Rethinking ‘Family’ in Family Law: Form-based, Function-based and Choice-based Frameworks

1. Introduction

The conjugal family, limited to exclusive bonds of marriage and parenthood, has consistently served as the primary norm underpinning family law in many jurisdictions, including England and Wales,1 the United States2 and the European Union.3 However, this restrictive definition of family has been criticised for its inability to reflect social reality. Jill Hasday observes that American family law’s focus on marital relationships has normalised the legal system’s lack of attention towards non-canonical relationships (i.e. familial relationships beyond marriage and parenthood) which can be equally integral to family life.4 Similarly, Eleanor Wilkinson notes that long-term coupledom is portrayed as more desirable than other family forms in English policy,5 especially as an impetus to raise children, while broken relationships are deemed the primary source of political and social problems such as increasing state benefits claims.

Given increasing calls for the legal recognition of non-canonical relationships such as grandparenthood6 and siblinghood7, this article explores examples of the restrictive conception of the conjugal family in the English legal discourse. It argues that there is a theoretical gap between the social and legal definitions of family, resulting in an unjustified exclusion from familial rights and responsibilities experienced by those who fall outside the definition. Hence, this paper rejects the current form-based approach which prioritises family forms stemming from conjugal relationships. It is noted that the general debate in the literature is often framed as a binary choice between form-based and function-based conceptions of the ‘family’, with the function-based model affording legal recognition to those who perform familial practices.8 For example, Jonathan Herring9 has opted for replacing the form-based model with the function-based model, arguing for a newly defined legal category of the family rooted in caring relationships. However, this article advances a third alternative – to replace the current form-based model with a choice-based framework, where individuals are permitted to define their own family.

2. A Critical Evaluation of the Form-based Approach: The Restrictive Conception of ‘Family’10

Contemporary family law rests on a form-based approach, where relationships are granted legal recognition upon falling within certain family forms.11 For example, marriage and parenthood are given presumptive status-based legal recognition.12 The overt focus on conjugal relations has been criticised for neglecting other family forms such as friendship,13 grandparenthood14 and siblinghood.15

The variety of family forms recognised under the definition of family has increased, particularly with the advent of civil partnerships and same-sex marriages.16 However, the restrictive norms to which these diverse family forms must conform remain the same: to be ‘familial’, a relationship must be sufficiently ‘marriage-like’ to merit legal recognition. In Fitzpatrick v Sterling Housing Association Ltd,17 familial ‘functions’ were identified to include mutual interdependence, sharing of lives, caring and love, commitment and support, and replicating the ideals implicit within conjugality.18 In Ghaidan v Godin-Mendoza,19 a homosexual couple was regarded as a family unit upon displaying ‘marriage-like’ qualities – love, warmth, sense of belonging, stability and permanence. As Alan Brown argues, the traditional nuclear family model retains normative and rhetorical authority despite legal reforms, increasingly diverse family forms, and rising social acceptance of unconventional relationships. Values intrinsic to the traditional nuclear family, such as gender roles in the breadwinner-homemaker division, are retained and perpetuated.20 In Lawrence v Gallagher,21 upon considering family finances upon the dissolution of a homosexual civil partnership, the court emphasised Mr Lawrence’s work within the economic sphere, despite Mr Gallagher’s engagement in paid employment as an actor, demonstrating adherence to traditional, gendered labour divisions.22 The theoretical and practical ramifications of the restrictive definition of family under the form-based approach will be elucidated below.

2.1 A Theoretical Gap between Legal and Sociological Understandings of ‘Family’

Theoretically, the form-based approach leads to a disparity between the legal and sociological understandings of ‘family life’. While the legal construction of ‘family life’ is form-based, sociological scholarship defines family by its practices. Elizabeth Silva and Carol Smart define the essential core of ‘family’ to be care, the sharing of resources, responsibilities, and obligations,23 while Alison Diduck views familial relationships as intimate or private living based on care and interdependence.24 However, none of these practices are exclusive to the conjugal family, and other relationships can equally be characterised by care, sharing, responsibilities and interdependence.25

Grandparenthood, which falls beyond conjugality, can display such features. 40% of grandparents provide regular childcare for their grandchildren26 and often share financial resources, especially within post-divorce family structures.27 Care and sharing are often accompanied by grandparents’ sense of obligation to assist their children and grandchildren.28 Conversely, grandchildren, particularly those who received substantial investment from their grandparents, are likely to share their financial resources and provide care out of moral obligations of reciprocity when grandparents grow old.29 This demonstrates that the grandparent-grandchild relationship is likely interdependent.30 Hence, Geoff Dench and Jim Ogg have suggested that a three-generation model increasingly challenges the traditional nuclear family in law.31

Siblinghood can also be characterised by care, sharing and responsibilities. Children with absent or dysfunctional parents often act as each other’s physical and emotional caretakers.32 Adult siblings commonly rely on each other for psychological and material support during family crises.33 Elderly siblings frequently offer each other material help and caregiving.34 Such actions are often accompanied by a moral obligation to support each other.35 Lastly, the sibling relationship is inherently interdependent and concerns the exchange of care and support among two equals.

Therefore, the legal construction of family, which is restricted to the conjugal family, rests on a weak sociological basis and fails to reflect social reality. This hampers the legitimacy of the law, which stems from society’s understanding and acceptance.36 As Ruth Deech argues, the law’s approach to attaching obligations only to parents and those in sexual relationships should indeed be reconsidered.37

2.2 Practical Exclusionary Effects Facing Non-Conjugal Relationships

The narrow form-based construction of ‘family’ causes those falling beyond the definition to experience an unjustified exclusion from familial rights and responsibilities. Regarding normative effects, the approach communicates an unjustified hierarchy of relationships. As Sue Westwood argues,38 while the English legal regime privileges marriage and parenthood, friendships remain overlooked in regulatory recognition, even for older LGBT individuals39 who often find friends integral to their relationship networks. To Westwood, the definition of family posits a pyramid of relationships. The most privileged tier encapsulates formally legally recognised couples, while the second tier features partially legally recognised couples (i.e. cohabiting partners). The third tier includes friendships subject to no automatic legal recognition but for which partial recognition can be legally created. The fourth tier encompasses friendships for which there are no formal legal provisions or remedies.

In practice, this hierarchy translates into exclusionary effects against non-conjugal relationships, as evidenced by grandparenthood and siblinghood. Despite the increasing involvement of grandparents in children’s lives, the law has not afforded any special legal status or recognition to grandparents. Grandparents are recognised in Section 105 of the Children Act 1989 as being relatives.40 Therefore, apart from the few grandparents who have lived with their grandchildren for three years or above or whose grandchildren are considered for adoption, grandparents do not receive special legal rights or responsibilities. There is also no presumption in favour of grandparent-grandchild contact after parental separation.41 Courts typically consider grandparent-grandchild relationships beneficial to children and seek to preserve that link. However, this is subject to the qualification that the relationship does not conflict with parent-child relationships, with courts unlikely to order contact42 to a grandparent against a parent’s wishes.43

This is contrasted against the parental involvement presumption contained in Section 1(2A-B) of the Children Act 1989, according to which the court presumes that involvement of a parent in the child’s life will further the child’s welfare unless the contrary is proven.44 Gillian Douglas and Neil Ferguson explain this policy choice by alluding to the dangers of generalising the importance of grandparents’ role in grandchildren’s lives, particularly when grandparenting differs in quality and style.45 To Felicity Kaganas and Christine Piper,46 limiting the assumption to parental relationships is justified by the social reality that parents usually assume day-to-day responsibilities for raising their children instead of grandparents. However, it is clear that the quality and style of parenting also differs, with some parent-child relationships characterised by conflict and domestic violence.47 Moreover, it is not uncommon for grandparents to play the major role in childcare, given increased rates of dual-earning households and lone-parent employment.48 Hence, the only explanation for the phenomenon is seemingly rooted in an unjustified hierarchy of relationships, where conjugal relationships take precedence over non-canonical relationships. Relationships that do not fit within the core definition of family are excluded from any legal rights and benefits that flow from the status of being family members.

Similarly, despite the practical significance of siblinghood, family law scholars have paid little attention to this relationship. The limited legal protection afforded to siblings in American law is primarily attributed to its exclusion from the legal definition of family, which, according to Juliet Mitchell and Melanie Muthner, reflects a prioritisation of ‘vertical’ relationships (e.g. parent-child relationships) over ‘lateral’ relationships (e.g. siblings and friends).49 The same is evident in the English regime, with Daniel Monk50 noting that inter-sibling contact orders under Sections 8 or 34 of the Children Act 198951 in child arrangements orders are highly exceptional for children, as opposed to the parental involvement presumption. Similarly, long-time cohabiting siblings, such as the Burden52 sisters and the Utley sisters53 received no legal recognition as a family or couple when applying for inheritance tax exemptions. The limited definition of family presents a disparity between the law’s idea of family and the lived reality of family life characterised by diverse and complex family forms.54

2.3 The Restrictive Definition: An Inherent Weakness within the Form-based Model

This begs the question: does legal family recognition inherently require exclusion and hierarchy? While legal regimes are constructed to reflect contemporary values, it seems inevitable for some relationship forms (e.g. marriage and parenthood) to come into prevalence and significance before others (e.g. grandparenthood and siblinghood). While the legal regime can be amended to protect new relationship forms, it would be impossible for a legal regime to overrule the importance of entrenched relationships. Nor would it be possible for the regime to anticipate the incoming prevalence of any relationship, or offer, in advance, protection equal to that enjoyed by existing relationships. However, this will not be the case if we eliminate the current form-based approach towards family law. While most academics suggest a function-based approach as an alternative to the current form-based approach, I would propose a choice-based framework to address current concerns.

3. Alternative Ways of Thinking of ‘Family’: A Function-based Approach

3.1 A Function-based Approach?

Recent contributions on replacing the form-based approach have centred on function-based models. The dominant approach is the care-based model advanced by Herring, who suggests that care, instead of sex, should be the defining feature of legal family. He proposes four markers of care – meeting needs, respect, responsibility, and relationality.55 Additionally, he argues that a care-based approach is integral to meeting the aims of family law, namely the support and promotion of intimate life, the protection of individuals from abuse within family life and the remedying of advantages and disadvantages caused by a relationship. A sexual relationship is irrelevant in meeting such aims. However, this begs the question: how should we determine when the nature and degree of care are sufficient to justify legal recognition? Herring’s solution was to operationalise care. This is achieved through introducing indicators of a caring relationship, such as the expected duration of the relationship, the kinds of activity that would be considered caring, and factors that would suggest a commitment to the relationship.56

Nevertheless, Herring does not provide a determinative answer to another pressing question:  who is entitled to define these indicators of care? Function-based recognition will necessarily involve normative assessments in selecting the indicators of care. However, it is also inevitable for different individuals to have divergent priorities in relationships. Some individuals quantify relationships and prioritise their duration, while others emphasise quality but disagree as to what quality means (for example, should practical financial support or ideals like intimacy, passion, or commitment57 take priority?).

Moreover, as care is an inevitably indeterminate concept, its interpretation can easily be infiltrated by traditional norms and values, such as notions of care particular to the context of marriage but absent in other non-canonical relationships. For example, Jeffrey Weeks suggests LGBT relationships are based on reciprocity, mutual affection, and trust, and a distinct lack of a sense of obligation or duty.58 Consequently, according to Weeks, they are likely resistant to notions of formal legal ties and responsibilities and financial commitments, which would ordinarily be central to the notion of care in the context of a traditional marriage.59 This would also risk further assimilation and normalisation,60 increased opportunities for state regulation61 and increased marginalisation of those who do not conform to traditional norms.62 More fundamentally, objective criteria alone may be insufficient because care, which is felt by the recipient, is an inevitably subjective concept. In other words, whether care merits legal recognition should depend on whether the recipient perceives it to cross the threshold of significance. If the law is to reflect social reality, it should arguably not be concerned with care but personal choice.

4. The Light at the End of the Tunnel: A Choice-based Approach

Such subjective considerations, which ask whether care experienced in a relationship is sufficiently significant to merit legal recognition, can only be accommodated through a choice-based framework with a registration system that allows adults with capacity and competence to define their own legal family.

An example of such a framework is currently adopted in Tasmania.63 The first limb of the model – the ‘active choice’ limb – allows two adult residents to ‘opt in’ by registering their significant or caring relationships upon producing certification from a legal practitioner.64 This certification must state that they have provided legal advice to that party independently as to the effects, advantages, and disadvantages of the registration of the parties’ rights.65 Potential advantages of registration would include the receipt of autonomic rights associated with the status of family members, such as inheritance rights.66 Potential disadvantages of the registration would encapsulate the imposition of formal legal responsibilities, such as financial commitments, which may not have been contemplated by registering parties.67 Registration is taken as conclusive evidence of the relationship and its level of commitment. To account for power imbalances that have coerced parties into registration, any provision of a personal relationship agreement can be varied or set aside by the court if it opines that the agreement was entered into under duress or fraud; or on other grounds that would allow a contract to be set aside.68

The second limb of the model – the ‘default set-up’ limb – provides a fall-back regime for an unregistered relationship. It is only when a relationship is unregistered that all circumstances of the relationship will be considered to determine whether a caring relationship exists. This demands the consideration of an objective set of criteria, including the duration of the relationship, the nature and extent of common residence, the degree of financial dependence or interdependence, and any arrangements for financial support between the parties, the ownership, use and acquisition of property, the degree of mutual commitment to a shared life, the performance of household duties, the reputation and public aspects of the relationship, the level of personal care and domestic support provided by one or each of the partners to the other.69 However, none of these factors, taken singularly or cumulatively, are necessary to find a caring relationship. Rather, the court is entitled to consider and attach weight to any factor it deems appropriate.70 While the objective criteria can undoubtedly serve as useful guidelines for courts, they should not be determinative, unlike citizens’ subjective choices in defining their family. Moreover, definitions of the family should not be fixed to account for changing circumstances and relationships.

4.1 Justifications for the Choice-based Framework

The justifications for adopting the choice-based framework are twofold. Firstly, from a consequentialist perspective, a choice-based framework reflects the lived reality of increasingly diverse family forms, which overcomes the shortfalls of the form-based model. As people are permitted to elect their own family, the legal notion of ‘family’ would increasingly align with its sociological counterpart stemming from individuals’ everyday family arrangements. Moreover, family forms such as grandparenthood and siblinghood, initially excluded from legal recognition under the form-based legal framework, can be registered as caring relationships if parties consider them to cross the threshold of significance. Therefore, non-canonical relationships, previously overlooked under the form-based framework can now be subject to legal recognition, eliminating the existing unjustified hierarchy of relationships that prioritises conjugal relationships. As Barker argues, a choice-based approach is likely to tackle the dominance of the conjugal family, as it legitimises relationships based on their need for recognition, rather than by whether individuals opt into a marriage-like structure.71

Secondly, from a deontological perspective, a choice-based framework respects a person’s rights to formulate their own definition of family and accommodates the subjective quality of care unaccounted for under a function-based approach. As people are allowed to register the relationships which they find sufficiently important to merit legal recognition, they may weigh and attach varying significance to different components to a caring relationship (such as its duration, the availability of financial support etc.) according to their own priorities and conclude whether the relationship crosses the threshold of significance. Moreover, unquantifiable subjective factors such as intimacy, passion and commitment that can only be felt can be accommodated by the assessment of significance carried out by the recipients of care themselves. While guidelines of potential factors to be considered are set out in the ‘default set-up’ limb, the presence or absence of any factor is not determinative, which prevents excessive reliance on traditional notions of care rooted in the institution of marriage, such as financial dependence or interdependence. Any decision under the choice-based framework would amount to a representation of the relationship as experienced by the individual.

4.2 Resolving Practical Problems

The practicalities of the choice-based approach are immediately put to the test when two choice-based definitions of the ‘family’ clash. For example, assume that A regards B to be part of their legal family. C also regards their legal family to include B but does not see A as part of their family. A purely subjective approach seemingly cannot resolve such contradictory views. However, it is important to acknowledge that the approach proposed in this paper is a qualified choice-based regime based on a registration system, where two people may only jointly apply to register their caring relationship after reaching a consensus between them, proven by the joint completion of a registration form. It naturally follows that the registration should only bind the two parties involved, and not create flow-on effects. In a relationship network that centres around B, B is entitled to establish family relationships separately with A and C respectively, but A and C need not be bound to form any relationship simply by virtue of their relationship with B if they do not regard each other as family. To forge a relationship between them would replicate the effects of the form-based approach based on marriage and parenthood – that all actors in a relationship network are legally regarded as related by default, either by way of blood ties or adoption, regardless of the quality of the relationship involved. Such effects, imposed as a blanket rule over all relationships within the legal form, are exactly what we seek to avoid.

A second practical difficulty arising from the choice-based approach is the position of children. The framework proposed in this article only allows adults with the necessary capacity and competence to define their own legal family. While cases in the medical context, such as Gillick v West Norfolk & Wisbeck Area Health Authority,72 have confirmed that courts are open to the possibility of acknowledging children’s capacity in decision-making, such capacity is qualified and limited, and children are only entitled to make decisions when these decisions are consistent with their ‘welfare’ and preserving life.73 While Gillick-competent minors can consent to doctor-prescribed medical treatment believed to be in their medical best interests, they are unable to refuse treatment, as their refusal does not prevent doctors from obtaining determinative consent from courts or their parents.74 Therefore, children are unlikely to be regarded as having the capacity to decide for themselves how they wish to define their family, given that it is unclear whether these decisions would be in their best interests. This is a matter for courts’ determination pursuant to Section 1 of the Children Act 1989.75

Additionally, it would be impractical for children to define their own family in most cases, as they may not fully appreciate the complex legal implications of the definition of the family. Their views may also likely be informed or swayed by their elders close to them, whom they unconditionally trust. Children’s interests can be accommodated in the ‘default set-up’ limb, where circumstances of their relationships that are not registered will be considered in determining whether a caring relationship exists. Given that the court is entitled to consider and attach weight to any factor it deems appropriate, the child’s wishes can be accounted for under this framework and afforded considerable weight, thus safeguarding their interests in legalising caring relationships that are of personal significance to them.

A third weakness of the choice-based approach stems from restricting registered relationships to being between two parties. Arguably, the approach is too restrictive and fails to reflect the lived reality of family life since relationships are often multi-partite, as evident in the sociological concept of the ‘family tree’.76 However, the two-person approach is clearly favourable considering the risks of relationship breakdown. If a relationship sours between two individuals in a legally registered multi-partite relationship network, the whole relationship network would have to be dissolved and re-registered without the two individuals to reflect social reality. Additionally, further registration would be required among remaining members of the relationship network and each individual, should they still wish to retain familial ties. Efficiency and convenience would be enhanced if registered relationships were limited to two individuals (the smallest number of parties necessary for any relationship). This way, any relationship breakdown could be directly addressed by de-registering their relationship without involving other parties. Arguably, this approach better reflects the lived reality of family life because the dissolution of the relationship between two parties in a family tree does not normally lead to the collapse of the entire body of family relations and will nearly always be confined to the two individuals concerned.

5. Conclusion

This article has proposed to reject the current form-based approach in family law. While the general debate is often framed as a choice between form-based and function-based definitions of the ‘family’, this article has advanced a third alternative – to replace the current form-based model with a choice-based framework.

The foregoing argumentation rests on an underlying assumption – the solution to the neglected family forms is more law. This article affirms this assumption with reference to family law’s functions77 – that affording legal recognition to such unrecognised relationships protects individuals from physical, economic and psychological harms within the relationships. This facilitates individuals’ preferred organisation of their lives by giving legal effect to their private arrangements, signals the importance of these relationships within society, and supports social institutions beyond the conventional dyad of marriage and parenthood. Affording such relationships legal recognition offers formal legal equality and generates substantial protective, facilitative, channelling, and expressive effects as an effective solution to neglected family forms.

If we allow people to define their relationships, does this mean we should abandon the terminology of ‘family’ law? If we take a form-based approach to the term ‘family’, we undoubtedly should. Still, if one adopts a purposive approach to family law and acknowledges that family law seeks to regulate intimate relationships in a unit of sustainable love and support, then the symbolic meaning of ‘family’ is still valid – albeit expanded to accommodate modern family forms.

I am grateful to Dr Sarah Trotter and the editors of the LSE Law Review for their invaluable comments on earlier drafts of the article. All errors remain my own.

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[1] Alan Brown, ‘What is the Family of Law? The Influence of the Nuclear Family’ (Hart Publishing 2019) 5.

[2] Martha Fineman, ‘Our Sacred Institution: The Ideal of the Family in American Law and Society’ (1993) 2 Utah Law Review 387; Naomi Cahn, ‘Reframing Child Custody Decision-making’ (1997) 58(1) Ohio State Law Journal 1; Margate Mahoney, ‘Reformulating the Legal Definition of the Stepparent-Child Relationship’ (1994) in Alan Booth, Judy Dunn and Judith F. Dunne (eds), Stepfamilies: Who Benefits? Who Does Not? (Routledge 1994).

[3] Elisabeth Strasser and others, ‘Doing Family:  Responses to the Constructions of ‘The Migrant Family’ across Europe’ (2009) 14(2) The History of the Family 165.

[4] Jill E. Hasday, ‘Siblings in Law’ (2012) 65 Vanderbilt Law Review 897.

[5] Cabinet Office – The Strategy Unit, ‘Families in Britain: An Evidence Paper’ (Department for Children, Schools and Families, December 2008) < https://dera.ioe.ac.uk/9502/1/Families%20Evidence%20Paper%20v0%2032%20181202.pdf&gt; accessed 4 March 2022; Lord Chancellor’s Department, ‘Moving Forward Together: A Proposed Strategy for Marriage and Relationship Support for 2002 and Beyond’ (Her Majesty’s Stationery Office, 2002).

[6] HC Deb 2 May 2018, vol 640, cols 973-76.

[7] Daniel Monk and Jan Macvarish, ‘Summary Report: Siblings, Contact and the Law: An Overlooked Relationship?’ (Nuffield Foundation, 1 November 2018) < https://www.nuffieldfoundation.org/project/siblings-contact-and-the-law-an-overlooked-relationship > accessed 28 February 2022.

[8] Elizabeth Silva and Carol Smart, ‘The “New” Practices and Politics of Family Life’ in Elizabeth Silva and Carol Smart (eds), The New Family? (SAGE Publications 2004) 1.

[9] Jonathan Herring, ‘Making Family Law Less Sexy…and More Careful’ in Robert Leckey (ed), After Legal Equality: Family, Sex, Kinship (Routledge 2015) 25.

[10] This section draws from the course material of the module LL221 Family Law, offered at the London School of Economics and Political Science. Please see Sarah Trotter, ‘Legal constructions of “the family, “family life” and “families”’, LL221 Family Law, 11 October 2020, London School of Economics and Political Science; Sarah Trotter, ‘Grandparents’, LL221 Family Law, 14 February 2021, London School of Economics and Political Science; Sarah Trotter, ‘Siblings’, LL221 Family Law, 14 March 2021, London School of Economics and Political Science.

[11] Herring (n 9) 35.

[12] ibid.

[13] Sue Westwood, ‘“My Friends are My Family”: An Argument about the Limitations of Contemporary Law’s Recognition of Relationships in Later Life’ (2013) 35(3) Journal of Social Welfare and Family Law 347.

[14] Felicity Kaganas and Christine Piper, ‘Grandparents and Contact: “Rights v Welfare” Revisited’ (2001) 15 International Journal of Law, Policy and the Family 250.

[15] Hasday (n 4) 897.

[16] Civil Partnership Act 2004; Marriage (Same Sex Couples) Act 2013.

[17] Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27.

[18] Alison Diduck and Felicity Kaganas, Family Law, Gender and the State (3rd edn, Hart Publishing 2012) 26.

[19] Ghaidan v Godin-Mendoza [2004] 2 AC 557.

[20] Brown (n 1) 5.

[21] Lawrence v Gallagher [2012] EWCA Civ 394.

[22] Charlotte Bendall, ‘Some Are More “Equal” Than Others: Heteronormativity in the Post-White Era of Financial Remedies’ (2014) 36(3) Journal of Social Welfare and Family Law 260.

[23] Silva and Smart (n 8) 1.

[24] Alison Diduck, ‘What is Family Law for?’ (2011) 64(1) Current Legal Problems 287.

[25] Carmen Draghici, ‘Adult Children and Elderly Parents in Strasbourg Proceedings: A Misconstrued Approach to “Family Life”’ (2018) 32(1) International Journal of Law, Policy and the Family 42.

[26] Age UK, ‘5 Million Grandparents Take on Childcare Responsibilities’ (29 September 2017) <https://www.ageuk.org.uk/latest-news/articles/2017/september/five-million-grandparents-take-on-childcare-responsibilities/> accessed 13 December 2021.

[27] Neil Ferguson and others, Grandparenting in Divorced Families (Policy Press 2004) 10.

[28] ibid.

[29] Debra Friedman, Michael Hechter and Derek Kreager, ‘A Theory of the Value of Grandchildren’ (2008) 20 Rationality and Society 31.

[30] ibid.

[31] Geoff Dench and Jim Ogg, Grandparenting in Britain: A Baseline Study (Institute of Community Studies 2002) 215.

[32] Stephen Bank and Michael Kahn, The Sibling Bond (2nd edn, Basic Books 1997) 19, 64, 112-113.

[33] Victor E. Cicirelli ‘Sibling Influence Throughout The Lifespan’ in Michael E. Lamb and Brian Sutton-Smith (eds), Sibling Relationships: Their Nature and Significance across the Lifespan (1st edn, Psychology Press 1982) 267, 281.

[34] Jane Leder, Brothers & Sisters: How They Shape Our Lives (St. Martin’s Press 1991) 102, 104.

[35] Heather Canary and Daniel Canary, Family Conflict (Polity Press 2013) 113.

[36] For further discussion on the matter, please see Roger Cotterrell, ‘Why Must Legal Ideas Be Interpreted Sociologically’ (1998) 25(2) Journal of Law and Society 171.

[37] Ruth Deech, ‘Sisters Sisters – And Other Family Members’ (2010) 40(4) Family Law 375.

[38] Sue Westwood, ‘“My Friends are My Family”: An Argument about the Limitations of Contemporary Law’s Recognition of Relationships in Later Life’ (2013) 35(3) Journal of Social Welfare and Family Law 347.

[39] Brian Heaphy, ‘Choice and Its Limits in Older Lesbian and Gay Narratives of Relational Life’ (2009) 5(1-2) Journal of GLBT Family Studies 119.

[40] Children Act 1989, s 105.

[41] Re A (A Minor) (Contact Application: Grandparent) [1995] 2 F.LR 153.

[42] Re S (Contact: Grandparents) [1996] 1 FLR 158; Re W (Contact: Application by Grandparent) [1997] 1 FLR 793, 797.

[43] Jonathan Herring, Older People in Law and Society (Oxford University Press 2009) 235.

[44] Children Act 1989, s 1(2A-B).

[45] Gillian Douglas and Neil Ferguson, ‘The Role of Grandparents in Divorced Families’ (2003) 17 International Journal of Law, Policy and the Family 41.

[46] Felicity Kaganas and Christine Piper, ‘Grandparents and Contact: ‘Rights v Welfare’ Revisited’ (2001) 15 International Journal of Law, Policy and the Family 250.

[47] Felicity Kaganas, ‘A Presumption that “Involvement” of Both Parents is Best: Deciphering Law’s Messages’ (2013) 25(3) Child and Family Law Quarterly 270.

[48] Herring (n 43) 240.

[49] Juliet Mitchell, Siblings: Sex and Violence (Polity Press 2003); Melanie Mauthner, ‘Distant Lives, Still Voices: Sistering in Family Sociology’ (2005) 39(4) Sociology 623.

[50] Monk and Macvarish (n 7).

[51] Children Act 1989, ss 8 and 34.

[52] Burden v United Kingdom App no 13378/05 (ECtHR, 29 April 2008).

[53] Joanna Moorhead, ‘We’re an Alternative Family But the Law Disagrees’ (The Guardian, 23 Jan 2016), <https://www.theguardian.com/lifeandstyle/2016/jan/23/alternative-family-law-inheritance-tax-money> accessed 12 December 2021.

[54] Brown (n 1) 5.

[55] Herring (n 9) 25.

[56] Chris Beasley and Carol Bacchi, ‘Envisaging a New Politics for an Ethical Future: Beyond Trust, Care and Generosity – Towards an Ethic of “Social Flesh”’ (2007) 8(3) Feminist Theory 279.

[57] Robert Sternberg, ‘Triangulating Love’ in Thomas Oord (ed), The Altruism Reader: Selections from Writings on Love, Religion, and Science (Templeton Foundation 2007) 332.

[58] Jeffrey Weeks and others, Same Sex Intimacies: Families of Choice and Other Life Experiments_ (Routledge 2001) 71.

[59] ibid.

[60] Diane Richardson, ‘Locating Sexualities: From Here to Normality’ (2004) 7(4) Sexualities 391.

[61] Rosie Harding, Regulating Sexuality: Legal Consciousness in Lesbian and Gay Lives (Routledge 2011) 184.

[62] David Bell and Jon Binnie, The Sexual Citizen: Queer Politics and Beyond (Polity 2000) 1.

[63] Relationships Act 2003 (Tasmania), ss 4-5 and 11.

[64] ibid.

[65] ibid.

[66] Moorhead (n 53)

[67] Weeks and others (n 58) 71.

[68] Relationships Act 2003 (Tasmania), s 57.

[69] ibid s 5.

[70] ibid.

[71] Nicola Barker, Not the Marrying Kind: A Feminist Critique of Same-Sex Marriage (Palgrave Macmillan 2012) 53.

[72] Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112.

[73] Re S (A Minor) (Consent to Medical Treatment) [1994] 2 FLR 1065; Re E (A Minor) (Wardship: Medical Treatment) [1993] 1 FLR 386; Re L (Medical Treatment: Gillick Competency) [1998] 2 FLR 810.

[74] Re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11.

[75] Children Act 1989, s 1

[76] Christiane Klapisch-Zuber, ‘The Genesis of the Family Tree’ (1991) 4 I Tatti Studies in the Italian Renaissance 105.

[77] Carl Schneider, ‘The Channelling Function in Family Law’ (1992) 20 Hofstra Law Review 495. The five functions of family law are argued to be the protective function, the facilitative function, the arbitral function, the channelling function and the expressive function.

Maisie Ng

LLB (LSE) ’22 and Family Law Notes Editor of the LSE Law Review 2021-22