Introduction

Disability rarely features in family law texts. Where disability is acknowledged, it is often as an exception to the norm or rule in a statute or judicial precedent. Disability may be seen as a burden or cost, or a problem to be fixed. It appears generally in discussions of the law relating to parental financial support for children, or to the division of assets on separation, or perhaps more often, as a complicating factor in relation to wills and testamentary capacity. Disabled people then tend to play a fleeting cameo role in family law.

More critical accounts of family law often challenge the autonomous norm and the gendered dimensions of care, and how this is represented through family laws subjects. The role of family law in shaping and sustaining this autonomous, masculine and unencumbered subject is an important strand of this literature, and other books in this series have engaged with this (Clough and Herring 2019; Wallbank, Choudhry and Herring, 2010; Wallbank and Herring, 2015). Disability, however, has been remarkably absent in these conversations. Whilst disabled people are very much a part of family law, family law impacts them in particular ways and often plays a part in shaping the experience of their impairment.

This is not to say that there is no existing literature on disability and the law, or on how disability complicates the autonomous, able-bodied norm reproduced through the legal subject. Yet, literature on disability, care and family law has existed in silos. There is much to be gained, however, from thinking across and through these literatures in order to more carefully trace and challenge the way that law and disability interact in this context. It is important to note that whilst there are many points of resonance and convergence in these literatures, most notably around the dismantling of the legal subject, there are also important points of conflict. In particular, disability and care theory have tended to be positioned in conflict (Clough, this volume; Herring 2020), and this collection may be viewed with suspicion for bringing them together as a conceptual focus. However, bringing them into conversation with family law in this way allows us to bring to bear new perspectives both at a theoretical level and as a way to understand how law plays a role in constructing disability and care.

This collection aims to be the starting point and a catalyst for these conversations. It spans a range of issues and brings to bear a disability perspective on some of the ‘classic’ preoccupations of family law. The chapters raise important and highly topical issues: whether care proceedings are used too often in cases where parents have disabilities; how the law should respond to children who care for disabled parents - and the care of older family members with disabilities. It also poses new questions for family law to grapple with spurred by the UN Convention on the Rights of Persons with Disabilities, particularly around the different institutional and state responsibilities captured in the Convention, and around decision-making for both disabled adults and children.

Defining the concepts

Before looking at the themes of the book in more detail, it is important to note the contested nature of the concepts that the collection engages with. Like the other collections in this series, which have engaged with concepts such as autonomy, care, gender and vulnerability, the parameters and implications of these concepts are not universally accepted. Debates continue to take place as to their meanings and implications, and interactions with law and legal processes. Disability is no exception to this and poses a distinct challenge given its historically contested meaning and contours. Here we will outline some of the definitional approaches to disability, drawing particularly on disability studies approaches. Whilst we cannot cover all of the nuances of disability studies here, it is important to highlight the different models or understandings of disability as they raise radically different questions as to the role and importance of law.

The Social Model of Disability has been a crucial catalyst in legal and political activism for disabled people. Essentially, the Social Model suggests that disability is produced by societal attitudes and structures which impact on or interact with people with impairments or who deviate from ableist norms (Shakespeare, 2013). Thus, the cause of disability is not impairment, but the societal norm or barrier. This is a marked shift from the Individual or Medical Model of Disability which locates disability within the individual and views disability as a deficit or something to be fixed/ cured (Goodley, 2014).

As will be discussed in the chapters in the collection, the Social Model is not universally accepted by those working in this field and has been subject to critique and refinement since its original conception. Disability studies has produced important challenges and perspectives, alongside subfield approaches, including Critical Disability Studies (Pothier and Devlin, 2006), Crip Theory (McRuer, 2006), Mad Studies (Castrodale, 2016) and

Ableism Studies (Goodley, 2014). Central to these, however, is a focus on disability as socially and structurally produced.

Moreover, the approach taken to disability - either as socially produced or as individually located - has important implications for how we conceptualise the role of law and, at a broader level, the state. An individual model of disability might see law’s role as relatively limited and perhaps focus on offering financial or medical assistance to mitigate the effects of disability. The Social Model, however, views law and the state as implicated in the production of disability and as such, responsible for the effects of this. Law plays an important role in shaping and reproducing the concepts, norms and structures which perpetuate the experience of disability. As such, as Kanter suggests, ‘[disability Studies has much to offer the law as well as legal education, just as a critical examination of the law has much to offer the field of Disability Studies’ (Kanter, 2011).

Despite this, disability critiques are relatively rare and marginalised across core legal modules. Disability rarely appears in textbooks, which is remarkable given the content of many, if not all, core modules is driven by law’s day-to-day interaction with people. In making the case for Disability Law as a discipline, Lawson suggests it is not just about whether we should have Disability Law, but about what disability can tell us about law and the legal subject (Lawson, 2020). There is the potential for disability to disrupt a range of more traditional or core Law modules (Naffine, 2019). The focus on the production and reproduction of problematic norms adds a distinct intervention in existing scholarship which critiques the dominance of a masculine, autonomous, abstract legal subject. Family law scholarship has been particularly potent in challenging this, and bringing it into conversation with disability studies offers the potential for both disciplinary and legal change. It will allow us to carefully trace the role of family law not just in erasing or disavowing the experience of disabled people, but also in law and legal processes creating and sustaining disabling norms or barriers for people with impairments. Moreover, this knowledge also facilitates an understanding of ‘mechanisms through which disabling practices and structures can be challenged’ (Lawson, 2020).

Context

This collection is hoped to provide a timely intervention for disability issues into family law, particularly within the context of the widely recognised disruptive potential of the UN Convention on the Rights of Persons with Disabilities 2006. The Convention, which the United Kingdom has signed and ratified, can be seen as taking forward much of the ethos of the Social Model of Disability. The Preamble, for example, lists ‘[recognizing that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others,’ as a core focus (Preamble, (5)). The emphasis of the Convention is on States Parties’ obligations to secure rights to disabled people, with positive obligations and progressive realisation being key tools for this. It has been argued by some that the emphasis on the role of the state here may signal a conceptual and doctrinal shift from more liberal legal human rights approaches, to a more socially just and responsive legal approach (Quinn, 2011). The extent to which any meaningful shift can actually occur by using the very same legal tools and machinery that have reinforced liberal legal norms is important to bear in mind here, and such debates are undoubtedly key for family lawyers seeking to find new ways to enact justice outside of the trope of the masculine, unencumbered legal subject (Herring, 2019).

There is much in the Convention that will interest family lawyers, with new perspectives offered on what might be seen as the bread-and-butter of family law, e.g. Women with disabilities (Article 6); Children with disabilities (Article 7); Equal recognition before the law (Article 12); Access to Justice (Article 13); Liberty and Security of Person (Article 14); Freedom from Exploitation, Violence and Abuse (Article 16); Freedom of Expression and Opinion, and access to information (Article 21); Respect for Privacy (Article 22); Respect for Home and the Family (Article 23); Education (Article 24). Moreover, in their 2017 Concluding Observations on the United Kingdom, the CRPD Committee flagged several recommendations which have relevance for family law, including support for disabled parents (para 49); for a statutory duty for the provision of disability-sensitive childcare (para 21); and adequate steps be taken to protect disabled people from harassment and exploitation. Opening a conversation with disability studies in this way can prompt novel approaches for family law and the relationship between individuals and the state.

Structure of the book

As noted at the outset, this collection aims to be the starting point for these conversations between disability, care and family law. The chapters span a range of family law and policy issues involving individuals with both physical and intellectual disabilities.

Disability and care relations in policy context

The chapters in this first section provide an overview and introduction to the conceptual tensions that pervade this area, as well as the legal and policy drivers that shape responses. In ‘Disability and Care - Theoretical antagonisms revisited’, Bev Clough introduces the debate which has historically played out in social policy and activist discourses between care and disability rights perspectives. This has functioned to create a perceived divide between those driven by increasing the visibility of carers in law and policy, and those who advocate for independent living for disabled people. Clough’s chapter seeks to question whether the theoretical and conceptual frameworks underpinning this perceived divide are fairly and accurately reflected in this debate. Seeking commonalities in the literature, particularly around a challenge to liberal individualism, the chapter considers the issues afresh through the lens of the UNCRPD. This theme, of the perceived clash between care and disability perspectives, resonates across many chapters in the collection.

Chrissie Rogers, in ‘Mothering, Disability and Care: Beyond the Prison Wall’, demonstrates the importance of bringing disability and care perspectives into conversation through her engagement with the stories of mothers of disabled children who are incarcerated in prison. Here Rogers advances the importance of a care ethics model of disability that is ‘about trust and webs of relationships, and the focus therefore is on both the receiver and the giver of care within an interdependent relationship’. The importance of familial care connections persisting despite the physical disconnect is particularly evident through this chapter, as well as the systemic and institutional failures that intersect with disability and care here across the life stories of participants.

In his chapter, ‘Children Care’, Jonathan Herring challenges the common negative perception and representation of childcarers as a vulnerable and disadvantaged group. Viewing care as a universal practice in which everyone - including children - is engaged in providing as well as being dependent upon poses an important intervention in legal and policy processes which are often driven by an overarching purpose of reducing the perceived burden of caring. Herring also engages here with the connections between care and disability perspectives, arguing that the common portrayal of childcarers through a negative lens perpetuates the image of disabled people as a burden.

Moving to later stages of the life course, Kirstein Rummery’s chapter, ‘Ageing, Disability and Family Life’, provides a critical overview of intersections between care, disability and ageing in the context of family. The chapter demonstrates the individualistic and gendered underpinnings and assumptions that policy in this context has been built upon and demonstrates the problems caused by ignoring issues of interdependency and family life. It adds further strength to the points made by the other chapters in this section, by providing detailed analysis of the roots and ideologies of the specific policy frameworks which shape this area and placing these in the context of the realities of austerity.

Disabled children: interacting with institutional and legal settings

The next section of the collection takes these broader conceptual themes, around disability, care, relationality and interdependence, and moves to focus on the particularities of disabled children and their place in existing legal and policy frameworks.

In ‘Children’s Understanding of Disability’, Sian Jones introduces psychological literature on child development which outlines how this development impacts on rhe ways that children understand disability. This is situated alongside an appreciation of the societal impact on understanding and responses to disability, highlighting literature which demonstrates the importance of social interaction between disabled and non-disabled children. Being mindful of this interaction between both developmental and societal factors on inclusion, Jones reflects upon the implications for education law and policy.

Camilla Parker, in ‘Deprivation of Liberty, Parental Consent and the Rights of the Child’, engages with a highly topical question of the scope of parental consent in relation to the living arrangements of children and adolescents. This issue has recently been considered by the Supreme Court and Parker’s chapter provides important reflections on the implications of this judgement for disabled children and minors. The extent to which parents can consent to what would otherwise be a deprivation of liberty raises important issues as to the voice and self-determination of young disabled people, and the role and responsibilities of the state to ensure that care practices are not in themselves harmful. Whether or not certain practices are recognised as a deprivation of liberty signals wider societal assumptions about ‘difference’ between disabled and non-disabled children and the extent to which their choice is seen as important. The case law discussed here has important implications also for ideas of the family and parental decision-making, which is further complicated by the intersection of care and disability.

This theme of parental decision-making is picked up again in ‘Transforming Family Responsibilities: Children with Disabilities, Parental Responsibility and Family Life’ by Jo Bridgeman. Through exploring the written accounts of six parents with children with severe brain damage, the idea of responsibility is considered through the lens of relationality and responsiveness. The ways that disabled children, are or are purported to be, included within the specificities of the Children Act 1989 provisions as to parental responsibilities also emerge as an important theme which speaks to a wider debate around difference and assimilation in relation to disability. The extent to which universal principles can be applied in ways which respond to the particular is important here and Bridgeman’s chapter provides reflections which will feed into these broader debates in disability studies. Again, we also see the importance of thinking through both care and disability, with relationality, interdependence and transformation emerging as key themes.

Disabled adults and familial relationships

In the third section, the focus turns to thinking through the ways that disability complicates legal frameworks in relation to adults in family law. Mark Higgins’s chapter, ‘The Exam It Is Impossible to Pass: How Disabled Parents are at Risk of Having to Prove The Impossible in Care Proceedings’, provides an important practitioner-based perspective on the ways that care proceedings impact upon disabled parents. Here, law can be seen to construct a number of disabling barriers for parents with impairments through its processes, as well as playing a role in reproducing the ideal of the non-disabled parents. At the same time, the practitioner perspective gives important insights into ways the law can be used to navigate, challenge and disrupt these disabling barriers. However, as Higgins points out, this is unlikely to lead to broader structural change, as the nature of the disadvantage that the legal system and norms here produce and reproduce is systemic. This discussion as such has much to offer wider debates in disability studies and law as to the purported facial neutrality of legal frameworks which are, in reality, built upon ableist norms.

In ‘“He got down on one knee”: Intellectual Disability, Intimacy and Family Law’, Rosie Harding explores the experiences of intellectually disabled adults in their interaction with everyday legally relevant decisions around intimate relationships. The chapter engages directly with the UNCRPD and implications of Article 12 in particular, which has caused significant waves among mental capacity scholarship. Article 12 emphasises the right to legal capacity on an equal basis with others, which poses a distinct challenge to the Mental Capacity Act and its effective removal of this legal capacity on the basis of mental capacity. Instead, Article 12 emphasises the importance of support to exercise legal capacity, and Harding’s chapter considers in depth what this might entail for family law decisions at the intersection with mental capacity law. Reading Harding and Higgins’ chapters alongside each other, it is clear that the UNCRPD and emphasis on provision of support raises important questions around not just support in the context of decision-making, but also the provision of resources to facilitate meaningful access to the rights in the Convention, and consequently, the obligations of the state to secure this.

Jaime Lindsey further develops some of these themes in her chapter ‘Protecting disabled adults from abusive family relationships: Mental capacity, autonomy and vulnerability’. Whilst Harding sought to avoid the ‘abuse-first’ (px) approach that we commonly see in relation to family law and intellectually disabled people, Lindsey’s chapter directly addresses the tensions that exist in our legal frameworks and ways that these could meaningfully be rethought. As Lindsey outlines, autonomy as the dominant paradigm here is often used to deny the agency of individuals with intellectual disabilities. Instead, the chapter calls for a shift in perspective away from the decision-making abilities of the disabled person, and instead to the perpetrator of abuse. In many ways, this shift echoes the calls from the Social Model approach which emphasises looking at the social, structural conditions of the disabled person’s experience, rather than seeing them as deficient or the source of the problem. Such a move also resonates with the broader feminist legal literature and critiques of family law, signalling potential conceptual and practical convergences for future research.

In ‘Law and Dementia: Family Context and the Experience of Dementia in Old Age’, Margaret Hall moves to further complicate and challenge family law’s paradigms through analysing the complicating effects of dementia on familial relationships. Here we get a sense of the way that linear ideals of the ways that families are created, negotiated and experienced is disrupted by non-normative minds and bodies. In particular, the negotiation of new relationships, and reconfiguring of existing ones, through the experience of dementia and caregiving, provides an important challenge to the ways that we view caregiving as simply reproducing familial dynamics that are already in place. As we saw also in Bridgeman’s chapter, dementia here not only disrupts but also transforms familial connections and interpersonal relations. Situating this experience within broader legal and policy norms and their socio-economic and political construction brings into sharp relief the problematic landscape that Rummery explored in Chapter 4 and the implications of this.

The extent to which family law can comprehend, contain and respond to these shifting family dynamics and the challenges of non-normative legal subjects has underpinned the discussions throughout this collection. As we stated at the outset, bringing disability, care and family law into conversation in this way exposes key areas where family law plays a role in invisibi-lising disability, or, alternatively, actively producing it through the disabling effects of laws and policy. At the same time, productive ways forward for those working on these issues are revealed throughout the collection and it is hoped that this will provide a starting point for these conversations.

Where next?

There is a real danger in thinking about family law and disabled people to produce a list of ways in which family law fails disabled people and proposed amendments, or accommodations, to ensure their interests are adequately protected. There is certainly material in this book for those who wish to adopt such an approach. The aim of this book, however, is more radical. It is through disability that we can challenge the norms and assumptions that underpin family law. Disability offers us a vision of a better family law, for all.

Some of the assumptions that underpin family law are challenged by disability: that sexual relationships are the heart of family law; that it is the role of parents to look after and make decisions for their children; that choice is at the heart of family life. Disability offers new ways of positioning family law: with caring relationships ar its core; that children and families care together and decide together; that responsibilities are essential to family law. This new vision of family law is one that does not reflect the idealised autonomous male norm of the academic imagination, but the reality of real messy family lives. And it is all the better for that.

References

Castrodale, M. (2016)

Clough, B. and Herring, J. (eds) (2019) Ageing, Gender and Family Law (Abingdon: Routledge).

Goodley, D. (2014) Dis/ability Studies (Abingdon: Routledge).

Herring, J. (2020), 'Ethics of Care and Disability Rights: Complementary or Contradictory?’ in L. Goldsthorp, M Perveez and B. Sloan (eds) Spaces of Care (Oxford: Hart).

Herring, J. (2019) Law and the Relational Self (Cambridge: Cambridge University Press).

Kanter, A. (2011) 'The Law: What’s Disability Studies Got To Do With It Or An Introduction to Disability Legal Studies’ Columbia Human Rights Law Review 42: 403.

Lawson, A. (2020) 'Disability Law as an Academic Discipline: Towards Cohesion and Mainstreaming?’ Journal of Law and Society 47: 558-587

McRuer, R. (2006) Crip Theory (New York: NUY Press).

Naffine, N. (2019) Criminal Law and the Man Problem (Oxford: Hart).

Pothier, D. and Devlin, R. (eds) (2006) Critical Disability Theory: Essays in Philosophy, Politics, Policy, and Law (Toronto, UBC Press)

Quinn, G. (2011) 'Keynote: Rethinking Personhood: New Questions in Legal Capacity Law and Policy’ (Vancouver, University of British Columbia) available at http://citizenship.sites.olt.ubc.ca/files/2014/07/Gerard_Quinn_s_Keynote_-_ April_29__2011.pdf [last accessed 27th May 2020|

Shakespeare, T. (2013) Disability Rights and Wrongs Revisited (2nd ed Abingdon: Routledge).

Wallbank, J., Choudhry, S. and Herring, J. (eds) (2010), Rights, Gender and Family Law (Abingdon: Routledge).

Wallbank, J. and Herring, J. (eds) (2015) Vulnerabilities, Care and Family Law (Abingdon: Routledge).

 
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