Equal Sharing and unequal caring? How should family law and policy take account of care taking responsibilities on parental separation?

Abstract

There is a tension at the heart of family law and policy between the increasing influence of individual autonomy and the demands of caring for children (referred to here as caretaking). Individual autonomy envisages decisions made in one’s own best interests, whereas decisions around caretaking are often made for the good of the family, at the expense of the caretaker. Additionally, whereas individual autonomy valorises economic self-sufficiency, caretaking responsibilities constrain choice and conflict with paid work, limiting the caretaker’s ability to be economically self-sufficient. Using the ideas of autonomy and care as a theoretical lens, this thesis explores this tension with the aim of considering how, given changing social trends, family law and policy should take account of caretaking responsibilities on parental separation. As part of this undertaking, this thesis analyses the different approaches taken in three jurisdictions (England and Wales, Sweden and the Netherlands) to balancing paid work and caretaking between family members and within society. The division of work and caretaking is largely considered to be a matter of individual choice in England and Wales. In Sweden, parents are encouraged to engage in full time paid work and are supported in this by well-funded state child-care. In contrast, in the Netherlands, there have been attempts to encourage all parents to work part-time and share caretaking responsibilities equally. This thesis considers how these different approaches work in practice, and the lessons that can be learned for England and Wales. The thesis ultimately concludes that caretaking is hidden from, and undervalued by, law and policy in all three jurisdictions. It is, therefore, suggested that family law and policy should engage more deeply with both the question of what it means to care in the modern family context and the implications of this for family law on relationship breakdown for the future. Rather than simply equating a division of children’s time with a division of care, it will be argued that it is important to think about the nature of the care being performed by parents. This thesis further suggests that placing a principle of care at the centre of family law and policy might help to tackle care’s current invisibility, and to ensure that family law and policy are better able to address the financial implications of caretaking responsibilities on parental separation.