continues to be looked after by the local authority. If such children are made subject to residence or special guardianship orders, local authorities only have a power to provide allowances:27 such payments are discretionary, usually means-tested and generally paid at lower levels than fostering allowances (Richards and Tapsfield, 2003; DfES, 2005b). Similarly, when children are living with relatives and friends by private arrangements with the parents, local authority support is also discretionary. With child protection as the key focus, supporting such arrangements has a very low priority. Consequently, unless the child has looked after status, relative carers are highly likely to find themselves taking financial responsibility for the children they look after. This can result in considerable financial hardship because benefits, combined with any payments from parents, are inadequate (Richards and Tapsfield, 2003; Blaiklock, 2005). The regulation of private fostering has long been a local authority responsibility, although few local authorities have given much attention to this (SSI, 1995; Save the Children Fund, 1997). Following concerns raised during the inquiry into the death of Victoria Climbié (Laming, 2003) and a campaign from British Agencies for Adoption and Fostering (BAAF, 2004), local authority responsibilities for the welfare of private foster children have been strengthened and extended.28 Local authorities have a new responsibility to promote awareness of the duties to notify them of arrangements (proposed or existing) and to provide advice to parents and carers. New regulations and guidance have been issued about the ways they should carry out their responsibilities to monitor and inspect private fostering arrangements. These make clear that, Overarching responsibility . . . remains with the parent or other person with parental responsibility . . . it is the duty of local authorities to satisfy themselves that the welfare of children who are, or will be, privately fostered . . . is satisfactorily safeguarded and promoted (DfES, 2005: para 1.8).

Regulation of private fostering is a means of protecting children; and support for parents, carers and children is a way of securing that protection, but it is not its primary focus. However, care by close family is not regulated and so it may be harder for these relative carers to get support from the local authority. Although private fostering guidance may provide a useful tool in improving practice in the support and protection of children who are not living with their parents, many relative carers seem unlikely to benefit.

27 Children Act 1989, sched. 1, para. 15; Special Guardianship Regulations 2005 (2005 S.I. No 1109), regs 6–10. 28 Children Act 2004, s. 44.


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140 Judith Masson and Bridget Lindley

3. RIGHTS FOR CARERS—THE CONCEPT OF PARENTAL RESPONSIBILITY

English law separates parenthood from parental responsibility, the powers and responsibilities over a child. This law recognises parents by imposing on them obligations to maintain their children and giving them unrestricted access to the courts to seek or oppose orders about their children’s care. Guardians replace deceased parents but have no enforceable obligation to maintain their wards.29 Those who are neither parents nor guardians can only obtain the same legal position as parents by adopting the child. In addition to the status of parent or guardian, mothers, married fathers and guardians have parental responsibility automatically. Unmarried fathers, step-parents and carers may gain parental responsibility in a variety of different ways. But even if they do not, English law imposes obligations on them either because of their relationship with the child (fathers and step-parents) or because the child is in their care (carers), and recognises that they should be able to exercise powers over children.30 For example, these people can apply to the courts for orders relating to the child’s care, subject to various restrictions, and education law includes in the definition of ‘parent’ anyone who has care of the child.31 The concept of parental responsibility is not clearly defined.32 The Children Act 1989, s.3(1) states that it ‘means all the powers, responsibilities and authority which by law a parent has in relation to a child and his property.’ Further explanations are provided in text books (Cretney et al, 2003). The notion of a concept which appears to have a key position within the legal framework but which has no workable definition is troubling. It is also unclear whether the concept of parental responsibility really serves a purpose. There are many circumstances where having parental responsibility is neither a necessary nor a sufficient condition for making decisions about children (Eekelaar, 2001).33 Claims cannot be derived from it and disputes cannot be settled by it; the parties must go behind it to identify rights under common law or statute. Parental responsibility is used as a shorthand term to mean ‘does this person have a legal relationship with the child?’ But by linking status and legal relationship, the law excludes those whose relationship derives from what they do for the child rather than who they are.

29

Guardians have access to state benefits for their wards. Anyone who cares for a child must not ill-treat, neglect, abandon or cause unnecessary suffering or injury to health, Children and Young Persons Act 1933, s.1. 31 Education Act 1996, s. 576; DFEE, (2000): para 8. 32 The Law Commission considered that it was a practical impossibility to provide a statutory definition because parental obligations changed to reflect different needs and varied with the maturity of the child, see Law Commission (1988): para 2.6. 33 Nevertheless, Eekelaar stated that he supported proposals to give all fathers parental responsibility automatically. 30


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Legal Problems and Solutions for the Kinship Care of Children 141

4. THE NEEDS OF CARERS

(a) Recognition and status Carers take over parents’ nurturing role, but they do not replace them. These arrangements are similar to those made where parents separate. In the absence of parents, carers parent the children they look after, providing for their daily needs and planning for their future. They need to be recognised for this and have the power to make decisions as parents do. Arrangements need to be flexible in order to accommodate developing children and changing circumstances. Ideally, parents and carers will cooperate in making arrangements, taking full account of children’s wishes, and will consult regularly. However, the balance of power between parents and carers needs to reflect community expectations (Eekelaar, 2001) as well as carers’ and children’s needs. Although it may be very desirable for carers to involve parents in all decisions about their children, this may not be possible because of parental absence, illness or refusal. Requiring parental consultation or consent creates obstacles for carers, which can impede their care. It makes carers (and children) dependent on parents, when in reality parents are dependent on carers to secure the well-being of their children. It gives parents ‘bargaining chips’ which change the balance of the relationship between them and the child’s carers, empowering parents to the disadvantage of carers and children.34 Where one parent would not be required to consult the other, there needs to be good reasons for imposing such a condition on carers. If parental consent is necessary for a particular action, provision must be made for cases where it is refused. This may be appropriate for major life changing events such as emigration and adoption, but it would be unduly onerous for matters which are a normal part of bringing up a child, such as dental checks or routine immunisation, so carers should be able to decide about these without consulting parents. There will be cases where parents and carers disagree about children’s futures and so mechanisms are needed for dispute resolution. This too is a matter of the balance of power between parents and carer. The process of dispute resolution affects the relationship between parents, carers and children, and both the children’s care and the matter in dispute. In most cases, parents and carers will have, and will need to have, a continuing relationship. Law and the courts may have a role to play, but experience should lead us to be very cautious about assuming that courts are the appropriate places to resolve disputes between family members about the way children are cared for. There are major limitations in the court’s ability to respond to the issues that families may dispute, and the court process can undermine relationships. Judges do not 34

See Law Commission (1988): para 2.10.


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142 Judith Masson and Bridget Lindley automatically command the authority and respect which produces acceptance and compliance with their decisions. The court process is also cumbersome, costly and confusing (Richards, 2001); and recent research on contact disputes indicates that court users are less satisfied with outcomes than those who avoid the courts (DCA et al, 2004a; Blackwell and Dawe, 2003). Viewing problems as social not legal, and putting resources into practical measures to support arrangements and resolve problems would be a better way forward (Masson, 2000).

(b) Support Typically, relative carers take on the care of a child partly as a matter of obligation and to secure the best possible outcome for them when they cannot remain at home (Hunt, this volume). Despite having not planned for such an arrangement, they provide immediate care, often in an emergency, believing that the support they need will follow. Parents remain financially liable for their children and the carer does not acquire such liability unless they adopt the child.35 Guardians, special guardians and carers with a residence order can apply for orders to enforce parents’ maintenance obligations.36 These cases are outside the scope of the Child Support Agency and the court has powers not restricted to ordering maintenance. But in most cases, the circumstances which prevent parents looking after their children also mean that they are unable to support them financially. At the very least, carers should be able to access the same supports, financial and practical, that are available to parents. But current policies for supporting families which promote employment are inappropriate for carers who cannot be expected to work. Also, limiting support to what is available to parents takes no account either of the absence of financial liability on carers, or of the lack of adequate support from parents. Moreover, where children and young people have left public care to live with relatives or friends, the greater security this provides should not be at the expense of loss of financial and other supports from social services. Caring for children who are separated from their parents also presents particular challenges. Even experienced carers, who know the children well, may need support to meet the child’s needs, which may be considerable after the disruption in their home life (Hunt, this volume). In addition, navigating the complexities of services for families and the benefits system, particularly when they have no formal status, is daunting and draining (Richards, 2001). The need for carers to have access to independent sources of advice, support and, where appropriate, advocacy to assist them to access effective support is both obvious 35 The court has the power to make financial orders for the benefit of children under Children Act 1989, sched. 1 whilst a child is cared for by someone other than a parent. 36 Children Act 1989, sched. 1, para. 1 and see Matrimonial Causes Act 1973, s. 25(4).


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Legal Problems and Solutions for the Kinship Care of Children 143 and compelling (Richards and Lindley, 2006). Where carers do not receive the support they need, the arrangements are at risk of breaking down with the child ending up in state care.

5. MEETING CARERS’ NEEDS—RECOGNITION AND STATUS

There are four ways that relationships or roles can be recognised—automatically, by appointment, by agreement, or by court order. Automatic recognition need not apply to every relationship and there may be conditions. The law determines the conditions and the consequences; the individuals who qualify cannot negotiate. Automatic rights do not depend on knowledge, nor do they require claims. Appointment may require documents to evidence the arrangement but the consent of the person obtaining recognition is not required.37 Where recognition is based on agreement, both parties must agree. Agreements between parents and carers may help to avoid conflict, but family arrangements may come about without planning and discussion. Appointment and agreement are forms of private ordering, giving those involved some say in the arrangements made. Finally, recognition may depend on obtaining an order or a declaration from a court, or some other official body. Not only may there be conditions for making the application and the granting of the order, there will be procedures, and usually a hearing.

(a) Automatic recognition Two provisions in English law give automatic recognition to carers. First, where a married couple or a couple in civil partnership treat any child38 as ‘a member of their family’, both adults automatically obtain rights and obligations in respect of that child.39 There is no requirement that the child is related in any way to either of the adults. Nor is there any minimum length of time before a child becomes a family member. ‘Treating a child as a member of the family’ is not demanding, rather it is difficult to avoid doing so where a child lives in the household.40 Each adult can be required to maintain the child in matrimonial, civil partnership or domestic proceedings. These are the only carers, who are not parents, against whom a private law obligation to maintain can be 37 Under the Children Act 1989, s.6(5) the guardian is allowed to reject (disclaim) the appointment. 38 Children placed by local authorities i.e. local authority foster children are specifically excluded. 39 MCA 1973, ss. 25(3) and 52.; Inheritance (provision for family and dependents) Act 1975, s. 1(1)(d); DPMCA 1978, ss. 1, 8 and 88(1); Children Act 1989, ss. 10, 107; Civil Partnership Act 2004, ss. 71, 72 and Scheds 4–7. 40 Snow v. Snow [1972] Fam 74 C.A.; D. v. D. (child of the family) (1980) 2 FLR 91 C.A.


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144 Judith Masson and Bridget Lindley enforced.41 Also, each may apply for orders relating to where the child lives (residence order) or parenting time (contact order) in order to protect their relationship with the child. The initial intention42 was to enable the courts to secure the welfare of all children in a family in the event of marriage breakdown. The aim was not to recognise carers, but rather to extend the control and protection of the court to cover all children in the family. The link to matrimonial proceedings excluded single and unmarried couple carers from these rights and obligations. Children in these households could not be ‘family members’ but could be dependents and make claims under the Inheritance Act 1975, following the carer’s death. Neither the discrimination between married/civil partnership couples and unmarried couples, nor the imposition of a support obligation can be easily justified. Recognition of children’s relationship with their carers is dependent on the carers’ own relationship. Consequently, these provisions do not provide a basis for recognising and supporting carers more generally. Secondly, the Children Act 1989, s.3(5)(b) empowers anyone who ‘has care of a child’ to do what is reasonable in all the circumstances for the purpose of safeguarding or promoting the child’s welfare.’ This appears to be a statutory version of the old doctrine of in loco parentis which gave those in the position of parents, the same authority over the child as parents. The limitation—only to do what is ‘reasonable’—suggests that there may be actions which would safeguard and promote a child’s welfare but which a carer may not take because they are unreasonable, for instance, to arrange the child’s immunisation against the parents’ wishes or to refuse a parent’s request to return the child. Such an interpretation appears to privilege the parent’s rights over the child’s welfare. An alternative formulation, without the limitation of reasonableness, would allow the carer to do anything (that was not otherwise illegal) for the welfare of the child, rebalancing the relationship between parents and carers in favour of carers and children. It might be argued that, if the qualification of reasonableness were removed, no account would be taken of the length of time a person has care of a child, and that the scope of action of a short term, temporary carer, such as an evening babysitter, should necessarily be narrower than that of someone caring for a child for a longer period. However, even a temporary carer may need to take decisive action, such as forbidding a child to go out or consenting to medical treatment for the child’s welfare. On this basis, a broad power for carers to act to ‘safeguard and promote the welfare of a child who is in their care’ would seem to provide a more appropriate and relevant general statement of what carers should be able to do.

41 Under benefits legislation, where a couple are living together as spouses or civil partners only one can claim benefits for the household. The withdrawal of benefits at the start of cohabitation can effectively make the carer’s partner liable to support children. 42 These provisions originated in the Children Act 1958.


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Legal Problems and Solutions for the Kinship Care of Children 145 (b) Recognition through appointment English law has long allowed a parent to appoint a guardian to take over responsibility for a child in the event of the parents’ death. This can be done by will or as a free-standing document. The Children Act 1989 introduced clear provisions designed to minimise conflict between the guardian appointed by one parent and the other surviving parent.43 In most circumstances, the appointment only takes effect on the death of the second parent, so the surviving parent is protected from interference. The Children Act 1989, s. 2(9) allows anyone with parental responsibility to arrange for someone else to meet their responsibilities. This does not remove or transfer parental responsibility, but delegates to the carer power to act. Where a parent hands over care of their child to a relative, private foster carer, nanny or nursery, it is this provision which enables the carer to care for the child as the parent would. Boarding schools frequently require parents resident overseas to identify someone in the U.K. who has the power to make decisions about the child where they cannot be contacted. An appointment document is not required, but the DfES Guidance on Private Fostering advises: it is recommended that, at the commencement of the arrangement, the parent or other person with parental responsibility records in writing their agreement for the private foster carer to give consent to everyday treatment which may become necessary.(DfES 2005, para 4.21)

Delegation is potentially wider than the automatic power in s.3(5)(b). Thus, it can be used by parents to authorise carers to do something specific, for example take the child abroad for a holiday which it might be difficult to argue safeguarded or promoted the child’s welfare. However, where carers have ended up caring by default or at the request of social services to prevent a child entering public care, they are not acting by arrangement with the parents and can only rely on the more restricted automatic power under s.3(5)(b).

(c) Recognition by agreement As a matter of public policy, agreements about parenting or the care of children are not enforceable. Where disputes cannot be resolved, the court determines the outcome on the basis of the child’s welfare. The Children Act 1989 allowed formal agreements44 relating to parental responsibility but only between

43

Children Act 1989, ss. 5, 6. Parental responsibility agreements have to be witnessed and registered in the Principal Registry of the Family Division. 44


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146 Judith Masson and Bridget Lindley mothers and fathers45; there was no need to require a court order where there was agreement. In 2005, parents were given the power to make agreements about parental responsibility in favour of a step-parent46 who is married to (or is the civil partner of) a parent, but it is still not possible for parents to confer parental responsibility on someone else who is caring for their child. The limitation of agreement provisions suggests an apparent unwillingness to trust parents to make decisions about their children’s care, a desire to maintain court control of status and a view that the courts are able to make wise decisions in these cases. Yet this contrasts markedly with the policy approach being developed elsewhere in the family justice system to promote private ordering and non-adversarial dispute resolution, such as mediation, wherever possible. For example, the encouragement of negotiated arrangements where parents separate (DCA et al, 2004), and the use of family group conferences in public law cases so as to ensure family placements are explored for children who may otherwise be in public care (DCA, 2002; DCA, 2006). Allowing parents to make formal agreements with carers, giving them parental responsibility and encouraging them to draw up a ‘parenting’ plan detailing the arrangements for the child’s care (DCA, 2001; DfES, 2005a), would provide carers with a status and clarity that some feel they need, without court proceedings. There appears to be no clear policy reason why parents should be able to make such agreements with a spouse but not with their own parents, siblings or adult children, provided they did not subvert the regulation of private fostering. An agreement between both parents and the carers would ensure that both parents accepted the carer’s role; yet requiring both parents to make such agreements would exclude cases where one parent could not be traced or would not co-operate. Encouraging agreements between parents and carers, including agreements about parental responsibility, would be a logical step in developing practice relating to planning arrangements for children.

(d) Recognition though court proceedings Until the mid 1970s, there was a substantial and increasing use of adoption within step-families, and by relatives, frequently grandparents (Masson et al, 1983). Step-parent adoptions constituted three-quarters of all adoptions in the peak year, 1975, but adoption was only used by a minority of family carers. These ‘in-family’ adoptions were very much part of the culture: step-families wanted to appear like families of the first marriage, all using the same name,47 and the parents of teenage mothers sought to avoid the stigma of illegitimacy for 45 Children Act 1989, s.4. Fathers who were married to the mother automatically had parental responsibility, s.2(1). 46 Children Act 1989, s.4A added by Adoption and Children Act 2002. 47 The vast majority of step-parent adoptions were by mother and step-father.


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Legal Problems and Solutions for the Kinship Care of Children 147 their child and grandchild. Applications were handled with little investigation by social workers and orders were granted routinely, usually within weeks. All this changed when, following recommendations of the Houghton Committee, restrictions were placed on in-family adoptions and new provision was made for recognising carers in the Children Act 1975. The view of the Houghton Committee was that such adoptions could end links, which were beneficial to children, and could distort family relationships (Houghton Committee, 1972). Instead, they recommended that carers should be able to apply to the court for rights and status without ending the child’s legal relationship with his or her parents. Further, these orders, known as custodianship orders, should not change the carers’ or child’s legal identity, and unlike adoption, should be revocable on the application of either carer, or a parent. It was further recommended that courts should not make adoption orders unless this was better than the alternative. The Children Act 1975 enacted these proposals. Substantive, procedural and informal barriers combined to discourage adoption. The result was that applications for adoption declined markedly, but were not apparently balanced by corresponding use of the new alternative, custodianship (Masson et al, 1983; Parker et al, 1990). It seems that most carers found the new provisions too complex, too expensive, too limited, or were simply unaware of them, with little having been done to publicise their piecemeal implementation. The Children Act 1989 sought to provide a clear and comprehensible system for providing status and rights for those caring for children, sweeping away the different types of custody orders and replacing them with the residence order which gave parental responsibility to any person who did not already have it.48 However, in order to protect families from interference, the system largely retained the restrictions on applications in the earlier law, hence those who had had a right to apply for custodianship could apply for residence on the same basis. For those who were not caring for ‘a child of the family’, this meant obtaining the consent of those with parental responsibility, caring for the child for three years or obtaining permission from the court before making an application.49 These provisions have not been widely used. Most residence orders are made in favour of parents who seek to confirm their position on relationship breakdown (Smart et al, 2003). It is likely that most carers have not obtained a court order in respect of the children they look after. In an attempt to secure a permanent family for more children who cannot live with a birth parent, a new status, special guardianship50 was introduced at the end of 2005. This gives the carer more powers than a residence order and greater security against interference by a parent. Special guardians are entitled to exercise their parental responsibility ‘to the exclusion of any other person 48 49 50

Children Act 1989, ss. 8 and 12. Children Act 1989, s.10. Adoption and Children Act 2002, s.115, adding Children Act 1989, ss. 14A–14G.


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148 Judith Masson and Bridget Lindley with parental responsibility’ except another special guardian. They are allowed to take the child overseas without special permission for up to three months,51 and only a special guardian can apply to have the order varied or discharged without the prior permission of the court.52 However, there are some restrictions on special guardian’s actions: for example they need the consent of every person with parental responsibility or the leave of the court to change the child’s name. Moreover, applications for special guardianship are subject to considerable scrutiny both by the court and the local authority in a process reflecting the power of the order. Also, unless expressly prevented by the court,53 it will still be possible for parents to apply for a specific issue or prohibited steps order to challenge the special guardian’s exercise of parental responsibility where there is disagreement.54 It is therefore far from clear that carers will consider that the effects of special guardianship justify engaging with the procedures necessary to obtain the order (Derriman, 2006). The addition of special guardianship has further complicated the legal landscape for carers. There are now different shades of parenting and parental responsibility: guardianship, special guardianship, residence, delegation, reasonable action and foster care.55 Creating a special status for a few carers may be perceived as devaluing others, leaving them as second or third class, and increasing their anxiety because they have not got all the available powers. The task of the courts is more difficult and demanding, necessitating a decision about which of the available legal frameworks (residence, special guardianship or adoption) will best meet the child’s needs. This has to be judged on welfare grounds. In many cases there will be no clear answer; courts will be highly dependent on reports, with all the associated consequences for the time taken to obtain orders. Applicants whose cases take a long time, and those who are ultimately refused, are likely to be very dissatisfied.

6. MEETING CARERS’ NEEDS—SUPPORT

(a) Universal support from central government The inability of parents to support their children, and the absence of liability on most carers, provide a basis for a policy of universal state support for children not living with their parents, subject to any parental contribution. Currently, the means testing of carers to determine benefit and tax credit entitlements assumes they are in the same position as parents. In recognition that children 51 52 53 54 55

s. 14C, the limit under a residence order is 28 days. s. 14D(3). Children Act 1989, 91(14). Children Act 1989. ss. 8,10, 14D(1)(3)(b). There is further discussion of status in Bainham, this volume.


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Legal Problems and Solutions for the Kinship Care of Children 149 who would otherwise be in the public care system have a right to be brought up by relatives, this policy should be re-focussed on, and determined by, the child’s needs and circumstances. When children are not with their parents, non-means tested payments should be provided through the benefit or tax credit system to follow the placement (Richards and Tapsfield, 2003). The argument against this is that with a large number of children in informal placements with relatives, the costs would be exorbitant and the policy unworkable, unless the payment was at such a low level that it did not reflect the costs of care. But what is the alternative? Carers will have to continue to look to social services for support with all the challenges that that entails.

(b) Local support tailored to meet individual needs Relatives caring for children after family breakdown may be unwilling to press the social services department to support them in their task either because they want to maintain their privacy or they fear that the children may be placed elsewhere. Instead of accommodating children, treating relative carers as foster carers and paying a fostering allowance, the authority may consider the arrangement as one between parents and carers, and limit support to s.17 payments. This even happens when a social worker has made an emergency placement, for example where the child has been taken into police protection. Relatives who are local authority foster carers are entitled to the same allowances as other foster carers and must also accept social services’ involvement, regular meetings and control over a wide range of matters, particularly where the child is subject to a care order. If the carers obtain a residence, special guardianship or adoption order, the child ceases to be looked after and the basis for financial support changes. The DfES has issued guidance alongside the regulations about special guardianship, detailing how local authorities should operate their duties and powers to support special guardianship. This regime only applies to special guardianship,56 and some duties57 are restricted to cases where children are or were looked after by the local authority, but: It is important that children who are not (or were not) looked after are not unfairly disadvantaged by this approach. In many cases the only reason that the child is not looked after is that relatives stepped in quickly to take on responsibility for the child when a parent could no longer do so (DfES, 2005b: para 51).

56 Support for carers who obtain residence orders is outside the regulations, but it will be difficult for a local authority to justify why it treats carers differently depending on whether they have residence or special guardianship orders. 57 The duty to assess, Children Act 1989, s. 14F(3) and Special Guardianship Regulations 2005 (2005 S.I. 1109 ) reg, 11(1).


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150 Judith Masson and Bridget Lindley Where children have been looked after, local authorities must conduct assessments for special guardianship support services on the request of particular people, notably parents children and special guardians. In other cases they have discretion whether or not to do so.58 As in other areas, the duty to assess the support needs of these people is not reflected in a duty to provide services to meet their identified needs, but there is a structured system for the local authority to issue proposals, and for the recipient to make representations, before final decisions about the services which will be provided are made. Where services are to be provided in special guardianship cases, local authorities are required to make written support plans and to review these regularly.59 Advice and counselling services can be provided without an assessment (DfES, 2005b). In relation to financial support, local authorities are advised to ensure that special guardians are helped to access all their benefit entitlements (DfES, 2005b) underlining the notion that support from the local authority is secondary. Local authority financial support is generally means-tested, but in relation to settling- in grants, expenses related to special care for children who were looked after and the costs of maintaining contact for any child, there is discretion to disregard the special guardian’s means. Financial support may be provided for special guardians long term but in the past only a minority of adopters or carers with residence orders have received such support (Lowe et al, 1999). Where former foster carers received remuneration in addition to fostering allowances, this can continue to be paid to them as special guardians, but only exceptionally for more than two years.60 Local authorities can also make cash payments, for example to cover travel costs, so that those affected by special guardianship are able to access support services; such payments are not meanstested. Looked after young people who become subject to special guardianship orders retain some right to leaving care services61 but unlike other support for special guardianship (except financial support) these must be provided by the original care authority, not the area where the special guardian or young person now live.62 This reflects the position for leaving care services generally, but does not take account of the fact that the young person may have no remaining links with the former care authority. Such an arrangement is unlikely to facilitate service provision.

58

Reg 11(2) 50, 52. Regs 14 and 17 and DfES, (2005b): paras 71 and 82. 60 Reg 7 and DfES, (2005b): paras 42 and 43. 61 Advice and assistance up to the age of 21 years, Children Act 1989, s.24A. They are not entitled to help with expenses connected with employment, education or training, s.24B. 62 Children Act 1989, s. 24(5)(za) and Special Guardianship Regulations 2005, reg 22. 59


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Legal Problems and Solutions for the Kinship Care of Children 151

7. CONCLUSION—THE WAY FORWARD

Ignorance about individual rights and a reluctance by carers to use the courts appear to have been given insufficient consideration in the development of court orders to secure recognition for carers. Some families do not want to take matters outside the family. Court proceedings pose great barriers for those with limited resources—financial, intellectual and emotional (Richards, 2001). The more complex and thorough the process, the longer it is likely to take and the more it will cost. Family courts already struggle to deal with the numbers of cases before them. Unless new powers and processes are properly resourced, there will be more delay. The duration of proceedings and their cost both contribute to anxiety for the parties (Richards, 2001). The court process is also stressful for children (Masson and Winn Oakley 1999; Thomas et al, 2001). Applicants have little or no control over the process. Those who are well advised may have their passage smoothed but high quality services are not universally available. Consideration of the impact of the process should encourage greater reflection on the emphasis given to court orders, over other simpler means of providing rights to carers. Rather than relying on the courts, more emphasis needs to be given to making clear what rights and responsibilities parents and carers have when children are being looked after by relatives or friends, including private foster carers. This approach fits with Hunt’s strategy of a ‘transparent’ and ‘minimally intrusive’ system (Hunt, this volume). National guidance63 should be written for parents about making arrangements for their child’s care, and for carers to help them decide what action they can take within s. 3(5). Guidance should encourage parents and carers to agree arrangements and advise them about family mediation services that can help them do this. Parents should also be able to make formal agreements which give close relative carers parental responsibility so there is no doubt that they are fully responsible for the child in the parents’ absence. The regime for support, both practical and financial, needs to focus on effective general provision, without the need for costly and intrusive assessments and means tests. Resources are far better focused on developing service provision than on assessment, particularly where assessment in no way guarantees any service. As central government accepts that benefits and tax credits rather than local authority payments should be a main source of support, special provision should be made in the benefits system for children who are living with carers because their parents are unable to care for them. Any responsibility for recovering money from parents should fall to the State. Carers, particularly those whose children are now adult, may need support to access the existing range of 63 The DfES has advised local authorities that they should provide leaflets for parents and private foster carers in their area see DfES, (2005a): para 2.4.


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152 Judith Masson and Bridget Lindley services for children and families, but all family services should be geared to welcoming carers—first time ‘parents’ of toddlers or teenagers may be aunts or uncles with no previous experience of looking after children. If adequate general services are available, fewer demands will be made on local authorities, and these will relate to children in need. The lack of an enforceable duty to provide family support services is a problem for all families, not just relative carers. Clearly local authority responsibilities cannot be open ended, but given their responsibilities to look after children, there should be an equivalent duty to provide support which prevents a child needing to be looked after.64 Simplifying the legal framework and support system should make it easier to provide specific advice in individual cases. There are likely to be few advisers who could competently handle queries relating to the current system for court orders, tax credits and benefits, local authority responsibilities and service provision. Carers should have access to a dedicated advice line. This should be based in a parenting or carers’ organisation (perhaps both) rather than being part of the proposed Legal Services Commission Direct service, because most queries are likely to be about caring rather than legal rights. Overall, there needs to be a coherent and family friendly framework for care by relatives which focuses on children’s needs, rather than whether children have been looked after by a local authority or whether the carers are special guardians or have a residence order. The State needs to recognise that relatives are providing a valuable service which would otherwise fall to it, and that ensuring that such arrangements work well for children is an important State responsibility.

REFERENCES

BAAF, Position Statement 3—the Registration of Private Fostering (London BAAF, 2004) BARKER BRANDT, E, ‘De Facto Custodians: a Response to the Needs of Informal Kin Caregivers?’ (2004) Fam Law Q. 291 BLACKWELL, A and DAWE, F, Non-resident Parental Contact, Final Report (London, ONS 2003) BLAIKLOCK, O, Britain’s Pensioner Parents: the Quandary of Parenting Your Grand Children, Report from the office of Frank Field M.P. (2005) CRETNEY, S., MASSON, J and BAILEY-HARRIS, R, Principles of Family Law (London, Sweet and Maxwell 7th ed. 2003). DEPARTMENT FOR CONSTITUTIONAL AFFAIRS, A Fairer Deal for Legal Aid, 2002, available from http://www.dca.gov.uk/laid/laidfullpaper.pdf 64 A duty ‘to diminish the need to receive children into care’ was owed under Child Care Act 1980, s.1 but replaced by Children Act 1989, s.17 because it was perceived as being too narrow. However, s. 17 is only a power. The proposed statutory duty would underline the obligation to comply with ECHR, art. 8 and only take a child into public care where the family could not provide adequate care.


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Legal Problems and Solutions for the Kinship Care of Children 153 DEPARTMENT FOR CONSTITUTIONAL AFFAIRS, Judicial Statistics 2004 (2005 Cm 6565) available from http://www.official-documents.co.uk/document/cm65/6565/ 6565.pdf ——, DEPARTMENT FOR EDUCATION AND SKILLS and DEPARTMENT FOR TRADE AND INDUSTRY, Parental Separation: Children’s Needs and Parents’ Responsibilities Cm 6273 (London, DfES, 2004). DEPARTMENT FOR CONSTITUTIONAL AFFAIRS, DEPARTMENT FOR EDUCATION AND SKILLS and DEPARTMENT FOR TRADE AND INDUSTRY, Children’s Needs, Parent’s Responsibilities—Supporting Evidence for Consultation Paper (London, DfES, 2004a). ——, Parental Separation: Children’s Needs and Parents’ Responsibilities—Next Steps Cm 6452 (London, DfES, 2005). —— and DEPARTMENT FOR EDUCATION AND SKILLS, Review of the Child Care Proceedings System in England and Wales, 2000. Available from www.dca.gov.uk. DEPARTMENT FOR EDUCATION AND EMPLOYMENT, Guidance, Schools, Parents and Parental Responsibility 0092/2000 (2000) DEPARTMENT FOR EDUCATION AND SKILLS, Children Act 1989: Guidance on Private Fostering (London, DfES, 2005) ——, Putting Children First: a Planner for Separating Parents (consultation draft) (London, DfES, 2005a). ——, Children Act 1989 Special Guardianship Guidance (London, DfES, 2005b). DEPARTMENT OF HEALTH, The Children Act Now (London, TSO, 2001). DERRIMAN, R, ‘Special Guardianship: Reflections on a New Order’ in Jordan, L and Lindley, B (Eds) Special Guardianship: What Does it Offer Children Who Cannot Live With Their Parents? (London, Family Rights Group, 2006). EEKELAAR, J, ‘Rethinking Parental Responsibility’ (2001) Fam Law 426–430 HOUGHTON COMMITTEE, Report of the Departmental Committee on the Adoption of Children (London, HMSO, 1972 cmnd 5107). INLAND REVENUE, Claiming Guardian’s Allowance BG1 (London, Inland Revenue 2005). LAMING, H, Report of the Inquiry into the Death of Victoria Climbié (London, TSO, 2003) LAW COMMISSION, No 172 Review of child law, guardianship and custody (London HMSO, 1988 H.C. 594) LOWE, N. et al, Supporting Adoption (London, BAAF, 1999). LORD CHANCELLOR’S DEPARTMENT, Planning your Children’s Future (London, DCA, 2002). MASSON, J, NORBURY, D and CHATTERTON, S, Mine, Yours or Ours? (London, HMSO,1983). ——, ‘Thinking about Contact—a Social or a Legal Problem’ (2000) CFLQ 15. —— and WINN OAKLEY, M, Out of hearing (Chichester, Wiley, 1999) —— —— and PICK, K, Emergency Protection Orders—Court Orders for Child Protection Crises (2004). Available at www.nspcc.org.uk/Inform/Publications/ Download/EPO_pdf_gf25456.pdf OFFICE OF NATIONAL STATISTICS and DEPARTMENT FOR EDUCATION AND SKILLS, Statistics of Education: Children Looked After by Local Authorities (2004) Volume 1 Commentary and National Tables (London, DfES, 2005). PARKER, R., BULLARD, E and MALOS, E, Custodianship: Report to the Department of Health (London, HMSO, 1990).


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154 Judith Masson and Bridget Lindley RICHARDS, A and LINDLEY B, ‘Special Guardianship—a Family Viewpoint’ in Jordan, L and Lindley, B (Eds) Special Guardianship: What Does it Offer Children Who Cannot Live with Their Parents? (London Family Rights Group, 2006). —— and TAPSFIELD, R, Funding Family and Friends Care—the Way Forward (London, FRG, 2003). ——, Second Time Around (London, FRG, 2001). SAVE THE CHILDREN FUND, Private Fostering: Development of Policy and Practice in Three English Local Authorities (London, SCF, 1997). SMART, C, MAY, V and WADE, A, Residence and Contact Orders Volume 1, Report to DCA 6/2003 (London, DCA, 2003) available from http://www.dca.gov.uk/research/ 2003/res03fr.htm SOCIAL SERVICES INSPECTORATE, Signposts: Findings from a National Inspection of Private Fostering (London, Department of Health, 1995). THOMAS, C, BECKFORD, V, LOWE, N and MURCH, M, Adopted Children Speaking (London, BAAF, 2001). UTTING, W, People Like Us (London, TSO, 1997).

(I) Ebtehaj et al Ch8

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8 Restorative Practices: Repairing Harm through Kith and Kin LORAINE GELSTHORPE WITH LAYLA SKINNS

1. INTRODUCTION

T

HIS CHAPTER EXAMINES the role of kinship or family in ‘restorative justice’ (RJ) in criminal justice processes and civil justice practices in England and Wales. The notion of kith and kin being linked to criminal behaviour is not a new idea, although this has largely been a negative coupling whereby delinquent families have been seen to spawn delinquent youth, and inadequate parents have been blamed and identified for retraining as parents (Farrington, 1991; Gelsthorpe, 1999). In contrast, a focus on the positive involvement of families to facilitate solutions to disputes in a civil context is a common phenomenon (MacGowan and Pennell, 2001). But the central argument here goes beyond Western ideas about the family to suggest that whilst the role of ‘kith and kin’ (friends, relations, and the ancestral family) is clearly important in RJ processes and practices in other countries, notably New Zealand, their notions of ‘kith and kin’ do not easily translate to an English and Welsh context. In other words, although the ‘whanau’ in New Zealand might be translated into extended family in the English and Welsh context, it misses the additional meaning regarding the way Maori society functions and the role that these basic kinships play in social organisation, particularly the process of repairing harms caused by crime or disputes to communities (RJ): they are, in effect, ‘communities of care’,1 groups which are tied together by social, philosophical, ancestral and collective identity focused in symbols such as a name or land. The central premise of this chapter is thus that the concept of RJ, and indeed the practice of involving ‘family’ or what we are calling here ‘kith and kin’, has 1 The notion of ‘communities of care’ comes from the idea that restorative processes might include family, extended family/kin and friends to ‘hear’ the participants’ experiences so that they can act in an appropriately supportive manner. The ‘public’ nature of the processes perhaps facilitates both listening and appropriate responses. See Morris and Gelsthorpe, (2000) for further discussion in relation to restorative justice and domestic violence.


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156 Loraine Gelsthorpe with Layla Skinns been imported into the English and Welsh context with little thought as to what might have been lost in the translation. Indeed, RJ ideas have been transferred across the world without attention to the very context which might help facilitate success. On the basis of this premise, we describe some of the key features of how RJ is conceived and delivered in English and Welsh processes and practices, as compared with New Zealand, where the model used is Family Group Conferencing. The chapter begins with a general discussion about definitions and practices of restorative justice and then describes empirical evidence relating to its use in these different contexts, as well as analysing the key components of effective restorative practices.

2. THE CONCEPT OF RESTORATIVE JUSTICE

The Restorative Justice movement is a recent phenomenon in the western world, though the concepts are widely reputed to be ancient (Consedine, 1995; Braithwaite, 1999). Indeed, twenty years ago RJ was a little known concept in the West, yet it now occupies an increasingly important role in both criminal and civil justice practices (Bazemore and Schiff, 2001; 2005). The broad idea of restorative justice has connotations of returning things to ‘as they were’. It is a capacious concept, which generally stands for the repair of harms and ruptures to social bonds resulting from crime or other socially disruptive events. In a criminal context, it focuses on the relationships between crime victims, offenders and the community. In a civil context, it focuses on relationships between different players in a wide range of family, community, and neighbourhood disputes. As Marshall puts it in his overview of RJ in the UK: Restorative justice is a process whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future (1999: 17; Van Ness, 1993).

(a) Restorative justice and its potential Whilst there is no single agreed definition, protagonists of RJ have encouraged us to look at essential values and processes to get some idea of what it means and its potential effectiveness. In this sense, RJ is perceived to return decisions about how best to deal with the difficulties in relation to those most affected—those harmed by disputes, victims of crime, offenders, and their ‘kith and kin’ (families, friends, neighbourhoods, and communities, for example), or, as previously indicated, what might be termed as ‘communities of care’. Thus in RJ processes these are the principal decision-makers; and the State’s role—or the role of its representatives—is confined to one of facilitation. RJ also emphasises a shared


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Repairing Harm through Kith and Kin 157 or collective responsibility for resolving difficulties (including offending behaviour) and for addressing the reasons behind the difficulties. Moreover, RJ arguably endorses respect for all parties (and cultural relativity and sensitivity) rather than cultural dominance. RJ processes are typically dialogic, with participants actively engaged in resolving the conflict. The overall intention is to create a respectful and non-shaming environment in which participants can feel comfortable and able to speak for themselves. RJ outcomes commonly include a reconciliation whereby different parties agree to a plan of action to resolve the ‘harm’; to agreed visiting arrangements (in cases where parents are in dispute about child care); or to an apology, reparation or community work (where an offence has been committed). These RJ outcomes are ways of ‘restoring the balance’ between the different parties involved; arguably any outcome can be restorative if it is an outcome agreed to, and considered appropriate by, the participants.

(b) The broad contexts in which RJ is practised In some jurisdictions RJ is often part of a non-judicial process. In others, it is part of the formal judicial system and an integral part of both criminal and civil proceedings. In England and Wales, RJ practices have been adapted and adopted as processes which form part of the formal systems of criminal and civil justice. In New Zealand and Canada, as well as in some Australian jurisdictions, RJ very much reflects the idea that it is an alternative to the formal system, even though it might be said to be a central part of the system. There are specific instances of RJ being used in relation to elder abuse, disputes with insurance companies, neighbourhood disputes in communities, disputes on prison wings, in cases of serious crimes and family violence, conflict in schools, and problemoriented policing, to name but a few examples (see Weitekamp and Kerner, 2003; Elliott and Gordon, 2005 for further illustration). (i) Family Group Conferencing It is perhaps the Family Group Conference (FGC) which is the most widely known variant of RJ. The FGC has become the centre of international interest since it was implemented in New Zealand in 1989. Versions of conferencing have been tried in Australia, Belgium, Canada, Ireland, Singapore, South Africa, Sweden and the United States, as well as in England and Wales. The origins and contemporary practice of Family Group Conferencing in New Zealand have been described in some detail by Morris (2004) and so we offer only the bare essentials here. Suffice to say that the New Zealand system has borrowed from Maori justice based on the notion that whilst traditional Maori society established rules about what was and was not acceptable, this was different from


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158 Loraine Gelsthorpe with Layla Skinns European (pakeha) law which was established during the period of European colonization: The system of behavioural constraints implied by the law was interwoven with the deep spiritual and religious underpinning of Maori society so that Maori people did not so much live under the law, as with it. It was part of everyday existence (Jackson, 1988:36)

Again, whilst European law revolves around guilt, punishment, deterrence and so on, the Maori system seeks a realignment . . . of those goals to ensure restitution and compensation rather than retribution; to mediate the case to everyone’s satisfaction rather than simply punish (Jackson, 1988: 277)

Crucially, responsibility for the harm done through wrongdoing belonged to the family (whanau or family group—which conceptually means the broad family/community, not just the immediate family as is understood in European terms) of the offender, not just the offender or warring parties, and sanctions were aimed at restoring balance. This is fundamental to the Maori notion of justice and one of the defining features of the FGC and its potential to repair harm done within the community. In the New Zealand youth justice system of the 1990s, the FGC operates at two distinct levels: as an alternative to the court, and as a mechanism for making recommendations to judges prior to sentencing. An FGC involves the young person; members of his/her whanau, and whoever else they invite (friends, teachers, youth leaders and so on); the victim and his/her representatives; the police; sometimes a social worker, and sometimes a lawyer (in court referred cases). The FGC takes place at a venue chosen by the family of the offender, providing that the victim agrees: the marae (Maori community meeting house), the family’s home, community rooms, or rooms in buildings managed by the Department of Child, Youth and Family Services. Most cases last much longer than court cases (Morris, 2004). A key aspect of FGCs is that decision-making rests with the young offender, their family, and the victims. Outcomes range from apologies, reparation and community work to training programmes, supervision, a residential placement or even custody on occasion. As Morris puts it: Outcomes are limited only by the imagination of the parties, though parsimony (rather than proportionality) is intended to be a limiting factor (2004: 266).

Thus, in contrast to the role that the family has played in recent political theorising about crime and delinquency in England and Wales, whereby the family is commonly perceived to be responsible for crime in a negative way (with Parenting Orders and the like; see Gelsthorpe, 1999; Day-Sclater and Piper, 2000), family responsibility for offending in New Zealand is interpreted posi-


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Repairing Harm through Kith and Kin 159 tively. In New Zealand the family is given the role of responding constructively to crime; the whanau (the ‘kin’ or wider family and supporters) has a role in supporting this action. The importance of this cultural philosophy and practice draws evidence from the final report of a major evaluation of youth justice in New Zealand (Ministry of Social Development, 2004). The study involved a retrospective sample of 1003 young people who had a family group conference in 1998 and a prospective study of 115 cases, which included the observation of co-ordinators of conferences in 2001–2002. At least one victim was involved in 41 per cent of the retrospective study (where a victim had been identified), although the victim attended with family and supporters in only 11 per cent of the cases; the figures were slightly higher for the prospective sample with 50 per cent of victims attending, 18 per cent victim supporters, and 6 per cent victim representatives. The retrospective study findings indicate that alongside the offender and victim, and others mentioned above, a parent or caregiver was present in the conferences for 85 per cent of the cases (usually the mother—73 per cent of cases). Siblings were present at 25 per cent of conferences and other family members were present in 44 per cent of the cases. Other family supporters were present for approximately a quarter. The percentages were very similar for the prospective sample. Interestingly, the family was given the responsibility for implementing some aspect of the agreed plan (outcome of the conference) in half the cases (with family supporters occasionally being given responsibility, too). Moreover, family members were assigned a role in monitoring the plan in at least a fifth of the cases (with social workers, the police or youth court being the common alternatives). Such figures give a clear impression of family-based responsibility (in its broadest conception) for addressing the offending behaviour and its aftermath; in other words, strong involvement of kith and kin appears to be critical to the enactment of RJ principles.

3. RESTORATIVE JUSTICE IN THE CRIMINAL YOUTH JUSTICE SYSTEM IN ENGLAND AND WALES

The Crime and Disorder Act 1998, which was created soon after the Labour Government came into being in 1997, marked a major overhaul of the youth justice system (Gelsthorpe, 2002). Amongst its various organisational and policy changes is support for restorative justice principles. The central tenet of policy here is that crime should be seen primarily as a matter concerning the offender and victim and their families and thus should be resolved by them through constructive effort (reparative measures) to put right the harm that has been done. Elements of restorative justice are evident in rehabilitation packages for those given reprimands and warnings and referred to the local multi-agency Youth Offending Team (YOT) (Gelsthorpe and Morris, 2002). They are also evident


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160 Loraine Gelsthorpe with Layla Skinns in action plan orders, reparation orders, and potentially in supervision orders and other provisions too. But the ‘jewel in the crown’ of the new system concerns Referral Orders which were introduced in the Youth Justice and Criminal Evidence Act 1999. The Referral Order is a court order which can be given by a Youth Court to offenders under the age of eighteen. The Order was conceived as an individualised preventive measure for those offenders who plead guilty to all offences charged and who have no previous convictions or bind-overs (with discretion to deal with offenders who have committed either very minor or very serious offences in a different manner). Of particular relevance is the process by which first time offenders in court are referred to a local Youth Offender Panel (YOP; put simply, a sub-group of the YOT)—a forum seemingly away from the formality of the court—where a contract will be arranged with the young person to prevent further offending. Significantly, YOPs include members of the public (community members); panels meet with the young offender, the victim, and families/supporters/significant others to ‘resolve’ crimes by establishing reparative and rehabilitative contracts using RJ principles to guide appropriate action and intervention. This is perhaps the nearest equivalent to the much vaunted FGC in New Zealand. Certainly, the architects of the reformed youth justice system in England and Wales were strongly influenced by notions of RJ and FGC in New Zealand and elsewhere.2 The nub of this chapter therefore concerns the degree to which ‘kith and kin’ and victims are actually involved in RJ processes and practices in the English and Welsh context—using the Referral Order for purposes of illustration.3 As stated above, the involvement of community representatives, offender, victim and family/supporters, and its aim to resolve things through discussion in an informal setting, establishing a reparative and rehabilitative contract, perhaps brings it nearer to the concept of the FGC in New Zealand.4

(a) The Referral Order in practice Referral orders have seemingly had a huge impact on the shape of the youth justice system as evidenced in the number used by the courts shortly after their national implementation in 2000 (Youth Justice Board, 2004). But the national 2 It should be noted that following the implementation of the Crime and Disorder Act 1998, the Youth Justice Board established a development fund for special projects to work with young offenders. Out of 250 projects funded 20 included family group conferencing; after two years funding seven projects had failed to complete any conferences. Only five projects had managed to complete six or more FGCs (Gill, 2005). 3 Another example is restorative conferencing (also known as diversionary conferencing) which has been pioneered by Thames Valley Police (see Pollard, 2000; Hoyle et al 2002). See Crawford and Newburn (2003) for further description of RJ practices in the English context. 4 The Children’s Hearing system in Scotland might be described as an equivalent also (see Whyte, 2005). Architects of the Labour Government’s radical overhaul of the youth justice system in 1998 drew on Scottish experiences of the hearings system as well as experience of FGCs in New Zealand and Australia.


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Repairing Harm through Kith and Kin 161 evaluation of Referral Orders conducted by Crawford and Newburn (2003), based on analysis of organisational practices and experiences relating to the 1803 Referral Orders and 1066 Youth Offender Panels in eleven pilot areas in England and Wales between 2000 and 2001, has highlighted a number of legal, ethical, and practical difficulties with regard to their implementation and operation. Of most relevance in the context of this chapter are issues relating to the Youth Offender Panels in action. Crawford and Newburn (2003) report low victim representation (13 per cent) and fairly limited reference to victims during the process of establishing a contract. Indeed, whilst the panel provided an element of victim awareness by discussing the impact of an offence on a specific victim, this occurred in just over half the cases (56 per cent). Moreover, in 11 per cent of cases, references to the victim were rather vague or general ). Critically, in 21 per cent of the cases, there was no mention of the victim at all. This is in marked contrast to comparative experiences elsewhere in the world. For example, Maxwell and Morris (1993) found that in the early years of the introduction of family group conferences in New Zealand, victims attended in 51 per cent of cases in which a victim could be identified. (The evidence from Australia with regard to victim attendance is even more impressive; see Hayes et al, 1998; Strang et al 1999.) As Crawford and Newburn put it: The presence of a victim at panel meetings appears significantly to alter the dynamics of the process and have a beneficial effect on participants, especially offenders. A noticeable shift was detected in the ‘mood’ of panels, in particular towards increased empathy with and support for the offender. (2003: 132)

The absence of victims from panels then is telling in terms of the likely impact of RJ principles in the English and Welsh context. The functioning of the youth offender panels also attracts our attention since it might be argued that the proposed ‘community involvement’ here somehow matches the involvement of the whanau in New Zealand. Certainly one of the radical intentions behind Referral Orders was to broaden the involvement of various groups in the criminal justice system; the idea of lay volunteers being involved in the decision-making process of youth offender panels seemed to arrive late in the day (Crawford and Newburn, 2003), but according to the Home Office Guidance, panel members are meant to be those who are: . . . properly representative of the community they intend to serve and who have the appropriate personal characteristics for the challenging task of dealing effectively with young offenders, and their victims, in a restorative context. (Home Office, 2000: para.1.4)

Interestingly, the Guidance suggests that the involvement of lay representatives of the community will reduce the social distance between panel members and participants (although prior personal relations can rule out representatives


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162 Loraine Gelsthorpe with Layla Skinns from any particular case). Moreover, the Home Office clearly have in mind representatives of a ‘geographical community’ rather than a whanau, a community of caring relatives and supporters who serve to share responsibility and facilitate reintegration. But who were the community representatives? Whose community did they represent? The national evaluation found that community representatives were recruited locally (most successful via local advertising through the press). The reality for many YOT managers in setting up YOPs however, was that attempts to attract, recruit, train and retain community panel members was a major challenge. There is little evidence to suggest that volunteers came from young offenders’ communities specifically. The vast majority of volunteers were white (with exceptions in London); two-thirds were women; only a fifth were aged 18–29 and only a tenth aged 60 or more. As Crawford and Newburn describe, ‘The public and private sectors appeared to be equally represented. However, very few were in manual work or unemployed’ (2003:77). A later survey of community panel members broadly confirmed this profile. Significantly, about half thought that they represented the community very well or reasonably well, although a sizeable minority (a fifth of those involved in the survey) felt that, as a group, they did not represent the local community particularly well. Indeed, Crawford and Newburn report concerns about an over-representation of women as community representatives. Immediately then, there are some stark differences between RJ in England and Wales and Family Group Conference processes in New Zealand where the whanau are central to the process. Altogether, these findings suggest something very different and far removed from the involvement of a person’s whanau or ‘community of care’ to facilitate repair of the ‘harm’ done, reparation and reintegration into the community. In terms of contributions to panel meetings from the young person and their kith and kin, the research findings raise further issues about the involvement of family, extended family or ‘communities of care’. As mentioned, Crawford and Newburn (2003) collected data on 1066 panel meetings in their evaluation; in two thirds of the cases (68 per cent) the young person attended with only one other person and in a further 15 per cent of cases the young person attended alone. This means that in over four fifths of cases (83 per cent), the young person attended either by him or herself or with just one other person (in over twothirds of the cases this was the young person’s mother and in under a fifth of the cases it was the father). In 14 per cent of all initial panel meetings the young person attended with two other people (this was the parents in 61 per cent of cases) or by the mother and another family member or supporter (in 36 per cent of the cases). In less than 3 per cent of cases were young people accompanied by three or four people (never more than four). Unsurprisingly, perhaps, given these figures, the data show that attendance by family members declined at subsequent panel meetings (review and final meetings). Again, this is in marked contrast to experiences in New Zealand. Morris and Maxwell (2000), for example, suggest


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Repairing Harm through Kith and Kin 163 that two fifths of family group conferences were attended by members of both their immediate and extended families—the whanau. However, despite this lack of family involvement in the English YOPs, observation of 92 initial panel meetings suggests active participation of those who attended. One of the main tasks of the community panels is to facilitate discussion. Crawford and Newburn’s (2003) evaluation suggests that most of the participants (when attending a panel) contributed significantly to the proceedings. Just 11 per cent of young offenders said little more than their name but nearly half (49 per cent) made lengthy contributions. Where in attendance, 56 per cent of the fathers and 53 per cent of the mothers made full contributions (as judged by the observers); other supporters in attendance made full contributions in 52 per cent of the cases. All of the victims made full contributions, but this point is negated by the low representation described above. Space is too short to make many other points about the degree to which offenders, victims and kith and kin who did attend panel meetings felt involved. Whilst Crawford and Newburn’s analysis (2003) suggests a general sense of vagueness amongst the participants in terms of who was present in the panel meetings, there was nevertheless a high degree of satisfaction with procedural fairness (91 per cent of the 90 offenders interviewed said that they knew what was going on, for instance) and, by and large, parents and young offenders felt that the contracts were broadly appropriate (with some disagreements where parents thought that the outcome was harsh or lenient). We may conclude that initial panel meetings are generally significantly less inclusive of victims and young offenders’ family members and supporters than Family Group Conferences in New Zealand. As previously indicated, the aim is that within the process, young offenders will acknowledge their offending behaviour, offer apology, take responsibility and make reparation—all in the supportive and constructive context of kith and kin, we might say. One small point of optimism here revolves around the fact that where victims were present (that is in the 13 per cent of cases out of a total of 1066 initial panel meetings), 77 per cent of the young people made some sort of apology; in initial meetings not attended by victims, only 30 per cent of young offenders apologised to anyone, although a larger number expressed remorse in some other way other than by apologising. Mc Cold (2000) has produced a typology of restorative practice and its potential by classifying interventions as ‘fully’, ‘mostly’ or ‘partly’ restorative and on this basis Referral Orders have the potential to be ‘partly’ restorative even where the victim does not attend; but if a hallmark of effectiveness is involvement, the operation of Referral Orders does not appear to have involved victims and kith and kin in the process or in follow-up implementation and monitoring to the extent that RJ has in New Zealand and this must surely limit its potential to be effective.


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164 Loraine Gelsthorpe with Layla Skinns

4. RESTORATIVE JUSTICE IN CIVIL JUSTICE

Civil RJ is used in three main contexts: child welfare, schools and the resolution of police complaints.5 Here, we describe firstly the Family Group Conference and RJ practices in each of these settings and explore the extent of implementation,6 and secondly, we examine the role of kith and kin in civil RJ, particularly FGCs, as a key process by which RJ is delivered.

(a) RJ and FGCs in civil settings Child welfare FGCs were introduced in England and Wales in 1991.7 They are used to deal with serious incidents which include parent-specific concerns (for example. substance abuse), parent-child conflict, the living situation of children (for example, visitation rights), children’s well-being (for example, physical and sexual abuse and neglect) and children’s behaviour (for example, substance misuse) (Sieppert, Hudson and Unrau, 2000; Sundell and Vinnerljing, 2000). In theory, child welfare FGCs are viewed as part of an ongoing process of encouraging participants to become agents of social change, rather than passively being supported, treated or educated by child protection agencies (Pennell and Burford, 2000). FGCs are intended to create partnerships between families and professionals in which families are able to voice their opinions and influence decisions which directly affect them. This is primarily through private ‘working time’ in which the co-ordinator in a group discussion leaves the room and has a consultative role. At this point, families are left to discuss and devise an action plan.8 In an educational setting, RJ processes have been used alongside punitive approaches, such as suspension and exclusion, to deal with relatively serious incidents which would normally necessitate a formal response. In a national evaluation of RJ in schools in England and Wales, the Youth Justice Board (2004) found that the most common use for RJ FGCs related to violent behaviour, although it was also used to address bullying, name-calling, verbal abuse, 5 RJ is also being used in local, multi-agency anti-social behaviour (ASB) problem-solving groups (Burney, 2005). 6 We should note that the terms ‘RJ conferences’ and ‘FGC conferences’ are used interchangeably in some of the literature in the civil context; we take it that FGCs involve more family or community members than RJ processes which perhaps focus on the practice of seeking to resolve conflict through discussion and reparative measures. 7 It is worth noting, however, that unlike New Zealand, there was no legal mandate in the UK, nor was there any endorsement of FGCs by central government until 1999 (Brown, 2003). Prior to this, the development of child welfare conferences depended on input from community organisations (see Marsh and Crow, 1998). 8 This plan is refined and authorised by the co-ordinator when the FGC re-convenes after the ‘working time’.


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Repairing Harm through Kith and Kin 165 family feuds, relationship breakdown, incidents involving teachers, theft within school, gossip, and incidents outside school. The resolution of police complaints through RJ FGCs is used to deal with allegations which would not ordinarily result in criminal or disciplinary proceedings, and also when there is not enough evidence for a formal investigation by the Independent Police Complaints Commission. RJ is used in ‘Local Resolutions’ (which replaced Informal Resolutions); Thames Valley Police have pioneered this approach (see McLaughlin and Johansen, 2002). However, civil RJ is not extensively used in any of these settings. In a national survey, Brown (2003) found that only 38 per cent of local authorities had an established child welfare FGC for instance. The YJB (2004) notes that RJ conferences have struggled to take root. Similarly, Young et al (2005) conclude that whilst the use of RJ to resolve police complaints remains a viable prospect, it is uncertain whether or not the principles of RJ are fully embraced by the police. It may be that the implementation of civil RJ requires occupational change amongst social workers, teachers and police officers.9 The YJB (2004) note that RJ conferences have been ‘tacked on’ to existing measures, rather than integrated into systemic changes.10 In addition, civil RJ is costly in terms of the time taken to prepare conferences and the cost of training. Head teachers estimated that it would cost £6–20,000 for staff to run conferences and £1,500 per annum for training (YJB, 2004). Sieppert, Hudson and Unrau (2000) found that each child welfare conference took an average of 2.75 hours to plan.

(b) The role of kith and kin in civil RJ In child welfare FGCs, there appears to be a high level of participation by family members, especially mothers. For example, Sieppert, Hudson and Unrau (2000) report that mothers were present in 91 per cent of cases, followed by grandmothers (70 per cent), aunts (57 per cent) and fathers (52 per cent). Similarly, Marsh and Crow (1998) found that in the UK, parents attended 96 per cent of conferences, although fathers were more likely to decline than mothers (22 per cent compared with 9 per cent). The average number of kith and kin present ranged from 7 to 11 (Sieppert, Hudson and Unrau, 2000; Pennell and Burford, 2000). There is thus an interesting difference here between the involvement of family members in Youth Offender Panels, as per Home Office Guidance, and here in the civil context where a greater number of family members are involved. However, in contrast to the Youth Offender Panels which involve ‘community representatives’ as lay members of the panel, there is much 9 See also McLaughlin and Johansen (2002) on police complaints; Morrison (2001; 2002) on conferences in schools; Brown (2003) on resistance amongst the social work profession. 10 It is clear that educational RJ conferences are far from being the ‘youth development circles’ that Braithwaite (2001) describes. He suggests that they should be available for the entire school-age population to encourage the development of human and social capital.


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166 Loraine Gelsthorpe with Layla Skinns less community involvement in the civil context. Only in a quarter of conferences was a friend or neighbour present and only in 15 per cent of conferences did the young person have a peer supporter present (Marsh and Crow, 1998). Nevertheless, family members outnumbered professionals; for example, Pennell and Burford (2000) found that on average there were three professionals for every ten family group members. Professional participants in the English and Welsh context primarily included the case worker and team leader from social services, and on occasions teachers, doctors, health visitors, psychiatrists, care workers, police, probation officers and guardians. In schools, family members seemingly have a lesser role. For example, the YJB (2004) found that parents were only involved in 19 per cent of conferences set up to resolve problems. In the police complaints process, a few supporters of the complainant were present, although they only participated in a few instances when the complainant felt unable to continue with the conference (McLaughlin and Johansen, 2002). Facilitators or co-ordinators are also crucial to the RJ process; yet, civil RJ conferences do not always involve ‘independent’ facilitators.11 (Brown, 2003; YJB, 2004). The extent of experience of the facilitator may impact on the RJ process; this is certainly shown to be relevant in dealing with police complaints via RJ processes (Young et al, 2005; Hoyle et al, 2002). Independence and experience may impact on the quality of facilitation and without good facilitation there is a chance that RJ FGCs may have undesirable consequences. For example, the facilitator dominating proceedings or ‘imposing’ a resolution on the families and supporters present (Young et al, 2005) detracts from one of the avowed purposes of such conferences, which is to empower the family to deal with matters themselves. These difficulties may also be compounded by structural inequalities between participants, of course. These points raise questions about the extent to which civil RJ conferences are as ‘democratic’ as they aim to be. Perhaps for civil RJ to be truly democratic, it requires a realignment of professional cultures (in which they relinquish some of their power) to allow the other participants (families) an equal role.12

(c) Participant satisfaction with civil RJ Despite some of the uncertainties about the role of kith and kin and facilitators, satisfaction amongst participants seems to be remarkably high. In child welfare conferences, participant satisfaction is very high. For example, based on 143 evaluation forms returned from 29 conferences, Sieppert, Hudson and Unrau 11 Independent’ facilitator may not always be appropriate; child welfare FGCs takes account of ethnic diversity by employing co-ordinators who have knowledge and experience of the ethnicity of participants (Waites et al., 2004). 12 For example, Brown (2003) found that 43 per cent of local authorities believed that they could work in partnership with families.


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Repairing Harm through Kith and Kin 167 (2000) found that 70 per cent of participants were satisfied with conference preparation and that the right people attended; 85 per cent felt free to speak out at the conference; 76 per cent felt involved in the decision-making process; and 72 per cent were satisfied with the plan devised in the conference. In schools, participant satisfaction with RJ FGCs is higher still (YJB, 2004). In the police complaints process, whilst not all cases were successfully resolved, the majority of the complainants in restorative meetings achieved something positive; they benefited from having met the police officers and having addressed them personally to express dissatisfaction and frustration (Young et al, 2005). Other kinds of outcomes are also reported in empirical research on child welfare FGCs.13 In spite of incomplete FGC plans, families still described themselves as ‘better off’ since the conference, perhaps because the conference had strengthened positive ties amongst participants and removed negative ones (Pennell and Burford, 2000). FGCs can also increase the involvement of the extended family in the care of children (O’Connor et al, 2005; Sundell and Vinnerljung, 2004; Marsh and Crow, 1998), a point which finds resonance in Hunt’s chapter (this volume) where she explores the extent to which ‘kinship care’ is practised.

5. EVALUATING RESTORATIVE JUSTICE AND FAMILY GROUP CONFERENCES

RJ in the criminal context has been subject to increasing scrutiny over the past few years, particularly in relation to definitions of effectiveness, which revolve around reconvictions, proportionality, legal rights, and responsibilities.14 But key questions have also revolved around the issue of whether RJ involves victims, for example, and whether or not parties seem engaged in the process of RJ, as well as whether parties appear to benefit from the process in other ways. Generally speaking, research has consistently shown that RJ processes in the criminal context can more fully involve victims than conventional justice processes (Maxwell and Morris, 1993; 1998a; Wundersitz and Hetsel, 1996; Strang et al, 1999). Research has also shown that the participation and involvement of offenders is achievable through RJ processes: they feel that they have been listened to and have a better understanding of the consequences of what they have done (Maxwell and Morris, 1993; Sherman and Strang, 1997; Miers et al, 2001). Similarly, a number of researchers in the criminal justice field have reported positive findings in terms of the benefits for victims (Maxwell and Morris, 1993; Sherman, 1998; Umbreit et al, 2001). Many of the positive research findings in this sphere are specifically derived from studies of Family 13 Sundell and Vinnerljung (2004) wonder whether the low level of plan implementation may be because the extended family withdraw their support. 14 For an examination of such issues see the special issue of the British Journal of Criminology, vol. 42, 2002, and Zehr and Toews, 2004.


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168 Loraine Gelsthorpe with Layla Skinns Group Conferencing (see, for example, Maxwell and Morris, 1993, 1998a, 1998b in New Zealand). Moreover, longitudinal research there has demonstrated that where practice is of a high standard, FGCs can reduce re-offending, and the overriding message is that young people and their families produce creative and constructive plans for dealing with the offending behaviour (including reparation) (Maxwell and Morris, 1998b). Reviewing a wide range of evidence, Walgrave has suggested that evaluation research on RJ practices so far, supports a case for optimism. Summing up research in the criminal context, for example, he states: Overall conclusions are that RJ interventions do work and produce outcomes more satisfying than the outcomes of punitive or rehabilitative interventions. They are more satisfying to communities of care, and there is no evidence to suggest that restorative practices have negative consequences for public safety (2005: 12)

In the civil context, much research has similarly focused on processes and implementation—with positive perspectives (Brown, 2003; Sundell and Vinnerljung, 2004). Where there has been research on outcomes in terms of resolutions which have ‘worked’, the evidence has been quite mixed (Marsh and Crow 1998; Sundell and Vinnerljung, 2004)—a finding which seems incongruent with the high level of satisfaction expressed by families and other participants. Explanations for this might include a lack of effective follow up services available to children involved in FGCs, a failure to embed RJ in the working practices of agencies, or because FGCs lack cultural relevance.

6. CONCLUSION

Much has been made of Referral Orders in the criminal context and Family Group Conferences in civil contexts as significant means of delivering restorative justice. Here the talk is less of crime control and more of offender/victim participation and harm minimisation in the one context, and of round table discussions and shared solutions to family conflicts, or disputes among schoolchildren, for instance, in the other. These ideas draw on the legacy of customary practices in Maori, Aboriginal and Native indigenous populations where shared responsibility between different participants in the process of RJ was absolutely central. In modern New Zealand there is now much greater involvement of the State in RJ than hitherto, but in a way that still promotes partnership between State and families in resolving issues. The underlying intention is to empower the families or whanau to work with professionals to find effective solutions, a process which might, but does not necessarily, involve limiting professional involvement (as Masson and Lindley, this volume, point out, this is a critical issue in promoting kinship care). But the practical expression of RJ ideas in the English and Welsh context loses something in the translation. Although


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Repairing Harm through Kith and Kin 169 researchers see the involvement of ‘kith and kin’ or ‘communities of care’ as very important to the effectiveness of FGCs and RJ (see Ministry of Social Development, 2004, and Bazemore and Schiff, 2005, for example), we do not know the precise extent to which this has contributed to optimism about the potential benefits of RJ in other jurisdictions (see Elliot and Gordon, 2005; Weitekamp and Kerner, 2003; McCold, 1996). Our general sense is that the role of the family, extended family or community may be an essential ingredient for ‘success’ whether in terms of enhancing the sense of inclusiveness or meaningfulness of the processes to all involved, or in terms of agreed and effective outcomes in practice. The picture in England and Wales is thus mixed and messy, especially in the criminal field where there has been very limited success in involving victims, families and supporters. With increasing recognition that ‘extended family’ or ‘community of care’ in the English context might be ‘paradise lost’ (Bauman, 2001), aspirations for RJ and FGC principles to work may go beyond what is realistic.

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Repairing Harm through Kith and Kin 171 —— ‘Revisioning Men’s Violence against Female Partners’ (2000) 39, Howard Journal of Criminal Justice 412. —— and MAXWELL, G, ‘The Practice of Family Group Conferences in New Zealand: Assessing the Place, Potential and Pitfalls of Restorative Justice’, in A Crawford and J Goodey (eds), Integrating a Victim Perspective within Criminal Justice (Aldershot, Ashgate, 2000). MORRISON, B, ‘The School System: Developing its Capacity in the Regulation of a Civil Society’ in H Strang and J Braithwaite (eds), Restorative Justice and Civil Society (Cambridge, Cambridge University Press, 2001). —— Bullying and Victimisation in Schools: a Restorative Justice Approach Trends and Issues in Crime and Justice, no. 219. (Canberra, Australian Institute of Criminology, 2002). O’CONNOR, LA, MORGENSTERN, J, GIBSON, F and NAKASHIAN, M, ‘Nothing About me Without me: Leading the Way to Collaborative Relationships’ (2005) 84 Child Welfare 153. PENNELL, J and BURFORD, G, ‘Family Group Decision-making: Protecting Children and Women’ (2000) 79 Child Welfare 158. POLLARD, C, ‘Victims and the Criminal Justice System: A New Vision’ (2000) Criminal Law Review January, 5. SHERMAN, L, STRANG, H, BARNES, G, BRAITHWAITE, J, INKPEN, N and TEH, M, Experiments in Restorative Policing: A Progress Report to the National Police Research Unit on the Canberra Reintegrative Shaming Experiment (Canberra, Australian National University, 1998). SIEPPERT, J D, HUDSON, J and UNRAU, Y, ‘Family Group Conferencing in Child Welfare: Lessons from a Demonstration Project’ (2000) 81 Families in Society 391. STRANG, H, BARNES, G, BRAITHWAITE, J and SHERMAN, L, Experiments in Restorative Policing: A Progress Report on the Canberra Reintegrative Shaming Experiments (RISE) (Australian Federal Police and Australian National University, 1999). http://www.aic.gov.au/rjustice/rise/progress/1999.html SUNDELL, K and VINNERLJING, B, ‘Outcomes of Family Group Conferencing in Sweden: a Three-year Follow-up’ (2004) 28 Child Abuse and Neglect 287. UMBREIT, M, COATES, R and VOS, B, ‘Victim Impact of Meeting with Young Offenders: Two Decades of Victim Offender Mediation Practice and Research’ in A Morris and G Maxwell (eds), Restorative Justice for Juveniles: Conferences, Mediation and Circles (Oxford, Hart Publishing, 2001). VAN NESS, D, ‘New Wines and Old Wineskins: Four Challenges of Restorative Justice’, (1993) 4 Criminal Law Forum 251. VAN WORMER, K, ‘Restorative Justice: A Model for Social Work Practice with Families’ (2003) 84 Families in Society 448. WAITES, C, MACGOWAN, M J, PENNELL, J, CARLTON-LANEY, I and WEIL, M, ‘Increasing Cultural Responsiveness of Family Group Conferencing’ (2004) 49(2) Social Work 291. WALGRAVE, L, ‘Towards Restoration as the Mainstream in Youth Justice’ in E Elliot and R Gordon (eds), New Directions in Restorative Justice. Issues, Practice, Evaluation (Devon, Cullompton, Willan Publishing, 2005). WEITEKAMP, EGM and KERNER, H-J, (eds), Restorative Justice in Context. International Practice and Directions (Devon, Cullompton, Willan Publishing, 2003).


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172 Loraine Gelsthorpe with Layla Skinns WHYTE, B, ‘Youth Justice in Other UK Jurisdictions: Scotland and Northern Ireland’, in T Bateman and J Pitts (eds), Youth Justice (Lyme Regis, Dorset, Russell House Publishing, 2005) WUNDERSITZ, J and HETZEL, S, ‘Family Conferencing for Young Offenders: The South Australian Experience’ in J Hudson, B Galaway, A Morris, G Maxwell (eds), Family Group Conferences: Perspectives on Policy and Practice. (Annandale, Federation Press, 1996). YOUNG, R, HOYLE, C, COOPER, K and HILL, R, ‘Informal Resolution of Complaints against the Police: a Quasi-experimental Test of Restorative Justice’ (2005) 5 Criminal Justice 317. YOUTH JUSTICE BOARD National Evaluation of the Restorative Justice in Schools Programme (London, YJB, 2004). ZEHR, H and TOEWS, B, (eds), Critical Issues in Restorative Justice (Monsey, New York, Criminal Justice Press and Cullompton, Devon, UK, Willan Publishing, 2004).

(J) Ebtehaj et al Ch9

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Part 3

Kin Contact and Care of Elderly People


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9 Gender and Kinship in Contemporary Britain JANE NOLAN AND JACQUELINE SCOTT

1. INTRODUCTION

I

T HAS BEEN some 35 years since the term ‘kinkeepers’ was first used to describe women’s pivotal role in maintaining kin relationships (Adams, 1970). In the intervening decades, research has shown that, compared to men, women are more communicative with kin, more involved in kin exchanges, and more likely to initiate and maintain kin contact (see Widmer 2004 for a review). Of course, any meaningful analysis of contemporary gender and kinship must also consider the impact of recent demographic changes such as increasing life expectancy and decreasing fertility rates. Kinship networks have lost some of their ‘horizontality’, that is, as younger generations have fewer siblings, their own children consequently have fewer cousins, aunts and uncles. Increased longevity means that grandparents, particularly grandmothers, play an important role in kin contact and exchange (Bengston et al, 1996). Moreover, demographic changes are coupled with social and economic changes such as geographical mobility, increased divorce rates and single-parenthood, and women’s increased involvement in paid work. These factors have profound implications for the study of gender and kin and there is evidence to suggest that over the last three decades each has contributed to a decline in kin contact (McGlone et al, 1999). Such changes have long been the focus of theoretical debate. Some commentators are pessimistic, arguing that declining contact is indicative of declining family solidarity and increasing individualism. For example, the American sociologist, David Popenoe, an outspoken critic of the ‘me generation’, claims that: ’people are less willing to invest time, money and energy in family life, turning instead to investments in themselves’ (Popenoe, 1993, p528). Others view the changes optimistically seeing diminishing contact with extended family as an opportunity for more ‘democracy’ in personal relationships. People gain greater freedom to make their own decisions when they are physically distant from other family members who may interfere with their relationship decisions


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176 Jane Nolan and Jacqueline Scott (Giddens, 1992). Unsurprisingly, empirical research paints a far more complex picture than that offered by the extreme optimist/pessimist positions. In this chapter we consider the influences of geographical mobility, women’s paid employment, and men’s involvement in the domestic division of labour on declining kin contact. We also explore the gendered patterns of exchange across the generations, focusing particularly on the role of grandparents. The importance of these issues for socio-legal professionals is discussed in the light of legislation which relates to what is popularly termed ‘work-life balance’, and in relation to the growing pressure to acknowledge grandparents’ rights in increasingly fluid kinship structures.

2. DECLINING KIN CONTACT

In order to make any statement about declining contact amongst kin, we first need to try and establish some kind of a baseline. We can draw on a number of different types of evidence to do this, including both case studies and survey data. Traditionally, case studies have been the method of choice, of which Young and Willmott’s study of Bethnal Green in the 1950s is still considered a classic. They showed that contact among extended family members was high and that the mother-daughter bond was particularly strong (Young and Willmott, 1957). The reason for this bond, they argue, is that working class kinship networks offer a safety net against poverty and poor welfare provision. They suggested that as welfare benefits and other conditions improved, contact with extended family relationships would diminish and ‘isolated’ nuclear families would increasingly become the norm. A number of other studies support and extend Young and Willmott’s work. For example, a study of working class families in Swansea by Rosser and Harris (1965) also found that contact with the extended family was robust. They noted that while changing patterns of employment had increased the geographical distance between kin, strong emotional bonds ensured that there was still a good deal of exchange of practical and emotional support. Bell (1968), also working in Swansea but studying middle class families, found similar patterns. Increased geographical distances meant less daily contact but close relationships were maintained by longer visits and telephone calls. Charles et al (2004) have used Rosser and Harris’ research as a model for a new study of kinship in Swansea and preliminary results have found that, in 2001, fewer people married, cohabited or had children than in 1960 (the year Rosser and Harris’ study was carried out). However, they also found, as in 1960, a high degree of geographical stability in their survey: many people still live within close proximity of relatives. Again, as in 1960, the frequency of mother-daughter contact was still high in 2001 and this relationship remained essential for the functioning of kin groups.


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Gender and Kinship in Contemporary Britain 177 What other kind of evidence can we find of the extent of kinship contact in Britain? Survey research complements the case study approach and offers a sounder base from which to generalize. In 1986 the British Social Attitudes (BSA) Survey conducted one of the first national surveys of kinship in Britain (Finch, 1989). The results indicated that people in Britain do indeed tend to keep in regular contact with their relatives and that parents and adult children frequently turn to each other for help. Family and employment structures continued to change over the next decade and when, in 1996, McGlone et al analysed a new wave of BSA data, they suggested that while family continued to be a central focus of many people’s lives, the increasing number of women in full-time employment meant women’s kin contact had declined in the previous ten years. More recent surveys have looked at a wider range of kin issues such as the isolation of older men (Arber et al, 2003) and the role of demographic change on kin relations (Murphy and Grundy, 2003). Murphy’s (2004) analysis of the 1986 International Social Survey Programme (ISSP) reflects the gendered patterns found in case study research. He showed that once children have left home, daughters have greater contact with parents than do sons and mothers have more contact with their daughters than do fathers. Similar patterns are found in Owen et al’s (2004) analysis of the Millennium Cohort Study. Nevertheless, despite this gendered continuity in the strength of the mother-daughter relationship, it is fair to say that other aspects of kinship relationships have altered considerably. Murphy’s (2004) comparison of the 1986 ISSP data and the 1999 Omnibus study shows that in 1986 the proportion of those seeing adult children weekly was 69%. By 1999 this figure had fallen to 48%. Sibling contact has fallen amongst younger age groups regardless of gender (Murphy, 2004). Men who divorce have less contact not only with their adult children, but also with their own parents (Lye, 1996). While it is certainly possible to find continuing and predictable gendered patterns in kin contact, it would be inaccurate to argue that kinship systems have been immune to shifts in social trends.

3. DATA SOURCES

Given the nature of the research outlined above, this chapter will focus particularly on gender and kin contact and exchange rather than gender and ‘caregiving’ (although, as will become apparent, these can be considered overlapping and interlinked concepts). Here, we explore gender, kin contact and exchange through a new analysis of BSA data collected in 1986, 1995 and 2001 and also of the British Household Panel Survey (BHPS) 2001. Our reason for choosing to study these two surveys is that disaggregating BSA data tends to lead to very small numbers. The BHPS survey is somewhat larger and, in 2001, carried similar kinship questions to those administered in the BSA survey. Thus we are able to use BHPS data in order to provide further support for our findings. Each


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178 Jane Nolan and Jacqueline Scott survey is described below. The questions used for our analysis are shown in Appendix A.

(a) British Social Attitudes The BSA Survey is designed to yield a representative sample of British adults aged 18 or over. Each year around 3,600 adults are interviewed in England, Scotland and Wales. From 1993 onwards, the sampling frame for the survey was the Postcode Address File; before that it had been the electoral register from which one adult per household is randomly selected for interview. In 1986, 1995 and 2001, as part of the ISSP, BSA issued a ‘kinship module’ to assess how close people live to their relatives, how much contact they have with them, the importance they attach to these networks, and whether or not they feel that they can be called upon as sources of help and advice. The ‘kinship and friendship’ module was administered to a random half of the 1986 sample (around 1500), a random two-thirds (around 2100) of the 1995 sample, and a random third (around 900) of the 2001 sample. The questions were contained in a self-completion questionnaire given to respondents after the main face-to-face interview.

(b) British Household Panel Study, Our analysis uses data from the eleventh annual wave, carried out in 2001, of the British Household Panel Study, a representative sample of British households that was launched in 1991. The BHPS initially consisted of a representative sample of 5500 households and over 10,000 individuals. These same individuals are re-interviewed each year. The original sample was drawn using a two-stage stratified clustered design of 250 postcode sectors from the small users Postcode Address File (PAF). Details of sample characteristics, together with subsequent attrition and weighting can be found in Taylor (2005). Extension samples were added to the BHPS from Wave 9 onwards for Scotland and Wales. The aim (prompted by devolution) was to increase the relatively small Scottish and Welsh samples to permit independent analysis of the two countries. As our analysis is not concerned with cross-country differences, we have analysed the original British sample only. The cross-sectional weight (KXRWGHT) is applied to adjust for within-household non-response giving a sample N of 8518 aged 15 and over. The quality profile for the BHPS provides extensive statistics concerning sample representativeness across time (Lynn, 2003). Questions from the ISSP ‘kinship and friendship’ module were administered in face-to-face interviews in the 2001 wave.


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Gender and Kinship in Contemporary Britain 179

4. GEOGRAPHICAL MOBILITY

Geographical mobility is one of the most fiercely debated modernising influences on families. Many hypothesise that mobility is essential for the functioning of industrial and post-industrial economies (Beck 1992, Giddens, 1990) and geographical (and social) mobility supposedly leads to a decline in physical proximity to family (Willmott, 1986). It seems common sense to say that those who live further away from their families see less of them, but exactly what kinds of distances are we talking about? Comparing BSA and BHPS data over a 15 year period, we find very little change and most people (over 65%) continue to live within an hour’s travelling time of their mother (See Table 1). Table 1 Traveling time to non-resident mother All hour or less

BSA 1986 F M

All

BSA 1995 F M

BSA 2001 All F M

BHPS 2001 All F M

72% 74% 69% 66% 67% 65% 66% 69% 61% 70% 71% 69%

More than 28% 25% 31% 34% 33% 35% 34% 30% 39% 30% 29% 31% one hour Base n

617

303

314

984

538

446

452

266

186 3784 2062 1722

Bases refer to respondents with a non-resident mother

Of course, physical proximity does not in itself tell us about contact, but as can be seen from Table 2, over 70% of those who live within an hour’s travel time of their mother see her at least once a week. Again, we see little change over a 15 year period. In line with earlier research there is a noticeable gender difference emphasizing the continuing importance of the mother-daughter bond. For example, in BHPS 2001, 82% of women who live within an hour see their mother weekly, compared with 68% of men: that said, we should not allow this gender difference to eclipse the very high percentage of men who are also in frequent contact with their mother. Contact with fathers is somewhat less frequent. In BHPS 2001, 67% of those who live within an hour’s travelling time see him at least once a week. Moreover, it is interesting to note that 7% of those whose father is living never see him; the figure for mothers is 2%. There is much public concern about the societal implications of absent fathers, or fathers who have little contact with their families. These include worries ranging from social exclusion and crime to ‘laddism’ (Morgan, 2004). While it is beyond the scope of this chapter to explore


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180 Jane Nolan and Jacqueline Scott Table 2 Frequency of contact with mother by travel time BSA 1986 One hour or less All M

F

More than one hour All M

At least 77% 71% 83% 5% once a week

2%

F

BSA 1995 One hour or less All M

F


9% 73% 66% 79% 3%

3%

F 4%

At least 15% 16% 14% 14% 12% 19% 21% 27% 17% 24% 28% 20% once a month Less often/ 8% 13% 3% 80% 86% 72% 5.5% 7% Never

4% 73% 70% 76%

Base n

362

445

210

BSA 2001 One hour or less All M

235

F

173

94


At least 79% 73% 83% 3% once a week

4%

80

653

290

F

BHPS 2001 One hour or less All M

F

331

155


2% 76% 68% 82% 5%

4%

176

F 5%

At least 14% 18% 11% 25% 15% 34% 17% 23% 12% 22% 21% 24% once a month Less often 7% /Never

9%

6% 72% 81% 64% 7%

Base n

113

185

298

154

74

80

9%

6% 73% 76% 70%

2645 1185 1460 1140 538

603

Bases refer to those with a non-resident mother

these issues in-depth, we would note that our data indicates that while contact between adult-children and their fathers is not quite as high as with mothers, most people are indeed still in frequent contact with their fathers. The extent to which this changes for younger generations remains to be seen. Finally, while advocates of late modernity suggest that individualization leads to the ‘disembedding’ of people from the traditional ties of family (Giddens, 1990, Beck, 1992), it is worth pondering to what extent our figures indicate that travelling distances, at least between parents and adult children, may not be so very great as is generally presumed. It may be possible to argue that there has been a decrease in contact between extended family members, yet our data suggests that parent—adult child contact still seems to be robust. As Charles et al (2004) note, the theoretical assumption that occupationally driven geographic mobility is essential for industrial and post-industrial economies seems somewhat questionable.


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Gender and Kinship in Contemporary Britain 181 5. FREQUENCY OF CONTACT AND WOMEN’S PAID EMPLOYMENT

Besides geographical mobility, a second factor thought to be influencing kin contact is the increasing number of women who work outside the home. There has been a dramatic increase in female employment rates since the 1960s. For example, in the UK in 2000 65% of women aged 15–64 years were in employment (OECD 2000), up from 43% in 1960. In Lisbon in March 2000, the Heads of Governments of the European Union subscribed to the very ambitious target of raising the employment rate for women to 60 percent by 2010 (EC 2000). The UK, along with Nordic countries, is exceptional in having already met the target by 2000. In the UK, 65% of women aged 15–64 are working, with 40% of working women in part-time jobs. It is important to emphasise, however, that much of this change, in the UK, is in part-time employment, leading some commentators to note that the British case is one of a ‘modified male bread-winner’, or ‘one-and-a-half earner model’ (Crompton et al, 2005). It was assumed that as more women entered the labour market, men’s contribution to domestic labour would increase (Young and Willmott, 1973). Evidence on gender change in the domestic division of labour is, however, mixed, and this has implications for kin contact. Some argue that men are indeed taking on more responsibility for domestic work (Sullivan, 2000). Gershuny et al (1994) have suggested that a process of ‘lagged adaptation’ is taking place and that 10 years ago, at the time of their study, men were indeed taking on greater responsibility for domestic work. Others, however, are more sceptical. Crompton et al (2005) comparing ISSP data collected in 1989, 1994 and 2002, found that by 2002 the process of male ‘adaptation’ seemed to have come to a standstill. At a conceptual level, Thompson (1991) suggests that the ‘attentive and co-ordinative’ aspects of domestic labour, which includes activities such as keeping in contact with kin, can go unnoticed in research. Indeed, Warde and Hetherington (1993) note that the different types of evidence used in different studies makes it very difficult to assess gendered changes in domestic divisions of labour. Dixon and Wetherell (2004) note that studies of gender and domestic work should consider: ‘not only who is compared but also what is compared and how such contributions are attributed’ (p171). What are the implications of this gendered division of labour for kin contact? Comparing BSA data collected in 1986 and 1995, McGlone et al (1999) claim that there has been a decrease in contact with non-resident mothers among women working full-time. They argue that demands on women’s time from paid employment and from caring for their own families means they have less time for kin contact. McGlone et al (1999) suggested that kin contact could continue to decline if more women took up full-time work. Furthermore, this process may well be exacerbated if the process of male ‘adaptation’ has indeed reached a plateau. We explore these themes further by comparing BSA data collected in 1986, 1995 and 2001 and BHPS data in 2001. Our findings are shown in Table 3 .


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182 Jane Nolan and Jacqueline Scott Table 3 Women’s and men’s employment and contact with non-resident mother BSA 1986 % base n

BSA 1995 % base n

BSA 2001 % base n

BHPS 2001 % base

At least once a week Men All 50% In full-time work 46%

303 224

44% 46%

447 261

46% 45%

186 140

48% 48%

1732 1452

Women All 65% In full-time work 66%

316 90

55% 47%

539 161

58% 59%

266 114

60% 55%

2071 929

Men All 14% In full-time work 16%

303 224

27% 26%

447 261

17% 14%

186 140

22% 23%

1732 1452


316 90

18% 19%

539 161

18% 17%

266 114

16% 19%

2071 929

Men All 36% In full-time work 38%

303 224

29% 28%

447 261

38% 40%

186 140

30% 29%

1732 1452


316 90

27% 34%

539 161

24% 25%

266 114

25% 25%

2071 929

Once a month

Less often/never

Bases refer to those with a non-resident mother

The BSA sample sizes are very small and BSA 2001 is particularly difficult to interpret. Nevertheless, the data indicates that, indeed, while women engage in kin contact more than men, women who work full time have less contact with their mothers than women as a whole. However, it is clear that there is no substantive decline over the 15 year period under study. Thus, we would suggest that earlier comments that contact with kin amongst full-time working women would continue to diminish were perhaps premature. It would also appear that there is little sign of men becoming more involved in kin contact as a process of ‘lagged adaptation’ to women’s involvement in full-time work. (i) Other means of contact It is important to emphasise that relatives stay in contact with each other in diverse ways, not just through actual face-to-face visits. Mason (1999) highlights the importance of new technologies in maintaining kin contact, what she


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Gender and Kinship in Contemporary Britain 183 calls: ‘close ties at a distance’. Our analysis of the BHPS (2001) data shows that the telephone is a highly gendered means of keeping in touch with kin. We found that 34% of women are in daily contact with their mothers via telephone compared to just 12% of men. There is a gender difference of at least 20% in the 20–59 age range demonstrating the continuing importance of the motherdaughter link. Figures are much lower for fathers, though again women are at least twice as likely as men to phone their fathers daily. While email contact is still comparatively rare, future kin researchers may need to consider the role of new technologies, such as email and text messaging, in maintaining kin contact. In sum we find that both women and men are in frequent contact with their parents, though contact is more pronounced amongst women. While there is some indication that full-time working women see less of their mothers than other groups of women, our data seem to suggest that geographical distance is not a major impediment to kin contact.

6. GENDERED EXCHANGES ACROSS THE GENERATIONS

While contact offers us one indicator of the state of relationships between kin, we also need to consider the gendered nature of exchange across generations. To get some historical perspective it is useful to return to some of the studies mentioned earlier. We have seen that Young and Willmott’s (1957) study showed that the bond between mothers and daughters was particularly strong. Young and Willmott suggest the reason for this is that as the daughter was helped with her own children, so she took care of her mother when she became frail. Building on this work, Bell (1968) argued that exchanges between mothers and daughters were fewer in the geographically mobile middle class, whose kin-exchange was largely financial. He suggests that if finance is the main form of support, then kin research should place more emphasis on the father/in law—son/in law relationship because it is often through this link that financial support flows. Furthermore, most intergenerational exchange indicates that exchange is most likely to result in resources, either in time or money, flowing downwards from older to younger generations (Hagestad, 2000; Grundy, 2005; though see Grundy and Murphy, this volume, for a fuller discussion of this issue.) We turn to BHPS data collected in 2001 to look at the gendered nature of this exchange in Britain. Respondents were asked questions on the kinds of help provided for and received from, adult children and parents of adult children (See Appendix A). This yielded four sets of data: support for adult children, support for parents, support from adult children and support from parents. We report in Tables 4 and 5 the most important kinds of support offered for adult children and parents (the rank order is the same as the kinds of support received from adult children and parents and to avoid replication we will only describe this second set of data in the text to expand our arguments).


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184 Jane Nolan and Jacqueline Scott (i) Support FOR children Table 4 shows the types of support provided for non-resident adult children. Clearly, of course, types of support for children vary over the life-course, so let us consider the first two kinds of support in more detail.

Looking after their children: the role of grandparents Table 4 Support for Children BHPS 2001 Support FOR Children %

Men %

Women %

Looking after their children Financial help Provide or cook meals Give lifts in your car Decorate, garden, repair Shop for them Wash, iron, clean

52% 42% 31% 27% 24% 23% 18%

46% 50% 20% 33% 35% 19% 6%

57% 37% 39% 23% 15% 27% 27%

Base n

1894

808

1086

Bases refer to those with non-resident children over the age of 16.

The most frequently cited kind of support offered by parents to adult children is taking care of their children. We have seen that much research emphasizes the importance of the mother-daughter link in kin relations and Figure 1 shows that 70% of women aged 55–64 report looking after their children’s children compared with just over 50% of men in this age bracket. Moreover, when respondents were asked ‘what kind of help do you receive from your parents?’, we again found a gender difference with 55% of women in the 25–34 age range reporting receiving help from their parents in looking after their children compared with 38% of men in this group. While women give more, and receive more, of this kind of help, it’s important not to overlook the role of i) the father’s parents and ii) grandfathers generally. Attias-Donfut and Wolff (2000) find that while men are usually less involved in grandparenting than women, the presence of a grandmother makes grandfathers more involved. Although Brussoni and Boon (1998) suggest that young people feel closer to their grandmothers, particularly the maternal grandmother, than to grandfathers, other research, such as Ross et al’s (2005) study of relationships between grandparents and teenage grandchildren in Scotland, shows that close bonds clearly do exist between grandfathers and their grandchildren. We have already indicated that the role of grandparents in childcare can be linked to increased longevity and women’s involvement in the labour market.


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Gender and Kinship in Contemporary Britain 185 80 70 60 Male Female

50 40

%

30 20 10 0

Under 45

Men (n) 7 Women (n) 17

55–64

45–54 50 141

149 253

134 166

65–74

75+

30 44

BHPS 2001 respondents with a non-resident son and/or daughter over the age of 16. Figure 1 Percentage regularly or frequently taking care of grandchildren by age

However, it is also important to frame this relationship within an understanding of shifts in values in older generations. Some research shows that cohorts who grew up in the late 1960s may hold a more individualistic orientation than their own parents (Waerness, 1999). If this generation is more concerned with self-realization than earlier cohorts of grandparents, how might they feel about caring for grandchildren? Other research has shown that women in their 60s value freedom from family care as one of the advantages of being in this particular age group (Scott and Nolan, 2005). But we know little about how they feel about being drawn into a new round of child-care. No doubt many factors will influence their reaction including values, socio-economic status, ethnicity and health. Given that many governments are under pressure to reduce welfare budgets, there is a tendency to encourage the growth of informal support networks in relation to care. Obviously, this form of intergenerational support has policy and budget implications and we discuss these further in the conclusion. Financial help As in previous research we find that men are more likely to offer financial support than women in all age groups (see Figure 2). This largely mirrors research in the USA Germany and Norway (See Grundy (2005) for a review).


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186 Jane Nolan and Jacqueline Scott 70 60 50 40

Male Female

%

30 20 10 0

Under 45

Men (n) 25 Women (n) 30

55–64

45–54

119 162

133 111

83 60

65–74

75+

43 34

BHPS 2001 respondents with a non-resident son and/or daughter over the age of 16. Figure 2 Percentage regularly or frequently providing financial help to adult children

As discussed earlier, Bell (1968) argued that in the geographically mobile middle class, contact between mothers and daughters is lower and more emphasis should be placed on the father/in law son/in law relationship because it is through this link that financial aid flows. Yet while we find that fathers are more likely to provide financial aid, we also find that daughters over 35 are more likely to receive financial aid from their parents. 32% of women aged 45–54 receive financial support, compared with 26% of men in this age group. This may reflect the numbers of women in single-parent families turning to their parents for financial help. (To be explored through further analysis.) (ii) Support for Parents It is clear that parents are offering adult children a substantial amount of support in terms of time and money. But what sort of help do children provide to their parents? As can be seen from Table 5, we find that the number one kind of support offered by children to their parent is giving them lifts. If one subscribes to the theoretical principles of reciprocity and rational choice then this seems scant incentive for the parents of adult children; offer your time and financial aid to your adult children, and in return they’ll give you a lift. Of course, many other


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Gender and Kinship in Contemporary Britain 187 factors need to be brought into the equation, such as age and health of parent, socio-economic status and ethnicity before any further comment can be made. However, more detailed analysis of similar datasets in the USA and Britain has shown that, indeed, intergenerational exchanges do tend to flow downward rather than upward (Hagestad, 2000; Grundy, 2005). And, as far as gender is concerned, it is no surprise to find that women are more likely to shop for their parents, and men more likely to decorate: As discussed earlier, despite some small changes in the amount of time spent on domestic tasks, gender differences in the form domestic labour takes seem to be enduring (Crompton et al, 2005). Table 5 Support for Parents BHPS 2001 Support FOR parents %

Men %

Women %

Giving them lifts Shop for them Decorate Deal with personal affairs Provide or cook meals

56% 43% 43% 27% 22%

52% 33% 57% 25% 13%

60% 52% 31% 29% 29%

Base n

2003

880

1123

Base n refers to respondents with a non-resident parent

7. CONCLUSION AND POLICY IMPLICATIONS

Our findings indicate that many of the themes raised by earlier studies of gender and kinship still pertain today. The mother-daughter link is still strong;— women in full-time work appear to have less time for kin-contact; grandparents, particularly grandmothers, are an important source of childcare; men are more likely to provide financial support to adult children. What does this tell us about gender in contemporary Britain more generally? Women’s lives are becoming masculinised in the sense that employment outside the home is becoming the norm, and of course, time spent in paid employment reduces time available for other things, including kin-keeping. While some men may have taken on traditionally ‘female’ tasks, such as kin-keeping, there is evidence of a plateau having been reached in this area. What might account for this? Some argue that employment constraints on men and women offer a partial explanation. Ladipo and Wilkinson (2002) note that reduced trade union power, ‘high commitment’ management practices, and long working hours are leading to more work intensification as employers struggle for competitiveness in a global market. Nolan’s (2002) qualitative study shows how work intensification, particularly for those in ‘career’ jobs, often men, makes contact and involvement with family difficult due, in large part, to long hours and increased stress.


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188 Jane Nolan and Jacqueline Scott Employment constraints don’t offer us a complete account however. Others pursue an essentialist line, arguing that women’s ‘moral rationalities’ clash with the ‘adult worker’ model promoted by government and that women ‘naturally’ choose to put kin and family first (Duncan and Edwards, 1999). This position is supported to some extent by Hakim’s (2000) argument that only a minority of women are work-centred. Hakim’s argument is complex and all too often caricatured, but, while allowing a role for social forces in shaping individuals, part of her explanation of gender difference is sociobiology. For Hakim, both between group differences (between men and women) and within group differences (between different women) are, to some extent, determined by differences in testosterone levels. As evidence for this, Hakim (1996) discusses certain ‘real life’ examples of women receiving testosterone injections as part of a sex-change operation: ‘Women who change over to being men are amazed to discover they go out into the world charged with aggressive energy when they start taking the testosterone tablets, wanting to fuck everyone and fight everything.’ (Hakim, 1996 p 205).

Hakim’s work has provoked heated debates among academics not least because she suggests that ‘feminists’ (whom she does not name) have, for political reasons, expounded ‘fashionable but untrue’ ideas concerning women’s preferences. Their reason for this, she claims, is to ‘dictate’ that ‘women are victims who have little or no responsibility for their situation’ (Hakim 1995, p 448). There have been a number of critical responses to her work (Bruegel, 1996; Ginn et al, 1996; Crompton and Harris, 1999; Schiebal, 1999) each of which defend the ‘feminist’ position by, principally, claming that academic feminists have never suggested that women were homogenous in their values and preferences and, secondly, questioning some of her empirical procedures (e.g. treating hours worked as more important than number of jobs). Put in a wider context, however, the debates relate to what constitutes ‘choice’ in the arena of paid work and family. Lewis and Giullari (2005) argue that the ‘choices’ faced by women and men are shaped by the degree to which policies address domestic work, (which must include kin contact) as well as policies aimed at promoting the position of women in the labour market. They argue that choice can only be ‘genuine’ when there is a rebalancing of unpaid work, not just between women and men, but between women, men and market and state. This introduces the hoary old issue of: ‘how to reconcile choice and equality and what kind of state intervention can be justified’ (Lewis and Giullari, 2005, p 79). Government clearly sees the difficulties women face in ‘reconciling’ work and family, yet there is a reluctance to introduce legislation to enforce so-called ‘work-life balance’. Instead, policymakers prefer to use the ‘business case’ argument to encourage organizations to help their employees, arguing that this is a ‘win-win’ scenario where business ‘wins’ by keeping skills. But is it not common


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Gender and Kinship in Contemporary Britain 189 knowledge that businesses act in their own self-interest? It has been shown that organization-based ‘family-friendly’ policies follow the ebb and flow of the business cycle and are thus not able to provide long-term support to employees. If the policies, or the organization itself, cease to be economically viable then the support is terminated (Scheibl and Dex, 1998). While it is important to emphasize that some groups may prioritize either work or home (Hakim, 2003), such preferences can only be considered ‘choices’ when the constraints on groups, ideological and financial, are equivalent. In Spain, however, there has been legislation to address the gender imbalance in work-family reconciliation, but not, as one may have expected, at the organisational level. In 2005, the so-called ‘housework law’ was introduced. The Spanish marriage contract now contains a pledge that the couple should share domestic work and the care of children and elderly family members (Tremlett, 2005). Failure to honour the pledge will be considered by judges in divorce cases and partners who fail to share domestic work and child care during their marriage could find that they are given less frequent contact with their children postdivorce. Of course, the imposition of gender equality measures by the state does not guarantee social change. As Valiente (2005) notes, while successive Spanish governments have actively promoted gender equality policies, Spanish society is still marked by grave difficulties in this area, not least the high levels of domestic violence. Nevertheless, Margarita Uria, of the Basque Nationalist party, the key driver behind the new law, defended its introduction by claiming that the law ‘sends a message’ and is ‘a good way of reminding people what their duties are’ (Tremlett 2005). In this sense it may be considered an example of rhetorical law, as White (1987, p 684) argues ‘Law is most usefully seen not as a system of rules, but as a branch of rhetoric . . . as a central art by which community and culture are established, maintained and transformed’.

We also urgently need to know much more about how grandparents view their roles and ‘choices’. While older people are usually portrayed as the recipients of care, the role of grandparenting clearly demonstrates the productive, if unpaid, role of older people. Hagestad (2000), for example, quotes research from the US which estimates that grandparents’ childminding is worth $20 billion a year (Bass & Caro, 1996). Positive age initiatives by the DTI seem to be committed to extending both men and women’s employment careers and countering the popularity of early retirement; thus the availability of grandmothers (and grandfathers) as alternative low cost quality childcare may well dry up as men and women continue paid employment beyond age 65. Moreover, if changes in kinship structure mean that grandparents are more likely to find themselves losing contact with their grandchildren, their growing strength as a forceful lobbying group may lead to changes in legislation to counteract this (Hill 2002; Purnell and Bagby, 1993). Issues surrounding grandpar-


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190 Jane Nolan and Jacqueline Scott ents’ rights are growing for several reasons. At present, grandparents in the UK have no automatic right to contact with their grandchildren. While estranged parents have a right to go to court to gain access, grandparents must gain permission from the court to apply for contact. Three grandparent pressure groups, the Grandparents Association, Grandparents Plus, and the Family Rights Group have recently published a ‘call to arms’ which aims to lobby government to review the requirement that grandparents must apply for permission from the court. The groups argue that the importance of extended kin is such that their right to contact should be the same as the rights of parents (Grandparents Plus, 2005). We have seen that alterations in kinship mean that the ‘unpaid army’ of grandparents plays an increasingly important economic and social function. As such, the grandparents’ lobby is keen to strengthen their position in law. To conclude, let us consider some more general questions. If women’s lives have to some extent become more ‘masculinized’, Esping-Andersen (2005) poses the question: can men be made to feminize their biographies? Can incentives be put in place that would be more compatible with a feminized male approach to work and family? If men were to become more fully engaged in childcare responsibilities, would this extend to other aspects of kin contact and care? The feminisation of male kin scripts, however, is not just about taking breaks from work for childcare, or early exits for eldercare. Breaking down the gendered nature of kin keeping would entail men initiating more of the contact and taking responsibility for more of the kin exchange. It would also mean adjusting a range of economic, employment and ideological constraints in order to allow this to happen. As Lewis and Giullari (2005) note, given the labour force emphasis of much policy-making in this area, at both the British and European level, then such change seems highly unlikely. As a concluding comment, we would argue that the theoretical suggestion that modernity has freed people from historically prescribed roles (Beck and Beck-Gernsheim, 2004) is precipitate: kinship contact and exchange still largely follow gendered pathways, if in a somewhat modified form.

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192 Jane Nolan and Jacqueline Scott GRUNDY, E, ‘Reciprocity in Relationships: Socio-economic and Health Influences on Intergenerational Exchanges between Third Age Parents and their Adult Children in Great Britain’ (2005) 56 The British Journal of Sociology 233. HAGESTAD, G, ‘Intergenerational Relationships, Gender and Generations Programme’, United Nations, European Commission for Europe/ Population Activities Unit (2000) http://www.unece.org/ead/paug/gg/hagestad.pdf accessed 20 December 2005. HAKIM, C, ‘Five Feminist Myths about Women’s Employment’ (1995) 46 British Journal of Sociology 429. —— Key Issues in Women’s Work (London, Athlone, 1996). —— Work-lifestyle Choices in the 21st Century (Oxford, Oxford University Press, 2000). —— Models of the Family in Modern Societies: Ideals and Realities (Aldershot, Ashgate, 2003). HILL, T, ‘The Underlying Factors of Grandparent Legislation’ (2002) 16 Journal of Aging Studies 259. LADIPO, D and WILKINSON, F, ‘More Pressure, Less Protection’, in B Burchell, D Ladipo, and F Wilkinson (eds), Job Insecurity and Work Intensification (London, Routledge, 2002) 8 LEWIS, J and GIULLARI, S, ‘The Adult Worker Family, Gender Equality and Care: The Search for New Policy Principles and the Possibilities and Problems of the Capabilities Approach’ (2005) 34 Economy and Society 76. LYE, D N, ‘Adult Child-parent Relationships’ (1996) 22 Annual Review of Sociology: 79. LYNN, P, (ed) ‘Quality Profile, British Household Panel Survey’ (2003) http://www.iser.essex.ac.uk/ulsc/bhps/quality-profiles/BHPS-QP–16–4-03v3.pdf. accessed 20 December 2005. MASON, J ‘Living Away from Relatives: Kinship and Geographical Reasoning’ in S McCrae (ed), Changing Britain: Families and Households in the 1990s (Oxford, Oxford University Press, 1999) 156. McCLONE, F, PARK, A, and ROBERTS, C ‘Kinship and Friendship: Attitudes and Behaviour in Britain, 1986–1995’ in S McCrae (ed), Changing Britain: Families and Households in the 1990s (Oxford, Oxford University Press, 1999) 141. MORGAN, D, ‘Men in Families and Households’ in J Scott, J Treas and M Richards (eds) The Blackwell Companion to the Sociology of Families (Oxford, Blackwell, 2004) 374. MURPHY, M and GRUNDY, E, ‘Mothers with Living Children and Children with Living Mothers: The Role of Fertility and Mortality in the Period 1911–2050’ (2003) Population Trends 112: 36. ——, ‘Models of Kinship from the Developed World’ in S Harper (ed), Families in Ageing Societies (Oxford, Oxford University Press, 2004) 31. NOLAN, J, ‘The Intensification of Everyday Life’ in B Burchell, D Ladipo, and F Wilkinson (eds), Job Insecurity and Work Intensification (London, Routledge, 2002)112 OECD Employment Outlook (Paris 2000) OWEN, C et al, ‘Wider Family’ in S Dex and H Joshi (eds), Millennium Cohort Study First Survey: A User’s Guide to Initial Findings (London, Centre for Longitudinal Studies, 2004) http://ioewebserver.ioe.ac.uk/ioe/cms/get.asp?cid=6194&6194_0=9274 accessed 20 December 2005


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Gender and Kinship in Contemporary Britain 193 POPENOE, D, ‘American Family Decline, 1960–1990—a Review and Appraisal’ (1993) 55 Journal of Marriage and the Family 527 PURNELL, M, and BAGBY, B, Bagby, ‘Grandparents’ Rights: Implications for Family Specialists’ (1993) 42 Family Relations 173 ROSS et al, ‘Relationships Between Grandparents and Teenage Grandchildren: Research Briefing 23’ (Glasgow, University of Glasgow, 2005) http://www.gccs.gla.ac.uk/ docs/pdf/Grandparents Teen Children.pdf accessed 20 December 2005 ROSSER, C and HARRIS, C, The Family and Social Change: A Study of Family and Kinship in a South Wales Town (London, Routledge, 1983) SCHEIBL, F, ‘Self Made women, Agency and Work Commitment’ (1999) 2 Community, Work and Family 117. —— and DEX, S, ‘Would More ‘Family-Friendly’ Working Arrangements Benefit Business and Families?’ (1998) Working Paper No. 106 ESRC Centre for Business Research, University of Cambridge SCOTT, J. and NOLAN, J, ‘Ageing Positive? Not according to the British Public’ (2005) ESRC Gender Equality Network Working Paper No. 7 http://www.genet.ac.uk/workpapers/GeNet2005p7.pdf accessed 20 December 2005 SULLIVAN, O, ‘The division of domestic labour: twenty years of change?’ (2000) 34 Sociology 437. TAYLOR, M, (ed), British Household Panel Survey User Manual Volume A: Introduction, Technical Report and Appendices (Colchester, University of Essex, 2005). THOMPSON, L, ‘Family Work: Women’s sense of fairness’ (1991) 12 Journal of Family Issues 181. TREMLETT, G, ‘Blow to Machismo as Spain Forces Men to do Housework’ Guardian (London, 8 April, 2005) http://www.guardian.co.uk/spain/article/0,2763,1454802,00. html accessed 21 December 2005 VALINETE, C, ‘Central State Gender Equality Policy in Spain: Beyond Symbolic Reform?’ (Paper presented at the European Science Foundation SCSS Exploratory Workshop: Revisiting the Concept of Contract and Status under Changing Employment, Welfare and Gender Relations, Institute of Development Studies, University of Sussex, 2005). WAERNESS, K, ‘Aging and Modernization in the Nordic countries’ in S Gronmo and B Henrichsen (eds), Society, University and World Community (Oslo, Scandinavian University Press, 1997) 152 WARDE A, and HETHERINGTON, K ‘A Changing Domestic Division of Labour? Issues of Measurement and Interpretation’ (1993) 7 Work, Employment and Society 23 WHITE, J, ‘Rhetoric and Law: The Arts of Cultural and Communal Life’ (1985) 52 University of Chicago Law Review, 684. WIDMER, E, ‘Couples and their Networks’ in J Scott, J Treas, and M Richards (eds), The Blackwell Companion to the Sociology of Families (Oxford, Blackwell, 2004) 356. WILLMOTT, P, Social Networks, Informal Care and Public Policy (London, Policy Studies Institute, 1986) YOUNG, M and WILLMOTT, P, Family and Kinship in East London (London, Routledge, 1957) —— The Symmetrical Family (London, Routledge, 1973)


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Appendix A Travelling time to non-resident mother Question: About how long would it take you to get to where your mother lives? Think of the time it usually takes door to door. Response options: Less than 15 minutes; Between 15 and 30 minutes; Between 30 minutes and one hour; Between one and two hours; More than two hours Frequency of contact with non-resident parent Question: Thinking first of your mother. Please look at this card and tell me how often you a) See your mother b) Have contact by telephone c) Have contact by email Response options: Daily; At least once a week; At least once per month; Several times per year; Less often; Never Question repeated about contact with non-resident father Exchanges across generations Question: Nowadays, do you regularly or frequently do any of the things listed on this card for your children who are not living here? Response options: Giving them lifts in your car; Shopping for them; Providing or cooking meals; Looking after their children; Washing, ironing or cleaning; Dealing with personal affairs; Decorating, gardening or house repairs; Financial help; Anything else (Please specify); None of these. Question repeated about help that you receive from children Same sequence of questions repeated for things that you do and receive from parents

(K) Ebtehaj et al Ch10

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10 Kin Availability, Contact and Support Exchanges Between Adult Children and their Parents in Great Britain EMILY GRUNDY AND MIKE MURPHY 1

1. INTRODUCTION

T

HE AGEING OF Europe’s populations has led to increased interest and concern about the support of older people and the respective roles of family, state and market in providing this. Reasons for this concern arise not just from demographic change, but also from perceptions that interrelated changes in family related behaviour, particularly increases in nonmarital childbearing, divorce and re-marriage, may be both a symptom of and a contributor to weakening family bonds (European Commission, 1995). Although much of this debate has focussed on the needs of older people, extended education, difficulties in establishing careers, and increases in lone parenthood and marital disruption, suggest that the needs of the young for support from the old are also increasing and the literature on intergenerational support exchanges suggests that the balance of transfers is downward until at least age 60 or 70 (Cox and Rank, 1992; Grundy, 2005). Declines in mortality mean that the adult child-parent relationship is one of longer duration than in the past and this relationship has implications for the quality of life of those in both generations (Hogan et al, 1996; Gierveld, 2003) which provides a further reason for needing to know more about it. Demographic research on the family has traditionally focused on the analysis of family and household formation, change and dissolution with an emphasis on co-resident parent-child or husband-wife configurations. However, in the context of changing demographic, social and economic parameters, there is a need for a shift of focus towards intergenerational family support transfers that extend beyond the household (Soldo and Hill, 1993). Given concerns about the implications of changing partnership 1 Research supported by the UK Economic and Social Research Council Grant reference numbers R000237776 and R000237076


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196 Emily Grundy and Mike Murphy patterns, understanding the associations between these and intergenerational transfers is of particular importance. Information about variations in patterns of interaction between socio-economic groups is also needed in order to identify groups most likely to lack intergenerational support and to inform discussion about future trends in the context of changes in, for example, the composition of the population by educational status. In this chapter we present results from a nationally representative survey on kin availability, contact, and help provision conducted in Britain in 1999 which we have used to investigate sociodemographic and socio-economic variations in proportions with a living parent/living adult child and variations in contact and support exchanges between adult children and elderly parents. We focus particularly on variations according to the marital history and status of both child and parent and differences between socio-economic groups.

(a) Socio-economic status, kin availability and contact with kin A prerequisite of interaction with a specified relative is existence of the relative in question and there are known socio-economic variations in availability of close kin (Henretta et al, 2001). The availability of various types of kin at different stages of the life course is determined by patterns of fertility, mortality and—in many cases—marriage. All of these are known to vary by socioeconomic status. In Britain, as elsewhere, lower socio-economic status is generally associated with earlier partnership formation and childbearing, and slightly higher fertility overall (Ní Bhrolcháin, 1993); we would therefore expect those in lower status groups to have more children and, because of inter-generational associations in socio-economic status, more siblings. Mortality rates are lower in higher status groups (Kunst and Mackenbach, 1994) which would imply greater availability of living parents, and other older generation kin, among such adults. However, this effect is offset to some extent by later childbearing and consequent larger inter-generational age gaps (Henretta et al, 2001; Murphy and Grundy, 2003). Marriage patterns also vary by socio-economic status with, in Britain, slightly higher risks of divorce among those in less advantaged socioeconomic groups (Murphy, 1985; Berrington and Diamond, 1997). Apart from these demographic constraints, more educated and financially advantaged groups may have networks and aspirations which extend further beyond the family than those of less well educated groups, including a tendency to wider geographic dispersion. Longer distance migration which, as discussed by Nolan and Scott (this volume), is a powerful influence on intergenerational proximity, is strongly associated with socio-economic status, and the most highly educated adult children are least likely to live close to their parents (Shelton and Grundy, 2000). Such differences may partly account for research findings which suggest a greater predominance of relatives in the social networks of less highly educated groups (Willmott, 1986). There is also a growing body of research


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Kin Availability, Contact and Support Exchanges 197 showing variations in patterns of intergenerational support by sociodemographic characteristics, particularly partnership history. Studies from the United States, the Netherlands and elsewhere suggest that divorced parents, particularly divorced fathers, have less contact with their adult children than parents of other marital status (Furstenberg et al, 1995; Dykstra, 1998; Barrett and Lynch, 1999; Tomassini et al, 2004). One US study, however, reported that the proximity of adult daughters to their mothers (but not fathers) was positively associated with the mother being divorced (Rogerson, et al, 1993). Several factors may underlie these associations. On the one hand, divorced parents without a partner may be perceived to have greater needs for support and social exchange with their adult children (and more time to initiate and maintain exchanges), prompting their children to visit more often and provide more help. On the other, adult children may have weaker or less positive bonds with parents if there is a history of marital conflict between parents, and/or absence/repartnering of the parent, and may feel less commitment to a parent such as a father who was absent during their childhood. Other influences, particularly gender, are undoubtedly important as well (see Nolan and Scott, this volume). The effects of the adult child’s own partnership characteristics on their relationship with their parents, which have been less frequently studied, are also likely to be variable. Divorce may precipitate a return to the parental home and divorced children are more likely to live with their parents than married children of the same age (Ward et al., 1992; Grundy, 2000); this in itself is clearly likely to involve more interaction and exchange, but is a reflection of the needs of the adult child, rather than those of the parent. In terms of socio-economic differentials in transfers from children to parents, in general, the literature suggests that it is less well-educated children with fewer resources who are more likely to provide help to parents (Grundy, 2005). However, when viewed from the perspective of the older generation, differentials appear to be reversed, in that better off parents (at least among those in early old age) are more likely to help children than the less advantaged both financially (Kronebusch and Schlesinger, 1994; Pezzin and Schone, 1999) and with practical help (Henretta et al, 2002; Grundy, 2005). However, as discussed below, most British studies have had to rely on data sets that are either too small to allow examination of differences by socio-economic status or marital history or have been restricted to one particular age group. As a result there are many unanswered questions about interactive effects of marital histories of both parent and child generations and socio-economic influences.

(b) Kin availability and kin exchange among older adults in Britain Information on kin support in Britain has been restricted by the lack of data sets of sufficient size that include information on exchanges involving non-co residents and, even more fundamentally, by limited knowledge of what proportion


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198 Emily Grundy and Mike Murphy of the population has relatives of particular kinds at various stages of life. Smallscale anthropological studies have provided a number of useful insights into kin exchanges and, as Finch (1989a) has shown, have a number of common findings. However, the results do not allow us to generalise or to rigorously examine differences between groups. These latter two limitations largely apply also to the range of larger studies based on random samples of particular populations (such as those in one locality), (Townsend, 1957; Townsend and Wedderburn, 1965; Wenger 1984, Bowling et al, 1995; Bernard et al, 2001), especially as there is evidence of geographic variations within Britain in patterns of kin exchange (Hunt 1978; Grundy and Shelton, 2001). Moreover, few of these localised studies collected comprehensive information on availability of living relatives. There are a few British national data sets that include some relevant information, notably the British Household Panel Study and the 1986, 1995 and 2001 rounds of the British Social Attitudes Survey (Finch, 1989b; McGlone et al, 1996; Nolan and Scott, this volume). However, these data sets are too small to allow detailed analysis of sub-groups. The Retirement and Retirement Plans Survey and follow-up (Disney et al, 1997) includes information on kin availability and on family contact and support exchange and has been used to investigate sociodemographic differentials in both (Henretta, Grundy and Harris, 2002; Grundy, 2005). However, it is restricted to one age band (adults aged 55–69 in 1988). These data limitations mean that relatively little is known about the effects of partnership status and history on intergenerational family related behaviours in contemporary Britain or indeed about socio-economic influences on interaction with kin at different stages of the life cycle. To answer questions about the effect of socio-economic and partnership characteristics on kin availability and interaction, we commissioned The Office for National Statistics (ONS) to include a special module on kin and kin exchange in two rounds of the 1999 Omnibus Survey. The module included questions on existence and demographic characteristics of, proximity to, and contact with specified close relatives. Additional questions were asked about help given and received with certain activities and with money. First results reported elsewhere (Grundy, et al, 1999) showed that nearly all adults in contemporary Britain had either a living parent or a living child, and many had both. The proportion lacking one or other of these relatives was highest among those aged 70 and over, few of whom still had living parents. Half or more of those who had a mother, father or eldest child alive saw them at least once a week with this proportion being slightly higher among women. Half of those with these relatives lived within half an hour’s journey time of them. In this chapter we use this data set to analyse socio-demographic variations in kin availability and kin exchanges involving older people. We firstly examine availability of, and contacts with, parents or children by age, gender and level of education. Secondly, we analyse differentials in adult children’s contacts with, and provision of help to, their parents according to indicators of socioeconomic status and partnership status of both adult children and their parents.


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Kin Availability, Contact and Support Exchanges 199 On the basis of the literature and known socio-economic variations in fertility and mortality, we expected to find lower rates of proximity and contact with parents among respondents with higher levels of education and other indicators of higher socio-economic status. Although, as noted above, the heightened support needs of divorced children may sometimes lead to closer ties with parents, in other cases we hypothesised that parental disapproval of marital disruption and other ‘non standard’ family patterns, such as cohabitation, could weaken ties, especially where the parents’ and child’s history and values diverge. We also hypothesised that parental, particularly paternal, marital disruption and repartnering would be associated with less contact with children but that these associations might vary with socio-economic status.

2. DATA AND METHODS

The Omnibus Survey conducts approximately 1,800 interviews each month with adults living in private households in Great Britain using a stratified random sampling design. One adult (aged 16 years or over) is randomly selected per household for inclusion in the survey (weighting is used to correct for unequal probability of selection caused by including only one adult per household). Our kinship module was included in the 1999 January and February samples that together comprised 5,388 eligible addresses. Interviews were achieved with 3,651 individuals, a response rate of 68%. It is possible that the response rate was higher among those who were more ‘family orientated’ in which case our results will slightly over-estimate amounts of contact and exchange. The Omnibus Survey includes in every round a core of questions on sociodemographic and economic characteristics. The kin module we designed included questions about the existence of specified types of living kin, namely grandparents, parents, children, grandchildren, siblings, and nephews and nieces. Resource constraints and the need to keep the questionnaire to a manageable length meant it was not possible to ask for information about contacts with all these relatives. Instead we confined our more detailed questions to a sub set of kin comprising mothers, fathers, eldest sibling, eldest child, and eldest grandchild. ‘Eldest’ was used as a way of identifying a specific relative to ask about as requiring interviewers to choose one at random, although preferable, would have added considerably to fieldwork costs. Respondents were asked about proximity to these specified relatives, frequency of contact, and provision and receipt of certain kinds of help. Information on proximity was restricted to a question on whether the respondent could reach the relative in question within half an hour, using their usual form of transport. The question on contact asked for information on frequency of face-to-face and other types of contact, such as by telephone. Respondents were asked about ‘help you have provided/received regularly over the past 12 months’ with giving lifts; shopping; providing or


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200 Emily Grundy and Mike Murphy cooking meals; looking after children; giving or lending money; washing, ironing or cleaning; paperwork; decorating, gardening or house repairs; or anything else. These questions on help were modelled on those used in the Retirement Survey and have also been used in the British Household Panel Study (Nolan and Scott, this volume). We first present data on the proportions with parents/children and the proportions with frequent contact (face-to-face and of any kind) with a parent/eldest child for all sample members, including those lacking the relative in question. We next examine variations in contacts and provision of help by socio-economic and marital status characteristics; differences by marital status/history of both child and parent generations; and by social class and broad region of residence of the child. In the multivariate analysis that follows, we use logistic regression to analyse variations in face-to-face contact with, and help given to, mothers and fathers; these analyses are restricted to people who had the relative in question.

(a) Co-variates used in the analysis The indicators of socio-economic status used were Registrar General’s (RG’s) Social Class (based on current or last occupation), and age at completing full-time education. The RG’s Social Class schema allocates people to six groupings based on occupation. Social Classes I and II comprise professionals, senior managers and large scale employers, and intermediate status white collar workers, such as teachers and nurses. Social Classes IIIN and IIIM comprise respectively non-manual and manual skilled workers. Social Classes IV and V refer to semi-skilled and unskilled manual workers. This classification has been very recently replaced by a new one which places less emphasis on the non-manual/manual divide and more on actual job content. However the RG scheme was the one in operation when our data were collected and has been very widely used in British studies of differentials in, for example, mortality and fertility. Three educational groups are distinguished; those who left school at the legal minimum school leaving age at the time; those who completed their education at some point between this minimum and age 19; and those who completed at age 19 or older. As the minimum school leaving age has changed (for example, an increase from age 14 to age 15 in 1946, and from 15 to 16 in 1974) this measure adjusts for different cohorts’ experiences. (In the Figures, for clarity, we show only two groups: those with median or above age at leaving full-time education within their age cohort, and those below it, but all three categories are used in the multivariate analyses.) In the analysis of marital status we took account of the characteristics of both the respondents and their parents. A four-fold classification of respondents was used which distinguished the currently married; the currently cohabiting; those who were single (never-married); and those who were divorced, separated or widowed. As we were particularly interested in whether children’s interactions


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Kin Availability, Contact and Support Exchanges 201 with parents were influenced by parental marital disruption and repartnering, the categorisation used for parents was slightly different and distinguished those in first marriage; the remarried; widows and widowers; and other unmarried groups (never-married, divorced and separated). Other variables considered include age, number of children under 16 in the respondent’s household, number of siblings, an indicator of proximity to parents’ homes, and residence in the southern or northern parts of Great Britain. The ‘Southern’ grouping includes Greater London, the South East and the South West, and the ‘Northern’ grouping includes the rest of England, Wales and Scotland. In general the South is more densely populated, has higher economic growth and higher proportions of in-migrants (both internal and international), although it must be recognised that these very broad regions are heterogeneous. The sample characteristics are summarised in Table 1. Table 1 Sample Characteristics Variable

Percent of cases*

Education of respondent

Variable

Percent of cases*

Marital status of father

High Medium Low

20 32 48

First marriage 72 2+ marriage 13 Divorced/ separated / never married 5 Widowed 11

Number of children under 16 in respondent’s household 0 1 2 3 or more

70 12 13 5

Marital status of mother First marriage 59 2+ marriage 11 Divorced/ separated / never married 5 Widowed 25

Sex of respondent Male Female

46 54

Contact with father Co-resident Sees weekly (not co-resident) Other weekly contact (not face-to-face) Sees/contacts less frequently Father dead

Social Class of respondent I and II (Professional and intermediate) IIIN-M (Skilled non-manual) IIIM (Skilled manual) IV and V (Semi- and unskilled Unclassified

36 23 18 20 2

2 18 8 9 63

Contact with mother Co-resident Sees weekly (not co-resident)

3 26


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202 Emily Grundy and Mike Murphy Table 1 Sample Characteristics (cont.) Variable

Percent of cases*

Marital status of respondent Married Cohabiting Single Divorced/ separated/ widowed

68 7 10 15

Number of siblings

Variable

Percent of cases*

Contacts weekly (not face-to-face) Sees/contacts less frequently Mother dead

12 11 48

Father lives within 1⁄2 hour Yes No

57 43

None One

9 27

Mother lives within 1⁄2 hour

Two or more

64

Yes No

South

36

Help given to father

North

64

Yes No

48 52

Help given to mother Yes No

63 37

62 38

Lives in North or South

Notes: based on a total of 3,212 weighted observations of respondents aged 25 and over. Distributions are based on non-missing cases for each variable, therefore variables relating to parents exclude those without a living father/mother apart from the contact variables.

3. RESULTS

(a) Variations in kin availability Figures 1(a) to (d) show what proportion of the sample had at least one living parent or child; what proportion had at least weekly face-to-face contact (including co-residence) with a parent/eldest child; and what proportion had at least weekly contact of any kind, by age, sex and educational level. The results have been smoothed in order to reduce fluctuations due to sampling variation. These data are cross sectional so variations between age groups reflect differ-


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Kin Availability, Contact and Support Exchanges 203 ences between birth cohorts included in the sample, as well as age related changes. Figures 1 (a) and (b) show that differences between educational level groups in the proportions with a parent alive were small, although in multivariate analyses we found that they were statistically significant. Interaction with parents varied much more substantially (these proportions refer to all respondents, not only to those who have a living parent). Rates of face-to-face contact between younger people and their parents were markedly lower among the better educated. For example, about half of better-educated women and men in their early 30s saw their parents at least once a week, compared with about three-quarters of lower-educated women (Figures 1(a) and (b)). Variations by age and educational level in face-to-face contact with parents were broadly similar for sons and daughters between the ages of 30 and 45, although male rates were typically about 10 percentage points lower and among daughters the gap between the higher and lower educational groups was slightly greater. Differences by educational level were smaller at older ages and indeed disappear altogether for daughters aged 50 and over. At all ages, there was much less difference between educational level groups in proportions with at least weekly contact of any kind (including face-to-face), although for women aged under 40 there is a noticeably higher proportion with frequent contact among those with lower levels of education. Turning to whether people have children and to reported contact with children (more precisely, with the eldest child), Figures 1 (c) and (d) show that at younger parental ages, the proportions with at least one living child are much smaller among the better-educated. Around age 40, nearly 90% of less-educated women reported having a living child, compared with three quarters of bettereducated women, and indeed at this age the proportion of less-educated women who saw their eldest child at least weekly was higher than the proportion of more highly educated women who had a child at all. Fewer men than women reported having a child, reflecting both later ages at paternity than maternity and probably also underreporting of paternity by estranged fathers (Rendall et al, 1999). As for women, there was a large difference between educational groups in the proportion of men seeing their eldest child at least weekly. Differences between educational groups in the proportions with any kind of weekly contact were considerably smaller than differences in the proportions with face-to-face contact suggesting some substitution of other forms of contact for face to face meetings among the more highly educated. Results from a logistic regression model (not shown here) of the proportion of respondents aged 25 and over who had a living mother/father, with and without parental age at the child’s birth included, confirmed this pattern and showed that the chance of having a parent alive, whether mother or father, was lower for those of lower socio-economic status and for those living in the North of Britain, reflecting socio-economic and geographic variations in mortality. The effect of these socio-economic and geographic covariates was larger when


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204 Emily Grundy and Mike Murphy parental age at respondent’s birth was included in the model, indicating that older age at parenthood partially offsets the effect of lower socio-economic status. However, as Figure 1(a) and 1(b) show, the differentials in availability of a mother or father are not large when compared with differentials in contact with parents. Patterns of reported contact by parents with their children were very similar to those reported by children with their parents; this is reassuring as it suggests a consistent pattern of reporting of parent-child contact by both groups.

(b) Variations by other socio-economic characteristics and by partnership status of children and parents. In the following sections, we report analyses of variations in the proportions with frequent face-to-face contact and in the proportions providing help of various kinds. We have chosen to focus on child to parent interaction, rather than the converse, because of public policy concerns with the support of older people and because most previous studies have focussed on the converse perspective. However, differentials viewed from either generational perspective should be broadly similar, as already evidenced in the comparative information presented in Figure 1.

Fig 1(a) Proportions with living parent(s) and at least sees/contacts weekly by age and education level, Males, Omnibus Survey, 1999 100

80

Percent

60

40

20 High education: Has parent High education: Sees weekly High education: Weekly contact

0 25

30

35

40

Low education: Has parent Low education: Sees weekly Low education: Weekly contact 45

Age

50

55

60


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Kin Availability, Contact and Support Exchanges 205 Fig 1(b) Proportions with living parent(s) and at least sees/contacts weekly by age and education level, Females, Omnibus Survey, 1999 100

80

Percent

60

40

20 High education: Has parent High education: Sees weekly High education: Weekly contact

0 25

30

35

40

Low education: Has parent Low education: Sees weekly Low education: Weekly contact 45

50

55

60

Age

Fig 1(c) Proportions with living child(ren) and at least sees/contacts weekly by age and education level, Males, Omnibus Survey, 1999 100

80

Percent

60

40

20 High education: Has child High education: Sees weekly High education: Weekly contact

0 40

50

60 Age

Low education: Has child Low education: Sees weekly Low education: Weekly contact 70

80


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206 Emily Grundy and Mike Murphy Fig 1(d) Proportions with living child(ren) and at least sees/contacts weekly by age and education level, Females, Omnibus Survey, 1999 100

80

Percent

60

40

20 High education: Has child High education: Sees weekly High education: Weekly contact

0 40

50

60

Low education: Has child Low education: Sees weekly Low education: Weekly contact 70

80

Age

Notes: High education includes those at or above median terminal educational age decile; Low education includes those below the median. Sees weekly includes co-resident; weekly contact includes all forms of contact

Table 2 shows the proportions of adult children who saw a parent at least weekly and the proportion regularly providing help to a parent by Social Class and region of residence of the adult child. The analysis is restricted to those with a mother/father alive and distinguishes contact with mothers and with fathers. We confine these analyses to respondents aged 25 and over as we wished to examine interactions between ‘independent’ adults and a large proportion of children aged under 25 were still living in the parental home. The small proportion of children aged 25 and over living with a parent have been excluded since the factors that affect whether a person is still living with parents beyond age 25 are likely to be different from those associated with seeing parents who live elsewhere (Grundy, 2000). It can be seen that in both broad age groups considered, the proportions with this level of frequent contact were lowest for children from Social Classes I or II; among those aged 25–39, those from these social groups were also less likely than others to be providing regular help to a parent. In both age groups, higher proportions regularly helped mothers than fathers. Differences by broad region of residence in proportions seeing their parent at least once a week were quite large, with those living in the Northern parents of Britain being more likely to have more face-to-face contact. However, regional differences in provision of help were much smaller, especially in the older age group.


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Kin Availability, Contact and Support Exchanges 207 Table 2 Proportion of children (a) seeing weekly and (b) helping parents by Social Class, region of residence and age group of child (a) % sees parent at least weekly Mother Father

(b) % helps parent Mother

Father

Age 25–39 Social class I & II IIIN-M IIIM IV & V

42.6 64.7 63.0 66.4

39.0 55.5 55.4 55.9

54.2 64.1 69.6 64.4

43.8 45.2 50.2 45.2

61.4 44.8

53.1 41.0

61.8 57.0

47.4 40.6

Region North South Sample size

864

782

819

736

Age 40–54 Social class I & II IIIN-M IIIM IV & V

39.0 63.4 58.5 48.2

33.1 58.9 42.3 40.2

62.7 66.0 59.1 59.9

49.7 49.4 51.0 52.3

55.6 39.4

45.2 36.1

62.3 61.4

51.1 48.5

Region North South Sample size

579

362

559

352

Note Excludes children co-resident with parents (see text).

(c) Multivariate analyses As there are strong associations between, for example, socio-economic and marital status, multivariate analyses are need in order to disentangle effects of each and allow for differences in other important variables, such as age. Table 3 shows results from analyses of characteristics associated with frequent (at least weekly) face-to-face contact with mothers/fathers by respondents with a living mother/father. Living close to a parent is associated with a far higher chance of frequent contact but, because an individual’s wish for contact with parents (or


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208 Emily Grundy and Mike Murphy vice versa) may influence where they choose to live, proximity is not a wholly exogenous variable. We therefore present two sets of models, one excluding and one including a measure of proximity. We included respondents’ and parents’ ages in all regressions, but as we have shown the main forms of dependence on age in Figure 1, these coefficients are not shown in Tables 3 and 4. All the covariates shown in Table 1 were included in the models but coefficients for those which were found to have little or no explanatory power (in a stepwise regression analysis) are not shown. As Table 3 shows, the odds of frequent face-to-face contact with parents are considerably higher for daughters than for sons. Higher levels of education and residence in the South of Britain were associated with a lower probability of frequent contact with both mothers and fathers, although these differentials were considerably reduced when proximity was included in the model. More highly educated groups are more mobile and more likely to gravitate to the South (Fielding, 1993), so part of the socio-economic difference in contact is most probably associated with greater geographical distances between children and parents consequent on long-distance mobility. This factor appears to account for most of the difference between Northern and Southern regions also, although regional and socio-economic effects remained significant when proximity was included in the model. Number of siblings, especially having two or more, was negatively associated with frequent contact. Those in Social Classes I and II (professional and senior managerial occupations) had the lowest levels of contact among those with an assigned social class but, as with educational level, those in the middle of the distribution also have higher levels than those at the bottom of the distribution. Having children under 16 years (most of whom will be grandchildren of the respondent’s parents), was associated with higher levels of contact. Parental marital status was clearly associated with differences in contact; those whose parents were divorced, separated or—in a small number of cases— never-married had considerably lower odds of frequent contact than those whose parents remained in first marriage; re-marriage of a parent was also associated with much lower levels of contact. Thus children of fathers who were remarried had the lowest odds of seeing him frequently (for the model excluding proximity, odds ratio 0.24, 95% confidence interval 0.16–0.35). The effect of mother’s remarriage was much smaller (odds ratio 0.80, 95% confidence interval 0.58–1.10). Children of widows, on the other hand, had similar odds of seeing her at least weekly as children of mothers in their first marriage. Children of widowers, however, had rather lower odds of frequent contact in comparison with children of fathers in first marriage, suggesting that part of the higher levels of contact between children and their married fathers is a by-product of their contact with their mothers. The effect of the child’s own marital status on the incidence of frequent face-to-face contact is much weaker and only statistically significant in the excluding-proximity model for contact with fathers, where those who were married were the least likely to have contact. This suggests asymmetry in the role of marital status and history of parents and children on


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Kin Availability, Contact and Support Exchanges 209 Table 3 Odds ratios from logistic regression analysis of variations in the proportion of adult children with frequent face-to-face contact with parents Excluding proximity Sees mother weekly (Intercept) Respondent female (ref. male) Number of children under 16 in respondent’s household

Sees father weekly

Including proximity Sees mother Sees father weekly weekly

0.274*** 1.270**

0.162*** 1.530

0.037*** 1.980***

0.029*** 2.790***

–

1.180**

–

–

1.000 2.600*** 2.320***

1.000 2.900*** 3.100***

1.000 1.670*** 1.350

1.000 1.980*** 1.510

First marriage (ref.) 2+ marriage Divorced/ separated/ never married Widowed

1.000 0.797 0.572** 1.010

1.000 0.238*** 0.274*** 0.692

– – – –

1.000 0.239*** 0.360*** 0.804

Lives in North (ref. South)

1.890***

1.700***

1.000 0.867 0.604**

1.000 0.830 0.589*

1.000 1.000 0.715

1.000 0.901 0.675

– – – –

1.000 1.480* 1.290 1.550*

– – – –

– – – –

1.000 1.870*** 1.940*** 1.460** 0.637 –

1.000 1.730*** 1.640** 1.320 0.737 –

Education High (ref.) Medium Low Parental marital history

.600***

1.460**

No. of siblings None (ref.) One Two or more Marital status of respondent Married (ref.) Cohabiting Divorced/ separated/ widowed Single Social class I and II (ref.) IIIN–M IIIM IV,V Unclassified Lives near parent

1.000 1.590** 1.630** 1.260 0.568 23.200***

1.000 1.500* 1.540* 0.972 1.170 26.000***

Note: *** significant at 1% level; ** significant at 5% level; * significant at 10% level. Contact is defined as seeing the parent at least weekly by non-co resident respondent. We use a logistic regression to model the odds of such contact as opposed to less frequent contact with a living parent. The full set of covariates included in the models is shown in Table 1, apart from the help variables. Analyses are based on 1,495 respondents with living mothers and 1,134 respondents with living fathers for whom full information was available.


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210 Emily Grundy and Mike Murphy intergenerational contact. The magnitude of the coefficients for the proximity variable is generally much larger than that of other coefficients, reflecting its important influence on face-to-face contact. The second indicator of intergenerational solidarity that we consider is help given to non co-resident parents by children aged 25 and over which we analysed using a similar framework to that used in the analysis of contact. As before, we present models with and without the indicator of proximity. Looking first at differences by gender and marital status of parents and children, Table 4 shows that daughters were no more likely than sons to provide help to mothers, but they were more likely than sons to help fathers. Children of widowed parents were generally more likely to provide help than children of those remaining in first marriage. Interestingly, children were more likely to help mothers who were divorced, separated or never married even though, as shown in Table 3, these maternal characteristics were negatively associated with frequent contact. Children of fathers with disrupted marriages or who had remarried, by contrast, were considerably less likely to provide help to their fathers. This probably reflects the fact that some divorced fathers may have had very reduced, or even no contact, with their children while they were growing up, whereas divorced mothers more often bring up the children. Children of remarried parents—both mothers and fathers—were the least likely to provide help to them. It is noteworthy that, in contrast to parents’ marital status, in these models there was no statistically significant association between the marital status of the child and help given to parents. Children with medium or lower levels of education were more likely to help their parents than their highly educated counterparts. Social class effects were generally small as was the effect of number of siblings. The largest effects are those associated with proximity, and the inclusion of this leads to the educational level variable becoming non-significant. The odds of a child giving help are increased substantially when the parents live close by (even though some of the types of assistance included do not require face to face contact), typically increasing the odds by a factor of four or five.

4. CONCLUSIONS

The analyses presented in this paper represent a major addition to our knowledge of kin availability and kin contact in Britain, particularly contact and support exchanges between adult children and their parents, which, as discussed earlier, has been highly constrained by lack of suitable data. No previous nationally representative study has examined the role of both parental and child’s marital status and history. Our results show differences by educational status in availability of parents/ children and, in common with analyses of other European and US datasets, large


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Kin Availability, Contact and Support Exchanges 211 Table 4 Odds ratios from logistic regression analysis of variations in the proportion of adult children providing regular help to parents Excluding proximity Provides help to mother (Intercept) Respondent female (ref. male) Education High (ref.) Medium Low

Including proximity

Provides help Provides help Provides help to father to mother to father

1.320 0.929

0.458** 1.470*

0.914 0.920

0.366*** 1.580**

1.000 1.520*** 1.230

1.000 1.480** 1.750**

– – –

– – –

Parental marital history First marriage (ref.) 2+ marriage Divorced/ separated/ never married Widowed

1.000 0.827

1.000 0.453***

1.000 0.826

1.000 0.530***

1.370 1.550***

0.541** 1.390

1.810** 1.570***

0.693 1.590*

Lives in North (ref. South)

–

1.300**

0.819

–

– – –

1.000 0.778 0.998

1.000 – –

1.000 0.830 1.140

1.000 1.200 1.120 0.968 0.303*** –

1.000 0.871 1.160 0.897 0.238** –

1.000 0.966 0.882 0.789 0.266*** 5.160***

1.000 0.745 1.050 0.788 0.262** 3.840***

Sibs None (ref.) One Two or more Social class (ref I and II) I and II (ref.) IIIN–M IIIM IV,V Unclassified Lives near parent

Note: *** significant at 1% level; ** significant at 5% level; * significant at 10% level. The full set of covariates included in the models is shown in Table 1, apart from the contact variables. Analyses are based on 1,430 respondents with living mothers and 1,080 respondents with living fathers for whom full information was available.

differences by socio-economic status and by marital characteristics of both child and parent in indicators of intergenerational exchange. Variations in having a living parent were relatively slight, in part because of the offsetting effects of lower mortality risks but older age at parenthood among the parents of more highly educated offspring who, because of intergenerational continuities in socioeconomic status, are likely to themselves be of above average educational status. Differentials in having children show more variation by educational status.


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212 Emily Grundy and Mike Murphy Variations in frequent contact and provision of help by socio-economic status were marked and in the expected direction. We also found differences by the marital characteristics of respondents and their parents, interestingly in some cases operating in different directions. Thus children were less likely to meet parents frequently or regularly help them if the parent had a disrupted or ‘non standard’ marital history; this particularly applied to exchanges with fathers, but was more likely to do so if their own marital history was ‘non standard’. In common with some other studies (Greenwell and Bengtson, 1997; Roan and Raley, 1996) we found that having a larger number of siblings was associated with a lower chance of frequent contact with a parent, and some variations in the association between sibship size and provision of help suggest a greater commitment by only children. In this chapter we have focussed on ‘everyday’ types of contact and help provision and we did not collect data on disability or receipt or provision of care (to do so would have required a much larger or more targeted sample). Nevertheless our results have some implications for policy makers concerned with the availability of family care for older people with support needs. On the positive side they show high levels of contact and interaction between adult children and parents and suggest that children’s divorce does not necessarily disrupt this. Less positively, our results confirm that in Britain, as in the USA and elsewhere, parental divorce does have a disruptive effect on exchanges between fathers and their adult children, and the proportion of parents who have experienced marital disruption is increasing. Among more highly educated women, those who attain the age of 60 in the next two decades will include a higher proportion of childless women than is the case now and for those who do have children, higher levels of education are associated with reduced interaction. Given that the educational level of the population is increasing, this also suggests a possible decline in some of the types of exchange we have examined, although educational differences in the proportions with frequent contact of any kind were generally slight, suggesting some substitution of telephone and email contacts for face-to-face meetings. However, higher levels of education may also confer more opportunities for older people, as well as their children, to widen networks beyond the sphere of close family and greater resources, including personal coping strategies, on which to draw for help if needed. There are a number of limitations to this study, including relatively small sample size and absence of information on health status; on changes in interaction patterns over the life course or between time periods. Nevertheless we hope that it will provide a benchmark for future work and promote more research on a topic which although recognised to be important, has been rather neglected in recent British research.


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Kin Availability, Contact and Support Exchanges 213

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214 Emily Grundy and Mike Murphy ——, ‘The Influence of Socio-economic and Health Differences on Parents’ Provision of Help to Adult Children: A British -United States comparison’ (2002) 22 Ageing and Society 441. HOGAN, D P, EGGEBEEN, D J and SNAITH, S M, ‘The Well-being of Ageing Americans with Very Old Parents’ in T Hareven (ed), Ageing and Generational Relations: Life-course and Cross-Cultural Perspectives (New York, Aldine de Gruyter, 1996) p 327. HUNT, A, The Elderly at Home (London, HMSO, 1978). KRONEBUSCH, K and SCHLESINGER, M, ‘Intergenerational Transfers’ in V L Bengtson and RA Harootgan (eds), Intergenerational Linkages: Hidden Connections in American Society (New York, Springer, 1994) p 112. KUNST, A E and MACKENBACH, J P, ‘The Size of Mortality Differences Associated with Educational Level in Nine Industrialized Countries’ (1994) 84 American Journal of Public Health 932. MCGLONE, F, PARK, A and ROBERTS, C, ‘Relative Values: Kinship and Friendship,’ in R. Jowell, et al (eds), British social attitudes, the 13th report, (Aldershot, Dartmouth Publishing Co. 1996) p 53. MURPHY, M, ‘Demographic and Socio-economic Influences on Recent British Marital Breakdown Patterns’ (1985) 39 Population Studies 441. —— ‘Models of Kinship from the Developed World,’ in S. Harper (ed), Families in Ageing Societies: A Multi-Disciplinary Approach (Oxford, Oxford University Press, 2004) p 31. —— and GRUNDY, E, ‘Mothers with Living Children and Children with Living Mothers: The Role of Fertility and Mortality in the Period 1911–50’ (2003) 112 Population Trends 36. NÍ BHROLCHÁIN, M, ‘Recent Fertility Differentials in Britain.’ Studies on Medical and Population Subjects, 55 (London, HMSO, 1993). PEZZIN, L E and SCHONE, B S, ‘Parental Marital Disruption and Intergenerational Transfers: An Analysis of Lone Elderly Parents and Their Children’ (1999) 36 Demography 287. RENDALL, MS, et al, ‘Incomplete Reporting of Men’s Fertility in the United States and Britain: A Research Note’ (1999) Demography 36. ROAN, C L and RALEY, R K, ‘Intergenerational Co-residence and Contact: A Longitudinal Analysis of Adult Children’s Response to their Mother’s Widowhood’ (1996) 58 Journal of Marriage and the Family 708. ROGERSON, P, WENG, R and LIN, G, ‘The Spatial Separation of Parents and Their Adult Children’ (1993) 83 Annals of the Association of American Geographers 656. SHELTON, N and GRUNDY, E, ‘Proximity of Adult Children to their Parents in Great Britain’ (2000) 6 International Journal of Population Geography 181. SOLDO, B and HILL, M, ‘Intergenerational Transfers: Economic, Demographic and Social Perspectives’ in GL Maddox and MP Lawton (eds), Annual Review of Gerontology and Geriatrics, 13 (New York, Springer Publications, 1993) p. 187. TOMASSINI, C, KALOGIROU, S, GRUNDY, E, FOKKEMA, T, MARTIKAINEN, P, BROESE VAN GROENOU, M and KARISTO, A, ‘Contacts between Elderly Parents and their Children in Four European Countries: Current Patterns and Future Prospects’ (2004) 1 European Journal of Ageing 54. TOWNSEND, P, The Family Life of Old People (London, Routledge and Kegan Paul, 1957).


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Kin Availability, Contact and Support Exchanges 215 —— and WEDDERBURN, D, The Aged in the Welfare State (London, G. Bell and Sons, 1965). WARD, R, LOGAN, J and SPITZE, G, ‘The Influence of Parent and Child Needs on Coresidence in Middle and Later Life’ (1992) 54 Journal of Marriage and the Family 209. WILLMOTT, P, Social Networks, Informal Care and Public Policy (London: Policy Studies Institute. 1986).


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(L) Ebtehaj et al Ch11

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11 Maintenance of the Elderly: Legal Signalling—Kinship and State MIKA OLDHAM

I

N ITS RECENT Green Paper, Confronting demographic change: a new solidarity between the generations, the European Commission (2005) recognised that in the light of changing demographic patterns—including greater longevity, low birth rates, later parenthood, the changing role of women and high divorce rates—families will not be able to continue to support the elderly to the extent that they have historically. Socio-demographic and socioeconomic trends are discussed elsewhere in this book (Grundy and Murphy, this volume). The present chapter focuses on the legal issues involved; it examines the extent to which, and basis upon which, the elderly have rights to receive maintenance, the allocation of the legal burden of support between family and State, and the broader significance of alternative legal regimes.

1. HUMAN RIGHTS AND THE MAINTENANCE OF THE ELDERLY

Although traditionally almost totally ignored by the law (and certainly by family law commentators)1 recent years have seen a growing appreciation of the difficulties faced by some of our older citizens and the introduction of laws specifically targeted at meeting their needs. At the international level, the European Convention on Human Rights (ECHR) does not include any provision that deals specifically with the support rights of the elderly, but there are various other international texts that do, including the Charter of Fundamental Rights of the European Union, the revised European Social Charter and the Community Charter of the Fundamental Social Rights of Workers. The status of these instruments is non-binding—they are ‘soft’ law and, as such, have moral or persuasive value, but are non-justiciable in the sense that they do not 1 There are exceptions—eg, ‘Legal aspects of an ageing world’ were discussed at the Sixth World Conference of the International Society of Family Law in Tokyo in 1988 See Eekelaar and Pearl (1989).


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218 Mika Oldham create any freestanding obligations directly enforceable by a person claiming a breach of his or her rights. They may be relevant, however, and certainly then justiciable, in cases involving the interpretation of treaties or legislation, or in cases involving arguments for the existence of a rule of customary international law.2 So, for example, in Goodwin v. United Kingdom 3 the European Court of Human Rights found the UK’s refusal to accord legal recognition to the changed gender of post-operative transsexuals to amount to a breach of Articles 8 and 12 of the ECHR. The Court included among its reasons the fact that, in omitting from the right to marry any reference to men and women, Article 9 of the European Charter of Fundamental Rights ‘no doubt deliberately’ departed from the wording of Article 12 of the ECHR. At the domestic level, in appropriate cases, the courts are increasingly willing to draw upon international law, including ‘soft’ law4, and it may be possible to argue that a provision from a non-binding international instrument has become directly enforceable in the national courts through its implicit incorporation into a binding treaty.5 So even ‘soft’ rights may be useful to individual claimants, provided, of course, that those rights are sufficiently substantial in content.

(a) The European Charter of Fundamental Rights The first of the three relevant international texts is the European Charter of Fundamental Rights, which was to have been given binding effect by its incorporation into the European Constitution. Article 25 of the Charter recognises and respects the rights of the elderly to ‘lead a life of dignity and independence and to participate in social and cultural life’.6 It sounds like something we would all wish for the elderly, but how does it stack up as a right? What do we mean by ‘independence’? For the Shorter Oxford English Dictionary, independence is ‘exemption from external control or support’. But unless we are suggesting that all elderly people will have large amounts of capital at their disposal and will enjoy absolute good health until the moment they die, independence in this 2 See R (on the application of European Roma Rights Centre) v. Immigration Officer, Prague Airport [2005] 2 AC 1 per Lord Steyn at para. 46, finding that the proclamation against discrimination contained in article 2 of the 1948 Universal Declaration of Human Rights now had the force of a binding rule: ‘The moral norm has ripened into a rule of customary international law.’ 3 [2002] 2 FCR 577. 4 See, eg, White v Taylor [2004] EWCA Civ 1511 where Arden LJ in CA cited the Charter of Fundamental Rights to help explain the exception to normal causation rules in a medical negligence case and the non-applicability of that exception to a professional negligence case; R v City of Wakefield Metropolitan Council and the Home Secretary, Ex parte Robertson [2001] EWHC (Admin) 915; R v Secretary of State for the Home Department, ex parte Howard League for Penal Reform [2002] EWHC (Admin) 2497. 5 See Coppard v Customs and Excise Commissioners [2003] 3 All ER 351 (CA) per Sedley LJ at para. 38. 6 An identical provision is included in the draft European Constitution, Article II-85.


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Maintenance of the Elderly 219 OED sense is simply not possible. Paradoxically, therefore, the right of the elderly to ‘lead a life of dignity and independence’ must mean, not a right to exemption from external support, but a right to receive external support. It is Article 25’s failure to spell out any right to external support, much less on whom such a support obligation falls, that relegates it to the category of little more than political rhetoric. Perhaps, though, some flesh may be added to the bones of Article 25 by a further provision, Article 34. Article 34, entitled ‘Social security and social assistance’, recognises and respects the entitlement to social security benefit and social services in a range of cases, including old age, ‘in accordance with the procedures laid down by Community law and national laws and practices’. The inclusion of a reference to ‘national laws’ no doubt made it possible for states to agree to the Charter, which, in the now unlikely event that the Constitution comes into force, will be converted into binding law. Unfortunately, however, the reference to ‘national laws’ also has the effect of reducing the right that is recognised to nothing more than already exists at national level.7 Two other international charters, neither of which has been ratified by the United Kingdom, are more specific on the rights of the elderly, but perhaps not hugely more useful even for the older citizens of those countries that have ratified.

(b) The revised European Social Charter

Article 23 of the revised European Social Charter 8 provides as follows: ‘The right of elderly persons to social protection: With a view to ensuring the effective exercise of the right of elderly persons to social protection, the Parties undertake to adopt or encourage, either directly or in co-operation with public or private organisations, appropriate measures designed in particular: — to enable elderly persons to remain full members of society for as long as possible, by means of: a. adequate resources enabling them to lead a decent life and play an active part in public, social and cultural life; b. provision of information about services and facilities available for elderly persons and their opportunities to make use of them;

7 The UK government took the view that the Charter of Fundamental Rights was ‘a non-justiciable Charter which makes existing rights more visible’: HC Deb, 24 January 2000, c3W. For an interesting look at the opinions of the different states on the status of the Charter, see House of Commons Research Paper, Human Rights in the EU: the Charter of Fundamental Rights Research Paper 00/32, 20 March 2000. 8 Article 23 reproduces Article 4 of the 1988 Protocol to the 1961 European Social Charter. The United Kingdom ratified the Charter, but not the 1988 Protocol.


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220 Mika Oldham — to enable elderly persons to choose their life-style freely and to lead independent lives in their familiar surroundings for as long as they wish and are able, by means of: a. provision of housing suited to their needs and their state of health or of adequate support for adapting their housing; b. the health care and the services necessitated by their state; — to guarantee elderly persons living in institutions appropriate support, while respecting their privacy, and participation in decisions concerning living conditions in the institution’.

Article 23 focuses clearly on the provision of financial and other support and, by comparison with Article 25 is admirable in its specific references to, and inclusion of, not only the resources, housing and health needs of the elderly, but also the important need to respect their autonomy. Unfortunately, however, ratifying states undertake to do nothing more than ‘adopt or encourage’ appropriate measures. The majority of European states, including the UK, operate systems of welfare pluralism, in which welfare services are provided by a number of different agencies, including both voluntary and private bodies (Oldham, 2001). In order to guarantee the rights proclaimed, Article 23 would have had to be drafted so as to impose on signatories a duty to ‘adopt or require’ appropriate measures to be put in place. Where welfare services are provided by the State, Article 23 may indeed have the effect of setting standards that should safeguard the quality of life of elderly people. The same cannot be said where welfare services are provided by other agencies because, of course, mere encouragement may fail to persuade.

(c) The Community Charter of the Fundamental Social Rights of Workers The third international instrument that specifically addresses the rights of the elderly is the Community Charter of the Fundamental Social Rights of Workers, which includes the following provisions: ‘Elderly persons: According to the arrangements applying in each country: 24. Every worker of the European Community must, at the time of retirement, be able to enjoy resources affording him or her a decent standard of living. 25. Every person who has reached retirement age but who is not entitled to a pension or who does not have other means of subsistence, must be entitled to sufficient resources and to medical and social assistance specifically suited to his needs.’

This Charter, adopted in 1989 by eleven Member States, is again non-binding, and as with Article 34 of the Charter of Fundamental Rights, qualifies the ‘soft’ rights proclaimed in respect of elderly people by reference to ‘the arrangements applying in each country’.


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Maintenance of the Elderly 221 (d) Legal signalling and human rights It is no doubt more difficult to persuade states to become signatories to agreements that proclaim economic and social rights than it is to proclamations of civil and political rights. The implementation of economic and social rights involves much larger potential financial commitments;9 moreover, differing cultural, economic and political backgrounds make close agreement almost impossible to achieve. Perhaps inevitably, therefore, provisions become watered down and vague—as with Article 25 of the Charter of Fundamental Rights; or qualified by reference to national laws—as with Article 34 of the same text and Articles 24 and 25 of the Charter of the Fundamental Social Rights of Workers. But that is not to say that, even in such a ‘dilute’ form, these provisions are without importance. There is no doubt that the ECHR—through the Human Rights Act 1998—is changing the face of English law, some of the key benefits being the provision of new protections and remedies for individual claimants and the acceleration of the pace of law reform in England.10 Although the Convention fails explicitly to address the rights of the elderly, it enunciates rights and freedoms that may provide at least a starting-point for dealing with problems such as ageism.11 Even non-binding or declaratory texts may help to shape law reform, for example, when used as an aid to interpretation or in the framing of new legislation, or if they eventually ripen into rules of customary international law—as in the recent Roma Rights case.12 For the government, declaratory texts serve an important function in terms of enhanced visibility for the general public, through the creation of ‘a showcase of existing rights’.13 For many, the aim is the development of a new culture of human rights.14 In terms of legal signalling, such texts may indeed convey strong messages—to states, about the standards to which they should aspire, and to individuals, about the treatment they should expect. But there is also a further signal, which operates through the very discourse of rights. As Mance LJ recently commented, ‘international thinking and jurisprudence have over the last half century moved beyond the narrow view that international law is solely concerned with, or enforceable by, states.’15 This 9 Socio-economic rights will affect and be asserted by many more people than assert a breach of a civil or political right. See further, Beirne (2005). 10 Legislation such as the Gender Recognition Act 2004 and the Civil Partnership Act 2004 might eventually have been introduced, but almost certainly not as quickly. 11 Article 14 (Discrimination) does not prohibit discrimination based on age, but the European Directive on Equal Treatment (Council Dir 2000/78/EC) will ban age discrimination by 2006, at least in employment and training. Much more, of course, is needed. 12 [2005] 2 AC 1 and see ante. 13 HL Select Cttee on the EU, Eighth Report, May 2000 (per Mr Vaz). 14 Advocate General Frances Jacobs: ‘There will be a new orientation, a new culture as it is sometimes put, of human rights.’ See generally contributions in Harvey (ed)(2005). 15 Jones v Ministry of the Interior Al-Mamlaka Al-Arabiya as Sudiya and another; Mitchell and others v Al-Dali and other [2004] EWCA Civ 1394 per Mance LJ at para. 80.


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222 Mika Oldham development, which has resulted in the recognition of human rights enforceable by individuals, perhaps inevitably also has the effect of relegating into a subsidiary role more communitarian values such as social or family cohesion. The new emphasis on the individual rather than the community exacerbates rather than resolves problems, such as the isolation experienced by many elderly people and the tendency to exclude our older citizens from the wider community and their families.16 Communitarian theorists have long called for more emphasis on the community to counterbalance what they see as unhealthy levels of individualism. From their perspective, adults in families have been able to pursue their own interests at the expense of their responsibilities towards dependent family members such as the very young and the very old (e.g., Sjoberg et al (1995): ‘the common good of the community should take precedence over self interested autonomous individuals’). To whatever extent the ‘soft’ rights outlined above recognise, or encourage, a right to support for the elderly, the vital question, which is not addressed within the international texts themselves, is that of where the correlative support obligation falls—who is to bear the burden of dependence?

2. THE NATIONAL PERSPECTIVE—WHERE DO THE ELDERLY ‘BELONG’?

In England, we have seen in recent years a number of legislative initiatives designed to protect the elderly. Part I of the Care Standards Act 2000 established the National Care Standards Commission, an independent regulatory body for social care and private and voluntary health care services in England.17 The Mental Capacity Act 2005 goes some way to safeguarding the autonomy of the elderly by creating a presumption of capacity18 and by providing, inter alia, that a lack of capacity cannot be established merely by reference to a person’s age, appearance, or a condition that might lead others to make unjustified assumptions about his or her capacity. Further, increased awareness of problems such as elder abuse have resulted in the creation of new criminal offences.19 But as far as family law is concerned, it is interesting that at a time when the law is evolving to confer ‘family’ rights on non-traditional social groupings such as cohabitants, homosexuals and transsexuals (see Bainham, this volume), family law continues to focus on the nuclear model and to exclude the older generation from its ambit. In some areas, indeed, rights have been withdrawn—for example, grandparents used to have automatic standing to apply for access to a grandchild, but since the coming into force of the Children Act 1989, they must

16 17 18 19

On the isolation of the elderly, see Oldham (2001), pp129, 134. In Wales the National Assembly undertakes this regulatory function. Mental Capacity Act 2005, s.1. See, e.g., Domestic Violence, Crime and Victims Act 2004, s.5.


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Maintenance of the Elderly 223 obtain leave to apply.20 In terms of legal signalling, it becomes increasingly difficult to see the legal position of the elderly as part of family law rather than social welfare law. The law is increasingly recognising and attempting to address the problems of the elderly, but is doing so in a manner that reinforces cultural trends towards excluding them from the family. This tendency is evident in our laws governing the maintenance of the elderly, which differ markedly from those that obtain in other jurisdictions.

3. CONTRASTING MODELS OF FILIAL SUPPORT OBLIGATION

Before the repeal of the Poor Laws in 1948,21 there existed in England a legal obligation to support certain indigent relatives. Section 14 of the Poor Law Act 1930 imposed a duty on ‘the father, grandfather, mother, grandmother, husband or child, of a poor, old, blind, lame or impotent person, or other poor person not able to work, if possessed of sufficient means, to relieve and maintain that person.’22 With the creation of the welfare state in 1948, this support obligation was replaced by a much more restricted duty, to support one’s spouse and one’s minor children.23 The result is that present-day English law imposes no filial support obligation whatsoever. We are free to refuse to render any form of assistance to our parents or grandparents, regardless of their, or our own, circumstances. Support for the elderly is considered to fall within the realm of public rather than private intergenerational transfer. By contrast with the English position, many other jurisdictions impose a private law obligation to maintain a broad range of relatives, at least where those relatives find themselves in urgent financial need. Most civil law jurisdictions impose such a duty, but it also exists in other common law jurisdictions, including many US states24 (see Wise, 2002, p574) and Canadian provinces and territories (see Bala and Bromwich, 2002). The duty is based on the principle that there exists a legal as well as a moral obligation to assist certain relatives in need. The range of relatives varies—in France, for example, the duty applies in respect of all direct ascendants and descendants,25 parents-in-law, and sons- and

20 Children Act 1989, s.10. Leave will generally be granted: Re J (Leave to Issue Application for Residence Order) [2003] 1 FLR 114 (CA). 21 National Assistance Act 1948, s.62(3), Sch. 7. 22 Section 14(1). Sons and married women with separate property bore this duty indefinitely, but because of the legal disabilities of married women under the doctrine of conjugal unity, the duty imposed on daughters generally ended when they married. 23 Section 42 (still in force). With certain exceptions, financial support obligations in respect of children do not extend beyond the child’s eighteenth birthday: Child Support Act 1991, s.55; Matrimonial Causes Act 1973, s.29(1), (3); Domestic Proceedings and Magistrates’ Courts Act 1978, s.5; Children Act 1989, s.15(1), Sch. 1, paras. 2, 3. 24 In 2005, some thirty US states have filial support laws. 25 Articles 205, 207.


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224 Mika Oldham daughters-in-law;26 in Bulgaria, it extends to step-parents.27 Many western jurisdictions impose a duty between siblings,28 but not between those related by marriage.29 The Quebec code imposes a duty in respect of spouses and ascendants and descendants, without any restriction as to degree.30 The private support obligations of other jurisdictions also differ in further respects. So, for example, the French duty is reciprocal, but ‘secondary’ in two respects. First, it applies only to the extent that the claimant’s parents are unable to provide the necessary support, and second, the duties to support one’s children31 and spouse32 take priority over any other duty to maintain. The French Code Civil is silent as to which relative should be pursued for maintenance and the Cour de Cassation has refused to imply a fixed order of priority by reference to the order that applies in the law of succession.33 Despite academic criticisms,34 a claimant is not required to bring an action against several liable relatives or to pursue relatives in any particular order and the courts do not apportion or limit liability because of the existence of any other potential payer(s).35 By contrast, the German BGB includes a hierarchical classification of liable relatives comparable to that contained in the German law of succession.36 A spouse is liable before any other relative, unless he or she cannot meet the obligation without jeopardising his or her own maintenance. Descendants are liable before ascendants, and the proximity of degree is taken into account in determining responsibility within any category. As regards the substance and form of the duty to maintain, the level of support required is generally less extensive than that which is imposed in respect of the duty to maintain a spouse or child. It may, however, extend to food, clothing, housing, utilities, institutional care costs, medical and even funeral expenses.37 It may be restricted to financial obligations, or include benefits in kind—for example, where a liable relative brings an elderly parent to live in his or her home. In some jurisdictions, public authorities have a right of action against a liable relative in respect of services and care provided to a person to

26 Article 206. In practice, it is possible for an indirect financial liability to apply: see further, Oldham, 2001, p 143. 27 1985 Family Code of Bulgaria, Art. 69. See further, Todorova(2005). . 28 See, eg, Italian Civil Code, arts. 433, 439. By contrast, no such duty exists under German law. 29 See, eg, Spanish Civil Code, art. 143–2; Swiss Civil Code, art. 328. Cp. Italian Civil Code, art. 433, imposing a duty to support in-laws similar to that which applies in France. 30 Article 594. 31 Article 203. 32 Cour Montpellier, 9 janv. 1952, d. 1952, Som. 25; Cour Paris, 20 mars, 1952, D. 1952, Som. 73. 33 Epoux Giraud, civ. 2 janv. 1929, D.P. 1929, 1, 137, note Savatier. 34 See, eg, Carbonnier, 1998, pp.384, 390. 35 Civ. 1e, 5 fev. 1991, Bull. civ. 1, no.43. 36 § 1606, 1608. See also Italian Civil Code, arts. 433 et seq., 441–442. 37 See further, Oldham (2001), pp145, 161.


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Maintenance of the Elderly 225 whom a duty to maintain is owed;38 in others, such reimbursement is not possible.39 A different approach is adopted in some American states, where the filial support obligation is enforced through the criminal rather than the civil law. For example, Ohio’s Revised Criminal Code provides that ‘No person shall abandon, or fail to provide adequate support to . . . [t]he person’s aged or infirm parent or adoptive parent, who from lack of ability and means is unable to provide adequately for the parent’s own support.’40 In State v Flontek 41 the Supreme Court of Ohio held that the prohibition applies to financial support but does not extend to other support such as care, feeding and medical attention. Despite the differences in the particulars of the filial support laws, what these jurisdictions have in common, in contrast to England, is the establishment of a much more highly developed sense of family responsibility than exists in English law. In theory at least, the family is the first line of support and the State intervenes only when private intergenerational support fails. ‘In theory’, because there is a tendency in many countries not to enforce strictly the filial support obligation (Wise 2002)42 and some commentators have argued in favour of its abolition (Brinig, 2005) or for a reduction in the range of relatives to whom the duty attaches (Bala and Bromwich, 2002). And there may well be good reasons for not enforcing strictly the duty to maintain. Research suggests that the majority of elderly people do not wish to become dependant on their children (Wise, 2002) and there is of course a real risk of straining or rupturing the parent/child relationship.43 But the existence of the obligation creates a legal tie that, in terms of signalling, locates the older generation firmly within the family. 38 In France, for example, certain social services agencies are able to reclaim from a liable relative expenses that would normally fall within the ambit of the duty to maintain. See Carbonnier, 1998, 381. For arguments for and against the abolition of the reimbursement powers in Belgium, see Van Houtte and Breda (2005), 243. 39 In Canada, for example, there is no provision by which the state can reclaim from a liable relative monies spent on benefits provided to anyone other than a spouse or minor child: see further, Bala and Bromwich, (2002). 40 § 2919.21. It is a defence that the adult child was unable to provide adequate support or that the parent abandoned the child during the latter’s minority (§ 2919.21(D), (E)). See also California Penal Code, §270c.; Ky. Rev. Stat. Ann. § 530.050(5)–(6) (nonsupport as class A misdemeanor, and flagrant nonsupport as Class D felony); N.C. Gen. Stat. Ann. § 14–326.1 (deeming failure to support to be Class 1 misdemeanor); Mass. Gen. Laws Ann. ch. 273, § 20 (West 2000) (providing for fine of up to $200 or imprisonment for up to one year); Miss. Code Ann. § 43–31–25 (1999) (imposing fine of $150 per month or partial month of nonsupport); Vt. Stat. Ann. tit. 15 § 202 (1989) (providing for fine of up to $300 and/or imprisonment for up to two years). Twelve states specify a criminal penalty for filial nonsupport. 41 (1998), 82 Ohio St.3d 10 (daughter, with whom mother lived, found not guilty of this offence when mother died of severe but preventable medical problems, because daughter had provided adequate financial support). A different offence in § 2903.16 prohibits the caretaker of a functionally impaired person from knowingly or recklessly failing to provide treatment, care, goods, or service necessary to maintain the health or safety of the person. There are no reported cases of prosecutions under this section involving failure to support a parent. 42 Note: eleven US states have filial support laws that have never been invoked. 43 See further post, p 229–230.


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226 Mika Oldham In England, by contrast, with the exception of the duty to maintain minor children, there is no legally enforceable private intergenerational support obligation. In practice, of course, the absence in English law of a legal duty to maintain does not mean that people here do not support their ageing parents or other relatives. Many do, both financially and in the provision of informal care. And the fact that the legal obligation falls on the State does not inhibit successive governments from encouraging private support. Implicit—indeed often explicit—in this encouragement is the message that public provision is needed because families have ‘failed’ to fulfil a duty that in fact falls on the State.

4. PUBLIC OR PRIVATE INTERGENERATIONAL SUPPORT

The absence in the UK of a private law duty to support ascendants does not mean there is no filial support obligation—rather that it is implemented through public intergenerational transfer rather than through private transfer. Thus, for example, welfare benefits and treatment under the NHS are based on a general principle of collective responsibility and are funded out of general taxation. Contrary to popular belief, this intergenerational transfer occurs even as regards State pensions, which operate on a ‘pay as you go’ rather than a funded basis, so that the contributions of the current workforce provide the basic pensions of the current retired population (see Oldham, 2001). But even disregarding questions about present underfunding, if—as indeed is the case in the UK and many other countries—the community is not prepared to underwrite the ever-growing cost of a full system of universal welfare benefits,44 some means must be found of sharing the burden between public and private sectors. Against this background of public cost containment, a range of arguments can be advanced both for, and against, the imposition of a private filial support obligation.

(a) Reciprocity Theories that justify the imposition of a private law duty on the grounds of reciprocity are far from new. Blackstone (1765), in his Commentaries on the Laws of England, describes the duty in the following terms: ‘The duties of children to their parents arise from a principle of natural justice and retribution. For to those, who gave us existence, we naturally owe subjection and 44 Evidence presented to the Royal Commission on Long Term Care suggested that the public believed that long-term care should be funded totally by the state, but this view was based on scepticism about suggestions that the state could not afford to underwrite the cost and the view that resources should if necessary be diverted from other areas of expenditure so that the overall tax burden did not rise: Royal Commission (b), p.242. See further, Oldham (2001), pp129, 168.


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Maintenance of the Elderly 227 obedience during our minority, and honour and reverence ever after; they, who protected the weakness of our infancy, are entitled to our protection in the infirmity of their age; they who by sustenance and education have enabled their offspring to prosper, ought in return to be supported by that offspring, in case they stand in need of assistance. Upon this principle proceed all the duties of children to their parents, which are enjoined by positive laws.’ (Book 1, Chapter 16)

But Blackstone’s explanation—in terms of support of the elderly in return for support and sustenance given during the infancy of the now adult children— becomes less convincing when he later explains that the duty is not affected by the misconduct of the parent. Children were ‘equally compellable, if of sufficient ability, to maintain and provide for a wicked and unnatural progenitor, as for one who has shewn the greatest tenderness and parental piety.’(Book 1, Chapter 16)45

Today, however, most modern laws that impose a filial support obligation also incorporate provisions under which the duty may be reduced, or even totally extinguished, in cases of serious misconduct by the claimant.46 Some commentators have argued that reciprocity cannot justify the imposition on adult children of a duty to support their ageing parents, since not only did the children not choose to be born, but at the time they received their parents’ support they were not autonomous and therefore did not freely concur in the implicit bargain (Epstein, 1992).

(b) Law and economics: theories of ‘capital investment’ in children A modern-day variation on Blackstone’s reciprocity is that the imposition of a filial duty to provide for elderly parents can be explained or justified in terms of human capital investments in children. According to this theory, in simple terms, the investments made by parents in their minor children are motivated in part by the expectation or hope of support in old age (see further Posner, 1996; Brinig, 1994; Wise, 2002). If this theory holds true,47 there will be less investment in children in societies in which elderly people tend to live alone or where there is significant State provision for the elderly. The logical conclusion would be 45 The only exception was ‘spurious issue’, or illegitimate children, on whom there fell no duty to support their parents. 46 See, eg, French Code Civil, art. 207 (This provides that there is judicial discretion to reduce/ discharge liability where conduct by the claimant amounts to serious failure to meet his or her obligations towards the payer); German BGB, § 1611 (Voluntary misconduct or grave prejudice towards the plaintiff or his/her close relative reduces liability to what is equitable; ‘gross injustice’ extinguishes the duty altogether); Italian Civil Code, art. 440. 47 Brinig’s research suggests that this pattern is in fact evident, although she acknowledges that cultural factors such as reverence for the aged, or religion, could have the same effect: Brinig (1994), p257.


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228 Mika Oldham that in order to maximise parental investment in children, State provision for the elderly should be limited.

(c) Reciprocity, capital investment, maintenance and succession Closely related to both reciprocity and theories of human capital investment is the relationship between a filial support obligation and the laws of succession. Many jurisdictions restrict a testator’s freedom to dispose of his or her property by prohibiting alienation, either inter vivos or by will, of a ‘reserve’ or portion of the estate, which is distributed among certain relatives after the death of the property owner. The schemes of priority do not correspond exactly with the duties to maintain that are imposed during life, and as with maintenance, the range of relatives who benefit from the reserve varies somewhat between jurisdictions (Oldham, 2001). But viewed in a wider context, the burden of maintenance is balanced or offset by correlative succession rights.48 And in terms of legal signalling, both areas encourage the assumption of responsibility for the well-being of family members extending beyond the narrow, nuclear group. In English law, too, it is possible to discern a sense of reciprocity or balance— albeit one that sends out a very different signal—because alongside our absence of any private law duty to provide filial support, there exists a fundamental principle of absolute freedom of testation. Although the majority of people do in fact leave the entirety, or at least the bulk, of their estates to family members, they are not required to do so. The principle of freedom of testation is tempered by the courts’ discretionary jurisdiction to make awards out of a deceased’s estate in favour of specific categories of applicant,49 but an application by an elderly parent may be brought only if he or she can demonstrate that he or she was ‘dependant’ on the deceased child.50 So whereas in many jurisdictions there exists a form of positive statutory reciprocity in the interrelationship of maintenance duties and correlative succession rights, what we have here is a very different, and negative, balance that equates to ‘no duty to maintain, no right to inherit’. In England, any positive reciprocity must operate at the level of voluntary support in the expectation or hope of future inheritance.51 From a law and economics perspective, it is possible to analyse the relationship between maintenance and succession in terms of collateral—that is, where elderly parents have property that the younger generation wants, that property acts as collateral to induce the children to please their parents (Posner, 1996; 48 Inevitably, however, if the duty to maintain is invoked, the eventual estate of the claimant is likely to be small or non-existent. 49 Inheritance (Provision for Family and Dependants) Act 1975. 50 Section 1(1)(e). The class is not defined by reference to any relationship and includes any dependant. For a case in which a mother successfully applied for provision out of her deceased minor daughter’s estate, see Re B (Deceased) [2000] Ch 662 (CA). 51 For arguments that altruism within the family occurs in part because of the expectation of future inheritance from a parent, see Epstein, (1992).


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Maintenance of the Elderly 229 Brinig, 1994).52 This analysis must operate differently to the reciprocity theory, since to whatever extent those children have a legal right to succeed to their parents’ estates, the incentive to please their parents must be weakened. The theory fails to explain the provision of support by adult children in cases where the parents own little or no property which could be inherited.

(d) Fostering values of family and social cohesion in children Another perceived advantage of a private support obligation is that the family is the appropriate place for values such as caring, loyalty and altruism. It is argued that if adult children support and care for their ageing parents, their actions will engender these values in the minor children of the family and eventually instil in those children a sense of obligation towards their fellow humans (Wise, 2002; Brinig, 1994). And given the right circumstances and family conditions, this process may indeed operate to the benefit of all involved. But such arguments perhaps present a somewhat distorted and romanticised view, not only of typical family life, but also of the reality of caring for an elderly relative. Dysfunctional families aside, the truth is that catering for the physical and emotional needs of elderly relatives is often difficult and stressful, and undertaking the role of carer may be difficult or impossible because of factors such as financial constraints, geographic separation and the fact that in many families both spouses are in full-time employment.

5. THE DISADVANTAGES OF COERCIVE ENFORCEMENT

As the range of maintenance obligations in different jurisdictions illustrates, various models of private support obligation are possible. The duty may be restricted to necessities, it may extend to assistance with the costs of health care, or even further. Whatever the scope of the obligations, the existence of a duty to maintain has benefits; first, that in terms of legal signalling it helps to create a culture of thinking about kinship more broadly, relocating the older generation back into the family; and second, where the duty is performed without compulsion it reduces the burden on the public purse. But when it comes to coercive enforcement, the opposite is true in both respects. The instigation of legal action—whether by the elderly parent or by the State—is much more likely to trigger resentment and tension and to damage family relations than it is to foster positive ties between generations. For the elderly people concerned there are also the damaging psychological effects of mandatory dependence: becoming an 52

For analyses based upon analogies with franchise, see generally Brinig, (1994).


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230 Mika Oldham unwanted burden (financially, and for many also physically, as their care needs increase) and jeopardising their autonomy vis à vis their children. Sensitivity to such factors goes a long way towards explaining the general tendency across jurisdictions against strict enforcement of the duty to maintain. But the unwillingness of other jurisdictions to enforce the filial support obligation does not necessarily mean that the obligation should be abolished. Quite apart from legal signalling, from a pragmatic perspective it might be argued that since the majority of people are law-abiding citizens, it is likely that the very existence of the legal duty will encourage many people to support their ageing parents. As far as England is concerned, it would be politically impossible to shift the legal burden of support away from the State and back onto the family. From a more pragmatic and practical perspective, the costs of coercive enforcement would be significant. Quite apart from the need to set up an appropriate legal framework within which to administer the scheme and the costs to the litigants, the establishment of effective enforcement mechanisms is likely to be administratively unworkable and financially unproductive. Certainly, if the example of the notorious English child support scheme is any indicator of the likelihood of success, we simply should not bother. So in ideological as well as practical terms, coercive enforcement of a private filial support obligation is unattractive. Public provision has the advantage that the redistribution of wealth, via the State, to those in need safeguards the autonomy of elderly people. But public provision is grounded in a principle of collective responsibility at the level of the State and does nothing to encourage family cohesion; moreover underfunding means that the system is not merely straining, it is actually failing, to achieve its objectives.53

6. FINANCIAL VIABILITY AND MAINTENANCE OF THE ELDERLY

The objective of public cost containment offers governments two broad approaches, which are likely to be used in conjunction—they can regulate supply, by means of budgets; and they can regulate demand, by increasing contributions or otherwise ensuring that consumers bear a higher share of the costs. The argument presented here is that for England, the stick of coercive enforcement of a filial support obligation is not an option, legally, politically or practically. But the government could and should make more use of the carrot—measures that recognise, promote and encourage the provision of voluntary and private support. The Royal Commission on Long Term Care (1999) took the pessimistic view that such measures were pointless:

53

For a discussion of some of the shortcomings, see Royal Commission (1999), ch. 4.


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Maintenance of the Elderly 231 . . . in a free society a Government can do little, short of compulsion or other draconian measures, to influence the way in which families or relatives decide whether to care for their older members (p.15).

But is this right? The process of transferring a welfare burden from the State to the private sector is not without successful precedent, in the field of pensions provision, where a combination of tax incentives and regulatory mechanisms has effectively transformed the State’s role from major to subsidiary provider and contributor (Oldham, 2001). Perhaps it might be possible to design a range of provisions that for many people could make the difference between feeling able and willing to care for an elderly relative and deciding that they can no longer cope. And to whatever extent the public burden is relieved,54 to that extent more funds would be available to help those in greatest need.

7. ENCOURAGING FAMILIAL OR PRIVATE SUPPORT

Given the parlous state of public funding and the need to address problems of exclusion and isolation experienced by many older citizens, we need to think about measures that, in terms of legal signalling, will encourage private provision and help to reintegrate the older generation within their families. Measures that might encourage a shift from State to family, or from public to private responsibility could be designed to operate at a number of different levels. At a basic level, it would be possible to introduce tax incentives to encourage people to make advance provision for their own possible needs in later life through savings or private care insurance.55 Private sector insurance suffers from problems such as adverse selection—subscribers are likely to be high-risk individuals, so premiums may rise to unacceptable levels. Private insurance could play a role in the overall reduction of the financial burden, but unless it was made compulsory, it would be a limited role.56 And insurance, of course, does nothing to address problems such as social exclusion and isolation. At a second level, measures could be introduced to encourage increased levels of voluntary support within families. A small start has been made in recent legislation57 that gives some recognition to the difficulties faced by the large numbers of informal carers of elderly people, carers who ‘bear a very great share of the total care burden, many without adequate support’ (Royal Commission, 54 In America it has been estimated that delaying the institutionalisation of Alzheimers patients by one month would save US$1.2 billion each year: Wise (2002), p 584. 55 For studies that discuss the possibility of compulsory long-term care insurance, see Royal Commission (1999), chs. 2–4. 56 For a discussion of various American voluntary schemes and their low take-up rates, see Royal Commission (a), at 5.13, 5.38. 57 See, eg, Carers (Recognition and Services) Act 1995; Carers and Disabled Children Act 2000; Carers (Equal Rights) Act 2004. See further Oldham (2001) p 166.


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232 Mika Oldham 1999; Pickard, 1999. Much more could, and should, be done for carers, who are for the most part adult daughters and who, within the English legal framework, are effectively stepping in to discharge a duty that in fact falls on the State. The issue is far from straightforward—should we introduce policies to encourage women to damage or sacrifice their own life opportunities in order to care for elderly relatives? By comparison with other jurisdictions, the support offered to carers in England remains inadequate58. For example, even in America—where welfare is perceived as essentially an individual rather than a State responsibility and public support exists but at a minimal level—many states have introduced Statefunded or Medicaid compensation programmes that provide financial compensation for carers’ services (Wise, 2002), as well as far more comprehensive carer support services. In England, a Carer’s Allowance59 may be payable in certain circumstances, although it will often not be claimed as it can result in the person being cared for losing benefits. A similar picture emerges as regards provision to enable employees to take leave in order to care for elderly relatives. The position in England is that employers are required to permit employees to take ‘a reasonable amount of time’ off work in order to take action which is necessary: — to assist on an occasion when a dependant falls ill or is injured or assaulted; — to make arrangements for the provision of care for a dependant who is ill or injured . . . or — because of the unexpected disruption or termination of arrangements for the care of a dependant.60 The employee has no right to be paid during his or her absence. There is no statutory clarification on what constitutes a ‘reasonable’ amount of time, although DTI guidance61 and Employment Appeal Tribunal case law62 suggests a generally restrictive approach. The approach in America is much more generous to the carer—there exist federal and a range of state family leave programmes that allow employees to take leave in order to undertake family caregiving.63 California has introduced a family leave insurance fund that pays employees who take leave to care for a seriously ill relative for up to six weeks 58 The same is true for carers of minor children who cannot live with their parents—see Hunt, and Masson and Lindley, both this volume. 59 Previously Invalid Care Allowance. 60 Employment Rights Act 1996, s.57A (as amended). ‘Dependant’ is defined to include a parent; anyone who lives in the same household as the employee otherwise than by reason of being his employee, lodger or boarder; and any person who reasonably relies on the employee to make arrangements for the provision of care. 61 Time Off for Dependants (URN99/1196) (suggesting one or two days for most cases). 62 See, eg, Truelove v. Safeway Stores UKEAT/0295/04/ILB; Forster v. Cartwright Black Solicitors [2004] IRLR 781 (section did not extend to right to two weeks’ bereavement leave with doctor’s certificate following death of both parents). 63 The federal Family and Medical Leave Act, 1993 provides for unpaid leave of up to 12 weeks.


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Maintenance of the Elderly 233 a year,64 and several other states are considering similar schemes (for a recent survey, see Forsberg, 2001). Such an approach can be justified in economic as well as humanitarian terms—simply put, it is cheaper for the State to provide financial assistance to a family member who is willing to provide caregiving services than it is to shoulder the costs of the institutionalisation of an elderly parent. Other avenues to encourage increased filial support—or even to maintain current levels of filial support, given the ever-increasing opportunities open to women—should also be explored. One possibility would be to introduce a scheme under which the English principle of absolute freedom of testation was modified so that an informal carer would benefit from some form of successional priority (Oldham, 2001). Under such a scheme a family member who maintains or provides care for an elderly relative could be given a right to eventual compensation out of the estate of that relative, such right to take priority over distribution to other successors.65 For those able to provide financial support rather than assistance in kind, measures in the form of tax incentives could be introduced, for example some appropriate level of tax relief might be introduced, to offset part of the cost of providing or adapting housing for an elderly parent, and/or the costs of care for a parent at his or her home or within an institution, etc. Such an approach, if appropriately drafted, could reap benefits not only in terms of public cost containment, but also in helping to strengthen intergenerational bonds within families. At a different but extremely important level, if attempts to encourage increased filial support are to be successful, a shift in cultural attitudes is needed. In this regard, wider measures, many without financial implications for the State, could indirectly assist in encouraging private support by relocating elderly people in English law back within the family rather than treating them as a problem to be dealt with within the field of social welfare law. Perhaps a first step in this direction has been made in the recent decision of Re S (Adult patient) (inherent jurisdiction: family life),66 in which Munby J held that ‘family life’ within the meaning of Article 8 of the ECHR continues, both as a matter of fact and in law, after a child has reached the age of majority. Reinstating a grandparent’s right to apply for contact67 and including grandparents as a specific category of person who can apply for provision out of the estate of a deceased person under the Inheritance (Provision for Family and Dependants) Act 197568 are two examples of measures that would involve minimum cost to the State, 64

Pay is at 55–50% of the employee’s salary. For a discussion of the possible details and matters that would require to be clarified, see Oldham, 173–177. 66 [2003] 1 FLR 292. The case concerned a dispute between the father of a severely disabled adult child and the local authority over where the child should live. 67 Ante, p 222. But a parent has no presumptive right to contact with an adult child, even where that child is under a disability: D-R (Adult: Contact) 1999] 1 FLR 1161 per Butler-Sloss LJ. 68 Ante, p 228. 65


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234 Mika Oldham but would signal that ‘family’ is broader than parents and minor children. Ultimately, legal regimes allocating the burden of responsibility for maintenance of the elderly require that a balance be struck between kinship and State. Social, cultural, legal and economic differences between jurisdictions will impact on both the particular balance and how that balance is established. Certainly for England and perhaps for all western countries, it may well be that in achieving a workable balance, a combination of measures that operate to encourage voluntary support, measures that help to promote positive intergenerational relationships and wider family cohesion by ‘relocating’ the older generation back within the family may well be more effective than coercion.

REFERENCES

BALA, N and BROMWICH, R, ‘Context and Inclusivity in Canada’s Evolving Definition of the Family’ (2002) 16 International Journal Law Policy and the Family 145. BEIRNE, M, ‘Social and Economic Rights as Agents for change’, in Harvey (ed), Human Rights in the Community (Hart, Oxford, 2005) BLACKSTONE, W, Commentaries on the Laws of England (Oxford, Clarendon Press, 1765). BRINIG, M, ‘Finite Horizons: The American Family’ (1994) 2 International Journal of Children’s Rights 293 —— ‘Parent and Child’, in Encyclopedia of Law and Economics (Bouckaert and De Geest, 2005). CARBONNIER, J, Droit Civil, Tome II, La famille (Thémis, Presses Universitaires de France, 19th ed, 1998) EEKELAAR, J and PEARL, D(eds), An Ageing World: Dilemmas and Challenges for Law and Social Policy (Oxford, Oxford University Press, 1989). EPSTEIN, R, ‘Justice Across the Generations, in Laslett and Fishkin (eds.), The Dialogue of Justice: Towards a Self-Reflective Society (Yale University Press, 1992). EUROPEAN COMMISSION, Confronting Demographic Change: a New Solidarity Between the Generations, COM (2005) 94 FORSBERG, M, ‘Perspective on Family Leave’ (2001) New Jersey Policy Perspective, (available at www.njpp.org) HARVEY, C(ed), Human Rights in the Community: Rights as Agents for Change (Oxford, Hart, 2005). OLDHAM, M, ‘Financial Obligations within the Family—Aspects of Intergenerational Maintenance and Succession in England and France’ (2001) Cambridge Law Journal 128 PICKARD, L, ‘Policy Options for Informal Carers’, in Royal Commission on LongTerm Care, With Respect to Old Age: Long Term Care—Rights and Responsibilities Cm 4192, II/3, Community Care and Informal Care—(The Stationery Office, 1999) POSNER, R, Aging and Old Age (Harvard University Press, 1996) ROYAL COMMISSION: Royal Commission on Long-Term Care, With Respect to Old


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Maintenance of the Elderly 235 Age: Long Term Care—Rights and Responsibilities, Cm. 4192-I; 4192-II (The Stationery Office, 1999) SJOBERG G, WILLIAMS N, GILL, E. and HIMMEL, K, ‘Family Life and Racial and Ethnic Diversity: An Assessment of Communitarianism, Liberalism and Conservatism’ (1995) 16 Journal of Family Issues 246. TODOROVA, V, ‘Obligations of Grown-Up Children to their Elderly Parents: Bulgarian Legislation and Practice in M Maclean’(ed), Family Law and Family Values (Oxford, Hart, 2005). VAN HOUTTE, J and BREDA, J, ‘Maintenance of the Aged by their Adult Children: an Adequate Legal Institution?’ in M Maclean (ed), Family Law and Family Values (Oxford, Hart, 2005) WISE, K, Caring for our parents in an ageing world’ (2002)5 Legislation and Public Policy 563.


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(M) Ebtehaj et al Ch12

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Part 4

Migrant Communities and Transnational Kinship


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12 The Impact of Migration on Care: The Iranian Experience FATEMEH EBTEHAJ 1

1. INTRODUCTION

W

HAT IS THE impact of migration on kin networks? How are familial responsibilities and obligations understood, negotiated, and implemented in exile2? How do individuals situate themselves as morally accountable? And how do distinct social, legal, and political contexts specifically shape migrants’ experience of caring for kin? This chapter explores these questions with a focus on Iranian migrants’ care of elderly kin, mostly parents and spouses, but also other members of their extended families. It is based on in-depth interviews with migrants living in the UK and with some of their elderly kin remaining in Iran. Preliminary research on elderly Iranians, both in Iran and abroad, indicates that they are increasingly isolated and that their care is becoming a matter of public debate (Emami et al, 2000; Emami and Torres, 2005; Hegland, 2005, 2006; Torres, forthcoming). Their changing circumstances are attributed to social and demographic factors commonly associated with ‘modernity’, including longevity, geographical mobility, and changes in women’s roles. Many Iranians, however, face added difficulties in caring for elderly kin due to the fragmentation of kinship networks post-migration. My aim in this chapter is to highlight the complexities of care in exile and to illustrate some of the ways in which individuals strive to establish their accountability within that context. I begin with some background information on Iranian migrants and the continuing importance of kinship ties in their lives. I then review the range of

1 I would like to express my gratitude to Martin Richards, Gudrun Klein, Hamid Hakimzadeh and Homa Rastegar for their helpful comments on an earlier version of this chapter. I would also like to thank Bridget Lindley and Frances Murton for their editorial support. 2 The legal status of Iranian migrants varies widely; I therefore use the term ‘migrant’ as an umbrella term for refugees, immigrants, and emigrants. Moreover, my research participants depicted themselves psychologically as exiles and I use the term ‘exile’ for a psychological characterisation of their circumstances.


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240 Fatemeh Ebtehaj practical and psychological concerns reported by my research participants, highlighting their efforts to establish their moral accountability as caring and dutiful kin. I distinguish between issues related to caring for elderly kin remaining in Iran versus caring for kin residing in the UK, and I note in particular the prevalence of intrafamilial conflict and disputes in the participants’ accounts. Drawing on two case studies, I illustrate some of the issues involved and show how the evidence of intra-familial conflict complicates an otherwise dominant discourse of familial identity and closeness. It is my contention that while many of the concerns related to caring for elderly kin, as well as instances of intrafamilial strife and discord, cannot be restricted to migrants, they are nonetheless heightened by the stress, vulnerability and multiple losses of migration. Furthermore, I argue that a full and detailed study of the experiences of Iranian migrants and exiles must attend not only to individual, gender, and class differences, but must also situate these within the specific social and political contexts of Iran and the host country. While a full discussion thereof is beyond the scope of this chapter, I aim to illustrate its significance by pointing to the distinct challenges that individuals face when caring for kin remaining in Iran versus caring for kin residing in the UK, and to the different strategies that they may use to resolve family disputes in these two countries.

2. IRANIAN MIGRANTS AND THE FRAGMENTATION OF FAMILIES

Estimates about the number of Iranians living outside Iran vary widely. The largest wave of migration was due to the Islamic Revolution of 1979 and its aftermath. Further migration followed the Iran-Iraq war (1980–1988), and many Iranians left Iran in the late nineties, after the failure of the reformist movement and the reinforcement of hard-line policies in Iran. The largest community of Iranian migrants lives in the United States, where the 2000 Census estimates their number at 283,225 while Iranians themselves believe that number to be closer to a million. The 2001 Census estimates the number of Iranians living in England and Wales at 40,767. In general, Iranian migrants have moved to large urban areas or ‘world cities’ (Naficy, 1993: 4). They are a heterogeneous group and individuals differ along lines of social class, religion, ethnicity, language, and political affiliation; many are relatively wealthy and highly educated (Bozorgmehr, 1996; Bozorgmehr and Sabagh, 1988, 1991; Nassehy-Behnam 1991).

(a) The centrality of kinship ties for Iranians The research literature on Iranian kinship is sparse and often suffers from inadequate methodological rigor. In general, family structure in Iran has been


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The Impact of Migration on Care: The Iranian Experience 241 described as patriarchal3 and patrilineal, and researchers agree that the kinship group remains the primary social network and the main source of protection for individuals (Behnam, 1976; Fathi, 1985; Nassehi-Behnam, 1985). This is generally ascribed to the paucity of other types of social and political groups and to the lack of a reliable system of social security4. Research on Iranians in exile documents the persistence of kinship networks as a primary source of identity and support for Iranians (Emami and Torres, 2005; Fathi, 1991; Nassehi-Behnam, 1991; Torres, forthcoming). Homa Mahmoodi, for instance, a clinical psychologist in Los Angeles who sees many Iranian patients, asserts in an interview that ‘Iranian society is very clannish’ (Kelly, 1993: 162), and that her patients are less concerned about their career or money than they are about their families. In a previous study focusing on the accounts of Iranian exile women (Ebtehaj, 2001), I also found that a familial identity and kinship ties were central to my research participants’ accounts5. The migrants had often left the country hastily during or shortly after the Islamic Revolution, without adequate time or means to coordinate long-term arrangements with family and friends. Many thought that the political and social upheaval would not last and believed they would soon return home. Their choice of destination had been predicated on factors such as the availability of visas, owning a holiday home, having personal or business connections, and language skills. They spoke about a state of shock and disbelief following the Revolution, and they stressed that it took them months, if not years, to fully comprehend its impact on their lives. As a result of these hasty decisions and short-term perspectives, family members found themselves dispersed over several countries. As the years went by, the political situation in Iran remained such that exiles understood they would not go back any time soon. The passage of time, however, made attempts to reunite with kin settled elsewhere or remaining in Iran more difficult. Individuals had to various degrees settled in their host-countries and developed new social and professional ties. Furthermore, a new generation had been born outside Iran that felt ‘at home’ in the host country. As a result, my research participants often spoke about being torn between their attachment to their children and their longing to go back to Iran or to join family members elsewhere6. 3 Kandiyoti’s (1991: 24) critique of the ‘blanket term’ patriarchy must be borne in mind here, as patriarchal practices vary within regions and between socio-economic groups. For a discussion of Iranian women’s status and resistance post 1979, see amongst others Afshar (1998), Haeri (1989), Hegland (1999), Kian-Thiebaut (2002, 2005), Mir-Hosseini (2000) and Moghaddam (1993). 4 See Eickleman (1998) for a discussion of kinship in the Middle-East. The author argues that meanings of kinship vary ‘from urban to rural settings and among different educational and socioeconomic categories of society’ (p. 150). 5 In my interviews, the terms ‘kin’ or kinship were never used by participants. ‘Family’ referred to immediate or extended family members, and further close relationships were often described in familial terms as illustrated in the case studies in this chapter. 6 Further research on migrants concurs that contact with relatives left behind diminishes with time and generation. See for instance Bryceson and Vuorela (2002).


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242 Fatemeh Ebtehaj (b) Intrafamilial conflict and dispute My research participants’ dominant discourse of familial identity and closeness notwithstanding, I also found significant evidence of intra-familial tension or conflict, leading me to caution against a ‘rhetoric of harmony’ (Weinberg, 1992: 8) and to stress the double-edged impact of family ties on migrants’ lives. Embeddedness in family, in a web of primary ties of affection, trust, and obligation . . . is at once a rich resource and a potential vulnerability (Booth et al, 1997: 8)7.

The participants were eager to speak about their efforts to maintain family ties and to engage in mutual support, but they also stressed the difficulties of doing this in exile and across multiple locations. Furthermore, attitudes towards relatives and friends who had stayed in Iran varied widely. Some of the participants who had been able to go back and visit relatives spoke of a deep and lasting sense of connection. Others, in contrast, emphasised their feelings of alienation and spoke of an unbridgeable social and cultural ‘gap’, often attributing this to jealousy and resentment on the part of kin left behind. When I initiated my research on the care of elderly kin, I found more evidence of both familial solidarity and conflict. While the participants emphasised their sense of responsibility towards elderly kin and their efforts to maintain contact and provide care for them, I was particularly struck by the prevalence of family disputes in their accounts. My aim in this chapter is therefore to highlight the complexities of familial support and accountability as Iranian migrants describe their care of elderly kin.

3. CARING FOR ELDERLY KIN

The remainder of this chapter focuses on findings derived from in-depth interviews with eighteen women and five men who left Iran during or soon after the Revolution of 1979. I also interviewed three women who had remained in Iran and whom I met during their visits to the UK. The participants’ ages ranged from forty-eight to ninety-one. They all came from urban backgrounds but their class background and level of education varied widely. All were Shi’i Muslims except for one Bahai and one Jewish person, but many defined themselves as secular. Although the sample was not designed to be representative, the gender imbalance does reflect other findings in relation to care for elderly kin: women tend to be the primary kin carers, and women tend to outlive their spouse and to be in need of care in old age (see chapters by Grundy and Murphy and by Nolan and Scott in this volume). 7

See Kibria (1993) for similar claims based on her research on Vietnamese-Americans.


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The Impact of Migration on Care: The Iranian Experience 243 The interviews centred on the care of elderly kin and were conducted in Persian, English, or a mixture of the two as determined by the interviewees8. The research participants reported differing degrees of familial contact and support, but all spoke of difficulties associated with the fragmentation of their family postmigration. All acknowledged some degree of responsibility towards ageing parents or spouses; this recognition was mitigated, however, by the difficulties that they experienced due to their exile circumstances. Within that context, responsibilities towards children overrode responsibilities towards other kin, elderly parents included. Furthermore, while some dimensions of care such as financial assistance were shared by men and women alike, women remained the principal providers of emotional and physical care.

(a) Caring for kin remaining in Iran A primary distinction can be made between care for kin who remained in Iran and care for kin also residing in the UK. Caring for someone long distance entails difficulties related to restrictions on contact due to geographical distance and to the expenses and disruption of routine connected with travel, the risk of unpredictable entanglements with the Iranian authorities, and the fear of jeopardising current residence permits in the host country. Mr9 Karim, for instance, had been able to visit his parents a couple of times since he left the country, but the last time he was in Iran, he had been interrogated for several hours about his professional activities abroad. Mr Karim refused to consider further visits as he was concerned that he might be arrested next time, thereby jeopardising his responsibilities towards his wife and children and his career. He expressed his concerns and sadness in relation to the health of his father who suffered from Alzheimer’s disease, recognising that he might never see him again. He also spoke of guilt feelings about leaving all of his father’s care to his mother and sisters in Iran; to compensate for his absence, he strove to assist his parents, as well as his sisters and their children, with whatever financial and practical assistance he could muster long-distance. Most of the migrants whose parents had remained in Iran stated that their parents were better off staying there, as migration was associated with feelings of isolation and cultural dislocation. The women who still lived in Iran concurred; despite their daily difficulties, they still experienced a sense of home and community in Iran while their adult children living abroad were ‘too busy’ and had ‘their own life’10. One woman added that, were she to join her adult 8 The analysis focused on the co-construction of the accounts with particular attention to ‘face’ saving strategies and to the rhetorical establishment of a moral self. For further discussion of my approach to interview data, see Ebtehaj (2001). 9 All names and identifying information are disguised in order to respect confidentiality. I use ‘Ms’ as a preferred translation for the Persian title ‘Khanom’ which does not indicate a woman’s marital status. 10 See Hegland (2006) for similar findings amongst Iranians in California.


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244 Fatemeh Ebtehaj children abroad, her expectations of them would rise and this would damage their relationship. Only one woman complained about her loneliness and about her children having ‘abandoned’ her. Like Mr Karim, the migrants nonetheless expressed sadness at the possibility of never seeing their elderly parents again, and sometimes guilt or shame at having left them behind. Ms Tala, for instance, said that her mother had suffered from a stroke just as Ms Tala was preparing to leave Iran11. Ms T When I saw her condition, I said, ‘But how can I leave her?’ . . . I said, ‘No, even if I myself want to come, what will people say if I abandon my mother?’ For Ms Tala, sending money home to support her mother was a way of remaining accountable and of saving face, and she emphasised the difficulties and deprivation she put herself through. Ms T Well the truth is, the money that I make, well some of it is for me, some of it—I try always to send some for my mother’s welfare. I deprive myself here very much. Very much. For instance, I don’t know, I don’t buy myself clothes because I think of her. (b) Caring for kin in the UK Caring for elderly kin in the UK involves a different set of concerns, and the participants often expressed feelings of isolation and cultural dislocation, their difficulties compounded by their inadequate familiarity with local social services and institutions. To illustrate, Ms Sombol described the challenges she faced in caring for her husband who had suffered from a stroke that left him debilitated. He had received home-visits from a female social worker and had protested that he did not want to be nursed by a woman; the next carer was a black man whom Ms Sombol’s husband also rejected. Ms Sombol’s husband was eventually institutionalised, but she emphasised that were it not for her adult children who wanted to remain in the UK, she would have taken her husband back to Iran where she would have been able to provide care for him in a more familiar setting. Many others spoke, like Mr Karim and Ms Sombol, of being torn between generations: they wanted to fulfil their responsibilities towards their children and stay close to them in the host country, but also longed to go back to Iran to care for elderly parents or simply to feel more ‘at home’. In addition, I found other participants similarly divided in their assessment of Iran versus the UK for support and assistance in caring for elderly kin. While 11 To maximise readability, I have simplified the transcript excerpts presented here as follows: italics indicate text originally spoken in Persian and a dash indicates hesitation. I have also omitted backchanneling sounds such as ‘uhum’ and indicated editorial cuts with an ellipsis. Syntax errors are left verbatim.


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The Impact of Migration on Care: The Iranian Experience 245 some expressed their gratitude and appreciation for the assistance they obtained from social services in the UK, others maintained that being amongst Iranians and in their home environment would have been more helpful. The ambivalence that some Iranian migrants feel towards the host country may be partly attributed to their views about the historical role of the British in Iran, notably their involvement in the coup against Mossadegh in 1953 and in the Shah’s downfall in 197912. Experiences of discrimination in the host country can further contribute to negative responses13. While such concerns were not reported by the participants in this study, one must bear in mind that Iranians talking to each other may assume such views and experiences to be shared and self-evident.

(c) Financial support and disputes Questions about money and financial support were particularly sensitive and concerns for face saving must be kept in mind when examining such data. Such concerns were apparent as participants minimised the extent to which they received financial support while stressing their contributions to the welfare of close kin. I noted in particular that while elderly parents often mentioned their financial support of adult children, these rarely acknowledged receiving such assistance. Overall, when resources permitted, money appeared to flow down the generations so that elderly parents, even those still living in Iran, gave money or property to their adult children. These findings are consistent with data on intergenerational exchange elsewhere, notably elderly people in Iran (Hegland, 2005), Japanese and Korean migrants (Izuhara & Shibata, 2002; Min, 1997), and attitudes in the UK (Finch, 1989). All participants agreed that becoming financially dependent on their adult children was highly undesirable, and two of the women who lived in Iran, both in their mid-seventies, emphasised that they had remained there largely to retain their financial independence. As previously stated, the few participants who claimed that they sent money to Iran for the support of elderly parents appeared to alleviate in this way their feelings of guilt or shame at having left them behind. Finally, several participants reported intrafamilial disputes over financial resources. The disputes were of two principal kinds: the first and larger category consisted of disputes between migrants and relatives in Iran; the second category consisted of conflict between migrant family members. In the next section, I use two case-studies to illustrate some of the issues discussed. The first case consists of a woman’s difficulties in caring for her elderly mother in Iran, and the second case is that of a woman whose elderly mother lived close to her in the UK. After pointing to some of the commonalities and differences between these two cases, I extend the analysis to the overall findings. 12 13

See Dossa (2004) for similar findings on Iranian migrants in Canada. See Bozorgmehr (2000) for a discussion of anti-Iranian discrimination in the US.


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246 Fatemeh Ebtehaj

4. MS LADAN, OR ‘MEL GIBSON’

Ms Ladan was a self-employed widow; her adult children were married and had moved to the United States. The interview centred on her care for her widowed mother who had remained in Iran and suffered from Alzheimer’s disease. Ms Ladan argued that her mother’s illness had made her prey to swindlers including servants, bankers, relatives and lawyers, and she described with gusto and much detail her efforts to rid her mother of these people, the difficulties and risks involved, and the hostility she encountered in the process. She aptly indexed the heroic genre of her narrative by comparing herself to ‘Mel Gibson’14.

(a) ‘Lawlessness’ in Iran Ms Ladan’s widowed mother lived in a large house and was financially independent. The two women had been able to visit each other a few times, and regular contact was maintained by telephone. A few years prior to our meeting, Ms Ladan had noticed that her mother was not well and subject to memory lapses. She also discovered that her mother, feeling increasingly weak and incompetent, had delegated the management of her financial affairs to relatives who seemed to defraud her. Ms Ladan decided to go to Iran to check on the situation. She began with a description of her mother’s changed household. Ms L She lived alone in that big house and um I think the problem was with the domestic help. We had a butler who’d been with us since he was seventeen. He was eighty-something. My mother was not a very domestic kind of person, and the house was run with [butler]. When [butler] died, I remember that was in [date], that’s when my mother really became helpless. And I think the household changed, you know, these new people came, and they took over, realising that she was like that, and I had no idea, I was in [town in the UK]. FE And [butler] was somebody you were comfortable with? Ms L Oh absolutely. He would tell me bedtime stories, and a—I mean I grew up with [butler] being in the household. He grew up under my grandmother’s uh thing. He’d become the cook by the time and he ran the house, really. I think when he died, then everything went to parts.

14 Ms Ladan identified with a male actor known for heroic roles in adventure films and her narrative followed what is commonly viewed as a ‘masculine’ pattern of agency. The next case study, Ms Nazanin, illustrates a more ‘feminine’ narrative genre centred on relationship, care, and self-denial. These instances point to individual differences in narrative style and problematising simplistic dichotomies of gender and genre. See Gardner (2000: 65) for a similar view on ‘sterile dichotomies’.


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The Impact of Migration on Care: The Iranian Experience 247 In Ms Ladan’s narrative, the death of the trusted butler marked the end of an era and severed the last link to past lifestyles and relationships. She noted that her mother had started locking everything up in the house, something she never did in the past. Ms Ladan then described how her mother’s bankers embezzled her . Ms L She would hand over the chequebook to the banker that she would go and sit down with, and they would bring a tea, you know. And she would say, ‘What is my balance, Mr’—And he would say, whatever. Obviously, whatever he liked. So she would say—she couldn’t—she couldn’t basically see things. I think, even figures were vague. No idea, what is a thousand toman15, or a hundred thousand, or whatever. Say um, ‘How much can you give me?’ . . . . She was at the mercy of every single person if I hadn’t gone back there. And so, he would say, ‘Well Madam, six hundred thousand toman, right? I give you six hundred thousand’. And he put six million into the computer! So FE So then pocket the rest you mean. Ms L Absolutely! You know the difference between six million and six hundred? Ms Ladan subsequently listed a number of other people, including relatives and lawyers, who had similarly taken advantage of her mother’s incompetence in dealing with financial transactions. She then explained how she took charge of her mother’s affairs and got rid of the swindlers. FE

So how could you deal with the situation considering you—you lived in the UK at the time and she lived in Iran? How could you—kind of—help her or— Ms L I stayed! I went for two weeks and I stayed six months the first time. And then went back again and stayed a year and a half. To deal with this. Ms Ladan fired the servants, sold her mother’s large house and relocated her in a smaller, more manageable one. This had not been easy, as she not only encountered the hostility of those she was removing from her mother’s entourage, but also resistance from her mother. Ms Ladan attributed her mother’s lack of cooperation and mistrust to her illness and to calumny, some going as far as calling Ms Ladan a ‘mother killer’ (madar kosh). Ms L ‘She’s going to come and kill you’. It was the word in Tehran. Even family members. ‘And she’s going to take your money!’ So she wasn’t going to listen to me. Throughout her account, Ms Ladan emphasised the general climate of lawlessness in Iran and people’s preference to avoid dealing with the authorities. 15

Iranian currency


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248 Fatemeh Ebtehaj Ms L You see, the problem is, here you can go and by law you can bring a doctor and they would certify her. But there, if you went by law, the people coming would be the new government and they might take over. So the servants knew that by law, I wouldn’t go to the government and they won’t go to the government. When I asked whether she did not fear reprisal, Ms Ladan retorted, Ms L Absolutely! . . . And they could kill you! I mean I tried to get a lawyer at that time and he said, ‘You know, I’m not going to touch you. You’ve got everyone against you. If your mother is poisoned, which they—I think they were putting opium in the tea and in her soup, because they can dilute opium, ‘If something happens to her, they will say it’s you’ . . . That’s what they were going to do, if I hadn’t put them out. It was just a matter of time. Another difficulty that people may encounter in Iran is to find themselves barred from leaving the country. This was a serious concern for Ms Ladan who had established her life abroad. Ms L They would call and say, ‘I will ensure that you are barred from leaving the country’. FE Exactly. And they can! Ms L And they can. Easily, they go and they say something, and—they can—it’s not forever, but you—you can FE No, but they can make problems for you. Ms L You have problems, and you have to keep paying people, you know. If someone wants to go and say something. So, you tremble every time you go, you know, because there is no such law as such. Anyone can do anything. Ms Ladan eventually managed to sell her mother’s large house and she commented that the sale ‘saved our lives, really. Otherwise, we didn’t have a penny, you know’. She then attributed to jealousy the hostility that she faced from others following the sale. Ms L People resented that. I felt that my friends, and that’s why I really don’t think one has true friends in Iran, it’s bizarre that when they felt sorry for me in that house, stuck with her . . . they were very nice to me. As soon as I sold the house, it became a problem for everyone else to deal with me. Why? I didn’t change. It’s just that I took most of the money to look after my mother and make her comfortable. I didn’t have to be there. I could have taken the money and gone. . . It happened after I sold the house. Before, everyone was interested. ‘Poor Ms Ladan. Why have you (unclear) come back?’ Afterwards, ‘Now Ms Ladan has become rich, she thinks she can’ . . . I mean, give me a break! Everything went berserk after I sold the house. Isn’t that wild? Instead of being happy for you?


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The Impact of Migration on Care: The Iranian Experience 249 Throughout this period, the only person who helped Ms Ladan was Ms Taji, an old friend of her mother’s. This lady was particularly useful to Ms Ladan because ‘she knew the rules’, meaning that she knew how to deal with locals in a way that Ms Ladan, who lived outside Iran, did not. Ms Taji’s support was predicated on her friendship with Ms Ladan’s mother, but also on an important history of mutual assistance both during and after the revolution. Ms Ladan described her as ‘like my godmother’. I asked Ms Ladan if she had considered bringing her mother to the UK and she responded that she felt strongly that her mother was happier staying in Iran and being cared for in her own home. She had brought her mother over once for a medical check-up but the trip had disoriented her mother and ‘really thrown her off’. I ended the interview by asking Ms Ladan about her own concerns for old age and she said that she feared getting Alzheimer’s disease. When I asked if she was concerned about who would take care of her, she said that she had not thought about it yet and joked about checking into a home with friends.

(b) Migration and care: negotiating accountability Ms Ladan’s account illustrates some of the ways in which migration impacted on her relationship with her mother and on her care for her. Being far from her mother prevented Ms Ladan from detecting the early signs of her mother’s illness. She then had to spend extended periods of time in Iran to settle her mother in a more manageable home and to deal with her financial affairs. These prolonged visits not only disrupted Ms Ladan’s life by removing her from her routine and activities in the UK, they exposed her to the hostility of all those who had previously surrounded her mother in Iran and swindled her, and put her at significant risk of retaliation. She also stressed the reluctance of all parties involved to appeal to the legal authorities, thereby reflecting a generalised distrust in the rule of law in Iran. Ms Ladan did not always have her mother’s cooperation. One leitmotif in Ms Ladan’s account had to do with the fact that her mother appeared to trust the people around her more than she trusted her own daughter, an attitude that Ms Ladan attributed both to her mother’s illness and to her own prolonged absence from Iran. The fact that Ms Ladan had left Iran had allowed others to move closer to her mother and to take advantage of her. It also allowed people to malign her as a bad daughter and a ‘mother killer’. Ms Ladan established her moral accountability as a daughter in several ways. She argued that she had done the best she could for her mother, emphasising her mother’s wish to remain in Iran and to be independent. While she acknowledged that she also benefited financially from the sale of her mother’s house, Ms Ladan emphasised that she had used it for her mother’s sake, to pay off her debts and to make her life easier.


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250 Fatemeh Ebtehaj Ms L My mother was in perfect shape. Better off than she would have been. She had no debts. She didn’t worry. . . . I wish some one would do that for me now (laugh). She asserted that the new home she moved her mother into was very expensive and luxurious; she also stressed that she had spent a substantial amount of money on her mother’s care, much more than she would have if her mother had come to the UK. Ms Ladan attributed the general hostility that she had faced and the charges of ‘mother-killer’ to envy and resentment, and also to the fact that she was directly confronting swindlers. She further testified to a consistent lack of support from her relatives, listing them among her most hostile adversaries. These negative reports notwithstanding, her account supported a familial discourse of closeness and duty as she emphasised her care of her mother and rejected the criticisms she had been subjected to. While her adversaries claimed that she disrupted her mother’s lifestyle and sold her mother’s house for her personal benefit, Ms Ladan asserted that she had done the right and reasonable thing. She had taken charge of her mother’s care in a way that was also manageable for her, and it was only sensible for her to safeguard her mother’s assets for her own future needs and those of her children and grandchildren. She thereby established herself as accountable not only towards her mother but also towards future generations. Lastly, it is noteworthy that despite her many difficulties with relatives, Ms Ladan continued to use kinship metaphors to characterise helpful friends. She twice compared Ms Taji to a ‘godmother’ and once to a ‘mother’, and she referred to another friend as a ‘sister’.

5. MS NAZANIN, OR ‘CINDERELLA’

Ms Nazanin also looked after a mother suffering from Alzheimer’s disease, but in contrast to Ms Ladan, all of her immediate family had left Iran. At the time of the interview, Ms Nazanin was single and self-employed. Her widowed mother was in a nursing home that she could visit daily, and her account focused on her devotion to her mother’s care in the face of strong hostility from her two older sisters. Ms Nazanin spoke in a quiet and somewhat plaintive voice. She framed her story in terms of a fairy-tale and declared, ‘I always felt like Cinderella!’

(a) A double narrative of ambivalence Ms Nazanin’s account was particularly complex and multi-layered due to a persistent tension in the ways she spoke about herself and about her relationship to her parents. Her dominant discourse was one of love, admiration, and respect


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The Impact of Migration on Care: The Iranian Experience 251 for her parents, and she spoke many times of being ‘grateful’ for her relationship with them, but an alternative narrative of domination, manipulation, emotional distress, and contained anger was interwoven in her account. She began by stressing that her sisters had been favoured as children while she had had to ‘earn’ her parents’ love. She also stated that she had always been treated more severely. Ms N You know, a lot of my childhood, if I look back, was quite unusual because at home, there was an enormous amount of um structure, directed at me, not at my older sisters . . . . So what I still don’t understand was why my father was so strict with me, the youngest child, and yet I was extremely close to both my parents. And I somehow liked the boundaries. Not always! But I quite enjoyed the boundaries they gave me. . . FE And it was different for your sisters? Ms N Oh, it was totally different. Ms Nazanin reiterated that she was ‘grateful for this’ but later stressed the negative impact of her strict upbringing on her subsequent relationships. Ms N For example, all my friends at school would have boy friends. You know because of my Persian background I wasn’t allowed to have any of it. And it was OK, I understood it. So I had this very—this great illusion that, ‘One day, I’ll get married!’ And of course, you know, I look back and I think I was brought up in an extremely naïve way and I suffered a lot. Because of that. You see? Because I thought that one day, I’d just get married! . . . . And I suffered an enormous amount thinking that people were very pure. And I had a few very traumatic experiences, you know, living in a totally illusory world, you know, and suffering from it. Ms Nazanin’s sisters eventually married and moved to other countries, but Ms Nazanin continued to live with her parents until her early thirties. Both of her parents suffered from ill-health and Ms Nazanin described herself as always ‘in and out of ambulances, hospitals, emergency units’. When I asked how serious her parents’ ailments had been, Ms Nazanin again responded with a double discourse. She confirmed that her parents had ‘real illnesses’, but also commented that, ‘You know, you can deal—you can control a lot of things . . . Instead of letting go’. She then intimated that she may have been manipulated into staying at home and looking after her parents but refused to acknowledge any feelings of anger towards them. Ms N That’s why I never left home! I felt that my parents would um—wouldn’t be able to cope. I had this idea that everything would collapse if I go. I don’t know why. FE It never felt like a burden to you?


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252 Fatemeh Ebtehaj Ms N [Very long pause] I um—um—I—I can’t call it ‘burden’. I—yes in a way I could say, I’m fed up. You know. There were times when I thought—No, I know, it was not a burden, but it—For example I would love to be able to say I’m going to go on a trip for a month. I’m going to explore certain places, Africa, India. I want to stay, I want to meditate, I want to go, I want to do things. I’ve never been able to do things. Um—But it’s OK. I mean—um, I paused because I thought I’d never asked myself this question. I’ve never asked myself this question. I’ve never been angry about my parents’ ill health. Um—no, I can’t say it’s a burden. Maybe I love them very much. Despite her reluctance to characterise her duties as a burden, Ms Nazanin’s listing of her thwarted wishes strongly conveyed her frustration and possibly negative feelings that she so forcibly denied. After her father’s death, Ms Nazanin continued to care for her mother who suffered from strokes and from Alzheimer’s disease. By that time, Ms Nazanin had moved out of the parental home but she stressed that she saw her mother daily. Her ‘real’ problems with her sisters began when her mother was institutionalised and when Ms Nazanin obtained a power of attorney to look after her mother’s affairs. Ms N So, for the last—Since (date), I’ve been taken to court of protection twice by my sisters, and in both cases, they’ve always lost their case. FE But it’s always the issue of money that’s-? Ms N Money, and why I care about my mother, you know? Why I spend so much money on her when she doesn’t understand, and um—uh—yes, it’s money. FE Did your sisters dispute the power of attorney and so on? Ms N Yes. Yes. Yes. They said that I forced my mother FE But the court did not? Ms N No, because you know (slight laugh), I didn’t attend to my mother the last minute! Everyone knew. Everyone knew that, you know, that was my life! Ms Nazanin felt that her mother’s money should be spent to keep her as comfortable as possible. Although she emphasised that her mother received ‘the very best care’ in an NHS hospital, she had hired a person full-time to keep her mother company, and she liked to indulge her mother in outings to restaurants and with luxurious gifts such as cashmere sweaters. Her sisters had argued in court that their mother could not appreciate these luxuries and that Ms Nazanin only spent the money to please herself, but the judge had dismissed them, observing that Ms Nazanin ‘should be praised’. She reported the judge’s words with satisfaction and clearly took pride in her role as a dutiful and devoted daughter. The cost had been high, however, both emotionally and in terms of her career.


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The Impact of Migration on Care: The Iranian Experience 253 Ms N And sometimes, you—you—like last night, when you have a lot of pressure in your work, [describes current difficulties], so if you are emotionally tired and you have to on top to deal with these stupid issues, then I become depressed, you know. I don’t—I don’t become—I deal with it, but after a while, ‘Bang!’ It gets you. And then this morning I said, come on, snap out of it, deal with it! You know? That’s what I said to myself. And I do. Ms Nazanin’s narrative consistently exhibited her ambivalence as she alternated descriptions of her difficulties and their emotional and practical toll on her life with expressions of acceptance punctuated with, ‘It’s OK’. At one point, she appeared to try to convince herself that she was doing the right thing. Ms N And somehow I feel you don’t do it for—to get recompensed, but you are! Life—life gives back to you in a strange way. It has to. It has to. Her ambivalence further expressed itself through references to her ‘illusions’ and to her potential “madness”. She first referred to her hurtful illusions in the context of her expectations of marriage but later spoke of illusions as a useful coping device. Ms N You make sort of the best out of whatever you have and you beautify that. You know. So I ha—I ha—you have to use a bit of illusion as well, in order to, you know, deal with difficult issues. And then they, hopefully, you pass on to the differ—another stage, and you can cope! Ms Nazanin had been called ‘mad’ by her sisters, Ms N I mean, I was the mad one! I was the mad one, in the fam—They could say, ‘You are mad!’ You’re crazy! You know, they could say that. To such a point that I started to believe that I was mad. And she had been called ‘mad’ at work. Ms N I’ve worked very hard! But my parents have always come first, whereas I see with my colleagues that, you know, work is their life! And, you know, they think I’m mad, to—to function the way I do, but that’s how I function! Maybe—That’s how I function. I couldn’t function in any other way. In contrast to these themes of illusions and madness, Ms Nazanin stressed the reality of her faith. Ms N You know I have this firm—Well I’ve seen it. I’ve—I’ve seen it! It’s not an illusion, that. Many times, I’ve dropped my work absolutely, and, you know—Of course, I’ve had the financial difficulty because of it, but then the difficulty has been remedied in no time. And I’ve been— Where? Where does this power come from? Call it God—. . . So I’ve been through quite a traumatic journey and I—If I had not had some kind of faith in God I don’t know where I’d be today.


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254 Fatemeh Ebtehaj She also spoke of the support of a few ‘good friends’. Ms N I have some wonderful friends, fantastic friends, who are my—my family. You know, my friends are—I don’t have many, many friends, but the friends I have are my family. By characterising the closeness of her relationship with these friends in terms of ‘family’, Ms Nazanin, similarly to Ms Ladan, subscribed to a discourse of family support and cohesion despite her report of intense family strife and discord. Ms Nazanin established her moral accountability as a daughter by emphasising her long-standing devotion to her parents despite the emotional and physical cost, as well as the restrictions on her social life and on her career that she had endured as a consequence. Her double narrative resonated with the voices of several other female participants who reported the strains of looking after elderly kin, often assuming this care single-handedly, yet refusing to envisage alternatives such as enlisting male relatives, or relying on further assistance from public services. In this way, these women appeared to subscribe to, yet suffer from, social and internalised expectations related to the gendered care of kin.

6. DISCUSSION AND CONCLUSION

These two cases share several features: both participants were sole carers of elderly mothers who suffered from Alzheimer’s disease, both reported that their family network had been destabilized by migration and that family members were dispersed over a number of countries, and both spoke of intense conflict with relatives in relation to their access to, and use of, their ailing mothers’ financial resources. The women shared a view that the hostility that they encountered from relatives and from many others was due to envy, and that this flared up as soon as they were seen to have access to their mother’s money. Finally, both women reported significant disruptions in their work and daily routine, and they spoke of the emotional and physical costs of prioritising their mothers’ needs. There were also important differences in Ms Ladan and Ms Nazanin’s cases. These included individual differences in voice and narrative genre, but more importantly circumstantial differences, as Ms Ladan had to go to Iran to look after her mother while Ms Nazanin’s mother lived close-by. The different environments in which they cared for their mothers led them not only to draw differently on social services, but also put them in contrasting positions in terms of recourse to law. Ms Ladan drew on her mother’s personal finances to ensure her physical care in Iran, and she spoke of the practical impossibility of invoking the law to resolve subsequent disputes. By antagonising those who had been taking advantage of her mother, Ms Ladan also put herself at risk of retribution in an


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The Impact of Migration on Care: The Iranian Experience 255 unstable and unpredictable environment. In contrast, Ms Nazanin was able to rely on social services and on public healthcare in the UK, and she was vindicated and empowered by the courts when confronted by her sisters. The two accounts resonated in a number of ways with those of other participants. As previously stated, many cared for elderly kin single-handedly due to the fragmentation of familial networks, and there were often disputes over financial resources in which success in legal terms depended crucially on whether the dispute took place in Iran or in the UK. Carers of elderly kin in the UK were able to draw on social services for support, while caring for elderly kin in Iran had to be managed and funded with private means. Finally, many women appeared to resent the gender inequality evident in the distribution of familial care and responsibilities, but they did not appear to consider alternative arrangements, possibly succumbing to social pressure and expectations. To summarise, this study found that while participants generally described their familial ties as their primary sources of affective and instrumental support, the fragmentation of kin networks post-migration led to the care of elderly kin being increasingly shouldered by isolated individuals. Furthermore, diminishing financial resources often contributed to intra-familial conflict. Nonetheless, all participants continued to draw on a familial discourse which characterised supportive personal relationships in kinship terms, and most accounts perpetuated a gendered discourse which ascribed physical and emotional kin care to women. While some of these issues, notably the demands associated with caring for elderly people and the occurrence of family strife, are not restricted to migrants, I would argue that they are exacerbated by the geographical, social and cultural dislocation that migrants experience, together with the loss of social and financial resources and networks of support. Further research on Iranian migrants is needed to differentiate between the various kinds of assistance and care provided, the impact of location, factors related to social and economic background, generation, and gender, and to explore the multiple ways in which care is negotiated and accounted for.

7. REFERENCES

AFSHAR, H, Islam and Feminisms: An Iranian Case-Study (London, Macmillan Press, 1998). BEHNAM, D, ‘Nuclear Families and Kinship Groups in Iran’ (1976) 76 Diogenes 115. BOOTH, A, CROUTER, A C and LANDALE, N, Immigration and the Family: Research and Policy on U.S. Immigrants (Mahwah, NJ, Lawrence Erlbaum Associates, 1997). BOZORGMEHR, M, ‘Iranians’ in D W Haines (ed), Refugees in America in the 1990s (Westport, CT, Greenwood Press, 1996) p 213. —— ‘Does Host Hostility Create Ethnic Solidarity? The Experience of Iranians in the United States’ (2000) 2 Bulletin of the Royal Institute for Inter-Faith Studies 159.


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256 Fatemeh Ebtehaj BOZORGMEHR, M, and SABAGH, G, ‘High Status Immigrants: A Statistical Study of Iranians in the United States’ (1988) 21 Iranian Studies 5. —— ‘Iranian Exiles and Immigrants in Los Angeles’ in A Fathi (ed), Iranian Refugees and Exiles Since Khomeini (Costa Mesa, CA, Mazda, 1991) p 121. BRYCESON, D and VUORELA, U (eds) The Transnational Family: New European Frontiers and Global Networks (Oxford, Berg, 2002). DOSSA, P, Politics and Poetics of Migration: Narratives of Iranian Women from the Diaspora (Toronto, Canadian Scholars’ Press, 2004). EBTEHAJ, F, Co-constructing Selves: Iranian Exile Women and Midlife Development (PhD Thesis, University of Cambridge, 2001). EMAMI, S, TORRES, S, LIPSON, J G and EKMAN, SL, ‘An Ethnographic Study of a Day-care Center for Iranian Immigrant Seniors’ (2000) 22 Western Journal of Nursing Research p.169. EMAMI, S and TORRES, S, ‘Making Sense of Illness: Late in Life Migration as Point of Departure for Elderly Iranian Immigrants’ Explanatory Models of Illness’ (2005) 7 Journal of Immigrant Health p.153. FATHI, A (ed), Women and the Family in Iran (Leiden, E J Brill, 1985). —— (ed), Iranian Refugees and Exiles since Khomeini (Costa Mesa, CA, Mazda, 1991). GARDNER, K, Age, Narrative and Migration: The Life Course and Life Histories of Bengali Elders in London (Oxford, Berg, 2002). HAERI, S, Law of Desire: Temporary Marriage in Shi’i Iran (Syracuse, Syracuse University Press, 1998). HEGLAND, M E (1999) ‘Gender and Religion in the Middle East and South Asia: Women’s Voices Rising’ in M L Meriwether and J E Tucker (eds), A Social History of Women and Gender in the Modern Middle-East (Oxford, Westview Press, 1999) p 177. —— Iranian Elderly: Finding Meaning in a Transforming World (Unpublished Manuscript, 2005). —— ‘Iranian American Elderly in California’s Santa Clara Valley: Crafting Selves and Composing Lives’ in H Moghissi (ed), Muslim Diaspora: Gender, Culture and Identity (London, Routledge, 2006) forthcoming. HMSO 1991 Census: Ethnic Group and Country of Birth—Great Britain (London, HMSO, 1991). IZUHARA, M and SHIBATA, H, ‘Breaking the Generational Contract? Japanese Migration and Old-age Care in Britain’ in D Bryceson and U Vuorela (eds), The Transnational Family: New European Frontiers and Global Networks (Oxford, Berg, 2002) p 155. KANDIYOTI, D, ‘Islam and Patriarchy: A Comparative Perspective’ in N R Keddie and B Baron (eds), Women in Middle-Eastern History: Shifting Boundaries in Sex and Gender (New Haven, Yale University Press, 1991) p 23. KELLY, R, ‘Interview with Homa Mahmoodi, Clinical Psychologist’ in R Kelly, J Friedlander and A Colby (eds), Irangeles: Iranians in Los Angeles (Los Angeles, Oxford, University of Los Angeles Press, 1993) p 162. KIAN-THIEBAUT, A, ‘From Motherhood to Equal Rights Advocates: The Weakening of Patriarchal Order’ (2005) 38 Iranian Studies 45. KIBRIA, N, ‘Family Tightrope: The Changing Lives of Vietnamese Americans’ (Princeton, NJ, Princeton University Press, 1993).


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The Impact of Migration on Care: The Iranian Experience 257 MIN, P G, Changes and conflicts: Korean Immigrant Families in New York (Boston, Allyn and Bacon, 1997). MIR-HOSSEINI, Z, Marriage on Trial: A Study of Islamic Family Law (London, I B Tauris, 2000). MOGHADAM, V M, Modernizing Women: Gender and Social Change in the Middle East (London, Lynne Rienner, 1993). NAFICY, H, The Making of Exile Cultures: Iranian Television in Los Angeles (Minneapolis, University of Minnesota Press, 1993). NASSEHI-BEHNAM, V, ‘Change and the Iranian family’ (1985) 16 Current Anthropology 557. —— ‘Iranian Immigrants in France’ in A Fathi (ed), Iranian Refugees and Exiles since Khomeini (Costa Mesa, CA, Mazda Publishers, 1991) p 102. TORRES, S, ‘Different Ways of Understanding the Construct of ‘Successful Ageing: Iranian Immigrants Speak About What Ageing Well Means to Them’ (forthcoming) Journal of Cross-Cultural Gerontology. WEINBERG, S S, ‘The Treatment of Women in Immigration History: A Call for Change’ in D Gabaccia (ed), Seeking Common Ground: Multidisciplinary Studies of Immigrant Women in the United States (Westport, CT, Greenwood Press, 1992) p 3.


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13 Family Care and Transnational Kinship: British Pakistani Experiences KAVERI HARRISS AND ALISON SHAW

1. INTRODUCTION

O

UR PERSPECTIVE ON family care in this chapter is informed by an understanding of British Pakistanis not as ‘immigrants’ but as ‘transmigrants’, connected to two or more societies simultaneously (Glick Schiller, Basch et al, 1995), and as belonging to transcontinental families (Kelly, 1990). British Pakistanis typically maintain active links with kin across the world, mainly in Pakistan, but also in India, East Africa, the USA, Canada and elsewhere in Europe. Family care, as reproductive labour, comprises all the activities needed for the day-to-day and intergenerational continuity of the family (Jeffery, Jeffery et al., 1989; McDonald, 1993) including its vulnerable or dependent members (children, the sick and the elderly). Multi-sited families can thus be viewed as constituting ’global care chains’ constructed through ‘the paid or unpaid work of caring’ (Hochschild, 2000: 131). The formation of global care chains is, however, far from straightforward. International migration, motivated by global socio-economic inequalities, poses a fundamental threat to family care by separating kin. Further, there are potential contradictions between a receiving state’s definitions of an ‘immigrant’ family and transmigrants’ normatively-shaped sense of responsibility to extend care to relatives, especially to vulnerable kin. In what follows, we identify tensions in the transnational experience and negotiation of family care. We show how the British state’s definition of legitimate immigrant families and stereotypes about the corporate nature of Pakistani kinship can negatively influence immigration decisions, exerting structural and ideological constraints on the provision of family care transnationally. We also examine diverse adaptive arrangements for providing care across continents, noting the contradictions and sometimes irresolvable dilemmas that can ensue. Finally, we suggest that solutions to the problem of care in a global context should be understood not simply or necessarily as migration strategies, but as motivated by emotional ties and notions of responsibility for relatives.


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260 Kaveri Harriss and Alison Shaw Our case studies are drawn from ethnographic fieldwork and in-depth interviews with British Pakistanis in London, Oxford and High Wycombe, and with branches of their families in Punjab and Azad Kashmir. We bring together material from Kaveri Harriss’s doctoral research on the circumstances of chronic illness or disability, and Alison Shaw’s research on British Pakistani perceptions of genetic risk, presenting cases relating most clearly to the issue of transnational care. Kaveri Harriss met families through community groups in London, following up some of them in Pakistan; Alison Shaw met families mostly through clinical genetics referrals in the UK. The instances of chronic illness and disability described below are intended not to reflect the overall burden of chronic ill-health or genetic disease within the British Pakistani population but to illustrate issues in negotiating family care in transnational situations.

2. TRANSNATIONAL KINSHIP AND THE NEED FOR CARE

Transnationality divides kin. However, as Ulla Vuorela writes of an East African Pakistani family, it also creates a sense of a community that is both imagined and materialized through various practices, both as a presence and in absentia. A sense of togetherness is reproduced through correspondence, greetings and presents carried by visitors. It is anchored in photographs and objects that become talismans of home and belonging. For Fawzi, it was her mother’s letters . . . For her brother, it was the fruitcakes and chevra to be enjoyed at teatime as a reminder of the teatime as a family ritual, sent to him in Dar es Salaam carefully packed in tin containers from Nairobi (Vuorela, 2002 p76).

The density of interaction between distant family members varies in relation to the needs of migrants and their relatives in the home country and is strongly linked to the stage of the individual life cycle, the developmental cycle of the family, and the generation of migration (Bryceson and Vuorela, 2002). Caring responsibilities can cause migrants to rethink their orientations towards their country of origin. In late middle-age, the need to provide for one’s elderly parents can reawaken a migrant’s sense of family responsibilities and relationships (Izuhara and Shibata, 2002). Migration produces distance and dislocation, but responsibilities in transnational families ‘do not end but bend’ (Hochschild, 2000 p134). Migration from Pakistan to Britain has occurred mainly since the 1950s, peaking in the late 1960s and early 1970s (Ballard, 1994). The majority of pioneer migrants were single men from small-scale landowning families in rural Punjab and Azad Kashmir. Their families made an initial investment in sending them abroad, in the expectation that their remittances would be used to improve landholdings, build a better house, start a business or provide a dowry. From the early 1970s, the wives and children of the pioneers also began to settle in Britain. The UK Pakistani population now numbers 747,000 (Census, 2001). Current


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Family Care and Transnational Kinship: British Pakistani Experiences 261 new immigration from Pakistan is mostly related to young second- or thirdgeneration British Pakistanis who marry in Pakistan (‘back home’ or piche ghar) and bring brides or bridegrooms to join them (Shaw, 2001, p328). While marriage migration to Britain is a predominantly South Asian phenomenon, Pakistan sends far more marriage migrants than India or Bangladesh (Home Office, 2001). British Pakistanis have a strong nostalgic memory for the South Asian joint family system, in which caring is an expected part of the responsibilities that derive from a person’s position in the family. Obligations of mutual care are perceived to extend from parents to children and from adult children to their parents. Elders should be provided for by sons and the practical work of caring should be done by daughters-in-law (Eglar, 1960; Alavi, 1972). The family is not felt to be bounded by the nuclear unit, but extends to encompass grandparents, aunts, uncles and cousins (Lau, 2000). In transnational arenas, British Pakistanis engage with joint family ideals in complex ways. They adopt a full range of shifting and contextual orientations towards Pakistan and Britain that interact with generation, age and the life course (Gardner, 2002) but nonetheless are strongly influenced by normative understandings of family care. Today, the pioneer men and women who arrived in the 1960s and 1970s are growing old, and their parents in Pakistan are very old indeed (Rendall and Ball, 2004). There is mounting evidence that chronic illnesses and disabilities are more prevalent among British Pakistanis compared with the general UK population (Nazroo, 1997; Davey Smith, Chaturvedi et al, 2000). The need for face-to-face care is therefore a common experience within networks linking kin in Britain, Pakistan and elsewhere. It is also likely to be of continuing concern, since intercontinental marriage renews transnational links within each generation.

3. STATE AND TRANSMIGRANT PERSPECTIVES ON IMMIGRATION AND CARE

Where there is a need for transnational family care, British Pakistanis strive to bring relatives together in one country. Immigration laws in the UK acknowledge the need for nuclear families to migrate together, namely spouses and dependent children under the age of 18. They also include legal provisions for adult relatives (children, parents, grandparents, siblings, or aunts and uncles) to join family members in the UK under ‘compelling’ or ‘exceptional compassionate circumstances’, provided they can prove that they are genuinely dependent on the sponsor (UK Visas, 2004). State restrictions on immigration are regulated through definitions of legitimate families, which may conflict with transmigrant understandings of family ties and responsibilities. The case of Shazia and her aunt Khadija illustrates these conflicting positions, the structural and ideological constraints on migration for the purpose of care, and how transmigrants may seek to contest them.


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262 Kaveri Harriss and Alison Shaw Case 1: Attempted reunion Shazia is in her 40s. She grew up in London but returned to Pakistan at the age of 16, where she was married to a first cousin on her mother’s side. She was repeatedly assaulted by her husband and the marriage was deeply unhappy. During this time one of her few positive relationships was with her father’s sister Khadija, who, though forbidden from calling on her, would visit in secret, leaving sweetmeats for Shazia in a hole in the compound wall, over which they would hold whispered conversations. Eventually Shazia left her husband, returned to England and remarried. Khadija married a man ten years older than herself and was unable to have children. In July 2004, Khadija’s husband had a heart attack and died, leaving her alone. Believing that Khadija could not look after herself, Shazia sought to bring Khadija to live with her in England, applying for a settlement visa under ‘exceptional compassionate circumstances’. In the application Shazia wrote: I would like to apply for a settlement visa for my aunt to come and live with me and my family. As she has no relatives left in Pakistan that she can live with. She has no body but myself and my husband to look after her. My relationship with my aunty grew very strong, when I was taken to Pakistan for an arranged marriage. Fortunately my marriage did not work out and I left him. However, my aunty was always very close to me more than a mother. I have always supported my aunty and uncle financially . . . This is not a normal relationship between a niece and aunt, I can honestly say to you that I love my aunt very dearly . . . My Aunt is very vulnerable as she has no male figure to look after her in Pakistan. Her Parents have died, and the only emotional support that she did have, was from her sister who also did not have children. Her sister recently died about March 2004. She was saddened by her death but my aunt was coping as she had her husband. However now he has passed away just three months after, and now she feels very isolated. Most of my aunt’s family are all in England. I don’t talk to them as I have married outside to a stranger as far as they are concerned. My aunt is not only my aunt she is also my mother and I love her dearly and with your consideration we will be united. (sic)—(8th September 2004).

Shazia and Khadija were called to the British High Commission in Islamabad for an interview with an English (White) Immigration Officer (IO). In the tense meeting that followed, the IO rejected the application, writing the following in the notice of justification: You have stated that you are wholly reliant on your niece who is acting as your sponsor in the UK, and have based your application on the fact that you have no one in Pakistan who can look after you. Having interviewed you I have established that you have some twelve cousins in Pakistan and at least one sister, whom you failed to mention. I do not find it credible that in a family orientated society such as Pakistan, that there is no one in this country who is willing to look after you. You have stated that you live in your own house, which you own outright, and this house is supplied with electricity and running water. You have savings of approximately £1500 and receive


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Family Care and Transnational Kinship: British Pakistani Experiences 263 financial assistance from your niece in the UK. Having reviewed all the evidence presented before me and listened to what you have said at interview I can see no reason why you should be considered as having exceptional compassionate circumstances which would convince me that you have no life in Pakistan. I therefore refuse your application. (sic)—(10th January 2005).

Shazia complained about headaches, anxiety and weakness for several days following the encounter. She was angered by the claim that her aunt should be adequately supported by a sister or cousins. ‘She has got cousins, but she doesn’t get on with them, ‘cos believe it or not people don’t stick together in this country! Who gets looked after by their cousins in Pakistan?’, she asked rhetorically. ‘She can’t stay with her sisters, she can only stay with her brothers, and they’re all in London’ (Notes January 2005). She spent several hours in an internet café crafting a letter of complaint. She wrote: I agree with the immigration officer that she has sufficient accommodation in Pakistan, however I don’t think that the immigration officer took in consideration that there is no life for a lone woman in Pakistan. I would like to ask him how my aunt live her life here all on her own . . . Money can not compensate for a company of a husband or happiness with in a family that you are close to . . . I understand that the IO assumed that my aunt has twelve cousins. I can assure you that even in Pakistan which the IO assumed is a family oriented society (which I do not agree with as I have led an isolated life as I married outside the family) . . . as my aunt is a widow now and she has no children it will be very hard for her to cope on her own. She has no formal education and does not work. Finance is not the problem in this case the problems is that the IO has because he feels that this community is a family oriented society that my aunt will have some one to look after her. (sic)—(11th January 2005).

The complaint turned into a formal appeal against the decision. Shazia was granted a court hearing in January 2006. She hired an expensive Asian barrister. On the morning of the hearing she tied a taveez (amulet) around her neck, put on one of Khadija’s lipsticks and said, ‘I did everything before I left home—had a cry, touched my Quran, everything’. The barrister argued that the IO in Islamabad had treated the case perfunctorily, and that his claim that Pakistan was a family oriented society was misinformed and insufficient cause to reject the case. She focussed on the particularly close relationship between Shazia and Khadija and Khadija’s isolation and mental ill-health following her widowhood. Shazia presented her own case to the adjudicator and spoke passionately about Khadija’s loneliness and confusion. Shazia was ‘completely overtaken—I lost it. I went completely cold, I went into cold sweats. I had to ask “can my husband come and sit with me please?”’. The adjudicator proclaimed Shazia’s evidence to be ‘very credible’ and added, ‘as the applicant has eloquently described, it is not a problem of finance or accommodation; the issue is about this woman being on her own’. A week later Shazia was granted her aunt’s settlement visa.


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264 Kaveri Harriss and Alison Shaw The initial rejection of the application and recourse to appeal demonstrate profound underlying tensions in transnational kinship. The very idea of a transnational family may conflict with the nation state’s definition of legitimate immigrant families (Bryceson and Vuorela, 2002). Post-colonial feminists in the UK in the 1980s argued that British nationality and immigration laws defined legitimate citizenship in racialised and gender-biased ways. Thus, the 1968 Commonwealth Immigrants Act permitted immigrant men who were the ‘heads of families’ to send for their wives, but not vice versa (WING, 1985; Mohanty, 1991). Today’s immigration law constructs ethnocentric definitions of legitimate families. The state definitions may be quite at odds with migrants’ understandings about the configuration of responsibilities, the viability and boundaries of their families and their perceptions about the need for care. A woman living alone in a society where this would lead to discrimination or significant disadvantage is acknowledged to be a compassionate circumstance, but this does not qualify as exceptionally so unless other factors are also present. Shazia and Khadija’s attempt at family reunion was obstructed by the IO’s misleading assumptions about Pakistani culture. He maintained that Khadija was ineligible for entry clearance because her sister and cousins would inevitably provide support in a ‘family oriented society such as Pakistan’, illustrating of the well-documented UK stereotype that South Asians have strong ‘traditional family values’ and ‘look after their own’ (Atkins and Rollings, 1996). However, there are tensions in South Asian families and there are situations in which the basis of joint family care may break down (Vera-Sanso, 1999, 2004). Furthermore, in the Pakistani context there is also a strong normative framework which guides who steps in to provide care to vulnerable family members, and this broadly follows the principles of patrilineality, the onus falling on fathers, brothers or brother’s children (Shaw, 2004). In the case of a childless widow like Khadija there may not, then, be an expectation that her sister or cousins should provide care. Shazia wanted to step in and support her aunt, of whom she said ‘my aunt is not only my aunt she is also my mother’. Ironically, the IO assumed that Pakistani families are strong and should assist vulnerable relatives in Pakistan, but did not allow this logic to extend to the matter of immigration, citing a stereotypical understanding of the ‘family oriented’ nature of Pakistani society to prevent entry. The IO went on to query the genuineness of the application, a suspicion that derives from the assumption that attempts to bring people from poor countries to the UK inevitably have economic and strategic motives. In this view, Pakistani extended families (biraadari) are ‘close-knit’ and corporate, working to maximise their own economic and social status. The rejection of the application was an instance of ‘cultural puppetry’, an instrumental, strategic use of the notion of culture (Benhabib, 2002). Transmigrants face powerful structural and ideological constraints in the provision of family care in the context of controlled migration. They may, however, seek to contest the ethnocentric definitions of legitimate immigrant families laid out by the nation state. Immigration law recognizes the ambiguity


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Family Care and Transnational Kinship: British Pakistani Experiences 265 around the nature of a legitimate family tie and requires the applicant to prove that their only chance to experience family life, in the sense of everyday interaction and interdependence, is with their relatives in the UK. The questions of what counts as a family tie and the degree of vulnerability that counts as compelling or exceptional compassionate circumstances are routinely being debated in immigration courts around the UK.

4. ADAPTIVE SOLUTIONS TO ENABLE CARE IN TRANSNATIONAL FAMILIES

Restrictions on immigration to the UK have given rise to adaptations in the joint family system to allow mutual care in response to external constraints and opportunities. Sometimes these adaptations transgress the normative framework that informs joint family care. It is much harder for relatives in Pakistan to come to Britain than vice versa, because of immigration restrictions and the prohibitive cost of travel. Nevertheless, short-term visits from kin in Pakistan for the purpose of care, usually sponsored by the UK kin, are quite common. Short-term migration for caring is not only a goal in itself, but migrants may perceive it as the first step in helping family members in Pakistan become eligible for a long-term or settlement visa. A long-term move is the preferred solution for negotiating family care transnationally, but for many it is difficult to negotiate long-term moves in an era of tightly controlled immigration to the UK. Short-term visits may be formally transformed into a longer-term solution to an ongoing problem of care after negotiating with the authorities. Case 2: From salaried teaching to unpaid family care Shaukat is in his late 50s. He came to Britain as a young factory worker, but has been unwell and unable to work for the past five years. Twelve years ago his wife died, just two months after Danyal, her seventh child, was born with congenital problems. Shaukat had no other relatives in England so contacted his elder brother in Pakistan to discuss a solution to the problem of care for his children. The family consensus was that Shaukat’s sister Saleema should go to England. Saleema had been married but had left her husband when he wanted to take a second wife. She was then living in her natal home and working as a teacher. She enjoyed her work, but she said, ‘it was clear that I should go. We discussed who should go, each of my sisters—they had small children, I did not have any child’. When Saleema arrived in the UK, she went straight to the hospital to see Danyal. Her visit became a permanent move, as she says: I came on a visitor’s visa, but then my brother and our GP wrote to the Home Office, to say that they need me to stay here, for the children, especially Danyal. They worked


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266 Kaveri Harriss and Alison Shaw out that it would cost the state much less than if they had to provide care from outside. My brother would support me. I resigned my job in Pakistan; I would have had a pension from there if I had stayed.

Since then, Saleema has cared for Danyal as if he were her own child, sharing a room with him and attending to his special needs and many medical problems. The emotional bond between them is extremely close. Another solution to the problem of family care may be found through transnational marriage. A significant proportion of second- and thirdgeneration Pakistanis marry spouses from ‘back home’ to whom they may be related as first cousins (Shaw, 2001). These marriage choices reflect social and emotional ties between transnationally-divided kin as well as opportunities for migration. Marriage with a first cousin or other relative is viewed as a means of reducing the risks entailed in marriage, conventionally regarded as higher for daughters; a woman is less likely to be mistreated by her in-laws if they are also a known and beloved aunt and uncle (Charsley, 2003). Families already known to one another are assumed to have prior knowledge of any ‘defect’ in the prospective bride or groom. Such knowledge can enable the careful matching of complementary or matching abilities, providing a form of long-term care. Riaz’s wife is deaf, a first cousin once removed, as are three of his children. As Riaz commented, If a deaf woman’s in-laws are also her relatives, they will be patient and not shout at her if she does something wrong. If she is married outside, there is more chance that she will be harshly treated.

On the other hand, prior knowledge of illness or disability can provide grounds for avoiding a rishta (proposal) within the family. The transnational context adds another dimension to these considerations by introducing the possibility that families in Pakistan may consider marrying a son or daughter to a sick or disabled person in Britain primarily as a means to immigration. Usually this is a concern in relation to British women marrying men from Pakistan (Shaw, 2001) but it can sometimes work the other way. One such case was Shah’s marriage to Nagina, from an urban family in Pakistan. The marriage had been arranged by an intermediary. Soon after Nagina’s arrival in England, Shah’s family discovered that she had a terminal illness and concluded that they had been deliberately deceived by Nagina’s parents, presumably anxious to secure their daughter’s medical treatment in Britain. Shah’s family returned Nagina to Pakistan, and later arranged a different marriage for their son. In other situations, the economic dynamics of migration may lead a family in Pakistan to consider marrying a son or daughter to someone in Britain who is disabled or otherwise not deemed an attractive spousal prospect. This may result in conflicting expectations of the marriage even where the need for care is explicit, as illustrated by Akhtar’s deliberations in his brothers’ marriages. The


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Family Care and Transnational Kinship: British Pakistani Experiences 267 need for care leads Akhtar to seek rishte (matches) outside the family, and even outside his ethnic group in Pakistan.

Case 3: ‘Good nurses and good wives are from Peshawar’ Akhtar is self-employed and in his 40s, married with five children. He came to England from rural Azad Kashmir as a small boy. He is the eldest of two sisters and seven brothers, five of whom have a physical disability. The brothers began to show signs of their condition only in their late teens and early adulthood. The five affected brothers live at home, with their elderly parents and one brother’s wife, and are mainly confined to the house. Akhtar, his other brother and his sisters live separately. Currently, Akhtar’s main concern is to find wives for his brothers to solve the long-term problem of continuity of care. His brothers can eat, bathe and dress themselves, though more slowly than other people, but need help with standing up. They don’t like carers coming to the house, because, Akhtar says, it tends to be a different person each time, who is indifferent to them, insincere, wanting the money or wanting promotion. If it was someone they had some relationship with and from whom there was some continuity of care, it would be different.

One of these brothers, Bashir, was married 5 years ago to a woman from the Punjab, from outside the family: We didn’t look in the family because the doctors advised us not to. She is from a village where the women are not very educated. We told her he has problems. We explained to her and her family about the condition, and the role she would have. She would be like a nurse as well. We explained to her that your role is to help your husband, for example, you will have to give him a slight massage with olive oil, so that he might feel more nimble. And she accepted it, that role. But it turns out they were only interested in coming here. She is supposed to help, but she needs someone from outside the family like a doctor to advise her, because she does not bother. She was okay at first, but then people here put ideas into her head that she should not be a nurse.

For the other brothers, Akhtar says it is important to find the right partner: Someone who will stick to them after three years. We are looking for compatibility, and for someone who will fulfil the role of nurse as well as the role of wife. The ones that are good nurses and good wives are from Peshawar, but the problem is language, they speak Pashtu. We are going through family contacts, and I asked my cousin in Pakistan, he knows Pathans from the Peshawar side. Some of their girls are very highly educated, with masters degrees. In that case, they may say that don’t want this lifestyle. Two of them have said they don’t mind. But we have to be certain that the rishta (match) is compatible. (Notes November 2004)


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268 Kaveri Harriss and Alison Shaw In other cases, the attraction of socio-economic opportunity presented by the possibility of migration means that men from Pakistan may step into roles as husbands that entail caring for wives with psychiatric problems or physical disabilities, taking on aspects of domestic life that would otherwise be viewed as women’s work, transgressing gendered expectations of care. Even where ‘imported husbands’ (Charsley, 2003) were not fully aware of the extent of a wife’s problems before marriage, a sense of family obligation, marital duty and emotional connection may mean that they find themselves taking on substantial caring duties.

Case 4: An imported husband Ijaz is 25 years old. He has four sisters and a brother, all of whom live with their parents in rural Multan, Pakistan. He speaks little English. He came to England two years ago to join his wife Abeda, a first cousin, after waiting nearly two years for his entry visa. Abeda has been living in England since she was twelve years old. The couple married four years ago in Pakistan, after which Abeda returned to England. Their oldest child has physical and intellectual problems and attends a special school, as do two of Abeda’s siblings, who had similar problems since childhood. Ijaz knew little about this before he came to England. Abeda herself suffers from periodic psychiatric problems, as Ijaz learnt after their second child was born, when Abeda plunged into severe post-natal depression. A Pakistani neighbour commented She has gone a bit mad, she would wash clothes all the time, hanging the same things out, and if you asked her how her daughter is, she would say a snake bit her.

Ijaz became increasingly worried about Abeda and the children’s safety as their domestic routine became more and more chaotic, taking his family to Abeda’s mother’s house when he went to work and performing his household’s domestic chores—cooking the salen (curry) and ironing clothes in the evenings and at weekend—whilst also trying to remit savings to his parents in Pakistan (Notes June 2003).

5. DILEMMAS ABOUT TRANSNATIONAL CARING: DESH-PARDESH WORRIES

Pakistani migration is also motivated by global socio-economic inequalities, such that migration for the purpose of care can become intertwined with opportunities for socio-economic mobility. However, migration for care is not always overlaid with the desire to settle as many family members as possible in the UK. Separation over distant continents is a very real source of distress within


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Family Care and Transnational Kinship: British Pakistani Experiences 269 transnational families (Becker, 1997). Elderly Bengalis called this distress ‘deshbidesh worries; ‘the perpetual reassessment of in which place it is best to be, the sense that wherever one goes, one has always left a part of oneself behind in the “other” place’ (Gardner, 2002 p209). In Urdu and Punjabi, the equivalent term, desh-pardesh, is a play on words. It can mean ‘home from home’ as well as ‘at home abroad’ (Ballard, 1994 p5). The following three case studies of conflict in family decision-making around migration and care depict desh-pardesh worries at work, emphasizing the centrality of love, emotional ties and notions of responsibility in negotiations of transnational caring.

Case 5: A reluctant grand-son Jamal is 25, living in London. He is in the middle of a heated family dispute about who should look after his paternal grandparents who returned to Lahore 12 years ago, after working in England for forty years building up savings to enjoy life ‘back home’. Jamal and his two younger brothers are the only boys among the grandchildren. As the eldest, Jamal has a special place in his grandparents’ hearts. His paternal grandmother says she brought him up herself and thinks of him as her own son. The grandmother is in her 70s and has been diagnosed with hypertension, diabetes and arthritis. Some days she suffers badly from her condition and is unable to get up, lying all day under a fan. Domestic help in Pakistan may be cheap for England-returnees like her, but she complains of loneliness and misses her children and grandchildren. Her husband is older but healthy and active. He is currently running a property dealership he established with savings from England and expects Jamal to join him and continue the business. The grandparents have built a large house in anticipation of their children and grandchildren’s eventual return, but use only one of the three bedrooms on the ground floor; the rest of the house lies dusty, the furniture covered in sheets. Jamal’s father lives in the USA. He and Jamal’s mother divorced 12 years ago. When Jamal was 18, he and his father moved to Lahore, intending to settle there. Jamal was enthusiastic about exploring his roots; Jamal’s father intended to establish an advertising company with Jamal’s grandfather. However to everyone’s disappointment, they both failed to settle in Pakistan. They grew up in London, lack fluency in Urdu and Punjabi, and felt alienated by friends and colleagues in Pakistan who laughed at their naivety in thinking they were Pakistani. In the end, Jamal returned to the UK to attend university, while his father moved to the USA. Now that Jamal has graduated, his grandparents, who paid for his university education, expect him to repay them by joining them in Lahore. His grandmother, in particular, applies emotional pressure, saying she is alone without Jamal. However, Jamal dreads the prospect of returning to a place that isn’t ‘home’, however much he might love his grandparents. He doesn’t believe he


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270 Kaveri Harriss and Alison Shaw could successfully run a business in Lahore, where, he says, you have to be ‘crafty’ and good at networking (‘buttering’) to get ahead. He wants to stay in London, train as a management consultant and keep in contact with his university friends. His paternal aunts support their mother, saying that if Jamal doesn’t go back, he is being selfish, especially considering that his grandparents gave him so much financial support. Jamal feels resentful towards his father for having absconded to the USA and passed his responsibilities over to his son (Notes September 2005). Jamal is caught between his profound discomfort in Pakistan and the love and responsibility he feels for his grandparents. In his family’s eyes, the support his grandparents provided requires reciprocation. His responsibilities to kin in Pakistan weigh against his personal feelings of rootedness and orientation within the UK. Such ‘ambivalence towards different places, and by extension, the constant re-evaluation of one’s past, present and future locations are hallmarks of the transnational experience’ (Gardner, 2002 p209).

Case 6: A reluctant mother Iqbal is in his 50s. For the last 4 months he has been staying with his 80 year old mother, daughter-in-law and two grandchildren in his son’s one-bedroom flat in an old neighbourhood of Lahore. For 20 years he lived in London and worked as an employment lawyer. Unlike other men in the neighbourhood, he doesn’t wear the traditional shalwar kameez but dresses like an Angrez (Englishman or foreigner) in pants-shirt (jeans, a tweed jacket and cravat). His 4 children were born in Pakistan but moved with him to England at a very young age. Two of them stayed in England and two settled in Lahore. His children all have jobs in law or computing. Although still married, Iqbal quarrels with and is separated from his wife, who has returned to her natal family elsewhere in the city. His wife is considered very fat, has diabetes and hypertension and suffers from dizzy spells if she exerts herself—Iqbal says ‘she didn’t look after herself in England, that is why’—and she considers herself too sick to look after her widowed mother-inlaw, a decision that Iqbal considers sinful. Iqbal himself returned from England 4 months ago when his mother fell ill. Now small, wizened and toothless, his mother seems to grasp only half of what goes on around her. Iqbal wants her to move with him to England, and asserts that she would be granted a visa without any complication, but she does not want to live in London because, she says, ‘my heart doesn’t want to’. She says she’s happy in Lahore where it is warm, everybody speaks her language and she can live amid neighbours she knows. Iqbal is agitated. He has been away from work for months and wants to get back to England where he can ‘live well’. He finds it confining to live in a one-bedroom flat with his daughter-in-law and her children. He says he can’t leave his mother in Pakistan because his daughter-in-law and daughter have small children and


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Family Care and Transnational Kinship: British Pakistani Experiences 271 too much on their hands. His mother only has a few living relatives. He sees staying with his mother in Lahore as the only option, until he finds a solution ‘one way or another’. When talking about his problems he makes liberal use of set Urdu phrases such as ‘jo likha hai’, ‘Allah ki marzi hai’ and ‘kismat men woh hee hoga’ (‘what has been written for me’, ‘this is the will of Allah’, and ‘what is fated to happen will happen’). (Notes February 2005) Iqbal feels his base to be England but cannot return there because of his mother’s intransigence in refusing to leave Pakistan. He has been absent from his job in London for a long time, and would earn more in London than by staying in Pakistan, but feels compelled to remain in Pakistan until a solution appears, ‘one way or another’.

Case 7: Coming and going Zohra is a widow in her 70s. She lives most of the time in her village in Azad Kashmir. She is generally feared for her ill-temper. Her neighbours say that her ‘head’s not right’ and that she has been this way since her youth. For the last 10 years she has had a broken hip and now walks with the aid of a stick, which she shakes menacingly at her relatives, and uses sometimes to kill snakes. She is notorious for using the most prodigiously bad language. Zohra has two children from her second marriage, both living in London. Since her hip was broken, her son Arif has been commuting between Pakistan and the UK to look after her and bring her back on visit visas, at great cost. His wife Umbreen complains about the drain on their finances. They left school at 15 without many qualifications and are now working part-time, earning ‘bits and bobs’. Arif is a hospital porter and Umbreen does sessional work in community groups. They have a lot of debt. Umbreen applied for a British passport for Zohra and successfully took the case to court, so that Zohra could stay with them in London. However, although Zohra has dual citizenship, she prefers to stay in Pakistan because she doesn’t like the UK. Umbreen says that she ‘likes to be near her land’. She accompanies Arif back to the UK at least once every year and spends two or three months living at his house. She is always dissatisfied when she stays there, and complains that she ‘doesn’t get any peace’. After a few days at Arif’s house, she shifts to her daughter’s house during the day, although she will not sleep there at night because her family consider it her sons’ duty that she should sleep under his roof. When she is in Pakistan, she receives a widow’s pension from the UK, which Arif sends to her in the village. She cannot do her own housework or personal care so part of the pension goes towards paying for a family of servants to live in the compound with her (Notes September 2005). Zohra prefers to live in Pakistan and spends only short periods of time in England, though her yearly commute between the two countries is a drain on her financially-struggling son and causes him to argue with his wife.


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272 Kaveri Harriss and Alison Shaw These three diverse cases illustrate the desh-pardesh worries that can be raised by caring responsibilities in transnational families. They show that transnational Pakistani families do not always act like corporations, seeking comparative advantage by crossing borders. Instead, an individual’s feelings of rootedness and preference for living in one country rather than another may be respected, especially if they are older. For families across a diversity of socioeconomic and regional backgrounds, migration is not merely about force of circumstance. These family dilemmas illustrate that emotional ties and notions of responsibility can be at odds with, and override, the strategic interests of the biraadari.

6. CONCLUSIONS

The transnational family is an extension of the local family; a unit designed for caring in the intuitive sense of the word—nurturing, promoting wellbeing, protection, compassion and concern (McDonald, 1993). The global movements that transnational Pakistanis make in response to a need for care are similar to local movements made by English families (see chapters by Grundy and Murphy; Masson and Lindley; and Hunt in this volume). However, the transnational context introduces specific tensions and contradictions. Restrictive legal definitions of legitimate immigrant families and economic barriers constrain the opportunities for movement and give rise to adaptations which may transgress the normative principles of family care that derive from a person’s gender, generation and position in the household structure. Pakistani migration is also motivated by global socio-economic inequalities, such that migration for the purpose of care can become intertwined with opportunities for socio-economic mobility. Stereotypes about the economic motivation for migration and about the corporate nature of the joint Pakistani family can negatively influence immigration decisions and thus the provision of care. Migration for care is not always motivated by the desire to settle relatives abroad; irrespective of socioeconomic and regional background, emotional ties and notions of responsibility may be far more central to decisions about migration and care. The idea of trans-continental connection is common to the transmigrant experience, invoking sometimes contradictory feelings of rootedness and responsibility.

REFERENCES

ALAVI, H, ‘Kinship in West Punjab Villages’ (1972) 6 Contributions to Indian Sociology 57. ATKINS, K and ROLLINGS, J, ‘Looking after Their Own? Family Care-giving Among Asian and Afro-Caribbean communities’ in W I U Ahmad and K Atkin (eds) ‘Race’ and Community Care (Buckingham, Open University Press, 1996) p 73.


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Family Care and Transnational Kinship: British Pakistani Experiences 273 BALLARD, R, Desh Pardesh: The South Asian Presence in Britain (London, Hurst and Company, 1994). —— ‘The Pakistanis: Stability and Introspection’ in C Peach (ed) Ethnicity in the 1991 Census: The Ethnic Minority Populations of Great Britain (London, HMSO, 1996) p 121. BECKER, G, Disrupted Lives: How People Create Meaning in a Chaotic World (Berkeley, CA, University of California Press, 1997). BENHABIB, S, The Claims of Culture: Equality and Diversity in the Global Era (Princeton, NJ, Princeton University Press, 2002). BRYCESON, D and VUORELA, U, ‘Transnational Families in the Twenty-first Century’ in D Bryceson and U Vuorela (eds) The Transnational Family: New European Frontiers and Global Networks (Oxford, Berg, 2002) p 3. CHARSLEY, K, Rishtas: Pakistani Transnational Marriage. (PhD thesis, University of Edinburgh, 2003). —— ‘Unhappy Husbands: Masculinity and Migration in Transnational Pakistani Marriages’ (2005) 11 Journal of the Royal Anthropological Institute 85. DAVEY SMITH, G, et al ‘Ethnic Inequalities in Health: A Review of UK Epidemiological Evidence’ (2000) 10 Critical Public Health 375. EGLAR, Z, A Punjabi Village in Pakistan (New York, Columbia University Press, 1960). GARDNER, K, Age, Narrative and Migration: The Life Course and Life Histories of Bengali Elders in London (London, Berg, 2002). GLICK SCHILLER, N BASCH, SANTON-BLANC ‘From Immigrant to Transmigrant: Theorizing Transnational Migration’ (1995) 68 Anthropological Quarterly 48. HOCHSCHILD, A, ‘Global Care Chains and Emotional Surplus Value’ in W Hutton and A Giddens (eds) On the Edge: Living with Global Capitalism (London, Jonathan Cape, 2000) p 130. HOME OFFICE, Control of Immigration: Statistics United 2000. (London, The Stationery Office, 2001). IZUHARA, M and SHIBATA, H, ‘Breaking the Generational Contract? Japanese Migration and Old-age Care in Britain’ in D Bryceson and U Vuorela (eds) The Transnational Family: New European Frontiers and Global Networks (Oxford, Berg, 2002) p 155. JEFFERY, P JEFFERY, R and LYON, A, Labour Pains and Labour Power: Women and Childbearing in India (London, Zed Books, 1989). KELLY, E, ‘Transcontinental families—Gujarat and Lancashire: A Comparative Study of Social Policy’ in C Clarke, C Peach and S Vertovec (eds) South Asians Overseas (Cambridge, Cambridge University Press, 1990) p 251. LAU, A, South Asian Children and Adolescents in Britain (London, Whurr, 2000). MCDONALD, M A, Caring Women: Gender, Power and Ritual in Gujarati Households in East London, (PhD Thesis, School of Oriental and African Studies, University of London, 1993). MOHAN, C T, ‘Cartographies of Struggle’ in C T Mohan, A Russo and L Torres (eds) Third World Women and the Politics of Feminism (Bloomington, Indiana University Press, 1991) p28. NAZROO, J Y, The Health of Britain’s Ethnic Minorities (London, Policy Studies Institute, 1997). RENDALL, M S and BALL, D J, ‘Immigration, Emigration and the Ageing of the Overseas-born Population of the United Kingdom’ (2004) 116 Population Trends 18.


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274 Kaveri Harriss and Alison Shaw SHAW, A, Kinship and Continuity: Pakistani Families in Britain (London, Routledge and Harwood Academic Publishers, 2000). —— ‘Kinship, Cultural Preference and Immigrations Consanguineous Marriage among British Pakistanis’ (2001) 7 Journal of the Royal Anthropological Institute 315. —— ‘British Pakistani Elderly Without Children: An Invisible Minority’ in P Kreager and E Schroeder-Butterfill (eds) Ageing without Children: European and Asian Perspectives (New York, Oxford, Berghahn Books, 2004) p 198. UK VISAS, Diplomatic Service Procedures: Entry Clearance Volume 1 (London, HMSO, 2004). VERA-SANSO, P, ‘Dominant Daughters-in-law and Submissive Mothers-in-law? Cooperation and Conflict in South India’ (1999) 5 Journal of the Royal Anthropological Institute 577. —— ‘They Don’t Need It, and I Can’t Give It: Filial Support in South India’ in P Kreager and E Schroeder-Butterfill (eds) Ageing Without Children: European and Asian Perspectives (New York, Oxford, Berghahn Books, 2004) p 77. VUORELA, U, ‘Transnational Families: Imagined and Real Communities’ in D Bryceson and U Vuorela (eds) The Transnational Family: New European Frontiers and Global Networks (Oxford, Berg, 2002) p63. WING, Worlds Apart: Women Under Immigration and Nationality Law (London, Sydney, Pluto Press, 1985).

(O) Ebtehaj et al Ch14

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14 Kinship, Infertility and New Reproductive Technologies: A British Pakistani Muslim Perspective 1 NAZALIE IQBAL AND BOB SIMPSON

1. INTRODUCTION

I

N THIS CHAPTER, we set out to explore the relationship between kinship, infertility and the increasing availability of new reproductive technologies from the perspective of British Pakistani Muslims on Teesside.2 Our focus is on the deeply personal dramas that unfold around the experience of involuntary childlessness and how this experience articulates with broader questions of kinship, community, and identity.3 Our aim is to show how difficulties achieving reproduction among British Pakistani Muslims are inflected through the particularities of culture, history, and position in British society.4 In the various narrative accounts that we present, it becomes clear that the difficulties and tensions faced by members of this community in confronting involuntary childlessness are not the same as those faced by white British couples. Whereas the crises experienced by the latter are typically reckoned in terms 1 The data we draw upon take the form of case studies collected by Iqbal during her doctoral and subsequent researches among Pakistanis in the Middlesbrough area of Teesside. 2 The 1991 U.K Census recorded 476, 555 Pakistanis living in Britain who constitute 0.87% of Britain’s population of nearly 55 million. Cleveland County Council Research and Intelligence Unit estimated that the ‘Asian’ population of Cleveland was 8,150 in 1981–1982 and that three-quarters of the adults recorded in their survey were Muslims born in Pakistan. Of these, some 60 percent were Mirpuris and 40 percent Punjabis (CCRI 1982a and 1982b). In 2001 the Tees Valley Joint Strategy Unit reported that some 7,400 of the non-white population in the sub-region were Pakistani (Tinkler 2004:3) 3 Although we refer to the notion of ‘community’ throughout the chapter, we readily acknowledge the problematic nature of this term when it comes to the complex questions of boundaries and differentiation within and across Pakistani ‘communities’ in Britain. However, for reasons of space, questions of caste (qaum), social status, area of origin and different patterns of integration are only touched upon (but see Charsley 2005a and 2005b; Iqbal 2005 and Shaw 1988, 2000) 4 It is beyond the scope of this paper to discuss techniques such as sex selection and pre-natal diagnosis for genetic conditions that are likely to have particular salience for Pakistani communities. The focus here is restricted to assisted reproduction.


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276 Nazalie Iqbal and Bob Simpson of frustrated desire and the ‘desperateness’ that this brings for individuals and couples who are unable to found a family (Franklin 1997), for the former there is an added dimension in the form of a collectivised anxiety that moral, material and social traditions might not be given continuity. These aspects of infertility bring a distress all of their own, and initiate strategies in response that are drawn from a broader repertoire of kinship possibilities, such as the use of informal adoption or resort to polygyny. As our case studies show, these strategies situate the crisis of involuntary childlessness beyond the couple and their immediate households and within kin networks that are not only regional and national but also transnational (Harriss and Shaw, this volume). Whilst consistent with traditional practices, these strategies are also often in conflict with family arrangements that in British society are typically part of a powerful hegemony of domestic arrangements centred on the nuclear family. Yet, the dramas which we describe here have also been unfolding at a time when reproductive options are significantly expanding. Extra-corporeal conception introduces the possibility of using a couple’s own gametes and embryos or those of a related, or unrelated, other. For younger couples faced with involuntary childlessness, assisted reproduction might now be considered an option.5 Indeed, many of the social and cultural factors which give reproduction and infertility its particular meaning and significance for British Pakistani Muslims also influence ideas about the acceptability and appropriateness of newly available services and create particular issues of access and take-up (Culley et al 2004).6 However, the issues that we go on to highlight are not simply ones of traditional versus modern solutions to an age-old problem. On the one hand, there are pressures to opt for strategies which preserve or indeed re-establish distinctive values, culture, and identity. On the other hand, there are expectations of conformity to wider cultural values and norms when it comes to an engagement with newly available methods for dealing with infertility. As we go on to illustrate, the day to day currency of trustwithin, and co-responsibility for, a community in which kin are considered a fundamental practical resource does not necessarily sit cleanly with an individualistic ethic of choice and relationship which is ‘built-in’ to many of the new technologies (Franklin 2003; Simpson 2004). Considering the way that this tension is expressed throws light on changing patterns of solidarity and fragmentation, inclusion and exclusion, secularisation and Islamic traditionalism. Finally, the work we present poses a bigger 5 An important development in this respect was the new guidelines relating to IVF published by the National Institute of Clinical Excellence (NICE) and which are intended to extend and equalise access to fertility services provided by the NHS (http://www.nice.org.uk/pdf/CG011niceguideline. pdf ) 6 Research into new reproductive technologies and ethnic minorities is in its infancy. Work is under way by colleagues at De Montfort University (Culley et al 2004) where there is also an ESRC funded project to study public perceptions of gamete donation in British South Asian communities (GAMDON). The authors, along with Dr. Kate Hampshire, also of the University of Durham, are about to commence an Economic Social Research Council funded research to explore further many of the themes raised in this chapter (ESRC RES-000-23-1488).


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Kinship Infertility and New Reproductive Technologies 277 question regarding the extent to which informal attachments to children made by childless couples are being disrupted by a progressive shift towards the biologisation of parental relationships driven by the new technologies on the one hand (see Freeman and Richards, this volume), and changing ideas of property and inheritance on the other. In the next section we provide a brief overview of Pakistani kinship. This account, for reasons of space, is necessarily partial and should be considered in relation to a broader literature which deals with migration and Pakistani kinship more generally.7

2. KINSHIP AND THE BRITISH PAKISTANI COMMUNITY: SOME BASIC CONCEPTS

For Pakistanis, the extended kin group or biradari is a primary reference point when it comes to social relations. At one level, all Pakistanis think of themselves as members of a biradari, that is, as people of shared ancestry, traditional habits and values (ravaaz). The concept of blood (khoon) is fundamental to this ideology. To share the same khoon means to share certain physical resemblances as well as insubstantial qualities, such as personality, interests and abilities. Knowledge of shared substance in the form of pedigrees (khandaan) creates continuity over time and a sense of belonging to a wider community which reaches back to Pakistan and indeed into specific villages of origin. Within the biradari, the practice of cousin marriages is a tradition which has been strongly maintained (Werbner 1990; Shaw 2000; Charsley 2003) and the choice of marriage partners remains subject to family and community influence (cf Davidoff, this volume). It is preferred that children will marry partners from the same biradari and qaum and also that the partner should be a first cousin (patrilineal, matrilineal, cross or parallel). An important part of the maintenance of trans-national links, whether for purposes of labour migration and economics (Ballard 1977; Shaw 2000) or for emotional and sentimental reasons (Shaw 2001; Charsley 2003), is that potential husbands and wives are identified among kin who reside in Pakistan.8 The concept of izzat (crudely defined as ‘honour’ or ‘respect’) is a broad concept incorporating ideas of caste, class status, public reputation and symbolic 7 There is a significant and growing corpus of literature which charts the origins and development of British Pakistani communities. Anthropological contributions include Shaw (1988, 2000); Werbner (1990); Charsley (2003). Sociological contributions include Jacobson (1998) and Anwar (1977). Historical accounts of the diaspora are found in Ballard (1994), (1979), Werbner (1990), Jacobson and Kumar (2004); and Clark et al (1990). Also see Harriss and Shaw, this volume. 8 Charsley’s (2005a and 2005b) work among British Pakistanis shows that the interactions between risk, transnational marriages and the selection of close kin spouses are multiple. She states that the intention of kin marriage might be to strengthen family ties, but if conflict does occur between a husband and a wife, and particularly if they divorce, the effect can be to cause rifts within the biradari as other relatives take sides. The existence of a ‘double rishtha’, denoting a relationship of both blood and affinity, leads to the fragmentation of allegiances within the family.


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278 Nazalie Iqbal and Bob Simpson capital accumulated through generosity towards the wider Pakistani community. However, in the context of the British diaspora, izzat has also come to cover issues which are deeply embedded in questions of marriage, parenthood and, by extension, the politics of the biradari and also the politics of community (Werbner 1998; Shaw 1988, 2000). The persistence of concepts such as izzat has led Shaw (2000) and others (Jacobson 1998) to question popular assumptions that the younger generation of British Pakistanis are moving inexorably towards ‘western’ values and liberal ideologies; the movement can also be in the opposite direction and particularly where the perceived moral laxity of English society is felt to be corroding the sources of izzat (Shaw 2000). Likewise, ‘white culture’, strongly identified with ‘sinful’ acts such as the consumption of alcohol and pork and the absence of purdah, may create a desire for active separation and avoidance rather than passive witness and acceptance. Where kinship relations are concerned, adherence to, or re-assertion of, older values and ways may be a rational response to a drift into family patterns thought of as ‘English’ and perceived to be ‘spoilt’ (kharaab).

3. INFERTILITY: MEDICAL PROBLEM AND SOCIAL CRISIS.

There is a strong cultural emphasis on the desirability of children and family life amongst British Pakistanis. For most Pakistani adults, social life is centred upon having and bringing up children. Indeed, childbirth and child-rearing are regarded as collective commitments and not merely the responsibility of individuals. This strongly pro-natalist social norm is demonstrated in ethnographic research carried out in a wide range of Muslim communities (Iqbal 2005; Richards 2002, also Inhorn 2003) and by the high fertility rates of British Pakistanis compared with other groups in the UK.9 When couples do not start a family within one year of marriage, family and other Pakistani acquaintances tend to assume there are fertility problems and pressures become great indeed. Mothers-in-law encourage newly married women to have children to prove their capacity to be mothers and thereby complete the marriage. Husbands also push wives to have children in order to demonstrate their own masculine credentials and to further the ‘blood line’. In due course a couple’s failure to produce a child translates into stigmatisation, victimisation and even ostracism (Iqbal 2005; Papreen et al 2000). Narratives from Iqbal’s earlier research on kinship relations among Pakistanis, for example, indicate that, for many informants, being involuntarily childless triggers a pattern of exclusion from both the biradari and the wider Pakistani community (Shaw 2000; Iqbal 2005; Papreen et al 2000). As in other Islamic contexts, women bear the major burden of infertil9 The total fertility of British Pakistanis is 4.0, compared with the UK average of 1.7 (Berthoud 2001).


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Kinship Infertility and New Reproductive Technologies 279 ity, despite the fact that male infertility accounts for a substantial proportion of the problem (Riessman 2000; Inhorn and Van Balen 2001; Richards 2002; Whiteford and Gonzalez 1995; Papreen et al 2000). One of the main ways in which the burden of infertility is carried by women is in terms of pressure put on a man by his close kin to either divorce or take on a second wife. Indeed, the absence of a child within marriage, and especially a son, is widely taken as a socially acceptable cause for men to re-marry and typically spells disgrace and long- term insecurity for the first wife (Iqbal 2005). In such circumstances, the affinal relationship is rendered fragile and easily replaceable. As a consequence, the arrival of a child is viewed by many in the Pakistani community as a protection against the possibility of a man entering into a future polygynous union. Whilst such ideas about the gender relations surrounding fertility and infertility are widely held among British Pakistani Muslims, there are also indications that patterns are being re-worked (Iqbal 2005; Charsley 2003). Indeed, Iqbal’s research suggests that childlessness may be as painful and deeply felt for men as it is for women (Iqbal 2005). Moreover, as women engage more with higher education and professional careers, reproductive and marriage patterns of young Pakistani couples appear to have been shifting towards those of young white British people with a concomitant decline in fertility rates (Berrington 1994, 1996; Hennink et al 1999). However, it is still very much the case that the inability to conceive and/or sustain a pregnancy not only affects immediate conjugal relationships; it also has an impact upon wider social relationships, culture and community identity and is nothing short of a social catastrophe (Riessman 2000; Inhorn and Van Balen 2001; Richards 2002). The reasons why this eventuality is so serious are several. In the Muslim normative order, the birth of a child, a son in particular, allows for social reproduction: without children there can be no marriage, without marriage the creation and consolidation of alliances cannot take place; without alliances trust is low and risk is high and an orderly transfer of property, name and substance through inheritance to the next generation cannot take place. Indeed, the negotiation of new configurations of space, consumption and social reproduction make for volatile relationships between kin and reinforce a sense of vulnerability (Iqbal 2005; Werbner 1990). In diasporic settings, where significant forms of marginalisation and exclusion are in play (for example in relation to education, employment and social life more generally), kin also provide a primary resource when it comes to the accumulation and management of social, symbolic and economic capital (Bourdieu 1977). Disruption to relationships or, more crucially, the potential for the creation of relationships thus has profound implications for broader questions of how culture, identity and a sense of belonging are accomplished in practice.


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280 Nazalie Iqbal and Bob Simpson

4. CRISES OF SOCIAL REPRODUCTION: THREE CASE STUDIES

The failure to reproduce is nothing new and where biological reproduction fails there are, in most cultures, acceptable ways to achieve social reproduction. Here we report on three case studies which each demonstrate the way in which the threat of involuntary childlessness is addressed. The cases illustrate a range of strategies from thoroughly socialised solutions such as the traditional fostering practices described by older informants and involving the activation of the biradari as a kind of agnatic pool, through to the use of medicalised solutions involving the use of assisted reproductive technologies by younger couples interviewed.

(a) Begum and Thazeem’s story10 Thazeem was twenty-six years old at the time of interview and had recently arrived from Pakistan. She was pregnant and living with her husband Azar, a second-generation Pakistani. Azar had been to Pakistan a year earlier to meet and marry Thazeem in a marriage arranged by his father and the woman Thazeem referred to as her mother (ami), Begum. Thazeem’s ‘biological’ mother had died during childbirth in Pakistan: My khoon (blood) mother died when having one of my youngest brothers. We lived in really bad and poor circumstances and when I was about eight years old I was sent by my father to live with ami and her nanni (Begum’s mother). I was told by ami when I was older that she never had a husband because he left her after a few days of marriage. She stayed at her brother’s houses in Pakistan and looked after their houses. I also became one of the servants (nokriya). But she looked after me, she fed me, she brought me clothes and I called her ami. We would do everything as mother-daughter (ma-thiya).

Begum was a much respected figure in her village in Pakistan and many felt sympathy for her unfortunate marital circumstances and childlessness. All the women in the village spoke to her about having a child (bhacha or laadth) in the house who could provide her with physical help. In the end, Begum’s neighbours (ghamandi) intervened and spoke to Thazeem’s father who agreed to send her to Begum so that she could be raised (parlee) by her.11 10 The interviews were mostly conducted in Punjabi (Mirpuri dialect) by Iqbal. All names have been changed throughout the case studies. 11 There is no blood (khoon) relationship between Begum and Thazeem’s father. Thazeem’s father and Begum lived in the same village in Pakistan. Begum revealed how Thazeem’s father was a ‘very poor’ (gareeb) person, a fact which figured prominently in her motivations to foster Thazeem.


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Kinship Infertility and New Reproductive Technologies 281 When recounting her life story to Iqbal, Thazeem used the terms ‘mother’ (amee) and ‘biological mother’ (see or khoon maa) interchangeably when referring to Begum. This would suggest that, as with many other Pakistani informants, the relationship between mothers and children was not thought of simply in terms of blood (khoon) but also reckoned in terms of love, care and coresidence. Such a view was also expressed in an interview with Begum who recalled how, following her husband’s departure, . . . Thazeem came along, Allah gave her to me and I looked after her and brought her up as my own daughter. She is all I’ve got and even though she is not from my stomach I am still her mother.

When Thazeem turned eighteen, Begum, as a good mother should do, began to think of her daughter’s marriage prospects. It was her intention to keep Thazeem ‘within the family’ (apna ghar), so she decided to arrange a marriage with one of her nephews, Azar, who lived in England.12 As Thazeem’s comments suggest, Begum’s efforts on behalf of her informally fostered daughter, also created other kinds of exchange and long term relationships: My mam really helped my father. She gave him money when my sisters got married. Once she brought the whole dowry (daaj)13 for my sister’s wedding. My father knows that I have received the biggest gift in my life: a mother. What she has done for me, I will never be able to do that for her.

However, from Begum’s perspective there are gifts that also flow in return, as she revealed in her delight at becoming a grandparent: I come to visit her (Thazeem) you know everyday because while she is pregnant (bimar) you need to be looked after don’t you . . . I hope everything is alright. I am looking very forward to my grandchild.

In Pakistan, acts of informal foster care, such as the one described above, are not uncommon when dire circumstances confound biological and social reproduction. This movement of children is in no sense hidden from the wider community and is carried out without recourse to official procedures.14 As in

12 For the majority of South Asians growing up in Britain, marriage, kinship and religion continue to be endogamous, communally focused, transcontinental and towards the homeland. Both Shaw (2000) and Charsley (2003) report on the high rates of intercontinental and intra-caste marriages among young British Pakistani marriages (over fifty per cent) 13 Daaj may consist of clothing, toiletries, make-up, shoes, gold jewels, furniture, cars and sometimes even houses. Parents may also present their daughter with money. 14 In Middlesbrough, as elsewhere, there is evidence that Asian groups are engaging with local welfare organisations and entering into ‘formal’ and regulated adoption procedures which are of a different kind than those discussed here and which fall outside of the scope of this paper.


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282 Nazalie Iqbal and Bob Simpson the case described above, the arrangement often solves two pressing problems: the need for adults to have children and the need for children to have parents. In solving these two immediate problems there is also the possibility of beneficial outcomes in the longer term in reinforcing relationships and extending kinship networks and community into the future. What might at one point be seen as an impossible frustration of reproductive potential, at another becomes an opportunity for the mobilisation of other values and sentiments such as coresponsibility and public ‘giving’ or khidmat. In the longer term, such values are fundamental to the reproducibility of meaningful relationships across the generations and, indeed, across continents. (b) Rasab and Jameela’s story Rasab arrived in England in the 1970s when he was in his early twenties. He came with the help of his paternal uncle (chacha) as his own parents were living in Pakistan in what he described as ‘extreme poverty circumstances’. When he arrived in Britain, he lived with older men who were mostly kin. The main reason for coming to Britain was economic improvement, ‘to raise money and to send it back to my parents for food and clothes for my brothers and sisters’. He worked at a number of places, including shipyards, butchers, bakeries, and at a restaurant. When Rasab went back to Pakistan after a couple of years of working in Britain, he was told that his wedding was arranged with his paternal aunt’s daughter, Jameela. The wedding was a big occasion at which all the extended biradari and friends got together. Soon after the wedding he came back to England in order to work and to get a visa for Jameela. After one year, Jameela was successfully allowed to migrate to England. Jameela was a well- educated young woman and had attended school until the age of sixteen in Pakistan. When settling in England she found work teaching young Muslim children the Quran. Together, the couple accumulated enough money to buy a separate house close to the uncle who had helped Rasab come to Britain. As Rasab recalled: I felt I was able to stand on my own two feet at this stage of my life. Although I would continue to send payments back to my parents, at least I thought I had my own house. My next aim was to get my younger brothers over. It was at this point that we both wanted children and when our parents rang from Pakistan, they would continuously ask Jameela whether there was a baby on the way.

Unfortunately, Jameela was unable to conceive. She put a lot of effort into praying and taking herbal remedies but, after three years, Rasab said he felt people around them were starting to ‘talk’ about their delay in having children and this was having a bad effect all round. . . . without children a man does not have a sense of self. There is no harmony in his life, he can’t hope for the future. He becomes upset and this causes a strain on a relationship between a husband and wife . . .


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Kinship Infertility and New Reproductive Technologies 283 Jameela continued to visit local religious saints (pirs) for spiritual rituals and they travelled to Pakistan to visit ‘popular shrines’. According to Rasab, Jameela ‘became increasingly tired and we just wanted a child (laath)’. Jameela confided in a friend about her ‘problem’ and was advised to visit a doctor. After undergoing a series of lengthy procedures, Rasab and Jameela were told that Jameela had ‘blocked fallopian tubes’ and that it was impossible for them to have ‘a baby like you do normally’; they were, however, offered the option of a ‘test tube baby’ (bacha jera ma-pyo na bhar). The suggestion prompted a difference of opinion. As Rasab recalled: Jameela wanted to have this test tube thing, but I didn’t. I told her that I was fully devoted to her and I would remain with her no matter what and not to worry. If it’s meant to be it will happen. If we have children it will happen.

In addition to pressures, from his wife to explore the options made available by IVF, Rasab also experienced pressure from his male relatives who came up with their own remedies for the problem: What kind of man are you, you haven’t got any children? What’s happening to you? If Jameela isn’t good enough, just marry someone else.

Rasab did not want to take another wife as he loved Jameela and neither did he want to upset or hurt his mother-in law (puppo): . . . she gave me her daughter to marry and I promised that I would care for her (saambsa) and love her (pyaar) and remain loyal to her all her life.

At the height of his dilemma, Rasab received a call from Pakistan reporting how his father had helped to rescue a family during the Kashmir conflict. The Kashmiri family were in exile and living at one of Rasab’s father’s houses in Pakistan. Among the family group were infant twins, whose mother had died during the war. His father demanded that they come to Pakistan and take one of these children so that they could ‘bring up the child as their own’. In due course, they went to Pakistan and brought over Haroon15, who is twenty-four years old now: He is our son and he knows about the whole situation, but fully accepts us as his true (sach) parents

Although the blood metaphor can be dominant in expressing kin relations (ristedar), Rasab’s narrative demonstrates how relations are created and maintained through an open process of fostering in which nurture, co-residence and 15 Haroon was under one year of age when he was brought over to the UK. According to Jameela, he was not subject to any knid of formal scrutiny as he was assumed to be her recently born child.


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284 Nazalie Iqbal and Bob Simpson incorporation into wider networks of kin bring about an acceptable activation of the roles of father and mother. Via his trans-national social networks, Rasab became a father and thus gained ‘a sense of self’ and credibility within his community. The solution that emerged also had repercussions for a wider set of relations between Rasab, his father and the Kashmiri family in Pakistan who agreed to allow Rasab and Jameela to look after Haroon. Thus, husbands (admi or karayla) can become fathers (aba) in ways that extend beyond being simply a genitor and encompass more complex narratives of fatherhood in which ideas of honour (izzat), gift exchange, charity and the will of God (Allah nee marzi) come into play in the realisation of an acceptable aesthetic of kinship. The sealing of Haroon’s affiliation to Rasab and Jameela was further consolidated when Rasab arranged Haroon’s marriage to his brother’s daughter suggesting that the facts of nurture and care are, in time, subsumed within the ideology of ‘blood’.

(c) Shaheen and Umair’s Story Shaheen is a first generation British Pakistani woman aged 28. She is married to Umair, a paternal cousin who travelled to Pakistan to marry her in 2003. At the time of interview, she and Umair were living with Umair’s extended family in Middlesbrough. During a conversation at a local sewing class, Shaheen revealed to Iqbal that she was experiencing ‘problems in having a baby’ (bacha nee ana). I went to see the doctor a few months ago and told her, but she thought I was stupid . . . and told me that it does take time . . . But I am worried because nothing has happened for a year now and we haven’t used anything (meaning contraception) but she (the doctor) didn’t really understand what I meant when I said that I am having problems. The problem I think is because I could not explain my situation with the doctor, as I could not speak English and it was Umair who did all the talking . . . It is different for men than it is for women

It was also different for Shaheen in that her husband already had a child from a failed relationship with a white woman. As Umair has a child already, he does not feel the same pressure as me. I get upset and think he might leave me and go back to the white woman(goree) if I do not conceive. This is my situation and no one here can understand why I am desperate to have children . . . I know people are talking now. When women come up to my maternal aunt (halah), they ask, ‘is your daughter-in-law (knoo) pregnant yet?’ and when she replies, ‘No not yet’, I feel that they are thinking, ‘Oh she might not be able to have children, what would she do? What will Umair do? Would he leave her and go with the goree?’ This is why I am scared. I need to have children to stay with Umair, you see?

Shaheen continued to be upset by her condition and described how this was made worse because she was isolated from her sisters in Pakistan. Her husband


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Kinship Infertility and New Reproductive Technologies 285 was not particularly supportive in the face of her distress, but eventually she persuaded him to make an appointment to see a doctor. As Shaheen recalled: The appointment was with an Indian woman doctor. Although I felt shy at first, I think she did understand my concerns. She referred us to see doctors at the local hospital and asked me questions about my monthly (periods). I told her that I was having my monthly every four weeks. So she said that me and Umair would need to get checked. When Umair told her that he already had a son, she said he still needed to get checked over because sometimes there can be problems with him as well.

Fortunately, Shaheen and Umair were eventually seen by a registrar at the local hospital. After the first appointment, Shaheen reported feeling very excited as various blood tests were to be carried out. Umair, however, was less positive: As Shaheen does not speak English, it is really difficult for me to make her understand. From my opinion, it is really controversial all this IVF techniques especially for us Muslims you know . . . our religion is really fair . . . you learn so much from it. It is alright for men and women to use their own body parts, but not others . . . I don’t want Shaheen or myself to have other people’s body parts inserted into me and have a child. You need to question will the child really be yours even though Shaheen will carry it. Of course I want a child of my own, but in the correct way by conforming to Islamic instructions, you know the right way

Shaheen and Umair visited the hospital where various procedures were conducted, including a laparoscopy and a sperm cell count. In a subsequent meeting with the registrar it was revealed that Shaheen had problems with one of her fallopian tubes, which meant she was able to conceive but it would take a little longer than normal, and Umair had a low sperm count which would further add to their difficulties. The registrar went through the options available with to them. First, he suggested Umair take medication to stimulate sperm production. He also recommended a form of IVF. When Umair asked whether the sperm would be his, the doctor said that that would be the crucial issue: What I understood from the doctor was that they were suggesting to use someone else’s sperm. I found this quite difficult to get my head around. How can a child be yours if someone else’s (sperm) is used? According to Islam this is not allowed. To make sure I asked one of my friends who is an Islamic professor. He is a good mate; he told me that according to Sunni Islam you should use your own egg and sperm rather than others. I discussed this with Shaheen. I know she was upset, but I said we will take each step at a time and take the medication available and see what happens from there . . .

Shaheen’s view was a little more pragmatic: I know it is up to Allah at the end of the day, but if you are meant to go to see the doctor, then Allah does want you to try and have children doesn’t he? I know there are


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286 Nazalie Iqbal and Bob Simpson Islamic ways of these types of things, but at the end of all these procedures there will be a baby. I think Umair is looking into these things much more than I do . . .

Shaheen did eventually get pregnant naturally but then experienced a miscarriage. Following the miscarriage, Umair did agree to consider IVF treatment, but only using their ‘own things’ (apnay cheezah), meaning sperm and eggs. They received IVF treatment from a local private clinic which resulted in the birth of a son.

5. DISCUSSION

Infertility challenges a doxic (Bourdieu 1977) premise of Pakistani kinship, namely that a married couple should produce children who will, ipso facto, be related to them and a wider circle of relatives through shared substance, conceptualised as blood (khoon). In each of the three cases presented above, strategies are in play that might overcome involuntary childlessness. In each instance, the core notion of blood (khoon) appears to have been re-worked and repositioned in terms of its fundamental significance for social reproduction. In the first two cases, blood appears to be relegated in significance in relation to the day-to-day practicalities of nurture and co-residence for those brought together by means of informal foster arrangements. As the third case illustrates, however, an entirely different repertoire of choices is now added to these customary solutions to childlessness. Awareness of the possibility of using the new reproductive technologies is becoming more widespread among Pakistani Muslims and there is a growing interest in these services (Culley et al 2004). However, as this case shows, a number of important social and cultural issues arise once these solutions begin to be contemplated. By way of conclusion and as a prolegomenon to future study, we consider three main areas of potential contrast between traditional strategies for dealing with infertility and modern medical counterparts.

(a) The biologisation of khoon? In the case studies presented above, ‘blood’, as the metaphorical grounding of relationship, appears to be deployed variably according to circumstance. This is hardly surprising given that, as Schneider (1984) and many others thereafter (Franklin 1997; Carsten 1997 & 2000; and Bock and Rao 2000 specifically for South Asia) have pointed out, talk of blood in the context of kinship is metaphorical. Pakistani khoon is thus not the equivalent of English blood and both may bear little resemblance to the geneticist’s notion of a shared biogenetic substance—which is in fact a shared code or pattern of molecules rather than a


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Kinship Infertility and New Reproductive Technologies 287 substance per se. However, the rise of the new reproductive and genetic technologies has had a profound impact on the way that kinship relations are reckoned and given significance in practice. It has been suggested that with these new forms of knowledge has come what has been variously characterised as the ‘biologisation’ (McKinnon and Franklin 2001), ‘geneticisation’ (Freeman and Richards this volume) or the ‘medicalisation’ (Finkler 2000) of kinship relationships. Not only do these idioms provide Euro-Americans with the means to discover ‘relatives’ that they never knew they had (Strathern 1992; Edwards 1998), they also enable them to acquire the kind of relatives that the rhetoric of genetic and evolutionary essentialism tells them that they are driven to produce, namely ‘biological’ offspring who they might count as their ‘own flesh and blood’. Khoon, as a socio-moral substance that enables the biradari to be thought of as a coherent yet flexible relational construct, is not immune to the approximations that these strategies of essentialisation represent. As the views of Umair expressed above indicate, the availability of new technologies in Britain today offer the opportunity to assert the doxic principles of his own kinship. Despite the pleadings of his wife, the use of third party gametes would not only be unIslamic, but also question fundamental notions of legitimacy. However, the use of assisted reproduction, using a husband and wife’s gametes only, does offer new certainties. If third party gametes are not used, biogenetic and social connectedness, at least in theory, can be made to map closely onto one another. The appeal here is that reproduction can be accomplished without the risk of unforeseen complications that arrangements such as fostering or polygyny might in due course bring.

(b) One problem—one solution? As suggested above, in the case of Thazeem and Rasab, informal transfer of children between households in effect solves two problems at once—adult childlessness and child deprivation. However, hi-tech solutions sought discretely by individual couples via a GP or an infertility unit is essentially about the solution of only one problem. Use of IVF or related services subordinates or, at worst, renders redundant a significant context for social activity within the biradari. Yet, Werbner has suggested that Pakistanis in Britain should be thought of as transnational communities of co-responsibility (Werbner 2004). Key to this formulation is her observation that the material flows of goods and money, evident in gestures of ‘giving’ and public service (khidmat), express a deeply Islamic sense of co-responsibility. Thus, members of the diaspora might mobilise politically to defend or protest against injustices and human rights abuses suffered by codiasporic communities elsewhere. Community is, to varying extents, borderless and stretches across the globe. For example, in the cases of Rasab and Begum, described above, receiving orphans and children in extreme poverty is an act of social and public service; a powerful statement of co-responsibility that


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288 Nazalie Iqbal and Bob Simpson transcends the divisions which diaspora and the nation state create for the maintenance of community and kinship. Resort to the contained and clinical precision of IVF, whilst solving the problem of infertility at the level of the couple, does little to maintain the ethos of public service and co-responsibility traditionally demonstrated through informal adoption and the activation of wider kin networks. As the case of Shaheen and Umair indicates, recourse to hospitalbased IVF tends to be an individualistic solution. Relatives might well encourage take up of services but their involvement ends there. In the longer term, reliance on such services where there is involuntary childlessness might well reinforce the tendency towards nucleation in Pakistani Muslim families in the UK.

(c) Religious versus secular ethics? The new technologies are anything but morally neutral, value free and universally applicable. The choices they make available bring issues of secular inclusion based on principles of autonomy and individualism into various degrees of conflict with Islamic faith, and particularly where fundamentalism translates into radical familism, oppressive behaviour towards women and deep suspiciousness about the benefits of modernity. Despite increasing secularisation in contemporary Britain, religiosity among much of the UK’s Muslim population appears to be stable or increasing (Vertovec and Rogers 1998; Werbner 1990; Jacobson 1998). As a consequence, religious doctrines regarding infertility play an important role for Pakistani childless couples in Britain, although quite how it affects reproductive decision making is far from clear. The Quran explicitly encourages treatment for infertility (Inhorn 2003). Yet, neither the Islamic sharia (codes of practice deriving from the Quran), nor the collection of traditions embodied in the hadith refer directly to medically assisted conception. As in the case of Umair, with his resort to an ‘Islamic professor’, responses have been left to Islamic scholars who have tended to interpret the Quran in such a way as to allow IVF techniques where gametes are taken from the husband and wife. This way, the integrity of the marital union is preserved and concerns that anything even approximating adultery might have occurred are allayed. However, the picture emerging is far from clear with Sunni and Shiite clerics suggesting varying responses to third party gamete donation. Some imams forbid gamete donation outright on the grounds that no third party should intrude upon procreative relations in marriage. Other imams, however, show a more ambivalent attitude towards the practice. Finally, as the cases of Rasab and Jameela and Umair and Shaheen suggest, the response is not uniform across the sexes either, with the husbands in both cases keen to uphold orthodoxy and concerns about legitimacy, whilst their wives are apparently more interested in the reproductive ends rather than the genetic means. In this chapter, we have considered some of the ways that British Pakistani Muslims accomplish social reproduction in the face of involuntary childless-


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Kinship Infertility and New Reproductive Technologies 289 ness. Their accomplishment is achieved within a kinship system that expresses a range of ideas about the relationship between ‘blood’ and nurture and the degrees to which these might be manipulated, yet remain within a normative relational framework. The encounter with a new set of discourses on ‘blood’ and biological connection made available by the new reproductive technologies simultaneously pulls in two different directions. On the one hand, assisted reproduction provides new choices and adds new degrees to which manipulation might take place. For example, donation of gametes or perhaps, in future, surrogacy arrangements may bring serious social and moral challenges to community values and expectations. On the other, they also offer the possibility of a greater conformity to those values and expectations through the appropriation of genetic relationships as khoon. For many British Pakistani Muslims dealing with this tension, either directly as a couple faced with involuntary childlessness or indirectly in the form of a problem faced by a relative or community member, wider issues are raised concerning the relationship with British society and the creation and maintenance of community boundaries and identity. It is our hope that further research into British Pakistani Muslim responses to new reproductive technologies will throw light on how these various tensions are being played out against the backdrop of a multicultural society in which ethics, religion and science seem to be increasingly at odds.

6. REFERENCES

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290 Nazalie Iqbal and Bob Simpson CARSTEN, J, Cultures of Relatedness: New Approaches to the Study of Kinship (Cambridge, Cambridge University Press, 2000). CCRIa, Asian Survey: Country of Birth, Demographic and Household Structure, (Cleveland: Cleveland County Research and Intelligence, 1982) p.1. CCRIb, Asian Surveys: Economic Activity, (Cleveland: Cleveland County Research and Intelligence, 1982) p.4. CUSSINS, CM, ‘Producing Reproduction: Techniques of Normalization and Naturalization in Infertility Clinics.’ in S Franklin, and H Ragoné (eds), Reproducing Reproduction. Kinship, Power, and Technological Innovation (Philadelphia, University of Pennsylvania Press, 1998) p.66. CHARSLEY, K, ‘Zarurat Rishta: Making and Maintaining Connections in Transnational Pakistani Marriages’, paper presented at the Pakistan Workshop, The Rook, How, Lake District, 9–11 May 2003. —— ‘Risk, Trust, Gender and Transnational Marriage Among British Pakistanis’ paper presented at South Asian Anthropologists Group meeting, Sussex. September 2005a. —— ‘Unhappy Husbands: Masculinity and Migration in Transnational Pakistani Marriages’ (2005b), 11 Journal of the Royal Anthropological Institute 85. CLARKE, C, PEACH, C and VERTOVEC, S (eds), South Asians Overseas: Migration and Ethnicity. (Cambridge, Cambridge University Press, 1990). CULLEY, L, et al, A Study of the Provision of Fertility Services to South Asian Communities. (Leicester, De Montfort University, 2004). FINKLER, K, Experiencing the New Genetics: Family and Kinship on the Medical Frontier (Pittsburgh, University of Pennsylvania Press, 2000). FRANKLIN, S Embodied Progress: A Cultural Account of Assisted Conception (London, Routledge, 1997). —— and McKINNON, S, Relative Values: Reconfiguring Kinship Studies. (Durham, NC, Duke University Press, 2001). —— and LOCK, M(eds), Introduction to Remaking Life and Death: Towards an Anthropology of the Biosciences (Santa Fe, School of Advanced Research, 2003) p.1. EDWARDS, J, Born and Bred: Idioms of Kinship and New Reproductive Technologies in England (Oxford, Oxford University Press, 2000). INHORN, MC, ‘Global Infertility and the Globalisation of New Reproductive Technologies: Illustrations From Egypt’. (2003) 56 Social Science and Medicine 1837. —— and VAN BALEN, F,(eds), Infertility around the globe: New Thinking on Childlessness, Gender and Reproductive Technologies. (Berkeley, University of California Press 2001). IQBAL, N, Transnational Subjectivities: The Practice of Relatedness among British Pakistanis (PhD Thesis. Department of Anthropology, University of Durham, 2005). HENNICK, M, DIAMOND, I and COOPER, P, ‘Contraceptive use Dynamics of Asian Women in Britain’. (1999) 31 Journal of Biosocial Science 537. IRVINE, DS, ‘Epidemiology and Aetiology of Male Infertility’ (1998) 13 Human Reproduction 33. JACOBSON, AK and KUMAR, P (eds), South Asia in the Diaspora: History and Religious Traditions (Netherlands, Brill Laden, 2004). JACOBSON, AK, Islam in Transition: Religion and Identity among British Pakistani Youth (London, Routledge, 1998).


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Kinship Infertility and New Reproductive Technologies 291 PAPREEN, N, et al, ‘Living with Infertility: Experiences Among Urban Slum Populations in Bangladesh’ (2000) 8 Reproductive Health Matters 33. RIESSMAN, CK, ‘Stigma and Everyday Resistance Practices Among Childless Women in South India’ (2000) 14Gender and Society 111. RICHARDS, SC, ‘ “Spoiling the Womb”: Definitions, Aetiologies and Responses to Infertility in North West Province, Cameroon’. (2002) 6 African Journal of Reproductive Health 84. SCHNEIDER, D, A Critique of the Study of Kinship (Ann Arbor, University of Michigan Press, 1984). SHAW, A, A Pakistani Community in Britain (Oxford, Blackwell, 1988). —— Kinship and Continuity: Pakistani Families in Britain (Netherlands, Harwood Academic Publishers, 2000). —— ‘Kinship, Cultural Preference and Immigration: Consanguineous Marriage among British Pakistanis’ (2001) 7 Journal of the Royal Anthropological Institute 315. SIMPSON, B, ‘Acting Ethically, Responding Culturally: Framing the New Reproductive and Genetic Technologies in Sri Lanka.’ (2004) 5 Asia Pacific Journal of Anthropology 3. STRATHERN, M, After Nature: English Kinship in the Late Twentieth Century (Cambridge, Cambridge University Press, 1992). TINKLER, A, Tees Valley Joint Strategic Unit 2001 Census: Ethnic Minorities in the Tees Valley (Middlesbrough, UK: Tees Valley Joint Strategic Unit, 2004). VERTOVEC, S and ROGERS, A (eds), Muslim European Youth: Re-producing Religion, Ethnicity, Culture (Aldershot, Ashgate, 1998). WERBNER, P, ‘The Place Which is Diaspora: Citizenship, Religion, and Gender in the Making of Chaordic Transnationalism’, in A Jevy and A Weingrod. (eds), Homelands and Diasporas: Holy Lands and Other Places (Stanford, Standford University Press, 2004) p. 29. —— The Migration Process: Capital, Gifts and Offerings among British Pakistanis (Oxford, Berg Publishers, 1990). WHITEFORD M L and GONZALEZ, L, ‘Stigma: The Hidden Burden of Infertility’. (1995) 40 Social Science and Medicine 27


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Afterword


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15 Kinship as ‘Family’ in Contemporary Britain JANET FINCH

1. INTRODUCTION: FAMILY, KINSHIP, PERSONAL COMMUNITIES

T

HE REGULATION OF individuals’ lives, whether through the law or through public policies, inevitably touches on personal, intimate relationships both directly and indirectly. Historically this has been conceptualised principally as ‘family’ policy and ‘family’ law, with the concept of family being quite tightly defined. In UK policy and law, ’family’ has normally referred to the specific relationships of partnering, parenting and sharing a household. However there is plenty of evidence that wider kinship relations remain important—possibly increasingly important—to the way in which our fellow citizens live their lives. The purpose of this chapter is to identify some evolving features of contemporary kinship in the British context which raise particular challenges for public policy and the law, drawing on published work including some chapters in this book. Kinship has become a more widely recognised feature of family life alongside a greater diversity of intimate and domestic arrangements. That diversity has made it increasingly difficult to see the norm of ’family’ as equating to a household based on a life-long heterosexual relationship between a couple, shared by their children whilst they are immature in years. All of the assumptions built into that particular image have been eroded by a variety of changes in recent decades: much higher rates of divorce and remarriage, cohabitation becoming a common experience, official recognition of same-sex partnerships, greater ethnic diversity introducing different assumptions about the concept of family, later marriage, later child-bearing, and adult children leaving the home at a later age. The increase in single person households—now 29% in Britain (Social Trends, 2006: Table 2.1)—deals a decisive blow to any attempt to see the conventional household as the basis of the meaning of ’family’. The experience of family relationships is now very diverse, and offers the opportunity for individuals to make and remake their own families as life circumstances change. Indeed that diversity itself changes over time, with new


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296 Janet Finch forms of intimate relationship gaining public recognition. A recent example is so-called LATs—couples Living Apart Together, referring to individuals who recognise themselves as a couple but do not live in the same residence out of choice. The first attempt to document the extent of that in Britain has indicated that, of women and men aged 16–59 who are neither married nor cohabiting, about three out of twenty are LATs (Haskey, 2005). Recent sociological analyses of family relationships, recognising the diversity and fluidity of the current position, have argued that the concept of family ‘membership’, described in structural terms, is much less important than the nature of relationships themselves and the way in which they are lived. This literature, placing importance on the link between intimate relationships and personal identities, argues that it is how people act towards each other (‘doing family things’) which constitutes families in temporary context, rather than any fixed notion of membership. Social actions, both face to face and otherwise, are what constitutes people’s lived understanding of ‘my current family’. Those actions have to be accomplished in a way which attaches family-related meanings to them in order to be perceived by the participants, and by others, as part of ‘doing family.’ Family relationships have to be ‘displayed’ as well as ‘done’. (Morgan, 1996; Finch, forthcoming). This different way of conceptualising ’family’ brings the broader range of relationships outside the household into the foreground—and in that sense recognises that kinship has a very important role. At the same time it erodes the basis for identifying ‘members’ of an individual’s family for policy or legal purposes, since individuals will differ in the people whom they identify as significant to them, and that itself will change over the life course. Even then the picture is incomplete. For many people, identifying those others with whom they have close personal relationships does not stop at the boundaries of genetic links or sexual partnerships. How far then should we extend this concept of intimate relationships? Classically, social science has operated with concepts of interlocking networks which include family, kinship, friendships and community ties. Once conceptualised as discrete but overlapping networks, it is no longer possible for social scientists to draw clear boundaries—either conceptually or empirically—between these different ways of describing personal and intimate relationships. Recent social science analyses of these issues have brought the concept of ‘personal communities’ more to the fore (Phillipson and Allan, 2004; Pahl, 2005; Morgan, 2005). The concept of personal communities is used to refer to the range of people whom any of us defines as personally significant in our lives and with whom we interact on a regular basis. This commonly would include some people with whom we have genetic ties or sexual relationships, but not exclusively. Available empirical evidence suggests that, when individuals are asked to think in these terms (for example to provide charts or maps of the people who are important in their lives at the present time) people commonly include some (but


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Kinship as ‘Family’ in Contemporary Britain 297 not all) of their kin plus some people to whom they are not related either genetically, sexually or domestically. Further, when asked to reflect on whether the maps would have been the same at a specified time in the past, it is commonly acknowledged that the balance of who is important does change over time (Pahl, 2005). All this argues for a much more fluid, and a more individualised, concept of intimate and personal relationships in which both co-resident family and wider kin are regarded as important but not accorded a unique status; rather they are part of a larger picture in which the boundaries are highly permeable. This is very challenging for the law and public policy which, in regulating those aspects of personal relationships where governments deem it necessary to intervene, normally has based interventions on biological ties (between parents and children) and contractual ties (between husband and wife or, very recently, same sex civil partners). Both of these routes identify, with a reasonable degree of clarity, the individuals between whom a degree of obligation is assumed, but increasingly this may not accord with the realities of people’s lives. Thus, for example, the law may seek to enforce the obligations of a biological parent who no longer lives with the child or wishes to have contact, but make no interventions to support the more meaningful, living relationship between a child and an active step-parent. Thus there is a sense in which our relationships have to be simplified in order for the law and public agencies to deal with them, but at the same time this courts the danger of a mis-match between public interventions and lived realities. There is one obvious exception to this. Inheritance law in British jurisdictions, unlike inheritance law in many other European countries, has never privileged family relationships in the bequest of assets but is based on the principle that an individual can exercise open choice about who inherits. Although there have been some modifications to this in recent years, principally to acknowledge the position of spouses and economic dependents, essentially the principle of testamentary freedom remains. It enables anyone to acknowledge those specific relationships which he or she chooses through means of a bequest (Finch et al, 1996; Finch and Mason. 2000). This principle of free choice, in determining who can be acknowledged as having a close tie to an individual, does not extend to other areas of law or social policy, which have been based on pre-defined notions of closeness based on genetic or contractual ties. In this chapter I endeavour to pinpoint some of the more difficult challenges for the law and public policy when confronted with the contemporary realities within which citizens live out their closest relationships. In keeping with the theme of the book as a whole I locate the discussion in the concept of kinship (including co-resident family), but I will necessarily ground this in a broader concept of personal communities.


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298 Janet Finch 2. KINSHIP AS AN ECONOMIC RESOURCE: SUPPORT FOR OLDER PEOPLE

The idea that a kin group is an economic resource, in the broadest sense, is deeply embedded in classic sociological and anthropological literature. The reliance of individuals on kin for money, shelter, food and personal care has traditionally been seen as the foundation of what binds families together. Public policies and the law are bound to map onto that, though the ways in which this happens will vary with place and time. Reasonably enduring features in British law and public policy are the allocation of financial and practical responsibility to parents for immature children and, to a lesser extent, spouses to each other. However the question of how far beyond these circumstances it is appropriate— or even possible—for policies to allocate responsibilities within families is more open. Historical examples suggest that this is a very uncertain business, at least in the context of British society. In the nineteenth and early twentieth centuries, policies which sought to require children to take financial responsibility for unemployed or elderly parents met with considerable hostility and avoidance of responsibilities. This was, it can be argued, out of tune with the lived realities of people’s lives (Finch, 1989). So there is evidence that the formal expectation of economic (including practical) support beyond the parent-child and spouse relationship has always been relatively weak in Britain. This does not mean that kin support is absent from people’s lives, simply that it is not universally expected or delivered (Finch 1989). There are clearly circumstances in which a network of kin becomes an important economic resource for an individual. In considering this issue in more depth I shall use as my main example support for older people, when they are in circumstances where they cannot fully provide for or care for themselves. This is an area in which public polices have not, for some decades, attempted to require relatives to provide either practical or financial support, but there is substantial evidence that the relationships of kinship and friendship continue to provide an important source of support when that is needed (Graham, 1999; Arber, 2000). Several chapters in this volume extend that evidence to specific and challenging circumstances, where family members have a history of long distance migration. These circumstances raise, in acute form, the question of whether support for older people depends on proximity, and is disrupted by distance. The evidence suggests that substantial efforts can be made to overcome the constraints of distance. In this volume, Ebtehaj writes about the Iranian experience of migration to the UK, and demonstrates through ethnographic case studies how caregiving for elderly and sick relatives is organised in these circumstances. Harriss and Shaw’s chapter also focuses on caregiving to older people where families are stretched across continents, in this case British Pakistanis. One aspect of this is to bring different family members together in a complex way through the creation of global care chains (Hochschild, 2000), which include short-term visits of relatives to those who remain in Pakistan and some-


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Kinship as ‘Family’ in Contemporary Britain 299 times new migration to the UK, either of a potential caregiver, or of a person who needs care. However migration under these circumstances is often not straightforward. Harriss and Shaw show how it may be thwarted by immigration policies which treat such circumstances with suspicion, seeing them simply as a front to get more family members into the UK. Harriss and Shaw argue that in reality motives are mixed. In some cases which they have studied, the infirmity of an older relative is used as the rationale for a migration which was desired before these circumstances occurred. However these are seldom cases simply of cynical manipulation of the immigration system. In many circumstances the emotional dimension of relationships, and the sense of responsibility associated with it are much more important driving factors. This example illustrates neatly the ambiguity of social policies in interfacing with kinship as it is lived in the contemporary world. In this instance it is immigration policy which is at odds with the lived experience of kinship, being more focused on restricting the number of migrants into the UK rather than on facilitating family support. In part this is a dilemma of where to draw the line of who counts as ‘legitimate’ family. Any requirement to draw such a line for administrative purposes will be at odds with an individual’s definition of which particular relationships count as committed relationships. One of the case studies discussed by Harriss and Shaw illustrates this definitional dilemma rather poignantly. It concerns a young woman living in the UK who wanted to take responsibility for the care of an aunt who had been much involved in her upbringing in Pakistan, and applied to bring her to the UK in order to provide practical and financial support for her. This incited the suspicion of immigration officials who saw the niece-aunt relationship as insufficiently close to be a legitimate basis for taking on such responsibilities. These examples illustrate the strength of kinship as an economic resource for individuals, and how that sometimes gets activated in unexpected ways. The example of support to older relatives, made complex in policy terms by migration as well as other factors, can be linked to big questions in social science about the impact of globalisation on families. Recent writing in social gerontology has addressed these questions in interesting ways (Dannefer, 2003; Phillipson, 2006; Torres, 2006). In a world where people have much greater access to knowledge about the ways in which others live in very different circumstances from their own, where many more people have experiences of visiting another country, or are in regular contact with friends or kin who live in another country, we can no longer think about the implications of ageing as predictable or standard within the confines of a single society. Both physical and cultural differences can be eroded by knowledge about, and experience of, other ways of living. Even the concept of a ‘life course’ with a predictable trajectory is challenged (Phillipson, 2006). For those who experience migration directly in later life, there is bound to be a merging of culture and values which produces expectations which are relatively unpredictable, but which also introduces variation in the types of relationships which older people want to sustain (Torres, 2006).


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300 Janet Finch The way in which kin relationships can operate as an economic resource therefore remains important, and manifests itself in new ways in a more culturally diverse society which also has a global reach. The implications are more profound than the simple observation that this introduces ‘new cultures’ into British society, which in turn requires public policies to adapt. The processes of globalisation open up new possibilities for building and sustaining transnational kin relationships, whilst at the same time introducing a wider range of cultural frameworks which can be deployed in developing personal and intimate relationships. This applies whether individuals have been born in the UK or elsewhere, whether or not they have migrated. For those whose experience is rooted in British culture, the new possibilities for developing and sustaining relationships over long distances are superimposed on understandings of kinship which are already very flexible and individualised. In such circumstances it is inevitable that the law and public policies will not readily be able to impose definitions of who ‘should’ (or should not) take responsibility for supporting older people, when that is required.

3. KINSHIP AS A PERSONAL RESOURCE: CHILDREN AND YOUNG PEOPLE

Similar challenges arise for public policy and the law where they interface with those aspects of kinship which are a personal, rather than an economic, resource. Of course the dividing line is not absolute but by ‘personal resource’ I am referring to those aspects of relationships which are more about social and emotional interaction, than about sustenance and practical support. There is a long tradition of sociological research on kinship which focuses on these aspects—contacts with kin, their frequency, their character and their quality. In this volume, chapters by Grundy and Murphy (based on an Omnibus Survey question in 1999) and by Nolan and Scott (based on the secondary analysis of three British Social Attitudes surveys plus data from the British Household Panel Study) provide high quality, recent data on kin contacts in contemporary Britain. The data show, in broad terms, that women remain the principal kinkeepers, the people who take active responsibility for maintaining good quality contacts with other family members. At the same time there is wide variation in the amount and frequency of contact between kin and, in disentangling the various social indicators of this, it appears that those people who are most likely to have frequent contact with kin are those who live closest to each other, a factor reinforced by a relatively low level of education. None of this is particularly surprising, but the quality of the evidence provided makes these valuable contributions to the literature. As with all such studies—however good—the question begged is how the documented relationships fit into a bigger pattern in the lives of individuals, where friends may be as important as kin, where friendship and kinship indeed overlap, and where the importance of kin relationships undoubtedly will change


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Kinship as ‘Family’ in Contemporary Britain 301 over the life course (Allan, 1996; McGlone et al, 1999; Devine et al, 2003; Gilles et al, 2003; Holdsworth and Morgan, 2005). Nonetheless the recognition that relationships with non-household kin remain important to most people is fundamental to our understanding of contemporary families. In exploring further the contemporary relevance of kinship as a personal resource, in the context of the law and public policies, I focus on children and young adults. In certain social policy arenas, there are signs that the importance for young people of wider kinship is not only being recognised but also attempts are being made to harness it for policy purposes. This volume contains analysis of two such examples. Masson and Lindley consider the socio-legal issues associated with situations where a relative cares for a child because parents are unable to do so. In some cases children are formally ‘placed’ in these arrangements by state agencies, in others the arrangements are informal. This same situation is also discussed by Hunt, who looks at the evidence about the operation of the Children Act 1989 which sought to stimulate kinship care as a desirable option for looked after children. Whilst the implementation of that legislation appears to be more patchy than initially envisaged, nonetheless this is now clearly a recognised policy option. It is a situation where the State attempts to utilise kinship as a policy tool, and where kinship relations are seen as having a special status. Discussing a different example of attempts to harness wider kinship for policy purposes, Gelsthorpe focuses on the attempts to introduce into England systems of restorative justice used elsewhere to good effect, in particular in New Zealand. This entails a different approach to dealing with young people’s criminal activity, where the kin group and/or local community is seen as a resource for resolving the issues. In this approach the ‘kith and kin’ of both victim and offender are involved in face to face dialogue about what should happen to make restitution for the offence and to discourage reoffending. The criminal activity is seen inherently as a community problem, to be solved by ‘the community of care’. In this instance there is an implicit acknowledgement not only of the significance of kin for young people but also of broader ‘personal communities’. However Gelsthorpe shows that this really is not working in the UK context, partly because it has been introduced in a much more limited form and without other adjustments to the criminal justice system which might facilitate it. In both these examples—use of kin for looked after children, and drawing in the kin group to resolving youth offending—the policy questions raised are similar to those which relate to support for older people, in respect of how kin relationships are defined for policy purposes. At the same time these examples also raise different questions about the assumed role of kin in cultural transmission. The implicit logic is that children looked after by relatives rather than strangers will acquire a more rounded and more rooted sense of personal identity; similarly that young people whose offending is managed by members of their personal communities, kin included, are more likely to become socially


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302 Janet Finch integrated individuals than if they are punished by the courts. One way of conceptualising this is the notion of social capital, that is, the ways in which personal resources are transmitted from one generation to the next. In attempting to harness kin relationships to manage the lives of young people, one might argue that public policies are encouraging the transmission of social capital in a way which is both helpful to young people, whilst also supporting the social order. However, such policies have to be implemented in the specific social contexts or contemporary Britain, which will affect their impact in practice. An interesting, recently published, sociological study of young adults leaving the parental home can shed light on this. Holdsworth and Morgan (2005), draw on their comparative study of young adults leaving home in three European cities: Trondheim (Norway), Liverpool (UK) and Bilbao (Spain), to investigate how much direct support (economic and otherwise) is given by parents to their children when they are in the process of leaving the parental home. It becomes clear that the support given is much more predictable in the case of the Spanish and Norwegian families than is the case for those families studied in Liverpool. Here, the authors argue, parents are more variable in what they feel they either should or can do for their children, though there are some predictable social class variations. The argument about the transmission of social capital does not apply consistently to similar situations in different European societies. My main point in citing this study is to emphasise that the transmission of social capital is context-dependent, and that policies which seek to encourage it by drawing in the wider kin network need to be fully aware that what may be successful in one country will not necessarily translate to another. It is hardly surprising that a specific form of restorative justice, embedded in New Zealand Maori culture, does not translate well to the British context. However from a more theoretical standpoint, it is significant that public policy is recognising the potential importance of kin as a personal resource to individuals. The fact that these policies are proving difficult to implement is itself a reflection of the nature of those relationships, which are highly individualised and not amenable to being described in a standardised way. Attempting to standardise the consequences of being an aunt or a cousin is more or less guaranteed to make any policy ineffective, yet there are circumstances where aunts and cousins do potentially have an important role to play as a personal resource for individuals. Whether this happens in practice depends on circumstances in a way which is not readily amenable to policy manipulation. It is difficult for policies to be sensitive to the individualised nature of these relationships. The challenge for public services is to be able to operate in a highly flexible manner which recognises that, in seeking to draw in kin to the support of a young person, the range of relationships which could prove productive will differ in each case.


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Kinship as ‘Family’ in Contemporary Britain 303 4. BIOLOGICAL AND SOCIAL KINSHIP

This challenging picture, in which public policy and the law need to find ways of interfacing with highly flexible and individualised kin relationships, is further complicated by the growing importance of the distinction between biological and social kinship (including biological and social parenting). Social science has long recognised this distinction but analyses of it have changed fundamentally in recent years for two reasons. The first reason is that, in the contemporary world, it is now more explicitly recognised that family relationships may be based on social rather than biological definitions. This can be illustrated by a number of examples. The greater prevalence of step-families following divorce and re-partnering is an obvious example, where children live in complex kin groups, composed in part of people to whom they are genetically related, and in part of people who are a socially defined parent, grandparent, sibling and so on. Such arrangements must be considered—both statistically and theoretically—as part of mainstream experience. Families who have reconstituted themselves around new partnerships and parenting arrangements typically resent any suggestion that they are not ‘normal families’ and work hard at making the part-social, part-biological basis of family life work effectively (Smart and Neale, 1999; Ribbens-McCarthy et al, 2003). A different example concerns people with non-heterosexual preferences who have claimed the right to establish ‘families of choice’ (Weeks et al, 2001). However the principles of choice in one’s closest relationships goes well beyond that, with evidence building up over the last decade that families in the UK context have always operated on the basis of a high degree of individuality in kin relationships, with obligation to named relatives being much less important than personal closeness based on the dynamics of relationships between individuals (Finch, 1989; Finch and Mason, 1993; Finch and Mason, 2000). Thus the composition of a person’s effective kin network is not predictable just from a genealogical chart. The principle of choice brings the social dimensions of kinship centre stage. However the second reason why the ‘social versus biological’ issue has changed fundamentally in recent analysis places the emphasis on the biological. Scientific advances in genetics have created the possibility of acquiring precise evidence about biological links, and the availability of that evidence is plainly changing the ways in which individuals, the law and public policies deal with definitions of ‘family’. The chapters in this volume reflect these dimensions in a variety of ways. In an important contribution to the debate about the impact of genetics, Freeman and Richards argue that there are considerable dangers in focusing exclusively on genetic connection, in an environment where the social dimensions of kinship remain fundamentally important. In relation to the use of DNA testing to establish a paternity, for example, they argue that there is a clear danger of


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304 Janet Finch giving way to ‘genetic essentialism’ and overlooking the fact that kinship cannot be reduced to either genetic or to social relationships but is ‘constituted through a complex web of psychosocial, cultural and legal frameworks’. Given this complex intertwining of the social and the biological in understanding contemporary kinship, it is not surprising that the law has difficulty in mapping legal processes on family relationships.

5. CONCLUSION

My aim has been to draw out the realities of kinship as it is lived in contemporary Britain, in ways which both illuminate the directions of social change and highlight issues at the interface with law and public policies. A key feature of contemporary lived kinship is diversity of experience, both between families and over the life course. Whilst this must be seen as of particular significance for the present and the future, it would be wrong to assume a disconnection with a supposed past in which kin relationships were both more stable and more predictable. The evidence would not support that contrast. In the British context kinship has always been characterised by diversity, fluidity and a strong element of choice in the individuals with whom relationships are most meaningful. Where change is apparent, this really concerns the wider range of types of relationship which can be acknowledged and claimed as ‘family’. We know that in the past, gay and lesbian couples lived together in committed relationships, and indeed may have done so within personal communities of like-minded others. What has changed is that it is now much more legitimate to present this as a ‘chosen’ family or kin group and to have that publicly accepted—most obviously so since the passing of legislation on civil partnerships for same-sex couples. Similarly the experience of families where there has been repartnering is now much more likely than in the past to be regarded as one variant of common experience, rather than as a special category ‘step family’ arrangement which—by implication—is likely to be problematic. A further richness is added by the increasing number of British families who have, as members of their kin networks, people who live at long distances in other parts of the world. Of course, for a country which once ruled a far-flung empire, kin groups stretched over continents is nothing new. What has changed here is the ease of communication and travel, making the active fostering of kin relationships over very long distances a practical possibility. The addition, as British citizens, of people who are either recent migrants, or whose parents or grandparents were migrants to the UK, adds a cultural richness to patterns of British kinship. As a result of the processes of globalisation this cultural range is not confined to migrant families. The ways in which kinship is defined and lived in the contemporary world is a subtle blend of the fixed and the variable, the given and the chosen, the


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Kinship as ‘Family’ in Contemporary Britain 305 dutiful and the pleasurable. Individuals weave their paths through this in ways which may be difficult for an observer to detect, and which certainly do not conform neatly to any set pattern, though some elements are recognisable as common to many kin networks. The chapters in this volume provide rich illustration of these insights. Kinship represents an important source of support and identity for individuals precisely because of the ‘self-chosen’ elements, which allow individuals to adapt their relationships to suit new circumstances without wholly disrupting them. From the perspective of public policy and the law, this is almost impossible to capture in requirements and regulations which attach to specific relationships. In this volume, Bainham discusses what type of ‘family’ relationships the law can and should recognise. He considers important questions such as: Is there a case for more extensive legal recognition of kinship per se? How far can one push the ‘open choice’ argument about who will count as kin for legal purposes? There are quite clearly no easy answers to these questions but Bainham’s chapter does indicate the terrain on which forthcoming debates are bound to take place. In considering the options, and mindful of the need to bring into the equation the increasing certainty with which we can all map our genetic links, it is worth recalling the long-standing example of inheritance law which is already based on the principle of ‘open choice’ of individuals who can be acknowledged, within the testator’s personal community. The way in which this is expressed in law is through means of nomination of individuals to inherit specific items or amounts of money. It may be that this principle of nomination, which allows an individual to define who is to count as her closest individuals for policy and legal purposes, has more mileage in other legal and policy settings than has yet been explored.

REFERENCES

ALLAN, G Kinship and Friendship in Modern Britain (Oxford, Oxford University Press, 1996). —— and JONES,G, (eds) Social Relations and the Life Course (London, Palgrave Macmillan, 2003). ARBER, S (ed) The Myth of Generational Conflict: The Family and State in Ageing Societies (London, Routledge, 2000). DANNEFER, D, ‘Toward a Global Geography of the Life Course’ in J Mortimer and M Shanahan (eds) Handbook of the Life Course (New York, Kluwer Academic, 2003) 647. DEVINE, F, et al ‘Family and Community Ties in Space and Time’. In G Allan and G Jones (eds) Social Relations and the Life Course (London, Palgrave Macmillan, 2003) 172. FINCH, J, Family Obligations and Social Change (Cambridge, Polity, 1989).


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306 Janet Finch FINCH, J, (forthcoming) ‘Displaying Families’. Sociology. —— and Mason, J, Negotiating Family Responsibilities (London, Routledge, 1993). —— et al Wills, Inheritance and Families (Oxford, Clarendon, 1996). —— and Mason, J. Passing On: Kinship and Inheritance in England. (London, Routledge, 2000). GILLES V, HOLLAND, J and RIBBENS MCCARTHY, J, ‘Past/Present/Future: Time and the Meaning of Change in the Family’. In G Allan and G Jones (eds) Social Relations and the Life Course (London, Palgrave Macmillan, 2003) p. 31. GRAHAM, H, ‘The Informal Sector of Welfare: A Crisis in Caring?’ In G Allan (ed), The Sociology of the Family (Oxford, Blackwell, 1999) p. 283. HASKEY, J, ‘Living Arrangements in Contemporary Britain: Having a Partner who Usually Lives Elsewhere and Living Apart Together’(2005) 122 Population Trends. Winter 35. HOCHSCHILD, A, ‘Global Care Chains and Emotional Surplus Value’. in W Hutton and A Giddens (eds) On the Edge: Living with Global Capitalism (London, Jonathan Cape, 2000) 130. HOLDSWORTH, C and MORGAN, D, Transitions in Context: Leaving Home, Independence and Adulthood (Maidenhead, Open University Press, 2005) MACFARLANE, A, The Origins of English Individualism. (Oxford, Blackwell, 1978). MC GLONE F, PARK, A and ROBERTS, C, ‘Kinship and Friendship: Attitudes and Behaviour in Britain 1986–1995’. in S McCrae (ed) Changing Britain: Families and Households in the 1990s (Oxford, Oxford University Press, 1999) 141. MORGAN DHJ, Family Connections (Cambridge, Polity Press, 1996). —— ‘Revisiting “Communities in Britain”’ (2005) 53 Sociological Review 4. p641. PAHL, R, ‘Are all Communities Communities in the Mind?’ (2005). 53 Sociological Review 4. p621. PHILLIPSON, C, ‘Aging and Globalisation: Issues for Critical Gerontology and Political Economy’. in J Baars, D Dannefer, C Phillipson and A Walker (eds), Aging, Globalisation and Inequality (New York, Baywood Publishing, 2006). PHILLIPSON, P and ALLAN, G, Aging and the Life Course. In J Scott, J Treas and M Richards (eds), The Blackwell Companion to the Sociology of Families (Oxford, Blackwell, 2004) 126. RIBBENS-MCCARTHY, J, EDWARDS, R. and GILLIES, V, Making Families: Moral Tales of Parenting and Step-Parenting (Durham, Sociology Press, 2003). Social Trends No 36. Office For National Statistics (London, Stationery Office, 2006). SMART, C and NEALE, B, Family Fragments? (Cambridge, Polity Press, 1999). TORRES, S, ‘Culture, Migration, Inequality and “Periphery” in a Globalised World: Challenges for Ethno- and Anthropogerontology.’ in J Baars, D Dannefer, C Phillipson and A Walker (eds) Aging, Globalisation and Inequality (New York, Baywood Publishing, 2006) 231. WEEKS, J, HEAPHY, B and DONOVAN, S, Same Sex Intimacies (London, Routledge, 2001). WILLIAMS, F, Rethinking Families. (London, Calouste Gulbenkian Foundation, 2004).

(Q) Ebtehaj et al Index

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Index adult child-parent relationship analyses 195–212 availability/interaction data 197–9 variations 202–4 background 195–6 characteristics, sample 201–2 Table co-variates 200–202 conclusions 210–212 frequent face-to-face contacts 209 Table multivariate differentials 207–210 Omnibus Survey 198, 199–202 regular help provision 211 Table socio-economic differentials 196–7, 200–207 adult obligations and family change 104–9 contact and behaviour 105–6, 107–8 grandparents 106–7 legal frameworks 109–110 normative attitudes 107 social attitudes to 105 step-grandparents 106–7, 108–9 adult relationships 51–7 Anderson, N 26 Annan, N 24–5 ARTs, impact 78–9, 80–82 Attias-Donfut, C 184 Austin, Jane, Emma 33–4 Bell, C 176, 183 Bethnal Green study 176 Blackstone, William 226–7 Borneman, J 3 Brannen, J 5 British Social Attitudes/British Household Panel Study 177, 178 Brown, L 165 Butler, J 7–8 Cahill, M 6–7 canon law 22–3 care, ethic of 5–7 changing family structures, and children 99–112 adult obligations see adult obligations and family change ambivalent relationships 100, 103–4, 110 attitudes see children’s attitudes biological ties 111–12 conclusions 110–112 felt obligations 99–100, 103, 110

moral-normative/relational commitments 100, 110–111 Charles, N 176, 180 children, relationships with 57–61, 64 and changing family structures see changing family structures, and children children’s rights 61 and civil partnership 54–6, 61 full legal status 57–9 grandparents 103, 103–4 support for 185, 189–90 intermediate legal status 58 law changes 57 mother’s legal parentage 59 paternity, legal 59 social parenting 58, 60–61 special guardianship 60–61 step-parents 61 children’s attitudes to grandparents 103, 103–4 to kinship 101–4 to stepfamilies 102–3 children’s rights 61 civil partnership 48–9, 52–6 and children 54–6, 61 default position see cohabitation and fidelity 53 kinship links 54 and marriage 52–3 Climbié, Victoria 123 close marriage acceptance of 33–4 attitudes to 32–7 and birth rate decline 35, 37–8, 42 canon law 22–3 and child abuse concerns 41 and commercial/business markets 26–30 Deceased Wife’s Sister law 33, 35, 36–7 decline 37–42 double sibling marriage 38 FIG, 39 and emigration 23–4 English context 25–30 and eugenics 35–6, 37, 39 European pattern 22 extent 19–22 feminist concerns 34–5 and geneticists 39–40 historical context 22–5 hostility to 36 incidence 25–7


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308 Index close marriage (cont.): and Jews 23–4 legitimate spouses, enlargement of pool 37 Levitical restrictions 22–3 and local/regional/national networks 26–7 mechanisms 31–2 modern unease 38–40 mutual obligation 24–5 and nepotism 25 non-European experience 40–41 psychological overtones 32–3 and Quakers 23, 25 scientific concerns 33, 36–7 sexual anxieties 35, 36 and United States 40 cohabitation 49–50, 56–7 default position 56 partial status 57 and same-sex relationships 56–7 Coleman, M 99, 107 couples Living Apart Together (LATs) 296 Courtauld Family 27–30 Crawford, A 161, 162, 163 Crompton, R 181 Crow, G 165 Darwin, Charles 31–2, 35 Darwin, George 35 Darwin/Wedgwood marriage/family pattern 19, 20–21 Chart, 31–2 de Botton, Alain 47–8 Deceased Wife’s Sister law 33, 35, 37 Dixon, J 181 DNA testing 67–89 anthropological approaches 80–83 and biological essentialism 77–8 destabilising effect 73–5 and genetic essentialism 75, 79–80 genetic genealogies 83–8 genetics and kinship 77–83 kinship significance 68, 69–71 male lineage testing 84–5 and marriage 72–3, 74–5 maternal lineage testing 84n, 85–6 new kin relationships 88 paternal certainty/uncertainty 71–7, 89 population geneticists 83–7 principle 67–8 and social fatherhood 71–2, 75–7 uptake 68–9 Douglas, G 107, 108 Edelman, L B 6–7 Edwards, R 111 Eekelaar, J 104, 105–6 elderly, Iranian experience see under migration impacts, Iranian experience elderly and maintenance, legal issues 217–34

background 217 capital investment in children 227–8 coercive enforcement of obligation 229–30 Community Charter of the Fundamental Social Rights of Workers 220 cultural attitudes 233–4 dignity and independence 218–19 European Charter of Fundamental Rights 218–19 European Convention on/Court of Human Rights 217–18, 221 European Social Charter, revised 219–20 filial support obligations 223–6 human rights 217–22 incentives 231–4 inheritance law 228–9, 233 initiatives in England 222–3 Iranian experience see under migration impacts, Iranian experience legal signalling 221–2, 223, 231 public v private support 226–9 reciprocity 226–7 and succession laws 228–9, 233 support for carers 231–3 tax incentives 231, 233 transference of welfare burden 230–31 values fostering 229 Engels, Friedrich 71–2 Esping-Andersen, G 190 ethic of care 5–7 eugenics 35–6, 37, 39 families government policy 48 reification 3–4 family and friends care see kinship care family group conferences see under restorative justice Farmer, E 117, 127 Finch, J 4–5 Finkler, K 80 Fox, Robin 39 Franklin, S 3 Funder, K 102 Galton, Francis 35 Ganong, L 99, 107 gender change 62, 188 gender contacts 179–90 conclusions 187–90 data sources 177–8, 194 diversity of methods 182–3 exchanges across generations 183–7 financial help 185, 185–6 grandchildren support 185, 189–90 kinship contact 176–7 mobility 179–80 mother-daughter links 176, 179, 183, 187


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Index 309 non-resident mothers/fathers 179–80 and paid employment 181–3 policy implications 187–90 sociobiological differences 188 support for children 184–6 support for parents 186–7 women’s changing roles 175–6, 187–8 work-life balance 188–9 Gershuny, J 181 Gilligan, C 5 Giullari, S 188, 190 grandparents 103–4, 106–7, 108–9 grandchildren support 185, 189–90 Gubrium, J F 3–4 Hakim, C 188 Hall, P D 24 Harris, C 176 Held, V 7 Henry, Tyra 124 Hetherington, K 181 Holstein, J A 3–4 Hudson, J 165, 166–7 human rights, and elderly 217–22 immigration see transmigrant care, and British Pakistanis inheritance law elderly and maintenance 228–9, 233 testamentary freedom 297 Iranian community see migration impacts, Iranian experience IVF treatment, impact 78–9, 80–82 Jefferson/Hemmings families 84–5, 86 Jews 23–4 kinship as economic resource 298–300 naturalisation 2–3 nature of relationships 4–5 kinship care 115–30 action points for government 128–30 attachment/placement stability 121–2 carers motivation 118–20 profile 117–18 challenges 124–5 child safety 123–4 children, profile 117–18 continuity 122–3 help needed 126–8 maintenance of relationships 122–3 outcomes’ evidence 120–21 presumed benefits 120 psychological stress 125–6 quality 123–4 resurgence of interest 115–17

service gap 126 social support limitations 125 statistics 136 kinship care, legal structures and arrangements 135–52 background 135–6 conclusions 151–2 families and the state 136–9 local authority duties 138–9, 149–50 parental responsibility concept 140 parents and the state 136–9 recognition of carers 141–2, 143–8 automatic 143–4 through appointment 145–6 through court proceedings 146–8 recognition/status of carers 141–2, 143–8 state powers 136–9 status of carers 141–2, 143–8 support for carers 142–3 from central government 148–9 local 149–50 Lapido, F 187 LATs (couples Living Apart Together) 296 legal status 47–64 adult relationships 51–7 and civil partnership see civil partnership cohabitation see cohabitation definition 47 and family membership 48–51 functional equivalence 50–51 gender change 62 intestacy preferences 63 issue-based approach 63 kinship obligations 62–3 and personal intimate relationships 63 policy questions 62–4 relationships with children see children, relationships with same-sex partnerships 51–7 Levitical restrictions on marriage 22–3 Lewis, J 188, 190 Lubbock, Sir John 35 Luescher, K 100 McCold, P 163 McGlone, F 177, 181 MacLean, M 104, 105–6 male lineage testing 84n marriage see also close marriage and civil partnership 52–3 and DNA testing 72–3, 74–5 Levitical restrictions on 22–3 Marsh, P 165 Mason, J 4–5, 182 Maxwell, G 161, 162–3 Mazur, E 102


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310 Index migration see transmigrant care, and British Pakistanis migration impacts, Iranian experience 239–55 background 239–40 care for elderly 242–5, 298 in Iran 243–4 in UK 244–5 centrality of kinship ties 240–41 conclusion 254–5 experience accounts 246–55 family ambivalence 250–54 family fragmentation 240–42 financial support/disputes 245 intrafamilial conflict 242 lawlessnes in Iran 246–9 lawlessness in Iran 246–9 negotiating accountability 249–50 Millenium Cohort study 177 Mooney, A 5 Morris, A 158, 161, 162–3 Morrow, V 101 Moss, P 5 mother-daughter links 176, 179, 183, 187 Moyers, S 117, 127 Murch, M 107, 108 Murphy, M 177 Nash, Catherine 86 nepotism 25 New Zealand, and restorative justice 155, 157–9, 162–3, 168 Newburn, T 161, 162, 163 Nolan, J 187 Omnibus Survey 198, 199–202 Owen, C 177 parental status see children, relationships with partnerships, commercial 26 paternal certainty/uncertainty see under DNA testing personal communities 295–305 biological/social kinship 303–4 children/young people 300–302 conclusion 304–5 as economic resource 298–300 and family relationship diversity 295–7 LATs (couples Living Apart Together) 296 social/emotional interaction 300–302 Quakers 23, 25 Ragone, H 3 referral orders 160–63 relationships kinship 4–5 state regulation 7–8 reproductive technology, impact 78–9, 80–82

reproductive technology, and British Pakistani Muslims 275–89 background 275–7 basic concepts 277–8 biologisation of khoon 286–7 case studies 280–86 and co-responsibility 287–8 nfertility as social problem 278–9 izzat 277–8 religious v secular ethics 288–9 social/cultural issues 286–9 restorative justice 155–69 background 155–6 in civil justice 164–7 participant satisfaction 166–7 concept 156–9 conclusions 168–9 contexts of practice 157–9 and criminal youth justice system 159–63 family group conferences 157–9 in civil settings 164–5, 167 evaluation 167–8 potential 156–7 referral orders 160–63 Youth Offending Team/Panel 159–60, 161–2, 165 Rigg, A 102 Rosser, C 176 Rothschild family 24 Ruggles, S 19 Ruskin, John 32, 34 Sabean, D 19, 22 same-sex partnerships 51–7 Schneider, D 2 Segalen, M 19 Sieppert, J D 165, 166–7 Spain, housework law 189 status anxiety 47, 48 see also legal status step-parents 61, 102–3, 106–7, 108–9 succession law elderly and maintenance 228–9, 233 testamentary freedom 297 Sykes, Bryan 85 Thompson, L 181 transmigrant care, and British Pakistanis 259–72 adaptive solutions 265–72 attempted reunion, case 262–5 background 259–60 care needs 260–61, 298–9 care partners 267–8 commuting between countries 271 conclusions 272 desh-pardesh worries 268–72 grandson’s responsibilities 269–70


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Index 311 imported husbands 268 reluctance to move 270–71 structural and ideological contraints 261–5 transnational arrangements 265–7 transsexuals 62, 188 United States and close marriage 40 same-sex partnerships 51–2 Unrau, Y 165, 166–7 Valiente, C 189 Vuorella, U 260

Warde, A 181 Wedgwood/Darwin marriage/family pattern 19, 20–21 Chart Werbner, P 287 Wetherell, M 181 Wilkinson, F 187 Willmott, P 176 Wolff, F C 184 women see gender contacts Young, M 176 Young, R 165


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Kinship Matters

Matrilineal Kinship

The Character of Kinship

Evolution and Human Kinship

Kinship in Bali

Family kinship sympathy

Kinship With All Life

The Genius of Kinship: The Phenomenon of Kinship and the Global Diversity of Kinship Terminologies

Germanic Kinship Structure

Conceptions of kinship

Kinship Myth in Ancient Greece

Kinship and Behavior in Primates

Relative Values: Reconfiguring Kinship Studies

Multilateralism Matters

Family Matters

Logic Matters

Family Matters

Morality Matters

Kinship in Neckarhausen, 1700-1870

Food Matters

Truth Matters

Race Matters

Family Matters

Family Matters

Race matters

Family Matters

Family Matters

Race Matters

Love Matters

Racism Matters

Kinship Matters

Matrilineal Kinship

The Character of Kinship

Evolution and Human Kinship

Kinship in Bali

Family kinship sympathy

Kinship With All Life

The Genius of Kinship: The Phenomenon of Kinship and the Global Diversity of Kinship Terminologies

Germanic Kinship Structure

Conceptions of kinship

Kinship Myth in Ancient Greece

Kinship and Behavior in Primates

Relative Values: Reconfiguring Kinship Studies

Multilateralism Matters

Family Matters

Logic Matters

Family Matters

Morality Matters

Kinship in Neckarhausen, 1700-1870

Food Matters

Truth Matters

Race Matters

Family Matters

Family Matters

Race matters

Family Matters

Family Matters

Race Matters

Love Matters

Racism Matters

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