Law Through the Life Course 9781529204674

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LAW THROUGH THE LIFE COURSE Jonathan Herring

First published in Great Britain in 2021 by Bristol University Press University of Bristol 1-9 Old Park Hill Bristol BS2 8BB UK t: +44 (0)117 954 5940 e: [email protected] Details of international sales and distribution partners are available at bristoluniversitypress.co.uk © Bristol University Press 2021 British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library ISBN 978-1-5292-0466-7 hardcover ISBN 978-1-5292-0468-1 paperback ISBN 978-1-5292-0469-8 ePub ISBN 978-1-5292-0467-4 ePdf The right of Jonathan Herring to be identified as author of this work has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988. All rights reserved: no part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior permission of Bristol University Press. Every reasonable effort has been made to obtain permission to reproduce copyrighted material. If, however, anyone knows of an oversight, please contact the publisher. The statements and opinions contained within this publication are solely those of the author and not of the University of Bristol or Bristol University Press. The University of Bristol and Bristol University Press disclaim responsibility for any injury to persons or property resulting from any material published in this publication. Bristol University Press works to counter discrimination on grounds of gender, race, disability, age and sexuality. Cover design: Qube Design Associates, Bristol Front cover image: iStock 182911424 Bristol University Press uses environmentally responsible print partners Printed in Great Britain by CMP, Poole

Contents Table of Cases v Table of Legislation vii Acknowledgements ix 1

Introduction

1

2

Life Course Theory

9

3

The Fetus

45

4

Childhood

73

5

Adulthood

125

6

Old Age

149

7

Death

171

8

Family Law

201

9

Mental Capacity

233

10

Conclusion

265

Index

271

iii

Table of Cases A, Re [1992] 3 Medical Law Review 303 173 A (A Child), Re [2015] EWHC 443 (Fam) 173–4 A Local Authority v E [2012] EWHC 1639 (COP) 249–50, 251 A Local Authority v P [2018] EWCOP 10 247 A Local Authority v TZ [2013] EWHC 2322 (COP) 247 Ahsan v University Hospitals Leicester NHS Trust [2006] EWHC 2624 (COP) 262 Airedale NHS Trust v Bland [1993] 1 All ER 231, CA 198–9 Airedale NHS Trust v Bland [1993] 1 All ER 821, HL 173 Attorney-General’s Reference (No. 3 of 1994) [1998] AC 245 47–8, 48n9 Burton v Islington Health Authority [1993] QB 204 48 CP (A Child) v First-tier Tribunal (Criminal Injuries Compensation) [2014] EWCA Civ 1554 48–9 DL v A Local Authority [2012] EWCA Civ 253 235–6 F (In Utero), Re [1988] Fam 122 49n14 Fitzpatrick v Sterling Housing Association Ltd [2000] 1 FCR 21 209 G (Education: Religious Upbringing), Re [2012] EWCA Civ 1233 100–2 Gillick v West Norfolk and Wisbech AHA [1986] 1 AC 112 121, 122, 215–16 Heart of England NHS Trust v JB [2014] EWHC 342 (COP) 235 James v Eastleigh [1990] 2 AC 251 (HL) 161 M (Declaration of Death of Child), Re [2020] EWCA Civ 164 174–5, 177 Mental Health Trust v DD [2014] EWCOP 11 249

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Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland), Re an application by the [2018] UKSC 27 47n2, 49 Opuz v Turkey (2010) 50 EHRR 28 146n68 Oxford University NHS Trust v AB [2019] EWHC 3516 (Fam) 175n11 Paton v BPAS [1978] 2 All ER 98 47n3, 49n12, 49n13 PH and A Local Authority v Z Limited & R [2011] EWHC 1704 (Fam) 248 Plymouth Hospitals NHS Trust v YZ and ZZ [2017] EWHC 2211 (Fam) 122, 122n143 R v Gibson [1991 1 All ER 239 48 R v R [1992] AC 259 146 R (McDonald) v Kensington and Chelsea RBC [2011] UKSC 33 142n54 R (Nicklinson) v Ministry of Justice [2014] UKSC 38 185–6, 187–9, 190, 193–4, 194–5 R (Purdy) v DPP [2009] UKHL 45 199 R (Williamson) v Secretary of State for Education and Employment [2005] 1 FCR 498 118 Rabone v Pennine Care NHS Trust [2012] UKSC 2 191, 192–3 S and G v UK, App No 17634/91, ECHR 48n7 Seldon v Clarkson Wright and Jakes [2012] UKSC 16 161–2 SH v Austria, App No 57813/00, ECHR 144n58 St George’s NHS Trust v S (1998) 44 BMLR 160 49n15 Vo v France [2004] 2 FCR 577 49 W (A Minor) (Medical Treatment: Court’s Jurisdiction), Re [1993] Fam 64 122n140 W (Residence Order), Re [1999] 1 FLR 869 218n35 Webster v Norfolk [2009] EWCA Civ 59 211 White v White [2000] UKHL 54 230

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Table of Legislation Births and Deaths Registration Act 1953 s 41 70 Children Act 1989 s 1 7, 86–7, 100–2, 123 s 3 215 Children Act 2004 s 58 86n42 Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019 s 3 71 Congenital Disabilities (Civil Liability) Act 1976 48 Crime and Disorder Act 1998 ss 28–32 168n92 Criminal Justice Act 2003 84n37 Criminal Justice and Courts Act 2015 s 20 167–8 Equality Act 2010 94, 160 s 159 160 ss 193, 194 160n42 Sch 3, art 5 160n43 Human Tissue Act 2004 s 54 209 Mental Capacity Act 2005 58 s 1 85n38, 246 s 2 246, 247 s 3 246–7 s 24 253 s 25 254 Mental Health Act 1983 235 Offences Against the Person Act 1861 s 23 48 s 58 48 s 59 48 Rent Act 1977 209

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Sexual Offences Act 2003 s 1 84 s 5 84 Stillbirth (Definition) Act 1992 s 1 70 European Convention on Human Rights Protocol 1, Art 2 88n47 United Nations Convention on the Rights of the Child 81, 117 Art 1 117n128 Art 3 87, 117n129 Art 5 117 Art 6 117n130 Art 12 117n131 United Nations Convention on the Rights of Persons with Disabilities Art 12 236–8, 247–8

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Acknowledgements I am grateful to the team from the wonderful Bristol University Press, for all their support for this project. I am particularly grateful to Helen Davis (whose idea it was for a book on this theme), Freya Trand, and Jo Morton (for fantastic copy-editing). I have greatly appreciated the support of many colleagues and friends while writing this book and, in particular, Shazia Choudhry, Charlotte Elves, Charles Foster, Imogen Goold, Michelle Madden Dempsey, Camilla Pickles and Rachel Taylor. Kirsten, Laurel, Joanna and Darcy provide bundles of love, patience and joy at home, for which I will be eternally grateful.

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Introduction “Well, I think that, I just feel like a young man, I’m so young! I can’t believe it, I’m the youngest person,” declared President Trump, then aged 72.1 His refusal to accept the fact of ageing captures a contemporary attitude towards growing older. We need not be constrained by our biological age. What matters is how old we feel. From a young age we are used to the idea of life being a journey with different stages. What child has not longed to be grown up? What middle-aged person has not longed for the glories of youth? And what older person has not reminisced over the story of their life? But, natural as these questions might appear, they are built on a series of suppositions: assumptions about the different stages of life and their different value. The idea of the natural course of life is for some a comfort, but for others it is a restriction. For example, the assumptions around old age being a time for rest and relaxation may be appealing to some, but something to fight against for others. This book will explore the different stages of life and examine the role of the law in establishing, reinforcing and regulating them. It is surprising that while life course theory has been an influential approach to a wide range of academic disciplines, there has been relatively little use of it made by lawyers. Perhaps that is because it is an ambitious, no doubt overly ambitious, task to seek to present a legal analysis of the whole of the life course. Great academic careers have been built on the study of just small aspects of this: the law and childhood, for example. However, it may also reflect a commitment by lawyers to the principle that everyone is equal before the law and so there is no need to distinguish different ages. I well remember one colleague expressing surprise when I told him I was writing

 https://www.independent.co.uk/news/world/americas/us-politics/trump-ageyoungest-person-biden-video-watch-a8887861.html 1

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a book on law and older people,2 commenting, “How odd. Whatever next, the law and blonde people?” That, I expect, showed a rather particular understanding of legal scholarship with law writing designed around legal categories such as contracts, tort and property, rather than around how normal people (by which I mean non-lawyers!) understand the world.

Life course theory Many people have a sense that their life is a story. The events in the past shape their experiences now. Their decisions today will impact on them tomorrow. And most people are aware that the experiences of their life and their understanding of it are shaped by societal expectations about the different stages of life. The path from being a cute baby, to a ‘terrible two’, to a cheeky five-year-old, to a precious tweenie, to a sullen teenager, to a rebellious young adult is a well-trodden one. Then, admittedly, things get a little vague. Perhaps, for some, the twenties are for developing a career. Or are they for having fun? Marriage certainly used to be expected during the twenties, but there is no such expectation today. Then, as middle age is approached, one has responsibilities to one’s family and work: you have settled down. Then, before you know it, later life is starting, with, perhaps, grandchildren, thoughts of retirement and settling into the twilight stage of life. Then, in old age, there is an acceptance of a quieter, more restrained, life, perhaps marked by illness and impairment; and, gradually, death looms. Of course, there are multiple versions of this story, and the version I have presented is in many ways hopelessly inadequate. It fails to reflect the impact of many important identities and influences on one’s life story, such as gender, race, disability and class. It is a highly western and middle-class way of writing the life story. And it fails to capture the unexpected events in life which so often set it off course: the accident, illness or relationship breakdown that alters plans, sometimes taking one in exciting new directions and sometimes turning askew in deeply disappointing ways. Life course theory has been described by Colby as ‘one of the most important achievements of social science in the second half of the 20th century’.3 We will explore precisely what life course theory is in   Herring, J. (2014) Law and Older People, Oxford: Oxford University Press.   Colby, A. (1998) ‘Foreword: Crafting life course studies’ in J. Giele and G. Elder, Jr (eds.), Methods of Life Course Research: Qualitative and Quantitative Approaches, Thousand Oaks, CA: Sage, x. 2 3

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Introduction

Chapter 2. In broad terms, it is an attempt to explore the interconnections between the different stages of life. Hendricks4 argues: A life course perspective is about examining changes, whether they be biological, developmental (including social and psychological factors), historical, or geographic and attempting to identify which factors affect the arc of change, and what transformations change bring[s]. There is now considerable evidence that a person’s socio-economic circumstances and behaviour in childhood have a significant impact on their chance of having a ‘successful’ older age.5 Life course theory also acknowledges and critiques the expectations that are associated with different ages. These expectations in the past had a powerful influence on people. For example, the assumption that at a particular age a person should be married, take up employment, have children, seek retirement, and so on, had a powerful impact on people’s lives. Increasingly, these are seen as having weaker force, with a greater emphasis on people seeking their own path in life, rather than having to follow an expected route.

Ageing Ageing is at the heart of the life course. This is normally understood in chronological terms but, as reflected in the Trump quote at the start of this chapter, the age you feel is nowadays emphasized as much as the age you actually are. It is notable that most people say, like Trump, that they feel younger than their chronological age. It is rare to hear someone claim to feel older than they are (and certainly unusual on dating apps!). This reflects negative attitudes about old age. Leopardi, writing in the 19th century, wrote: ‘Old age is the supreme evil, because it deprives us of all pleasures, leaving us only the appetite for them, and it brings with it all sufferings.’ But much of the modern writing about old age seeks to explore positive concepts of ageing, as discussed in Chapter 6. So much so that it has even been suggested the modern emphasis on positive ageing puts too much pressure on older people. Notably, there is increasing   Hendricks, J. (2012), ‘Considering life course concepts’, The Journals of Gerontology, 67(2): 226–31. 5  Brandt, M., Deindl, C. and Hank, K. (2012) ‘Tracing the origins of successful ageing: The role of childhood conditions and social inequality in explaining later life health’, Social Science and Medicine, 74: 1418–32. 4

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interest in the biology of ageing, with at least half an eye on whether a ‘cure’ for ageing can be found. We are used to seeing age in a chronological way: the number of years that have passed since birth. However, some writers suggest that functional age (focusing on the ability to perform certain tasks), subjective age (a person’s self-perception of age), or appearance age (the age one would be assessed to be by others) might be more helpful guides.6 Indeed, as we shall see in Chapter 6, the law now prohibits age discrimination, and so these other forms of ageing may become more important. We have even seen arguments that you should have a right to select the age you feel is appropriate. If we go down that route, age may cease to have much of a meaning. The developments mentioned in the previous paragraph may reflect responses to ageism and negative attitudes being shown towards older people. Gullette writes of seeing children in a museum screaming and running away from a ‘face ageing booth’ which showed you what your face would look like in old age.7 As we shall see in Chapter 8, this is one of many examples of subconscious ageism. An interesting study in 2020 found that Britain is one of the world’s most age-segregated countries.8 It found little contact between generations outside a family setting. Such separation will only contribute to ageism. As will be demonstrated throughout this book many people’s life course does not follow the expected pattern. A child becomes a carer for their parent; an older person goes off to university; a person with a disability does not achieve the alleged ideals of independent middle age. These exceptions challenge the norms that are thought to underpin the stages of life. It can produce difficulties for people when the legal regulation of that life stage does not fit their actual experience.

Law and life course theory At the heart of this book will be an analysis of the way the law contributes to the shaping of assumptions about the various stages of life and, indeed,

  Cannon, M. (2015) ‘What is ageing?’, Disease-a-month, 61: 645–52.   Gullette, M. (2008) ‘What exactly has age got to do with it? My life in critical age studies’, Journal of Ageing Studies, 22: 189–95. 8   Weale, S. (2020) ‘Britain is one of world’s most age-segregated countries, study finds’, https://www.theguardian.com/society/2020/jan/07/britain-age-segregatedcountries-world-age-apartheid 6 7

4

Introduction

of how assumptions about the stages of life shape the law. This occurs in three primary ways. (1) Explicit regulation: The law regulates what people can or cannot do at certain ages and this contributes to, and reflects assumptions about, that age. For example, laws requiring children to receive education reflect the assumption that childhood is a time for education. Laws on pension entitlement can signal the age at which it is thought that people ought to retire from employment. (2) Implicit legal regulation: Some regulations, while not explicitly relating to age, make it difficult for some to participate in certain areas. While, for example, the existence of a retirement age does not compel an employer to dismiss an employee who reaches it, by permitting retirement and offering state pension funds from a particular age, an expectation is created that retirement will take place then. Further, although in theory there is nothing to stop a child bringing a legal case against their parents in court, in practice the difficulty in finding a lawyer and navigating the legal system makes it almost unheard of. (3) Legal norms: The law tends to be based around certain assumptions about what people are like or what an ideal person is in the eyes of the law. One of the themes of this book is that there is a certain image of the ‘middle-aged man’ around which laws are designed, and that they privilege people who can fit into that mould. The law, of course, recognizes that not everyone will fit into that norm, and there are special regulations to govern those people. However, such cases are treated as exceptions, and often the goal of legal intervention in such cases is to put the person back in the position of the legal norm. This simply reinforces the status of the legal norm. A good example is the use of legal advice. In a number of different scenarios, a party who is seen as vulnerable (due to their status or their relationship with another person) is required to receive independent legal advice before entering a contract. The aim is that this will bring them up to the position of the ‘stronger’ party. The norm (the well-advised legal subject, free from pressure) is thus preserved. There is no need to imagine how the law should deal with a norm that people are susceptible to pressure and manipulation and are ignorant of the law. Of course, it is very doubtful in cases where one person is suffering undue influence from another that receiving independent legal advice will in fact empower them to be as strong as the other party. In this book we will explore how the privileging of certain legal ideals can benefit certain stages of life, or rather certain people at certain stages of life, and work to the disadvantage of others.

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The nature of law The following are obvious points to lawyers, but must be borne in mind when we consider how the law shapes childhood. First, the law is primarily designed to set minimum standards, not ideals. Reading the criminal law could be helpful for a person trying to avoid being evil but will be of little benefit to the person trying to be virtuous. Reading the law of negligence could be useful for doctors wanting to avoid truly bad practice but provides no real guidance for those seeking to be an excellent doctor. As long as you meet the legal standard, be that in the area of contract law, tort law, criminal law or family law, the law will not intervene: it has little interest in whether you just scrape into legality or whether you are with the angels, flying far higher than the legal minimum. So, the law might give us some kind of minimum picture, for example of what a minimally acceptable childhood is like or what can minimally be expected of a child, but it does not generally have much to say about what an excellent childhood would look like. We can find indicators of that, for example when the court is seeking to determine what will best promote the welfare of the child in family law, but even there it is limited to choosing between the options put before it. It may be best for the child if the mother gave up smoking or if the local school was extremely well funded, but the courts have little control of such things. So, even where they are determining what is best for the child, courts are seeking to do the best they can, given the world we are in. Second, at the heart of the law is the concept of ‘the rule of law’, a key aspect of which is certainty. In short, the law must be sufficiently clear so that a law-abiding member of the public can live their lives in accordance with the law. If the state were to introduce a law saying ‘you are guilty of a crime if you are naughty’ this would infringe the rule of law because it would not give you clear guidance as to what you could or could not do to comply with the law. Such unclear laws are popular with despots because they enable the state officials to decide whom to arrest based on their own whim. But certainty can come at a cost. It may mean in a complex issue a clear rule is required, even if this does not match the nuances that can arise. Of course, the law will seek to balance providing exceptions against blunting the clarity of the rule. A controversial example is the law prohibiting assisting and encouraging suicide, which is now subject to prosecution guidance. This makes it clear that it can be appropriate for the Crown Prosecution Service to decide not to prosecute, bearing in mind a long list of factors. In essence, the law is saying that, generally speaking, you should not be assisting or encouraging someone to commit suicide, but that there might be unusual circumstances where that is appropriate.

6

Introduction

These cannot be captured by a legislative provision but would need to be looked at on a case-by-case basis. The laws that are developed must apply equally to everyone and work fairly in all (or nearly all) situations. So, what we might expect for the law, or at least many aspects of it, are rules which will generally work as well for children (or another age category) as can be expressed in a clear way. We accept that the rules might not work for every child (for example, there may be a 15-year-old who could drive a car safely, but it is best for children generally if there is a rule that children under the age of 17 cannot drive). We accept that the rules may be crude, but need to be certain (for example that children attend school during term time, if registered at a school), while realizing they are inevitably generalizations (for example in a particular case there may be good reasons why a child cannot attend school, but we cannot set these all out in a statute). Third, the law must be capable of proof in a courtroom. There are plenty of matters which may be important to ethicists and politicians, but which cannot be assessed by a court. We might, for example, want teachers in schools to be compassionate towards children, but compassion is not something we can assess in a courtroom. A court would not really know where to begin if it was asked whether a teacher was compassionate. It is used to determining ‘facts’ (who did what on which day), not an individual’s characteristics. It cannot be, therefore, a legal requirement that teachers be compassionate. It would be wrong, however, to determine that, because it is not mentioned in the law, it is not something the state thinks is valuable. It just may be something that is outside the purview of the law because it cannot be evidenced.

Best interests and rights Two major tools of legal analysis are rights and assessments of best interests. Many cases come down to assessment of the rights of a person or their best interests. For example, as is well known under section 1 of the Children Act 1989, when the court is dealing with a dispute concerning the upbringing of a child, the court must make the order that will best promote the welfare of the child. However, this inevitably raises two questions, both of which are key in view of life course theory. The first is whether we are seeking to promote the best interests of the child as they are now or of the person they will grow up to be. It is not difficult to imagine a case where the current best interests of the child might clash with the future best interests of the child. Of course, there is nothing unusual in this. It is not uncommon for people to choose to

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suffer somewhat now in order to achieve gains later in life, be that by saving money now to make a purchase later, or by undergoing a painful medical procedure today for better health tomorrow. The second issue that will arise in assessing the child’s welfare is whether it differs from an adult’s welfare. While many people would see a childhood full of play as being a good childhood, they might not see an adulthood full of play in the same way. Maybe most people are wrong about that, but it raises the question of whether what is good for a person depends on their stage of life.

Structure of the book The next chapter explores life course theory in more detail. The chapters that follow may be broadly grouped into two parts. First, there is a consideration of the various stages of life: pre-birth (Chapter  3); childhood (Chapter 4); adulthood (Chapter 5); old age (Chapter 6) and death (Chapter 7). That selection, I realize, is controversial. The inclusion of pre-birth will surprise many, and indeed I did not include it in the original book proposal. Reviewers were, however, keen to have it, and I am now glad to include it as an example of a stage of the life course where in legal terms there is no legal personhood. This tells us much about what the law understands human life (or human life of significance for the law) to be. Additionally, many life course theorists would question lumping the whole of childhood together into a single chapter, and would, rather, suggest we could, at least, separate out adolescence and childhood. This was a difficult decision to make for the book. In legal terms, the clear marker is between adults and children, and there is no clear legal distinction between childhood and adolescence. It is true, as we shall see, that some children are seen as having adult or adult-like rights, but this is not based on their adolescence or age. I decided it was easier to consider all children together to convey the legal regime. A similar issue arises with old age. As we shall see in Chapter 7, many now distinguish between the old and the very old (the third and fourth age). Again, I decided that the legal response was more easily discussed with both groups considered together. The final part draws on two particular areas of the law: family law (Chapter 8) and mental capacity (Chapter 9). These are particularly good examples of where challenges arise in understanding the individual’s life as a whole, rather than focusing just on the age at the moment of the hearing of the court. The book ends with a concluding chapter, which brings together the key themes of the book.

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Life Course Theory

Introduction This chapter will explore the concept of life course, the terminology used, and some of the challenges to it. It will soon become apparent that there is no one ‘theory of the life course’ and that perhaps it is more accurate to talk of ‘theories of the life course’. Even better, it should be seen not so much as a theory but as an approach or framework which evokes a series of questions and perspectives.1 It is therefore not an approach which seeks to offer a meta-theory or makes an argument for a particular normative value. Rather, it is a way of looking at human lives, interactions and issues. This chapter will start by exploring some of the definitions of life course theory and then explore some of its key themes.

Defining life course theory Life course theory has become widely acknowledged as a respected approach which is used by many international bodies, including, for example, the World Health Organization.2 It has been used in a range of disciplines, but often with somewhat different understandings. It is now part of the academic mainstream. All versions of life course theory accept that it is about examining people’s lives over time, through the different stages and events which   George, L. (1993) ‘Sociological perspectives on life transitions’, Annual Review of Sociology, 19: 358–76. 2  World Health Organization (2011) Health at Key Stages of Life: The Life-Course Approach to Public Health, Geneva: WHO. 1

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give lives meaning. It seeks to explore the factors that shape our lives. It examines what causes and marks changes in a life and what influences its direction. Clearly age is a part of what can demarcate different stages of life, but to see life as simply a pre-determined biological journey is hopelessly simplistic. There are a host of cultural, social and economic factors impacting on life that can be used to describe its direction and narrative.3 This book will focus on the law as a key feature which shapes the stages and course of life. Here are some definitions of life course theory from the literature. Glen Elder Jr,4 who is widely regarded as the pioneer of the theory, offered the following statement on the life course perspective: Life course theory offers … a fruitful way to think about and investigate the changing environment of the individual and its developmental implications … through an evolving concept of age-graded life course that is embedded in a matrix of social relationships, an active view of the individual in shaping the life course, and an approach toward understanding historical influences in lives and developmental processes. Hunt, in one of the leading textbook on life course theory, explains that it is: a developmental model or models which outline the social, biological and psychological change encountered as an individual passes through what are frequently understood as the major ‘stages’ of life: childhood, adolescence, mid-life, old age and eventually death.5 As these definitions make clear, the theory is alert to the many influences that can affect the journey of life. Of course, these include biological factors and changes with which we progress and live. However, they also include societal expectations and economic structures.6 The life course perspective is able to capture the way that stories or narratives are important to a person’s identity. Many people will   Goodson, I. (2013) Developing Narrative Theory, Abingdon: Routledge.   Elder, G. (1975) ‘Age differentiation and the life course’, Annual Review of Sociology, 1: 165–90, 168. 5   Hunt, S. (2016) The Life Course, Basingstoke: Macmillan, 14. 6   Hendricks, J. (2012) ‘Considering life course concepts’, The Journals of Gerontology, Psychological Sciences and Social Sciences, 67(2), 226–31. 3 4

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understand themselves as taking a particular role in the age structure of their society. Their self-conception may also involve looking backwards at the story of their life to date (“I had a troubled childhood …”) or looking forwards (“I am settling down now I am in middle age …”). Such statements involve seeing their identity in terms of being at particular part of a story about their life. Note too that these kinds of statements draw on societal assumptions about what childhood should be like or what middle age involves. This reflects the fact that most societies have assumptions about what it means to be a child, an adult or an older person. To some, these expectations can be seen in a positive light: they give life a rhythm and a shape.7 As Kohli puts it: … a set of biographical orientations by which to organize one’s experiences and plans.… the institutionalized life course has come to achieve social order by processing people through the social structure and articulating their actions, in other words, by providing the rules by which individuals unfold and conduct their lives.8 However, the predicted stages of life can be seen as inhibiting and restrictive. A person may not relate to or accept the assumptions or expectations that are made about them based on the stage they’ve reached (“I am not ready to grow up yet”, or “I hate being seen as old”). Events may have happened that mean they have to take on roles that they did not expect to at this point in their lives (for example a teenage pregnancy), so their life story does not match the norms for their society. Given the breadth of the life course perspective is not surprising that disciplines will approach this analysis differently.9 Psychologists will focus on the internal forces that shape a person’s identity, the understanding of and emotional response to their life story, and their perception of their current position in life’s journey. Sociologists will focus on the external social forces that impact on the way life stories are structured. Historians might explore how different ages were understood in different times.10   Dannefer, D. (2012) ‘Enriching the tapestry: Expanding the scope of life course concepts’, The Journals of Gerontology, Psychological Sciences and Social Sciences, 67(2), 221–5. 8   Kohli, M. (2007) ‘Retirement and the moral economy: An historical interpretation of the German case’, Journal of Ageing Studies, 1(2): 122–44, 142. 9   Macmillan, R. (2005) ‘The structure of the life course: Classic issues and current controversies’, Advances in Life Course Research, 9: 3–24. 10   Hutchison, E. (2007) Dimensions of Human Behaviour: The Changing Life Course, New York: Sage. 7

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Biologists will focus on the changing nature of the body over time.11 It is the bringing together of all of these elements which contributes to the richest understanding of life course theory. It is therefore a genuinely interdisciplinary approach to understanding human life.12 Consider one example of an event which could be analysed using life course theory: marriage. At what age a person marries and what marriage means to them will be impacted by a range of factors. It may be there are strong social norms about the appropriate time for and role of marriage. So, for example, in England, for a long time it was thought that marriage should precede parenthood and that marriage in one’s twenties was desirable. Nowadays the idea that one should only become a parent if married is a minority view and marriage in one’s early twenties would be relatively rare. The appropriate age for marriage and the connection between marriage and procreation may be impacted by a person’s own values, such as their religion or ethical values. It may be seen in terms of a couple’s commitment to each other, being understood as a private communication between them. Or it may be that the couple seek public or familial acknowledgement of their relationship. Socio-economic factors can play a significant role, so that women’s increased role in paid employment has been connected by some commentators to a later age of marriage.13 So one life event may be impacted by a wide range of different influences.

Broad themes in life course theory I suggest that we can identify six broad themes in life course theories. (1) Society provides status and roles at different points in life. At various points in life, society or the law recognizes a change in a person’s social or legal position. For example, at age ten in English law a child becomes responsible under the criminal law and can be prosecuted for crimes, and at 16 a person can be married.14 Those are formally regulated examples, but there are plenty of informal assumptions as to how a person should behave or look at certain stages of their life.   Halfon, N. and Forrest, C. (2002) ‘Emerging theoretical framework of life course health development’, The Millbank Quarterly, 47(3): 433–9. 12   Bernardi, L., Huinink, J. and Settersten, R. (2019) ‘The life course cube: A tool for studying lives’, Advances in Life Course Research, 41: 100258. 13  Kok, J. (2007) ‘Principles and prospects of the life course paradigm’, Annales de Démographie Historique, 113: 203–30. 14   With the consent of their parents. 11

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These are typically informally enforced by a person telling someone to “stop being childish” or to “grow up”. People may feel pressure that at a particular age they ought to get married or find a long-term partner, even though there are no laws or regulations requiring such things. The societal pressures may influence how a person behaves or the decisions they take. Of course, a person may deliberately refuse to ‘act their age’ and to accept the norms that go with it. (2) Elder Jr, Kirkpatrick Johnson and Crosnoe15 refer to ‘The Principle of Time and Place’. This is the idea that a person’s life course is ‘embedded and shaped by the historical times and places they experience over their lifetime’.16 This acknowledges that individuals and communities are influenced by their geographical location, the cultural context and social norms. These change over time and will reflect a particular culture or political climate. For example, for much of the latter half of the 20th century, certainly in middle-class families in England, there was a statutory age of retirement, with strong expectations and legal and social structures that reinforced that norm. However, nowadays, if a person announced at the age of 60 that they were giving up work and going to spend their time resting, it might be greeted with surprise, perhaps even disapproval. (3) Human development and ageing are lifelong processes. A person will change and develop during their life, impacted by their experiences, their relationships and societal changes. It is wrong to assume that adolescence is the time for development, and that a person becomes a settled and complete adult at, say, age 18. Rather, a life course approach can show how humans develop and change throughout their life, as a result of social change and personal decisions. It also emphasizes how events can change a person’s understanding of themselves or the earlier stages of their life. They might, for example, have believed they were ‘living the life’ in their early twenties, but ten years later look back at that part of their life with embarrassment. This theme, therefore, highlights the constantly changing nature of a person’s life. (4) Earlier life experiences can have profound effects on later ones. A child’s upbringing can have a deep impact on their well-being later in life. Childhood experiences can reverberate across their adulthood. Their achievements in education in youth may have significant impact   Elder, G., Kirkpatrick Johnson, M. and Crosnoe, R. (2003) ‘The emergence and development of life course theory’ in J. Mortimer and M. Shanahan (eds) Life Course Handbook, New York: Springer. 16  Ibid. 15

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on the later life opportunities a person has.17 This interrelationship between different stages can be particularly significant for lawyers. For example, in an assessment of what is ‘in a person’s best interests’ there may be clashes between their interests at different stages in their life. It may be, for example, that there are restrictions imposed on children which are designed to protect their interests in adulthood: for example, compulsory education may be required of children, so that they can have a successful adulthood. The issue can be raised at a political level: is it appropriate to target societal resources at different age groups? We might, for example, tax working-age people to fund education for children. This raises a bigger issue of ‘intergenerational fairness’, and this will be explored later in this chapter.18 (5) It is now clear we cannot discuss the life course as imagining we are talking about single lives. There is a close interrelation between lives. As Steven Hunt19 puts it: ‘The life course perspective emphasises not only the connection between individuals but the interdependence between them and the ways in which their social relationships are reciprocal on various levels.’ Lives are expressed and experienced through interlocking relationships. This can be evident at an individual level, recognizing, for example, that economic hardship for parents impacts on children, or at a societal level, that a national disaster might impact on all citizens, as we are witnessing with COVID-19. (6) One of the major debates among life course theorists is the extent to which individuals can control their life trajectory. Many people have a strong sense of agency as they experience the life course. Individuals make choices against the general background of the expectations of the life course. I doubt many people make a decision simply based on what society expects them to do at that particular age. However, the debate is over the extent to which individual life course choices are impacted by the assumptions that society has of a particular age. Most people who apply to university do so aged 18. There is a strong assumption that this the normal age to attend university and services are generally set up on that assumption. So, the major decision to   Bengston, V. and Allen, K. (1993) ‘The life course perspective applied to families over time’ in P. Boss, W. Doherty, R. LaRossa, W. Schumm and S. Steinmetz (eds) Sourcebook of Family Theories and Methods: A Contextual Approach, New York: Plenum, 1–19. 18   Hendricks, J. (2012) ‘Considering life course concepts’, The Journals of Gerontology, 67B: 226–31. 19   Hunt, S. (2016) The Life Course, Basingstoke: Macmillan, 32. 17

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apply to university at age 18 is likely to have been heavily impacted by societal assumption, perhaps even without the individual being aware of it.20

Life stages Life course theory provides tools to think about the standard stages of life, which are commonly presented as a natural progression, through childhood, adulthood and old age. In doing so it critically challenges the social constructions and personal understandings of these ages. It certainly does not accept these stages as set in stone or as being correctly understood. However, it does acknowledge the societal assumptions and personal perceptions about different stages as having an impact on the life of individuals. Life stages are typically as seen being produced by an interplay of three different factors21: (1) Biological changes. Scientists can set out an expected course that the human body will undertake as it develops, grows and continues up to death (the lifespan). These changes play a role in how a person understands the stages of their life. (2) Sociological changes. Typically, societies will have expectations about how people in different categories will behave. While these stages have traditionally been described in terms of age (e.g. being a teenager, being middle-aged, and so on), we can also see them in terms of life events (e.g. leaving home, marriage, moving into a care home). (3) Psychological changes. An individual may measure themselves against the societal or biological role determined by their age. These may be accepted, adopted and welcome, or may be rebelled against and rejected. For example, an older person may refuse to comply with the expectations that a society has around old age. By contrast, a ‘tweenie’22 may be pleased when at last they are acknowledged as a teenager.

  Bernardi, L., Huinink, J. and Settersten, R. (2019) ‘The life course cube: A tool for studying lives’, Advances in Life Course Research, 41: 100258–69. 21   Mintz, S. (1993) ‘Life stages’, in M. Kupiec Cayton, E. Gorn and P. Williams (eds), Encyclopedia of American Social History, New York: Charles Scribner’s Sons, 2011–22. 22   A colloquial term often used to describe a ‘wannabe’ teenager aged 11 or 12. 20

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For example, adolescence is a time of biological changes associated with puberty and growth; sociological components may refer to changing social expectations and treatment by institutions; and psychological components of adolescence may involve mood swings and searching for identity. These three factors (biological, sociological and psychological) closely relate. The associated physical changes for that age may lead to changes in the social role: so old age is associated with impacts on the functioning of the body, and this may be reflected in the expectation that older people will not be part of the job market, at least for jobs requiring extensive physical activity. In this book, the contribution of the law to shaping the understandings of the different stages will be the key theme. It seems a feature of contemporary life that it is difficult to define when particular stages of life start and end. When you ask people at what age a person becomes old, you get answers ranging from 50 to 70 years old.23 Many commentators have become sceptical about the standard stages of childhood, followed by middle age, followed by old age. As Stephen Hunt puts it: notions of a coherent and inevitable ‘life-cycle’ are largely redundant and make little sense in a changing world where … the once assumed ‘stages’ of life and what they entail for life events are no longer so ‘fixed’ and predictable.24 It is more common to see these traditional stages as broad ‘signifiers of life course experiences’, rather than playing a determinative role.25 It seems the correct approach may be that, as idealizations, the concepts of ages, such as childhood, adolescence, middle age and old age, still have a powerful hold. However, in terms of the realities of people’s lives, these categories become greatly blurred. So, what are the different versions of life stage categories that are used? Although childhood, middle age and old age are the standard categories, commentators have put forward a range of more precise and sophisticated versions. A contemporary summary of the life stages may include a longer list with references to tweenies, pre-schoolers, adolescents, ‘young old’ and ‘old old’, or fourth age.

 https://www.agedcareguide.com.au/talking-aged-care/what-age-is-considered-old   Hunt, S. (2016) The Life Course, Basingstoke: Macmillan, 4. 25   Ibid, 3. 23

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No doubt the most famous description of the stages of life is Shakespeare’s famous ‘seven ages’, set out by Jaques’ monologue in As You Like It 26: All the world’s a stage, And all the men and women merely players; They have their exits and their entrances, And one man in his time plays many parts, His acts being seven ages. At first, the infant, Mewling and puking in the nurse’s arms. Then the whining schoolboy, with his satchel And shining morning face, creeping like snail Unwillingly to school. And then the lover, Sighing like furnace, with a woeful ballad Made to his mistress’ eyebrow. Then a soldier, Full of strange oaths and bearded like the pard, Jealous in honour, sudden and quick in quarrel, Seeking the bubble reputation Even in the cannon’s mouth. And then the justice, In fair round belly with good capon lined, With eyes severe and beard of formal cut, Full of wise saws and modern instances; And so he plays his part. The sixth age shifts Into the lean and slippered pantaloon, With spectacles on nose and pouch on side; His youthful hose, well saved, a world too wide For his shrunk shank, and his big manly voice, Turning again toward childish treble, pipes And whistles in his sound. Last scene of all, That ends this strange eventful history, Is second childishness and mere oblivion, Sans teeth, sans eyes, sans taste, sans everything. Societies acknowledge the demarcation between the different age categories in different ways. Some have elaborate formal ceremonies announcing, for example, that the child has now become an adult. By contrast, in the West there is no public acknowledgement of that. Indeed, it would probably be seen to be in very bad taste to make a public announcement that one’s child had reached puberty. Similarly, articles regularly appear in the press with debates over when ‘middle age’ starts   Act II, Scene vii, line 138.

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or ends, because there is no consensus on that and no ceremony to mark that stage of life.27 Regulatory and legal responses to different ages can contribute to a degree of clarity on the distinction between stages. For example, with childhood seen as a time of education, the point at which compulsory education stops can be understood as the time at which adulthood starts. As already mentioned, there is increasingly a preference to see the life course as a series of events or transitions that may not be connected to age. Marriage, stopping education or starting employment may be used as more significant markers in a person’s life course than a particular age. These markers are more readily observable and often are connected to public celebrations. Even these markers are not, on their own, sufficient because their meaning will vary depending on, for example, gender, class and ethnicity. Marriage might have a different meaning and significance for men or women in some cultures; or in different religious groups.28 Similarly, childbirth might have a very different meaning in parts of the world or at times in history where death rates in childbirth are very high. Nevertheless, most societies at most times have had some kind of distinction between adulthood and childhood.29 The variations between societies tend to be in the details. Stephen Hunt30 gives the example of the Galla-speaking tribal people of North East Africa where males have a very set life trajectory, moving from being bachelors, warriors, married family men, political leaders or judges to religious ritual officials. The shift from one stage to another is marked by established rituals and is accepted by society. Some of the most fascinating issues raised by a life course perspective can arise where there is a tension between the societal expectation about a particular stage and the social or economic changes which challenge that. As Macmillan31 puts it: economic realities and social constraints may alter cultural connections and cause certain individuals to depart from the social timetables. It is here that difficulties in conforming to social scripts of the life course may reveal cultural and structural  https://www.independent.co.uk/life-style/young-people-under-30-british-peopleage-how-old-survey-a8244111.html 28   Mintz, S. (1993) ‘Life stages’, in M. Kupiec Cayton, E. Gorn and P. Williams (eds), Encyclopedia of American Social History, New York: Charles Scribner’s Sons, 2011–22. 29   Eisenstadt, S. (2002) From Generation to Generation, Abingdon: Routledge. 30   Hunt, S. (2016) The Life Course, Basingstoke: Macmillan, 74. 31   Macmillan, R. (2005) ‘The structure of the life course: Classic issues and current controversies’, Advances in Life Course Research, 9: 3–24, 22. 27

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contradictions. Such contradictions may reflect the disjuncture between norms about the life course and the ability to actualize such norms in everyday life. Those kinds of tensions may reflect the reality of the different life stages. They are social or legal constructions which have an impact on how people understand themselves, but become problematic when people fight against their assigned role or when there are barriers which prevent them from taking up that role.

Age as a fact, a social construction or a choice There are powerful social constructions around certain age categories. A child who is seen to behave as an adult is seen as a danger (to themselves or others). They have ‘grown up too quickly’, indicating either some form of mental or moral failure or that they are the victim of abuse by adults. Similarly, if an adult is seen to behave in a childlike way, such as is sometimes said in relation to those with dementia, this is seen as disturbing or tragic. However, these assumptions about age are simply a social construction. The term ‘social construction’ is used to indicate that there is nothing inevitable about what, say, childhood is like. Rather, childhood is a product of societal expectations and assumptions. These create the category of childhood and the suppositions about what it is like. While this approach to age is popular, and there is clearly some truth in it, there is debate over the extent to which there might be some truths about particular ages that are not dependent on particular cultural settings, in other words, suggesting that childhood is not entirely a social construction. For example, there might be truths about the nature of babies which are true whatever time or culture they are living in: that they need to be fed by an older person, for example. It is worth noting too that there does not appear to have been a culture in which there was not something approximating the concept of childhood. It seems implausible that different ages are entirely a social construction. The debate, therefore, is over whether there are many of these objective truths concerning particular age categories. I will argue there are very few: in other words that our age categories (childhood, old age and so on) are substantially social constructions. The different constructions for the various ages will be discussed in the relevant chapters of the book. But a few general themes about the social constructions of age will be mentioned here.

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Constructions around age are also used in ‘moral panics’. As Stephen Katz notes: ‘figures of the obese child, unstable adolescent, despairing mid-lifer and cognitively impaired older adult are examples of crisis-laden personifications of social problems’.32 As we shall see in Chapter 4, some commentators perceive there to be a ‘crisis of childhood’, with the innocence of childhood being under threat from a wide range of forces. Similarly, others see disaster looming with increasing numbers of older people, creating excessive demands on the economy. Such fears are commonly based on stereotypes about what old age or childhood is, or should be, like.

Individual choice There is further a widespread feeling that the categories that used to define people no longer (and should no longer) restrict people’s choice of identity.33 You may wish to live in accordance with the assumptions made about you in terms of a life stage (“it’s time to settle down”, the 30-year-old may feel), but you might choose to deliberately thwart them (“it’s time for a second youth”, the 50-year-old may declare). Notably, however, in these cases it is not that the age norms do not matter, they do. Indeed, they are specifically acknowledged as a norm to rebel against by those who choose not to adopt them: part of the fun of not acting your age is the shock on people’s faces! There has been a significant body of literature exploring the idea that our society is witnessing a growth of individualism, with Bauman, Beck and Beck-Gernsheim, and Giddens34 leading the way. On this view identity is not a ‘given’, but is a task or a journey. Identity is something you make or develop for yourself, not something imposed from ‘on high’.35 As Giddens36 puts it, ‘we are not what we are, but what we make   Katz, S. (2020) ‘Precarious life, human development and the life course: critical intersections’ in A. Grenier, C. Phillipson and R. Settersen (eds) Precarity and Ageing, Bristol: Policy Press. 33  Gilleard, C. and Higgs, P. (2015) ‘Connecting life span development with the sociology of the life course: A new direction’, Sociology, 50(2): 301–15. 34   E.g. Bauman, Z. (2007) Liquid Times, Cambridge: Polity Press; Beck, U. and BeckGernsheim, E. (2002) Individualization, London: Sage; Giddens, A. (1991) Modernity and Self-Identity, Cambridge: Polity Press. 35   Dawson, M. (2012) ‘Reviewing the critique of individualization: The disembedded and embedded theses’, Acta Sociologica, 55(4): 305–19. 36   Giddens, A. (1991) Modernity and Self-Identity, Cambridge: Polity Press, 75. 32

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of ourselves’. Beck and Beck-Gernsheim37 explain that ‘individualization means the disintegration of previously existing social forms – for example, the increasing fragility of such categories as class and social status, gender roles, family, neighbourhood etc’. It is important here to separate out two questions. The first is the extent to which people do in fact have control over their life course. We might believe that nowadays people are free to live their lives as they wish and no longer are bound by the conventional wisdom of an appropriate life course, in the way people were in the past. However, is that a true assessment? Are we as free to depart from the norms of the life course as we think we are? The second is the question of whether you ought to live an individualized life.

Control over behaviour It is common in contemporary life course theory to emphasize that nowadays the key life events for an individual are increasingly about their own preferences rather than following the expectations of society. A contrast is commonly made with the past when societal expectations and family economic needs would determine, for example, when a person left school, undertook employment or stopped working. Historians of the 19th century report that in working-class families the good of the family trumped any personal desires of individual members, and members had to contribute as required to the family economics.38 This arrangement of the life course was seen as beneficial to society generally. As Kohli39 argues: the institutionalized life course has come to achieve social order by processing people through the social structure and articulating their actions, in other words, by providing the rules by which individuals unfold and conduct their lives. These rules may be given as informal norms and beliefs (such as the idea and claim of individual development), or be formalized as legal norms (such as the rights that make up the legal status of adulthood), or be structurally implemented as organizational systems (such as those of education or social security).   Beck, U. and Beck-Gernsheim, E. (2002) Individualization, London: Sage, 2.   Mintz, S. (1993) ‘Life stages’ in M. Kupiec Cayton, E. Gorn and P. Williams (eds), Encyclopedia of American Social History, New York: Charles Scribner’s Sons, 2011–22. 39   Kohli, M. (2007) ‘The institutionalization of the life course: Looking back to look ahead’, Research in Human Development, 4(3): 253–71. 37 38

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Nowadays, there is more emphasis on people making the choices they wish to make, rather than acting ‘as expected’. For example, the age at which someone marries is unlikely to reflect more than individual choice and/or societal norms, but not family needs, at least for must cultural groups in the West. Increasingly, the time of retirement is seen as a matter of choice or personal circumstances rather than family pressures. Increasing divorce rates might suggest people no longer feel a societal pressure to remain in an unhappy marriage and feel free to end it if the marriage is not giving them what they want. We should not overemphasize the power of the individual to control their life story. As we all know, an accident, illness or dramatic change in circumstances, can leave our plans in tatters or indeed open up unexpected and welcome new avenues for our life story. The current socio-economic situation can severely curtail the options that are open to you. The obligations of childcare or care of a relative may restrict the options available. There are still powerful forces of patriarchy, racism, heteronormativity and classism which impact on how people behave. Indeed, it is notable that even in this age of individualism most people do still live in line with a fairly standard pattern of childhood, employment, forming a partnership/family, and entering old age. As Kohli40 notes: ‘Individual agency and choice must be seen to occur within the opportunities and constraints provided by other people and by the larger social context’. As Kohli argues here, what is experienced as choice and control over the life course is a choice which takes place in a social context which provides limited options. Many are those who have dreamt of abandoning their family obligations and mortgage in middle age to set sail for a lifetime of holiday, but few seem able to put that into practice. And despite the talk of freedom, the image of the traditional life course still has a strong hold as an ‘ideal’.41 A further challenge to the understanding of choice may be that we are deeply relational beings. As Hendricks writes, ‘our identities, our sense of self … are all relational, reflecting a variety of social networks, social capital and the contextual circumstances in which we live’.42

  Kohli, M. (2019) ‘The promises and pitfalls of life-course agency’, Advances in Life Course Research, 41: 100273–88. 41   Elchardus, M. and Smits, W. (2006) ‘The persistence of the standardized life cycle’, Time and Society, 15(2): 302–26. 42   Hendricks, J. (2012) ‘Considering life course concepts’, The Journals of Gerontology, 67(2): 226–31, 227. 40

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The more relationally one understands the self, the less the concept of control is important or even makes sense. The lives of parents caring for young children or adults caring for relatives with dementia are not marked by choice. The obligations of care may well be welcomed and seen as a valuable part of life, but they do not chime with the language of choice. In any event, even without such obligations, a person has to work with and through others to achieve most of the goals they have. They cannot simply choose their life course and insist on getting their way!

Choice over ageing The emphasis on individual choice is particularly striking in terms of the biological understanding of ageing.43 This was once seen as an inevitable progression over which an individual has little control. However, the extent to which we are in control of our bodies is changing. Cosmetic surgery, extensive programmes for exercise, healthy eating programmes, dietary schemes, mental exercises: all can challenge the assumption that ageing is something that must be accepted and offer ways of defeating the ageing process or at least defying it. The dark side of this is that those who ‘age naturally’ are seen as not having made an effort, and the natural consequence of ageing as being the fault of the individual. As we shall see in Chapter 7, particularly in relation to old age, there is considerable pressure on people to make sure they do not ‘look their age’. Indeed, being told ‘you look your age’ would be likely to be seen as a criticism, rather than a compliment.

The benefits of age The message of individualism may be that it is desirable to avoid the constraints of age. But not everyone will be convinced by this claim. This emphasis on individual choice is linked by some sociologists to the wider growth of individualism in modern society. In short, this is the idea that individuals are, and see themselves as, free to make their own life choices and live these out. Supporters of individualism see this as a benefit and argue that restrictions should not be imposed on people to limit that. A story of a young woman with a promising career giving up her job to

  Halfon, N., Forrest, C., Lerner, R. and Faustman, E. (eds) (2018) Handbook of Life Course Health Development, Berlin: Springer.

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care for her infirm parents may be seen by some as a tragedy. But not everyone would agree. We have obligations to those around us and it is a fiction to pretend our lives are marked by freedom. Indeed, many of those who might feel they have great freedom to act as they choose can only do so because others are performing their duties for them. For example, feminist critics have argued that men may claim they have autonomy but are only able to do so because women are undertaking the responsibilities of childcare or housework. Marxists might emphasize how the workers perform the work that enables the rich to be free to pursue whatever fun they seek. The obligations include those that may flow from traditional family structures, ‘citizenship’ or societal norms that are often structured around the traditional life course. We must, therefore, be wary of setting aside the obligations that come with various stages of life in the name of individualism, for fear we leave those who are dependent on others without the assistance they need, or the burden of meeting those needs unfairly distributed. However, while welcoming the emphasis of responsibilities and the importance of ensuring that dependency needs are met, and met fairly, it is not clear to me that strictures on the expectations of age are the only way of doing that. A positive version of the interplay between life stages and individual choice is expressed by Heckhausen and Buchmann, who refer to ‘canalization’ where: societally and developmentally structured paths guide individuals’ life courses along timed and sequenced paths, and buffer these paths against disturbances, while at the same time providing age-structured opportunities and challenges for the individual agent.44 The image they promote is that while there is a degree of choice as to how to live life (you can canoe on the left side of the canal or the right), the choice is limited and structured (by the banks of the canal). The restrictions created on choices at different stages along the ‘canal’ can be described in positive terms as ‘buffers’ from disturbances: you will end up in the right place whichever side of the canal you are on. Part of the canalization is that to achieve certain societal goals a certain path is required: to undertake a particular job certain training is required, for example. Part of life course theory can explore the strength and nature   Heckhausen, J. and Buchmann, M. (2019) ‘A multi-disciplinary model of life-course canalization and agency’, Advances in Life Course Research, 41: 102246. 44

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of these different banks and to extent to which individuals can break free from them.

Right to choose age Perhaps the most dramatic example of the power of individualism over age is the argument of Joona Räsänen45 for a moral right to choose your own age. He refers to the case of a Dutchman, Emile Ratelband, who was legally said to be 69 (based on his date of birth) but wished to change his age to 49 (which is the age he felt himself to be) and applied to court for permission to do so. He was not successful. At first sight, such a claim seems absurd. I might feel 20, but the reality is I am 50. But the claim is not so absurd when we consider other contexts. If someone categorized as male were to regard themselves as female and adopt that role then it is certainly a popular view that that choice should be recognized. Räsänen is careful to limit his claim to cases where three criteria are satisfied: (1) the person genuinely feels his age differs significantly from his chronological age; and (2) the person’s biological age is recognized to be significantly different from his chronological age; and (3) age change would likely prevent, stop or reduce ageism, discrimination due to age, he would otherwise face. If the law were to allow age changes on such a basis this would demonstrate the triumph of individualism. You could completely chart your life course by deciding what age you wanted to be. Räsänen accepts that there is a factual chronological age but he argues a person should be able to change their legal age so it relates to their ‘biological and emotional’ age. From his summary of necessary conditions, it is clear that avoiding discrimination is at the heart of his argument. If a person is suffering age discrimination (they are being expected to act in a particular way because of their age) then they should be allowed relief from that discrimination. Allowing a change in their age would not cause harms to others and would reduce the level of discrimination.

  Räsänen, J. (2019) ‘Moral case for legal age change’, Journal of Medical Ethics, 45(7): 461–4.

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An obvious argument against such a view is that it requires the law to recognize a lie.46 However, Räsänen argues that there is a difference between four different kinds of age: • • • •

Legal age – the age a person is in terms of the law Chronological age – the length of time one has existed Emotional age – ‘the age someone feels and identifies himself ’ Biological age – ‘the age one’s body and mind appear to others by objective measures’

Legal age can legitimately be based on emotional or biological factors, rather than chronological ones and, if so, it is not necessarily lying in recognizing the age someone claims to be. He makes the point we might imagine two people aged 50, one with the ‘body of a 60 year old’ due to his unhealthy living and the other with the ‘body of a 40 year old’ due to a good diet and regular exercise. Räsänen argues it would not be a lie for the law to distinguish between these two based on the state of their bodies. This example he uses to dismiss an argument that, as a result of his approach, people should be allowed to change their legal height if discriminated against on the basis of that. The distinction is that there is no alternative understanding of height that can be used, while there are legitimate alternative understandings of age.47 There are practical objections to his proposal. A person applying for a job would need to put the dates they were in college and so forth, and these would reveal a chronological age, whatever ‘age’ they gave themselves.48 So, it may be that it would rarely, in fact, reduce discrimination. Further, it might be that age discrimination is primarily a problem for people who appear old, and that those whose looks are youthful for their chronological age do not need interventions to tackle ageism. Perhaps the strongest argument against Räsänen is that his argument appears to accept ageism and, if anything, reinforce it rather than combat it. Would it not be better to say, ‘Well, even though a person is 60 they are still able to x and y, look at that person there’, rather than pretend that person cannot be 60 as they can do x and y, or declare that if they can, they should apply to change their age. His proposal is a little like suggesting that if a woman has the same skills as a man but feels she is   Brassington, I. (2019) ‘What a drag it is getting old: A response to Räsänen’, Journal of Medical Ethics, 45: 467–8. 47   Räsänen, J. (2019) ‘Further defence of legal age change: A reply to the critics’, Journal of Medical Ethics, 45: 471. 48   Simkulet, W. (2019) ‘On legal age change’, Journal of Medical Ethics, 45: 469–70. 46

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being discriminated against, she should therefore be recognized as a man. That hardly looks an appropriate response to sexism. Saad49 argues: It would be quite unacceptable to tell someone that they cannot get a job because of their skin colour and that they should therefore consider changing it. If unjust age-based discrimination exists, changing one’s legal documents to get around it is underhanded and self-serving. Indeed, the ideas of ‘emotional’ and ‘biological’ age that Räsänen relies upon appear to suggest we can put an age on the physical or emotional characteristics of a person, and that seems to reinforce ageist stereotypes. Whatever you conclude on this debate the very fact that it is an issue meriting discussion highlights the dismantling of the assumptions and ties that are associated with age categories.

Gender Of course, age categories are not the only ones that impact on an individual’s life course. Gender plays a hugely significant role. It is not possible in this book to do more than outline in the briefest terms some of the impacts of gender. Despite the attempts to combat gender discrimination and promote equality, a person’s gender still has significant impact on the course of a life: on their identity, the way they are treated by others, and expectations as to how they should behave. One notable example is in relation to poverty. Statistics on gender and economics around the world found consistent links between gender and poverty.50 Women’s involvement in unpaid care, lack of access to job markets, and power structures within the family all contribute to women’s poverty.51 Throughout a life course, gender can play a significant role in the options available to women. The global gender gap index of top 50 countries for 202052 looked at gender gaps on economic, political, education, and health-based criteria. In all countries, men had more power than women. The country where   Saad, T. (2019) ‘Against the nihilism of “legal age change”: A response to Räsänen’, Journal of Medical Ethics, 45: 465–6. 50   Oxfam (2020) Why the Majority of the World’s Poor are Women, Oxford: Oxfam. 51   Moen, P. (2003) ‘Work over the gendered life course’ in J. Mortimer (ed) Handbook of the Life Course, Berlin: Springer. 52   World Economic Forum (2020) The Global Gender Gap Index 2020, New York: WEF. 49

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women scored highest was Iceland, with a score of 0.87. The UK’s score was 0.77. To give one UK example, a recent report found that: 90 per cent of single parents in the UK are women; and … 22 per cent of single parents live in relative poverty before housing costs – and that 42 per cent (nearly twice as many) do so after housing costs.53 The disadvantages are not limited to employment but also cover power and prestige. Only 34 per cent of MPs in Westminster are women. The Equality and Human Rights Commission report that ‘men are almost twice as likely to be a manager, director or senior official as women’, and the examples could go on and on.54 They will be referred to throughout this book. At a personal level, the sex assigned to a person at birth can have a huge impact on their identity and their performance in life. Our society is based on a binary classification of people as either male or female, and a wide range of assumptions flow from that, in such areas as clothing, employment or ‘performance’. Despite the sharp social divide between ‘male’ and ‘female’, as Haslanger55 notes, in fact ‘a significant percentage of humans have a mix of male and female anatomical features’. She writes that there are56: a variety of options for defining sex that, considering the physical facts alone, are equally good. We have chosen one definition for socio-cultural reasons, but it may be better for us to choose another. So there is an important sense in which how we define the distinction (or whether we do at all) is up to us, but this is consistent with there being physical differences between sexes. She argues that the question we should ask is ‘whose interests are served, if anyone’s, by the intersexed being ignored in the dominant conceptual   UK Women’s Budget Group, Poverty in the UK: The Need for a Gender Perspective, London: UKWBG. 54   Equality and Human Rights Commission (2018) Women’s Rights and Gender Equality in 2018, London: EHRC. 55   Haslanger, S. (2017) ‘The sex/gender distinction and the social construction of reality’ in A. Garry, S. Khader and A. Stone (eds) The Routledge Companion to Feminist Philosophy, Basingstoke: Taylor & Francis Ltd. 56   Ibid, 121. 53

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framework?’.57 As the statistics on gender, poverty and power cited above show, the current system with its sharp biological sex binary clearly benefits men. While we are beginning to see the weakening of the binary it is still enormously difficult for someone to live in a gender-fluid or gender-free way, even for those who biologically fall into neither the male nor the female category.58 Despite these points it is obvious there have been shifts in attitudes towards gender. In the British Social Attitudes Survey people have been asked if they agree with the statement that a man’s job is to earn money and a woman’s is to look after the home and family. In 1984, 43 per cent of respondents agreed with the statement. By 2017 only 8 per cent did.59 As we will discuss in Chapter 8, despite this change in attitudes, there seems little change in relation to practice, with women still undertaking the bulk of childcare and housework.

Race Race too plays a huge role in life course, and this book cannot do justice to the importance of that topic. It is clear that race can cause persistent disadvantage. A 2019 survey60 found that 43 per cent of those from a minority ethnic background reported they had been unfairly overlooked for promotion at work, as compared with 18 per cent of White people who reported the same. Those from ethnic minorities were three times as likely to have been thrown out of or denied entrance to a restaurant, bar or club in the previous five years. Two thirds of those questioned thought Britain had a problem with racism. The employment gap, as measured between the Black and Minority Ethnic (BME) and White British population was 11 per cent in 2016.61 While 76 per cent of White adults were employed in 2016, this figure was only 54 per cent for Pakistani/Bangladeshi people and 67 per cent for Black people. Around 18 per cent of Bangladeshi workers were paid below the National Minimum Wage, compared to only 3 per cent of White workers and 5 per cent of Black African workers.   Ibid, 122.   Pikramenou, N. (2019) Intersex Rights, Berlin: Springer. 59   Taylor, E. and Scott, A. (2019) Gender: New Consensus or Continuing Battleground? Views on Traditional Gender Roles, 1984–2017, London: NatCen. 60   Booth, R. and Mohdin, A. (2019) ‘Revealed: the stark evidence of everyday racial bias in Britain’, The Guardian, 2 December. 61   Khan, O. (2019) Economic Inequality and Racial Inequalities in the UK: Current Evidence and the Possible Effects of Systemic Economic Change, London: Runnymede Trust. 57 58

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Race is a hotly debated concept and it is not easily defined. As Hunt62 argues: Assigning individuals to a single ethnic grouping is growing in its complexity, especially at a time when the term ‘ethnicity’ is an increasingly evolving and contested social category, and there exists no commonly accepted definition of the term. He notes that more and more people in surveys reply ‘Mixed or other’ when asked about their ethnicity. This means that a more nuanced approach than simply dividing people into ‘White’ and ‘non-White’ is needed. As DiAquoi writes: At the core of Critical Race Life Course Perspective is the idea that racism is permanent and that each birth cohort experiences a particular type of racism, recognizable by its unique set of racial rules. The kinds of messages that are conveyed to a cohort or by a cohort are evidence of those rules.63 Further, the intersections between race and other sources of disadvantage are complex, requiring a nuanced approach.

Disability As is well known, there are two contrasting models of disability: the individual model and the social model.64 Under the individual model, a disability is a difference in a person’s body or mind that causes them to have impaired functioning, when compared to a ‘normal person’. Under this model the cause of any disadvantage flowing from disability is the limited function the individual is thought to suffer from. The appropriate response to disability is therefore to eliminate disability, by curing it or (more controversially) preventing disabled people from being born the

  Hunt, S. (2016) The Life Course, Basingstoke; Macmillan, 74.   DiAquoi, R.C. (2018) ‘Critical race life course perspective theory: A framework for understanding racism over the life course’, International Journal of Qualitative Studies in Education, 31(1): 36–54, 37. 64   Shakespeare, T. (2006) Disability Rights and Wrongs, Abingdon, Routledge. 62 63

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first place. If this is not possible, the state should attempt to mitigate the disadvantages flowing from disability by providing what services it can.65 Under the social model, by contrast, the problems flowing from disability are due to society’s failure to provide the services necessary to ensure no difficulties flow from the difference in function or psychology. So, if someone cannot reach the first floor of a building, this is better explained by the fact there is no appropriate provision for them to reach the first floor. No one can reach the first floor of a building without some kind of accommodation being made. The provision of stairs, say, will enable some, but not others, to reach that floor. The social model argues that society chooses to provide accommodations for some of the limitations that people face (such as shops, transport, sewerage, and so on), but not for others. Those limitations which society does not meet are labelled as disability. The Union of Physically Impaired Against Segregation,66 adopting the social model, defined disability in the following way: Disability is something imposed on top of our impairments by the way we are unnecessarily isolated and excluded from full participation in society. Disabled people are therefore an oppressed group in society. To understand this it is necessary to grasp the distinction between the physical impairment and the social situation, called ‘disability,’ of people with such impairment. Thus, we define impairment as lacking part of or all of a limb, or having a defective limb, organ or mechanism of the body; and disability as the disadvantage or restriction of activity caused by a contemporary social organization which takes no or little account of people who have physical impairments and thus excludes them from participation in the mainstream of social activities. Physical disability is therefore a particular form of social oppression. Some commentators argue that we can combine the two theories to explain that some disadvantages are a result of a physical impairment, but

  Radcliffe Richards, J (2002) ‘How not to end disability’, San Diego Law Review, 39: 693–709. 66   Union of Physically Impaired Against Segregation (1975) Fundamental Principles of Disability, New York, UPIAS. 65

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others result from a failure to make social provision. Myriam Winance67 suggests we can separate the deficiency (an individual biological characteristic) from the disability (a social reality, a position of exclusion defined in relation to the balance of power between people) … Disability is a social difference piled on top of a natural specificity. This debate between the social and individual models of disability is complex and has become intense.

Identity A key theme in life course theory is the concept of identity. Our identity is a mixture of relational, social, emotional and physical matters. Age and ageing plays a part in how we understand ourselves and how we believe ourselves to be understood by others. Changes in age and life stage can affect identity. Sometimes the changes are rejected by the self: “This body is not mine” or “I do not feel as old as I am”. As already mentioned, however, as a society we are increasingly recognizing the idea that people have a right to define their own identity, and that can include controlling and designing their body. There is, therefore, increasing acceptance that a person may choose to identify their gender as they wish. Technologies and treatment give those who wish to change the functionality of the body more options. The idea we can control the ageing of the body so it is in line with our identity is more plausible than it was in the past.68 Anthony Giddens has developed the concept of ‘reflexivity’: ‘the capacity via which individual and social lives are produced and changed as people react to their circumstances in ways no longer governed by tradition’.69 This captures how people come to understand their role, including their role in the life course, but then seek either to accept or to challenge their place in the world.70 As Archer suggests, ‘reflexivity is the   Winance, M. (2016) ‘Rethinking disability: Lessons from the past, questions for the future’, European Journal of Disability Research, 10: 99–134, 101. 68   Marshall, B. and Katz, S. (2012) ‘The embodied life course: Post-ageism or the renaturalization of gender?’, Societies, 2(4): 222–34. 69   Giddens, A. (1991) Modernity and Self-Identity, Cambridge: Polity Press. 70   Beck, U. and Beck-Gernsheim, E. (2002) Individualization, London: Sage. 67

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mental capacity of people to consider themselves in relation to their social contexts and their social contexts in relation to themselves’.71 Settersen identifies adolescence as being a time when identity is key. Indeed, he regarded the development of identity, separate from the family, as the key task in growing up. This was important for a range of issues including developing intimate relationships and gaining a public identity.72

Intergenerational justice A major theme in life course analysis is the concept of intergenerational fairness. This can arise in two contexts. • Cohort fairness. There may be a particular birth cohort which is seen to have benefited at the expense of others. It is, for example, sometimes said that the current generation of young adults have suffered as a result of the financial crash of 2007–08. Where the responsibility for such a disadvantage lies with a different age group (those currently in middle age, in the case of the crash) then the argument for ‘recompense’ appears strongest. The difficulty with this kind of argument is that, inevitably, there is no consistency in loss or blame. Clearly not every middle-aged person was responsible for the crash and not every young person suffered as a result. That means any form of redistribution of wealth between the age groups would be very crude. • Generation fairness. The debate can arise in relation more generally to justice between individual age groups: for example, whether too much of society’s resources are spent on children; or whether generally the young should pay for the care of the old.73 This seems something that is more amenable to discussion than cohort fairness. Interestingly, in 2018, the House of Lords created a Select Committee on Intergenerational Fairness and Provision.74 They define intergenerational fairness in this way:   Archer, M. (2007) Making Our Way Through the World: Human Reflexivity and Social Mobility, Cambridge: Cambridge University Press, 12. 72   Settersen, R. (2019) ‘It takes two to tango: The uneasy dance between life-course sociology and life-span psychology’, Advances in Life Course Research, 14: 74–93. 73  Meijers, T. (2018) ‘Justice between generations’ in W. Thompson (ed) Oxford Research Encyclopaedia of Politics, Oxford: Oxford University Press. 74   House of Commons, Select Committee on Intergenerational Fairness and Provision (2019) Report of Session 2017–19: Tackling Intergenerational Unfairness, London: Hansard. 71

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the idea that each cohort should retain a fair expectation of social improvement and can have a fulfilling life without being unduly harmed by the actions of a previous or subsequent cohort.75 They go on to explain: Each generation contributes through the state and our communities, as well as having the opportunity to receive the benefits of state and community action. As the challenges faced by each generation change, the nature of this contribution and the benefits our collective institutions provide will necessarily change. But, to sustain a positive relationship between generations without animosity, there should be a broad equivalence, and a sense of equivalence, about what is contributed over a lifetime and what is received. This sense of fairness must also extend to generations just born, or about to be born, who have no voice to advocate for them. Policy based on the expectation that future generations will disproportionately pay for present or past consumption cannot be considered just or sustainable.76 In more concrete terms, they continue: We look at what today’s young people can expect to experience as they become tomorrow’s old people. We recognize that financing present public expenditure through creating an unsustainable financial burden for future generations would damage the intergenerational compact. Taxation must be fair between different generations. Some of the ways of understanding intergenerational fairness will now be explored.

Compensating benefits One view is that even if different generations are treated differently as compared with each other, there is no disadvantage. It might be claimed   Ibid, para 2.   Ibid, para 3.

75 76

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that the disadvantages a particular age group faces are compensated by benefits. Older people may be financially badly off, but they benefit from having more free time; while middle-aged people are financially better off, but more burdened with care and work. Children may lack political power, but they are free of responsibilities. At least, you may be persuaded that it is not really possible to calculate whether one age group does better than another because there is such diversity among each age group that comparing, say, older people and middle-aged people is a meaningless exercise. Some people in some groups do better than some others in the same groups. There is some truth in this, but this argument may be less convincing when we compare other forms of disadvantages. If someone were to say, for example, that comparing men and women, some women do better than some men and some do worse and so we cannot compare them, or that women may be paid less than men, but this is made up for by the fact they have a greater involvement in childcare, such arguments would be rejected. The fact that women are paid less than men for similar work is simply unjust, and the fact this happens consistently across different forms of work indicates that gender is playing a limiting role in people’s lives. Even if you buy into the arguments that a particular age (or gender) brings compensating advantages, we cannot assume for a particular individual disadvantaged by their age (or gender) that they are receiving a benefit.

Whole lives view A popular view is that generational unfairness is far less troubling than unfairness based on race or sex. The argument is that we should be less concerned about unfairness between, say, the young and the old, because once we look at the whole lifespan everyone is treated equally. Nagel argues that we should look at ‘individual human lives, rather than individual experiences, as the units over which any distributive principle should operate’.77 In other words, if everyone has a less desirable childhood, but a beneficial old age, no one can complain. The point is even clearer if we compare race or gender inequality where a person in a disadvantaged gender or racial group suffers that disadvantage for their whole life, whereas those who are young are disadvantaged for the early part of their life but advantaged in the later part. On that basis, cohort unfairness is more concerning because a group whose childhood, say, is

  Nagel, T. (1979) Moral Questions, Cambridge: Cambridge University Press, 120.

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disadvantaged as compared to other people’s childhood, will continue to experience disadvantage across their lifespan. In an influential set of writings Norman Daniels has promoted the ‘prudential lifespan approach’.78 He argues that if we were given at the start of our life a health care budget and asked to decide how we would like to distribute it (not knowing what our health would be like) we would choose to emphasize health in youth rather than in old age. This, he suggests, indicates that we should support the idea that social resources are allocated unequally across generations. These kinds of arguments do not convince everyone. There is something implausible about the claim that a society which gives its citizens ten years of misery, compensated for by ten years of happiness is just as good as one in which everyone is reasonably well off. McKerlie79 argues that if someone is badly off, we have a moral reason to improve their position regardless of lifetime inequalities. To leave an older person in squalor on the basis they had a privileged youth seems unjustified. He posits the hypothetical example of the ‘unequal city’80: a city where the older people live a miserable existence in low-quality retirement homes, while young people are housed in wonderful accommodation with plenty of resources. The older people, in their youth, had the affluence and the facilities the young now have, and the young in future will suffer the disadvantages that the old have today. Some might say that there is nothing unequal about this city as over the course of a lifetime everyone will enjoy the same quality of life. However, McKerlie argues that this seems intuitively wrong. It would be a better city if both the young and the old had more comparable life qualities, and certainly if no one had to live in misery. We might at least agree that there is a minimum level of well-being below which no one may fall.81 But even if we take that view, we might then ask how we assess what is a minimal level of well-being. Do we include things such as social standing and autonomy? If we take that view there is then a question of what constitutes that minimum level: sufficiency; social standing; autonomy? But even if we were satisfied that, although different ages were treated unequally, no age group was treated below a minimally acceptable level,  Daniels, N. (2008) Just Health: Meeting Health Needs Fairly, New York, NY: Cambridge University Press. 79  McKerlie, D. (2013) Justice between the Young and the Old, New York: Oxford University Press. 80  Ibid. 81   Gosseries, A. (2014) ‘What makes age discrimination special?’, Netherlands Journal of Legal Philosophy, 43(1): 59–80. 78

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that still might not satisfy concerns. We certainly would not see as a fair society one which treats women unfairly for five years, followed by five years where it treats men unfairly even if, across their lifetime, men and women would be treated equally, and even if the unfairness was not such as to leave women in a dire position. The explanation may be that we do not think it is appropriate to treat men and women unequally because that violates human dignity. Bidadanure82 argues that the aim of equality is not the equal distribution of resources as such, but ‘the realization of a community where people are able to stand in front of each other as equals’. Any system which justifies treating the old as less deserving of societal resources makes it difficult for older people to relate to younger people as equals. Bidadanure83 says the key issue is whether people are able to appear in the community without shame, whether they are respected, and whether minority groups are recognized or, on the contrary, whether they are victims of exclusive norms and are marginalized or demonized. From this perspective, the wrong of treating older people unfavourably cannot be justified by having treated them more favourably when they were younger. A second objection to the argument of lifetime equality is that it does not account for individual factors. A person who dies young might live during the ‘boom times’ of resource allocation but never have to suffer the bad times.84 Or the circumstances of a person’s life might mean that for them youth is not the most valuable time (they are beset by caring responsibilities or a disability), and it is only later in life they have chance to really enjoy the benefits of good health. Such an argument claims that generally benefiting one age group or another will work unfairly towards particular individuals who do not conform to the standard life course expectations. Even if you were persuaded by the merits of the lifetime fairness argument there are difficulties. That is because society is fast moving, and we cannot predict how different generations will benefit at different times. For example, you may believe that currently older people have a good deal at a cost to younger people. We might say to younger people,   Bidadanure, J. ( 2016) ‘Making sense of age-group justice: A time for relational equality?’, Politics, Philosophy and Economics, 15: 234–60, 259. 83  Ibid. 84   Lazenby, H. (2011) ‘Is age special? Justice, complete lives and the prudential lifespan account’, Journal of Applied Philosophy, 28(4): 327–40. 82

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“This is a bit unfair, but don’t worry, when you become old you will reap the benefits.” However, we cannot guarantee this will be so. Maybe economic circumstances will change, and by the time the current young are old we will not be able to provide them with the benefits the current older population have. Or maybe there will be a pandemic which affects older people particularly, meaning that by the time the current young are old, their old age will be blighted by ill health. In such a case the young will have suffered as young people and will suffer again in old age. The proposal depends on our guaranteeing the same treatments for age cohorts in the future as we do currently.85 And that is impossible. A third point is that my well-being may not be determined just by whether I am treated fairly over the course of my lifespan but also by how my friends and relations are treated. As MacIntyre puts it: I am someone’s son or daughter, someone else’s cousin or uncle … I belong to this clan, that tribe, this nation. Hence what is good for me has to be the good for one who inhabits these roles. As such I inherit from the past of my family, my city, my tribe, my nation, a variety of debts, inheritances, rightful expectations and obligations. These constitute the given of my life, my moral starting point.86 So, for example, in a society where older people are given special privileges and younger people suffer, a grandparent may not be able to enjoy the ‘fruits of old age’ because they are distressed at the conditions their grandchildren are living in. The discussion so far has focused on fairness for the individual concerned but that is too narrow a focus. A related issue, beyond the scope of this book, is whether duties are owed by current generations to future generations, yet to be born. This can be a key issue in relation to environmental issues, for example.87

 Jecker, N. (2013) ‘Justice between age groups: An objection to the prudential lifespan approach’, The American Journal of Bioethics, 13(8): 3–15. 86   MacIntyre, A. (1981) After Virtue, Notre Dame, IA: University of Notre Dame Press, 220. 87   Gosseries, A. and Meyer, L. (2009) ‘Introduction: Intergenerational justice and its challenges’ in A. Gosseries and L. Meyer (eds) Intergenerational Justice, Oxford: Oxford University Press. 85

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Ageism Ageism will be a major theme in this book. Ageism88 refers to the explicit and implicit assumptions about people based on their age. Often it is evident in assumptions made about older people. Ayalon and TeschRömer define ageism as: the complex, often negative construction of old age, which takes place at the individual and the societal levels. Despite the fact that ageism is regarded as affecting the lives of people of all ages, the entire book is primarily devoted to ageism towards older adults. Age stereotypes abound. Children and older people are presented as vulnerable and dependent. The middle-aged are seen as capable and selfsufficient. Those who challenge the standard models are highlighted in the media as remarkable. In 1997 Sufiah Yusof passed A levels at age 12 and was accepted as an undergraduate student by Oxford University, although she never completed the course. Octogenarians who complete marathons make the news. There was great excitement in the tabloids when Ramjit Raghav announced the birth of his first child at the age of 97.89 The remarkable fundraising achievements of Captain Tom Moore, aged 100, during the COVID-19 pandemic in 2020 were in part a response to his age. A person’s age or stage of life will have a powerful impact on how they are treated by society. An obvious example may be politicians. Menzies Campbell resigned as leader of the Liberal Democrat Party in England in 2007 after persistent complaints he was ‘too old’ and a ‘youthful look’ was required.90 In other countries, age and experience are seen as essential qualities in a leader. The two leading contenders in the 2020 US presidential election were Donald Trump, aged 74 and Joe Biden aged 77. It would be extremely surprising in the UK for politicians of that age to run to be prime minister. This is just one example of how societal expectations connected to age or life course will impact on how a person is treated.   Ayalon, L. and Tesch-Römer, C. (2019) ‘Ageism’ in L. Ayalon and C. Tesch-Römer (eds) Contemporary Perspectives on Ageism, Berlin: Springer. 89  https://www.dailymail.co.uk/news/article-2442492/Worlds-oldest-dad-97devastated-wife-leaves-following-disappearance-son.html 90  https://www.telegraph.co.uk/news/politics/liberaldemocrats/1566222/MenziesCampbell-resigns-as-Lib-Dem-leader.html 88

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Examples of ageism can be found not only in relation to older people, but also against people of any age. Ageism can arise at different levels. At the micro-level it is reflected in the thoughts and actions of individuals. A person may treat those of different ages in a disadvantageous way. At the meso-level there are groups and organizations which may operate in discriminatory ways. Finally, at the macro-level, there are cultural or societal values which may impact, such as general attitudes towards different ages. This can cause a circular impact. People treat a person of a certain age in line with certain stereotypes, and the impact of this is that the person then acts in line with those stereotypes, which reinforces them. One explanation of ageism is ‘terror management’.91 Older adults are a reminder of mortality and vulnerability, and this induces anxiety, causing the middle-aged to want to distance themselves from ‘the old’ by exaggerating the impact of age. Lev, Wurm and Ayalon92 explain: according to terror management theory, identification with the in-group is derived from the need to approve one’s worldview, to attain self-esteem, and thus to buffer death anxiety. Conversely, discrimination towards out-groups is derived from the anxiety that is evoked as a result of different worldviews that can seem to threaten the worldview of ingroup members. So, for example, with discrimination against older people: Older adults serve as a direct reminder of our inevitable mortality. A sense of threat is embedded in the human awareness that ageing leads to death. The encounter with ageing, especially in its final stages, reminds us that even if we are able to avoid accidents, diseases, and disasters, we will eventually die.93 As we shall see in Chapter 4, a similar point can be made about children: that adults see in children their own lack of capacity and vulnerability and seek to flee from it.

  Lev, S., Wurm, S. and Ayalon, L. ‘Origins of ageism at the individual level’ in L. Ayalon and C. Tesch-Römer (eds) Contemporary Perspectives on Ageism, Berlin: Springer. 92  Ibid. 93  Ibid. 91

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Age and law As we shall see throughout the book, the law interacts with age and the stages of the life course in complex ways. Here, I seek just to give a flavour of some of those ways.

‘All equal before the law’ Perhaps the starting point is that ‘all are equal before the law’ and hence, unless there is a specific provision to say otherwise, a law applies to everyone equally. However, certainly in relation to childhood, there are so many exemptions and circumstances in which a child is not subject to the same laws that it might seem artificial to take as the starting point that a child is treated as an adult. A second point is that while ‘equality before the law’ sounds an admirable principle, it has a central ambiguity within it. As is well known there is much debate over the meaning of ‘equality’. If the principle is understood to mean that the laws governing everyone must be the same, then that may be questioned from a life course perspective: the legal regime suitable for children may not be suitable for a middle-aged person and so forth. Indeed, as we shall see in Chapter 6, the law seems to be designed around the norm of a middle-aged man, privileging those who fit within that category but working to the disadvantage of others.

Bright-line maturity laws The most obvious example of age and law interacting are ‘bright-line’ laws based on age. These are predominantly found in childhood, and typically take the form that a person may not engage in a certain activity, such as driving a car, until they reach the age of, say, 16. We will discuss these kinds of laws in detail in Chapter 4, where we will show how these rules are often justified on the basis that age is a proxy for maturity. So, the law is not, in fact, interested in age itself, but rather the intellectual and physical capacities commonly represented by it.

Special social rights The state provides certain benefits to different groups in society, typically based on especial need. These are often provided on the basis of age.

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Hence, those aged under 16 are entitled to receive education, pension benefits can be applied for by those reaching the age of 67, and so forth. In a broader way, welfare payments and public services may be arranged around assumptions that there are appropriate activities that are needed for certain age groups for which provision should be made. Children may need a play area, older people a day centre, and so forth. How such services are paid for can require a balancing of the interests of different age groups.94

Maintenance At a private law level, we can see obligations involving understandings of the life course. We require parents to provide financial support for their children until, generally, the child has reached the age of 18. Some jurisdictions require adult children to support their parents in old age, although England does not. We will discuss this further in Chapter 8.

Age discrimination As already discussed, ageism is a major social problem, and age discrimination laws are designed to combat its effects. As we shall discuss in forthcoming chapters, it is notable that the law tends to focus on discrimination against old age, rather than young age.

Questioning the life course approach Not everyone is convinced by the life course approach. One set of arguments is that the traditional understanding of ‘seven ages of man’, as described by Shakespeare and quoted earlier in this chapter, is a matter of primarily historical interest. Now, the power that people have to live their lives in accordance with their own wishes and to forge their own identities frees them from the shackles of having to comply with norms about how those of a certain age should live. This argument has much validity, but it is notable that the norms associated with age still have a strong hold. As we will see, the law certainly uses assumptions about age to a significant extent. And even in cases where people feel free to rebel   Daly, M. (2020) ‘Generations, age and life course: towards an integral social policy framework of analysis’, Journal of the Academy of Social Sciences, 15: 291–301.

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against the norms of an age, those norms are still playing a strong role in their life, as something to escape from. Janssen and Rubin95 in their study asked people of a wide range of ages to set out a typical life script. They found across the ages a surprising uniformity: ‘All three age groups named being in school, falling in love, first fulltime job, marriage, having children and parents’ death most frequently’. They noted too that: ‘The expected age of occurrence, prevalence, importance and valence per event category also did not differ between the age groups.’ So the life course has a hold on our imagination and our identity, whether we choose to comply with or rebel against its norms. A slightly different challenge is that there is a blurring between the different stages of life. We see this particularly with the argument that children are experience ‘adultification’ and adults ‘infantilization’ as clothing, media and lifestyles of adults and children converge. This leads to what Hayward96 describes as a ‘life stage dissolution’ and ‘generational mulch’. This may be true to some extent, although it is probably far more complex than that simple presentation. However, it still reflects assumptions about what adulthood or childhood is meant to be like.97

Conclusion As this chapter has demonstrated, life course theory provides considerable insight into how people understand and shape their lives. It demonstrates how a person’s well-being must be considered across their life course. It is also used by law to provide regulation between generations and to control the behaviour of those in certain age groups. Behind that regulation is as an assumption of a norm of human behaviour, and regulation is particularly aimed at those who failed to meet that norm. In the next chapter we explore life before birth, with fetuses regarded by the law as being of little legal significance. This discussion will vividly demonstrate the law’s assumption of what makes life valuable.

  Janssen, S. and Rubin, D. (2011) ‘Age effects in cultural life scripts’, Applied Cognitive Psychology, 25(2): 291–8. 96   Hayward, K. (2012) ‘Pantomime justice: A cultural criminological analysis of “lifestage dissolution”’, Crime, Media, Culture, 8(2): 213–29, 217. 97   Brisman, A. and South, N. (2015) ‘“Life-stage dissolution”, infantilization and antisocial consumption: Implications for de-responsibilization, denial and environmental harm’, YOUNG, 23(3): 209–21. 95

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The Fetus

Introduction The initial proposal for this book did not include a chapter on life before birth. I had proposed covering the issues around pregnancy in the chapter on adulthood, but the reviewers were keen to see a full chapter on these issues. With some reluctance I agreed, and I am now glad I did. Although I still find it enormously problematic to discuss the fetus as an abstract entity, for reasons which will be explored below, the legal response to the fetus and the ethical debates around its status, tell us much about how the law and society understands humanity and what it is to be a person in ethical and legal terms. How the law responds to the fetus can, therefore, indicate what the law values about human life, which can have significance throughout the life course. As we shall see, the debates over the importance of autonomy, mental capacity, biological life, and relationships feature in the arguments over the status of the fetus as they do throughout all the stages of life. The difficulty about writing about the fetus is that discussion very quickly leads to fierce debates around abortion. To discuss the position of the fetus without considering the position of the woman is seen as playing into the ‘pro-life’ view on abortion, which seeks to put the rights of the fetus on one side of the scale and the rights of the woman on the other, with the fetus having the stronger claim. Conversely, focusing on the experiences of the pregnant woman will be seen by some as playing into the ‘pro-choice’ view of the mother’s rights taking centre stage and skewing the arguments in her favour. Indeed, for some, once (or if) it is established that the fetus has a right to life, then whatever claims may be raised by a woman they will be defeated by the rights of the fetus. Similarly, there are those who see the woman’s absolute right to bodily

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integrity as meaning that whatever claims may be made by the fetus they are defeated by the rights of the woman. All too often this means, in effect, that neither side of the debate feels they need to listen carefully to the arguments of the other because both sides believe they have a trump card. This book is not the place to enter into debates over abortion. However, an understanding of the fetus is helpful in appreciating what it means to be a legal subject. My own view is that pregnancy should be seen as a relationship, and so not much is gained by looking at the status of the fetus in the abstract and much more can be gained by asking how the law should respond to this particular relationship of pregnancy.1 I will develop that theme later – and I admit it is not a mainstream view – and so, first, we will spend time on looking at theories of the fetus.

The biology Here is a very brief summary of the biology of the growth of the fetus. Conception takes place when the sperm enters the ovum (egg). Fertilization actually takes place quite some time (up to 24 hours) later. The conceptus then moves from the fallopian tube into the womb and attaches to the womb lining. This is sometimes known as ‘implantation’. The next point of significance occurs about 14 days after conception and is known as a ‘primitive streak’. The fetus from that point gradually develops. Another time of significance is viability, which is when the fetus is capable of living outside of the mother, even though the pregnancy continues. With present technology, this stage can be reached at 22 weeks. At about 26 weeks, a fetus is capable of experiencing pain and has basic responses to external stimuli. Birth normally occurs about 38  weeks after conception. Generally, the term ‘embryo’ is used for the first 11  weeks from conceptus and thereafter the term ‘fetus’ (or ‘foetus’) is used. This means that organisms which are stored in laboratories for fertility treatment are always embryos because the law prohibits the storing of an embryo beyond 14 days.

  Herring, J. (2019) ‘Ethics of care and the public good of abortion’, University of Oxford Human Rights Hub Journal, 1–21. 1

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The legal status of the fetus I will start by outlining the legal status of the fetus before exploring the ethical issues. The position of the fetus in English law is somewhat ambiguous. One thing that is clear is that the fetus is not regarded as a person until it is born.2 It cannot claim under the laws of contract or tort, cannot be the victim of crimes against the person (such as murder or assault), and cannot claim human rights. As Baker P stated: The foetus cannot, in English law, in my view, have any right of its own at least until it’s born and has a separate existence from the mother.3 But it does not follow that the fetus is in legal terms ‘a nothing’. In Attorney-General’s Reference (No. 3 of 1994)4 the House of Lords clearly rejected the view proposed in the Court of Appeal that the fetus should be regarded as part of the body of the mother, similar to an arm. Lord Mustill explained: The emotional bond between the mother and her unborn child was also of a very special kind. But the relationship was one of bond, not of identity. The mother and the foetus were two distinct organisms living symbiotically, not a single organism with two aspects. The mother’s leg was part of the mother; the foetus was not.5 He went on to explain: [T]he foetus does not (for the purposes of the law of homicide and violent crime) have any relevant type of personality but is an organism sui generis lacking at this stage the entire range of characteristics both of the mother to which it is physically linked and of the complete human being which it will later become  … I would, therefore, reject the reasoning which assumes that since (in the eyes of English law) the foetus does not have the attributes which make it a ‘person’ it must be an   Re an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) [2018] UKSC 27, para 92. 3   Paton v BPAS [1978] 2 All ER 987, 989. 4   [1998] AC 245. 5   Ibid, 268. 2

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adjunct of the mother. Eschewing all religious and political debate I would say that the foetus is neither. It is a unique organism.6 This statement captures the view that although the fetus is not a person, it is still something of value that can be protected by the law. Hence there are offences of procuring a miscarriage under sections 58 and 59 of the Offences Against the Person Act 1861. These offences are not treated as simply a crime against the woman; indeed, she can be convicted of these crimes. They are explicitly recognizing that there is some wrong in procuring a miscarriage without proper lawful approval (even in cases where the woman consents). Similarly, in R v Gibson7 an artist who made an earring out of freeze-dried fetuses was convicted of outraging public decency, again suggesting the fetuses are seen as having some legal value. The law is also clear that if a child is suffering from injuries caused pre-birth, they are entitled to sue for compensation under the Congenital Disabilities (Civil Liability) Act 1976. In Burton v Islington Health Authority8 it was explained that the fetus’s potential claim ‘crystallizes’ at birth. One explanation for this view is that the fetus has legal interests in respect of the person it will become and so if the fetus is born then these injuries can be recognized. If, on the other hand, the fetus is not born then the injuries cannot be recognized. However, the criminal law does not take a consistent view on this. Injuries pre-birth that lead to the fetus being born and then later dying can be charged as manslaughter. There was a person born who died, and this death was caused by the defendant.9 However, in CP (a child) v First-tier Tribunal (Criminal Injuries Compensation)10 a child suffering Fetal Alcohol Spectrum Disorder (FASD) due to the mother taking excess alcohol during pregnancy could not claim a criminal injuries compensation award as they were not a victim of crime. It was held that section 23 of the Offences Against the Person Act 1861 (unlawfully administering to any other person any poison or noxious thing so as to inflict grievous bodily harm) could not be used because at the time of the administration the fetus was not a person. The Court of Appeal confirmed that the fetus was not another person in the eyes of the law,   Ibid, 268. An approach approved by the Court of Appeal in CP (a child) v First-tier Tribunal (Criminal Injuries Compensation) [2014] EWCA Civ 1554. 7   [1991] 1 All ER 239. An appeal to the European Court of Human Rights was not successful: S and G v UK, App No 17634/91. 8   [1993] QB 204. 9   Attorney-General’s Reference (No. 3 of 1994) [1998] AC 245. 10   [2014] EWCA Civ 1554. 6

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so in drinking it could not be said that the woman was administering a poison to another person. Lady Hale, in Re an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland),11 wrote that although it is clearly established that the fetus has no interests that can trump the rights of autonomy or bodily integrity of the mother, this does not mean that the fetus has no interests at all. It should also be emphasized that other people are not able to bring claims in relation to the fetus. There have been several attempts by fathers or other parties to prevent abortions, and these have been uniformly unsuccessful.12 So proceedings cannot be brought ‘in the name of the fetus’13 nor can a fetus be made a ward of court.14 The view we reach, then, it seems, is that the fetus is recognized as having some moral and legal value,15 if clearly less than that which attaches to a person. While the fetus is not something that is utterly unprotected in the criminal law, it has few legal rights of its own. Before looking at the ethical issues, many who largely approach these issues from a pro-choice perspective are surprised the courts do not simply say that a fetus has no interests at all. That would give the woman maximum reproductive choice, they argue. The answer is that the issue of fetal status is not just relevant to abortion. Consider the case of Vo v France.16 There, a doctor misidentified a pregnant woman, thinking she was a patient with a similar name and performed a procedure which terminated her pregnancy, when in fact she had come in for a routine antenatal appointment. In such a case, if we say the fetus has no interests then it is hard to identify a wrong in such a case. Similar difficulties arise if a woman is punched by a partner causing a miscarriage. We might try, in such a case, to characterize this as an injury to the woman, but given the focus of the law on physical harm in some cases, this might fail to capture the wrong done, if the physical injuries to the woman are not serious. To her, she has lost something of very considerable value: to her, the fetus is not nothing. So, while labelling the fetus as nothing might produce the ‘right result’ in the case of abortion from a pro-choice perspective, in other contexts it may fail to achieve a satisfactory outcome.

  [2018] UKSC 27.   Paton v BPAS [1978] 2 All ER 987. 13  Ibid. 14   Re F (In Utero) [1988] Fam 222. 15   Judge LJ in St George’s NHS Trust v S (1998) 44 BMLR 160. 16   [2004] 2 FCR 577. 11 12

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We can see in this summary of the legal approach some issues which are revealing about the law’s understanding of the human life course: first, why it is that the fetus is seen as not having full legal status, but as having nevertheless some interests worthy of protection; and, second, how the law might be able to respond to wanted and unwanted terminations of pregnancies, which will be experienced very differently, in an appropriate way.

Highest moral status (personhood) As already indicated, the debates over the approach to the fetus are commonly presented by asking whether or not the fetus has personhood or ‘highest moral status’. That concept needs to be explained before we can go any further.

The nature of personhood/highest moral status Much of the ethical literature on fetuses centres on whether the fetus is a person. The terminology of personhood is, perhaps, somewhat unhelpful.17 It is easily confused with questions about whether a fetus is a human being or whether it is alive. What ethicists mean when they talk about personhood is whether the fetus deserves highest moral status.18 This means that there no entities, or at least none that we know of, who could be of higher moral status than human beings. It is generally assumed that the term ‘personhood’ applies to all human beings, or at least most of them. Therefore, if there was a fire in a building you should rescue a person before a non-person, a human being rather than a piece of furniture. We do not know of anything that you should save rather than a human being. So, returning to our building, a human being should be rescued before anything else in all cases. It is not claimed that non-persons have no moral value, but rather that they have less moral value than a person. So, while a cat is not a person it does have some moral value,

  This section draws on ideas earlier discussed in Herring, J. (2019) Law and The Vulnerable Self, Cambridge: Cambridge University Press, and in Foster, C. and Herring, J. (2018) Identity, Personhood and the Law, Berlin: Springer. 18   Macklin, R. (1983) ‘Personhood in the bioethics literature’, The Milbank Memorial Fund Quarterly / Health and Society, 61: 35–49. 17

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and it should be rescued from the fire before a chair.19 Because the term ‘personhood’ is so open to confusion I will use in this book the term ‘highest moral status’ (HMS), even though the language of personhood dominates the ethical debate. HMS is reflected in legal terms by human rights. We grant human rights to those of HMS. If there was a case which required us to balance the interests of someone who has HMS and something that does not, the law should prefer the interests of those with HMS. Hence, in many jurisdictions a fetus acquires HMS on birth and so is only entitled to human rights from that point. Prior to birth the fetus may (or may not) have some interests that are protected by the law, but will not have human rights that can trump the rights of the pregnant woman, reflecting the view the fetus does not have HMS, but the woman does. It is necessary to say a little more about the idea of HMS. It is typically seen as a threshold concept. This means that all those who cross the threshold for being a person are equally entitled to the claims that flow from the status of personhood.20 No distinction is drawn between the moral status (or human rights) of those who only just cross the threshold and those who undoubtedly cross it. Once it is crossed all are equal. This connects to the powerful intuition that all persons are morally equal.21 To return to the example of the burning building, it would be wrong to save the scientist before the cleaner; or the banker before the benefits recipient; on the basis of their ‘social worth’.22 History has been plagued by examples where one group of people have been designated as not being of HMS – capable of being owned, or denied human rights, on the basis of their sex, race or sexuality, for example. The wish to ensure such errors are not repeated justifies the importance placed on the equality of all who have HMS. We are now in a position to enter the debate of how we decide who is of HMS, and therefore whether fetuses have HMS. I will set out, in outline, three views. Of course, with each of these, much more can be said: indeed, a whole book could be written on the issues. My aim in these summaries is not to argue for the correctness of any one view but to demonstrate what the debate about HMS tells us about what people think is important about human life.   Jaworska, A. (2010) ‘Caring and full moral standing redux’ in E. Feder Kittay and L. Carlson (eds), Cognitive Disability and Its Challenge to Moral Philosophy, Oxford: Blackwell. 20   Greasley, K. (2017) Arguments About Abortion, Oxford: Oxford University Press. 21   Dupré, C. (2015) The Age of Dignity: Human Rights and Constitutionalism in Europe, Oxford: Hart. 22   Waldron, J. (2012) Dignity, Rank and Rights, Oxford: Oxford University Press. 19

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Mental capabilities and moral status A popular school of thought is that the possession of various mental capabilities is the criterion for HMS. McMahan, a leading supporter of this view, explains that to be a person means having ‘a mental life of a certain order of complexity and sophistication’.23 This typically includes: abilities such as cognition, self-consciousness, practical rationality, selfawareness;24 existing as a being who can value its own existence;25 or as one who can experience itself as a being whose life can get better or worse.26 These capabilities are emphasized because only beings who possess them can have preferences or goals. Without them a person cannot exercise autonomy or be harmed. This might fit in with the intuition that you cannot harm a table. You cannot wrong it because you cannot act against its wishes or set back what it understands to be its interests. For example, Horta27 claims that a being cannot have an interest in living, unless they are able to formulate a desire to live, nor have capacity for well-being without an ability to formulate preferences. Similarly, it is claimed that only a being with these mental capabilities can make truly moral judgements: making a choice between doing right and wrong and selecting the right action. A person without these capabilities might, by chance, do the right thing, but their action would not be good (or not as good) when compared with that of the person who consciously chose the right over the wrong. It should be noted that the mental capabilities approach is by no means closed to the idea that beings other than humans could have personhood. As Rachels argues: ‘if we think it is wrong to treat a human in a certain way, because the human has certain characteristics, and a particular nonhuman animal also has those characteristics, then consistency requires that we also object to treating the non-human in that way’.28 Some nonhuman animals might have the kind of capacities for independent thought, self-awareness and the like that are seen as the markers for personhood. But therein lies what to many people is a fatal objection to the mental capabilities approach: it means those adults with profound cognitive   McMahan, J. (2002) The Ethics of Killing, Oxford: Oxford University Press.   Ibid, 230. 25   Harris, J. (1985) The Value of Life, Abingdon: Routledge. 26   Singer, P. (1993) Practical Ethics, Cambridge: Cambridge University Press. 27   Horta, O. (2017) ‘Why the concept of moral status should be abandoned’, Ethical Theory and Moral Practice, 20: 899–917. 28   Rachels, J. (1990) Created from Animals: The Moral Implications of Darwinism, Oxford: Oxford University Press, 175. 23 24

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impairment will lack the necessary criteria for HMS. Singer argues that we should [a]bandon the idea of the equal value of all humans, replacing that with a more graduated view in which moral status depends on some aspects of cognitive ability, and that graduated view is applied both to humans and nonhumans.29 Kuhse and Singer30 have no difficulty in accepting that a child with Down’s syndrome may be of less value than a ‘normal child’. That is a profoundly offensive view to many. Further, the mental capabilities approach appears to undermine the principle of equality. Those humans with mental capabilities can claim a higher moral status than those without mental capabilities. Inevitably people have the kind of mental capacities mentioned to different degrees: higher states of self-awareness; greater rationality; richer autonomy and so forth. If it is these characteristics that generate moral value, then it is hard to avoid the conclusion that those with higher capabilities are of higher moral value. Applying this approach to the fetus, it seems unlikely that the fetus has these kinds of abilities until sometime after birth. It might have some of the abilities pre-birth, but not all of them. We might then say that this approach offers some support for the approach taken by the law. The fetus has some mental capabilities, and therefore, something of moral value, but not sufficient to reach full HMS. The problem is that, strictly applied, it might be thought that the kind of intellectual capabilities mentioned do not arise until sometime after birth, in which case HMS does not arise until the child is perhaps several years old. Indeed, some philosophers have made precisely that claim.31 But the idea that a newborn baby could be killed without legal sanction is deeply counterintuitive to many.

  Singer, P. (2009) ‘Speciesism and Moral Status’, Metaphilosophy, 40: 567–87, 575.   Kuhse, H. and Singer, P. (1985) Should the Baby Live? The Problem of Handicapped Infants, Oxford: Oxford University Press, 143. 31  Ibid. 29 30

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Member of the human community A different view is that, simply by virtue of being a human being, someone is entitled to HMS.32 Feder Kittay33 argues: ‘Being human is a sufficient condition for the stringent moral obligations we have to humans.’ As Scanlon34 asserts, the mere fact that a being is ‘of human born’ provides a strong reason for according it the same status as other humans. This has sometimes been characterized as prejudice, called speciesism. But it is not prejudice to hold that our own relation to these beings gives us reason to accept the requirement that our actions be justifiable to them. Although Scanlon puts it in terms of ‘human born’ it is not clear why that matters precisely to this approach. Indeed, one of the difficulties with this approach is how we define who is ‘one of us’. McMahan35 claims ‘that there is nothing in or invariably correlated with membership in the human species that can be the basis of our moral equality’. Similarly, Singer36 claims that to say the human species is inevitably superior to any other is speciesist. He sees speciesism as equivalent to a racist saying that people of a particular race should agree with claims their race is superior. You need to point to some morally relevant characteristics, such as, he would say, mental capacity, as generating the claim. An alternative form of the human community argument for HMS is to draw on the goods that the human community has produced – mathematics, music, architecture, medicine, care, and we could go on and on – and claim that these goods are the product of all members of the human community contributing in different ways to it and so all can claim

  Williams, B. (2006) ‘The human prejudice’ in B. Williams (ed) Philosophy as a Humanistic Discipline, Princeton: Princeton University Press. 33   Feder Kittay, E. (2017) ‘The moral significance of being human’, Proceedings and Addresses of the American Philosophical Association, 91: 19–42. 34  Scanlon, T. (1998) What We Owe Each Other, Cambridge: Harvard University Press, 185. 35  McMahan, J. (2008) ‘Challenges to human equality’, The Journal of Ethics, 12: 81–102, 101. 36   Singer, P. (1993) Practical Ethics, Cambridge: Cambridge University Press. 32

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credit for it. It may not even be in terms of such a concrete achievement, but just in terms of human life. Feder Kittay,37 for example, argues that: species membership is particularly important to human beings because it means that we partake of a form of life, that is, we share interests, activities, hopes, dreams, fears, forms of sensual and emotional experiences, and ways of knowing the world and other humans, all of which are species-specific, even if culturally differentiated. Even such a view may not include all human beings. McMahan38 claims that those with cognitive impairments do not share in the common life, because their impairments mean they lack the abilities needed to do so.39 However, that might be questioned. We treat those with even the most profound cognitive impairments as ‘one of us’. We treat them in human ways (for example by dressing them, feeding them and seeking to communicate in human ways). The human membership approach might explain to some extent the legal and moral uncertainty about fetuses. Are fetuses ‘one of us’? Answers might include ‘not yet’ or ‘sort of ’. These capture the sense that the fetus has some moral status, even if not HMS. It might also explain the widespread intuition, reflected to some extent in the law, that the older the fetus is the higher its moral status. The fetus is becoming more like ‘one of us’ as it develops and so its moral status rises. It also explains why some people are committed to the view that HMS starts at conception. Relying on particular body shapes or intellectual capabilities as the marker of HMS means some human beings will be excluded from the definition. If we are committed to human equality, we need to find a feature that we all have, and we are back to being an organism with DNA. That, it might be said, is what fetuses have from conception and therefore they have HMS. But if it is just DNA that makes ‘one of us’, it is not clear why one’s DNA is of particular moral significance.

  Feder Kittay, E. (2009) ‘The personal is philosophical is political: A philosopher and mother of a cognitively disabled person sends notes from the battlefield’, Metaphilosophy, 40: 606–38, 633. 38   McMahan, J. (2005) ‘Our fellow creatures’, The Journal of Ethics, 9: 353. 39  Rachels, J. (1986) The End of Life: Euthanasia and Morality, Oxford: Oxford University Press, 76–7. 37

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Relationality and highest moral status A third view, which is the least prevalent in the literature, is one I would promote.40 It is the argument that our moral value is found not in ourselves but in our relationships, particularly relationships of care. So, the question ‘Is X a person?’ is problematic because we can only conceive of X in the context of their relationships. We can say that X and Y are people if their relationship reveals the moral qualities that we look for in human relationships. But we cannot imagine an isolated person and assess their capabilities as such a person does not exist. It is their relationships, rather than any inherent characteristics, which have moral value and are deserving of especial moral status. It flows then that when considering issues of core moral value, children and those lacking capacity are hardly ‘difficult marginal cases’ but rather they would be paradigmatic parties to the kind of human relationships which are at the heart of humanity.41 Feder Kittay writes: … there is so much to being human. There’s the touch, there’s the feel, there’s the hug, there’s the smile, … there are so many ways of interacting.… [T]his is why I just reject … [the] … idea that you [should] base moral standing on a list of cognitive capacities, or psychological capacities, or any kind of capacities. Because what it is to be human is not a bundle of capacities. It’s a way that you are, a way you are in the world, a way you are with another.42 Such relationships are marked by care, of a kind where parties can respond to each other, meet each other’s needs and respect each other. It is that kind of relationship which reflects the highest moral good. This approach too also has its challenges. It implies we have no moral value in ourselves, something many people would question. Is our moral value only to be found through and with others? It would also suggest a hermit would lack moral value and that a person with many caring relationships would have higher moral value than others.

  Foster, C. and Herring, J. (2018) Identity, Personhood and the Law, Berlin: Springer.  Carlson, L. (2010) The Faces of Intellectual Disability: Philosophical Reflections, Bloomington, IN: Indiana University Press. 42   Feder Kittay, E. (2009) ‘The personal is philosophical is political: A philosopher and mother of a cognitively disabled person sends notes from the battlefield’, Metaphilosophy, 40: 606–38, 634. 40

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Applying the approaches Those who see the fetus as having HMS from the moment of conception are likely to focus on the ‘member of the human community’ approach, arguing the fetus is, at that point, a human organism. Those who focus on mental abilities are more likely to refer to birth, or even a later time, as marking the acquisition of HMS. The view taken in law is that birth marks HMS. To some, it is the most natural moment at which to see the fetus as having its own existence. It is the point at which the child becomes an entirely separate entity from the mother. Further, it is the point at which the child is able to engage with the world. As Burin43 puts it, during pregnancy ‘there is a fundamental disjunct – the world is prevented from showing itself to the foetus, and the foetus cannot access the world’. That all changes at birth. This can tie into the member of the human community approach to HMS by arguing that only at birth can such engagement with the world occur. It is worth noting that it may be that selecting birth as the relevant point in law does not necessarily indicate a belief that birth has a moral significance; rather, the law may simply be using birth to apply a clear bright line, just as when the law uses the 18th birthday as the mark of adulthood, it does not thereby evidence a belief that a fundamental moral change occurs on the 18th birthday. It is just that for the law to operate it needs a bright line, and birth is convenient here as it reflects the moment around which there are sufficient degrees of sentience, independence and development to generate HMS. The gradualist view of the status of the fetus has been growing in popularity in recent years, and has become, arguably, the dominant view. It moves away from having to locate a point in time at which the fetus becomes a person towards recognizing that the status of the fetus changes during pregnancy. As Greasley44 explains: [T]here is no reason to assume a sharp threshold exists between the absence and presence of personhood status, since there is no good reason to think that personhood is the kind of property that emerges wholly and instantaneously. Once it accepted that HMS does not arise at a particular moment in time, but is acquired gradually there is no need to identify a moment of   Burin, A. (2014) ‘Beyond pragmatism: Defending the “bright line” of birth’, Medical Law Review, 22: 494–525. 44   Greasley, K. (2017) Arguments About Abortion, Oxford: Oxford University Press, 147. 43

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transformation. We can say that the older the fetus, the greater its moral status. We might agree that, say, by the time of birth it is sufficiently advanced on its journey that it deserves HMS without stating when precisely that has arisen. Greasley argues that HMS is constituted from a wide range of attributes. It is not necessary to have all of them to have HMS but only a sufficient number. The benefit of this approach is that although someone may lack one attribute normally associated with personhood (for example mental capacity) the lack of this one attribute does not mean they lack HMS as long as they have a sufficient number of the other attributes. This approach can also explain why we think a late stage fetus has moral status (because it has some of the attributes of moral status, even if not all of them). Lawyers might find the gradualist approach less attractive than ethicists because the law needs to have a clear marking point at which a fetus becomes a person for legal purposes. But a lawyer supporting the gradualist approach might say that birth provides that clear marker, as a time by which the fetus has typically acquired a sufficient number of markers of personhood. So, we can use birth as a legal bright line, without suggesting there is a moral transformation at that points. However, the ‘bright line’ approach used by lawyers is a legal fiction. All those who satisfy the test for capacity under the Mental Capacity Act 2005 have mental capacity in law, even though we know in reality that there are wildly differing degrees of capabilities. The law treats all those in the category in the same way, even though we know that is inaccurate. Now it may be that some people would be happy with a similar approach being taken about moral personhood and agree that ‘the truth is we are not all equally morally valuable and some of us have higher moral value than others, but it is difficult to tell who they are and so we will treat us as all equally morally valuable for the purposes of the law’. But that really does not seem to be the argument that made by those supporting human equality. The claim is that we are all morally equal, not just that we should pretend we are. To supporters of the relationality approach to HMS, much of the discussion on the status of the fetus is misguided. We cannot consider the status of the fetus in isolation from that of the woman. She is not simply a fetal container.45 Rather, our discussion should focus on the relationship between the mother and fetus. Pickles argues for a ‘not-one/not-two approach’. This relational approach means:

 Annas, G. (1986) ‘Pregnant women as fetal containers’, Hastings Center Report, 16(6): 13.

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Focus should be squarely on the pregnancy relationship as expressing an inseparable unit between a woman and the unborn and this structure requires that when the law is applied to this relationship it should advance a healthy relationship which fosters female autonomy and foetal interests.46 I have argued that if we find moral value in the case of beneficial caring relationships this enables us to draw a distinction between wanted and unwanted pregnancies: [U]nwanted pregnancies are not marked by mutual care, and so lack moral value. The law has no interest in enabling these relationships to continue, and indeed cannot compel people to continue them when they involve the kind of bodily interference involved in pregnancy and childbirth. A coerced relationship is the opposite of a caring one. In no other context does the law compel one party to give up bodily integrity to save another, even to the slightest degree, let alone to the extent required in pregnancy. The law must enable unwanted pregnancies to be terminated, so that caring responsibilities may be fulfilled. By contrast, the ethics of care approach means that we should have the highest moral regard for wanted pregnancies. These are caring relationships in a rich sense. Wanted pregnancies should be protected by legal rights and protections in employment, criminal, and welfare law.47 So, such an approach might suggest that in the case of a wanted pregnancy this relationship deserves HMS protection, but for an unwanted one the law should be seeking to end the relationship.

Conclusions on the status of the fetus This is not the place to provide a complete response to arguments over the status of the fetus. It may well be that none of the theories completely capture the correct response. In part, the debate is one about what it

  Pickles, C. (2017) Pregnancy Law in South Africa, Cape Town: Juta, 28.   Herring, J. (2019) ‘Ethics of care and the public good of abortion’, University of Oxford Human Rights Hub Journal, 1–21, 20.

46 47

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is that makes life valuable and what we treasure in humans. It is not surprising that a wide range of answers may be found to that question. However, the themes raised in this debate are key to the themes in the book. What values should the law be seeking to promote at different stages of the life course, and across it? When decisions have to be made for people, what concept of human well-being are we using to make these decisions? What principles should be underpinning the law? The debate over fetal status highlights debates about the norms we use for humans. What is it that makes a successful human life, one deserving of full moral status? As we have seen, there are some who identify particular attributes as the markers of humanity, particularly attributes relating to mental abilities. Yet there are important consequences of doing this. In early childhood, particularly, people are likely to lack those abilities. Those with mental capacity issues will be ‘suspect’ holders of human rights or members of the personhood. Perhaps even more significantly, the mental capacity approach indicates what kinds of rights are important: those that value human intellect, such as autonomy. By contrast, there are some who focus on membership of the human species. Such approaches tend to identify the core of humanity as lying within the structure of the body or biological attributes rather than focusing particularly, or at all, on the mind. Such approaches would encounter little difficulty in including babies and older people within the scope of HMS, and might place greater emphasis on rights which do not depend on mental capacity, such as the right to bodily integrity and dignity. Thirdly, there are those who emphasize relationships between people, rather than the individual per se, as the key source of value and importance. This might suggest the primary focus of the law should be on promoting good caring relationships, rather than seeking to conceive of individuals on their own. Another theme that runs through the debate over HMS is the principle of human equality. As we have seen, this raises considerable passions. On one side of the debate, it is crucial that we hold fast to the principle that all humans are equal. Eva Feder Kittay argues that: creating a category of moral status extended to certain human beings (along with unspecified, hypothetical others) based on intrinsic valued properties but denied to other human beings is dangerously close to the harmful exclusions of racism and pernicious nationalism.48   Feder Kittay, E. (2005) ‘At the margins of moral personhood’, Ethics, 116: 100–13, 112.

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On the other side, we can give equal respect to all those who have the moral attributes associated with HMS, but that does not necessarily mean all humans. The difficulty is, however, explaining why all humans should have HMS. As soon as we start to justify the claim by referring to criteria, we start to exclude some human beings. The uncomfortable choice may be between holding on to the principle of human equality because it feels intuitively correct, despite its difficulty in logical justification, or following the logic and rejecting human equality. As is clear from the debate over fetal status, autonomy and the capacity for autonomy is key for many commentators, meaning that those of doubtful capacity have their HMS thrown into doubt. This is critical for life course theory because there are times throughout the life course when our capacity for autonomy is in doubt: as babies and children; and when disease or disability impacts, especially in old age. If autonomy is key to HMS, then these times of life are to be seen as less desirable and to be traversed as quickly as possible. We should privilege the times of life when we have autonomy and HMS. Of course, for those who reject such an emphasis on autonomy, childhood, for example, can be seen as a precious time of value in itself. Vehmas49 claims that those who emphasize the significance of mental capabilities are ‘intelligentist’. They discriminate against those with ‘less intelligence’ than others, without moral justification. That, he suggests, is as bad as treating people differently based on their race or physical abilities. He writes: Intelligence is essentially a normative concept, reflecting the concept of what kind of being a human should be; how s/he should think and act, and in this sense it is more normative than a concept referring to a physical state.50 This is, of course, a reflection of the broader social argument in relation to disability that disadvantages from people’s different bodies (and minds) arise through social provision, or lack of it, and social expectation rather than from any natural disadvantage resting in the body itself.51 As Vehmas points out, defining HMS in terms of intelligence means marking the intellectually disabled as ‘other’ and judging them in terms of ‘our’ experience, instead of valuing them in terms of their own  Vehmas, S. (1999) ‘Newborn infants and the moral significance of intellectual disabilities’, Research and Practice with Persons with Severe Disabilities, 24: 111–31, 112. 50  Ibid. 51   Herring, J. (2019) Law and the Relational Self, Cambridge: Cambridge University Press. 49

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experience. And this, too, is an important aspect of life course theory. There is a danger of assuming a particular pattern for the life course and designing resources and legal responses around it. Yet those with differences in physical or mental abilities for whom the standard route is not suitable struggle to fit within the legal and social regimes. There are grave dangers in assuming there is only one model of a good life and that it is true for everyone. As Crary52 argues, in deciding what is valuable about human beings, we need to determine what is valuable about all human beings, not just a selection of them. Otherwise there is a danger of one group imposing on another their way of perceiving the world. ‘Intelligence’ may be a valuable part of life for some, but not all. Feder Kittay53 argues in favour of: epistemic responsibility: know the subject that you are using to make a philosophical point; epistemic modesty: know what you don’t know; humility: resist the arrogant imposition of your own values on others; and accountability: pay attention to the consequences of your philosophizing. It is remarkable how it is assumed that moral value attaches to intellectual abilities. Much respect is paid to Kant’s argument that moral value attaches to the autonomous choice to do the good over the bad. On such a view those who lack the capacity to exercise judgement cannot make a moral choice. However, Vehmas54 denies that virtue need be connected to intelligence: positive and virtuous traits of character are often characteristic of individuals with intellectual disabilities as well: honesty, courage, persistence, love, a lack of pretence and other similar virtues which individuals with intellectual disabilities are often more able to embrace than normal individuals due to the lack of intellectual reflection; we normal individuals often prevent our moral virtues from becoming actualised by the practice of our intellectual skills.

  Crary, A. (2016) Inside Ethics, Cambridge: Harvard University Press, 121.   Feder Kittay, E. (2009) ‘The personal is philosophical is political: A philosopher and mother of a cognitively disabled person sends notes from the battlefield’, Metaphilosophy, 40: 606–21, 619. 54  Vehmas, S. (1999) ‘Newborn infants and the moral significance of intellectual disabilities’, Research and Practice with Persons with Severe Disabilities, 24: 111–31, 114. 52 53

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Those lacking sophisticated mental capacity can show considerable affection and love. As one parent55 states: Those of us with a Down’s Syndrome child (our son, Robert, is almost 24) often wish that all our children had this extraordinary syndrome which defeats anger and malice, replacing them with humor, thoughtfulness and devotion to friends and family. Kant’s reasoning appears incorrectly to assume that those with ‘higher cognitive functioning’ use this to make decisions. Many of our decisions are a result of emotional reactions, imbedded prejudice, and so forth, which have little to do with cognitive function.56 The exhausted parent changing a nappy in the early morning may be showing considerable love and care, even if ‘virtually on auto-pilot’. The lifeboat team sacrificing their lives for a stranded sailor may be responding instinctively, rather than making a rational, ‘autonomous’ decision to be brave. When making decisions we typically rely on very low levels of information, not least our capacity to foresee the future. It may be more accurate to acknowledge that humans all suffer from profound limitations in terms of knowledge and use of that knowledge. The claim that the only good acts are those rationally and intellectually chosen seems hard to justify.

The fetus in society: ultrasound In this section I will return to the role of the fetus, but rather than examining moral status, I want to discuss the image or imagining of the fetus. The visualization of the fetus through sonograms and computer simulation has done much to change public attitudes to the fetus. In the past the ‘quickening’ was the primary route to knowing about the fetus, and that was only open to the pregnant woman herself. Although there were medical drawings and fetuses in bottles in fairs, these were not widely available. The development of ultrasound images of the child has enabled everyone ‘to see’ the fetus. It is not surprising that pro-life activists, particularly in the US, make much use of the images of the  Quoted in Bradley, A. (1995) ‘Why shouldn’t women abort disabled fetuses?’, Living Marxism, September: 82. 56  Herring, J. (2016) ‘Peter Skegg and the question no one asks: Why presume capacity?’, in M. Heneghan and J. Wall (eds) Law, Ethics, and Medicine: Essays in Honour of Peter Skegg, Christchurch: The Law Foundation/Thomson Reuters. 55

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fetus in publicity campaigns. They have sought to make viewing of the ultrasound mandatory before an abortion decision, believing that if a woman ‘saw’ her fetus she would have to acknowledge it was a person.57 As Sanger says, ‘the fetus is now a familiar presence, one whose image turns up in high school biology texts, in movies, advertisements  … and … on … postage stamps’. Duden goes so far as to suggest society is ‘overwhelmed with fetuses’.58 These images are generally seen as being informative about the fetus and have made it plausible to claim that the fetus should be seen as the first stage of the life course. However, the issue is far more complex than it at first appears. The image of the fetus conveys complex messages. It cannot be seen as a neutral presentation. As Carol Sanger59 argues: ‘while a welcome and rewarding experience in the context of wanted pregnancies, ultrasound becomes pernicious when required by law in connection with abortion’. However, I will suggest here that great care needs to be taken with the use of these images. First, the image presents the fetus as in isolation from the woman, as ‘floating free’ and independent.60 The fetus is imagined outside the context of the pregnant woman’s embodiment.61 Indeed, she is invisible in most presentations of the fetus. Supporters have claimed it allows physicians to see ‘behind the iron curtain of the maternal abdominal wall’.62 That language reveals how the fetal images can reduce the woman to being no more than a container for the fetus. For those who argue pregnancy should be seen as a relationship, this is a completely false representation of what is happening. It would be like photographs of the wedding which showed only one of the couple. It plays into a particular individualized understanding of the self and, in relation to abortion, pushes the focus and starting point of the debate onto the rights of the fetus. That, as stated in the introduction to the chapter, is only one way of looking at the debate.   Sanger, C. (2008) ‘Seeing and believing: Mandatory ultrasound and the path to a protected choice’, UCLA Law Review, 56: 351–414, 408. 58   Duden, B. (1992) ‘Quick with child: An experience that has lost its status’, Technology in Society, 14(3): 335–44. 59   Sanger, C. (2008) ‘Seeing and believing: Mandatory ultrasound and the path to a protected choice’, UCLA Law Review, 56: 351–414, 408. 60   Roberts, J. (2012) In the Visualised Foetus: A Cultural and Political Analysis of Ultrasound Imagery, Farnham, UK: Ashgate Publishing. 61  Ibid. 62   Quoted in Nicolson, M. and Fleming, J. (2013) Imageing and Imagining the Fetus: The Development of Obstetric Ultrasound, Baltimore: Johns Hopkins University Press, 71. 57

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Second, the images selected in publicity and advertising campaigns are often selected to look as if the fetus is operating as a baby. Images of the fetus ‘sucking its thumb’, smiling or even waving63 have been produced. But these images are often manipulated64 and are selected not as typical pictures of a fetus, but ones which convey a particular message. The fact that fetal images are increasingly used not for medical purposes but for individuals’ personal albums and so on means that such ‘humanized’ images are likely to proliferate.65 Third, images are not straightforward information. This point is particularly key in the heated debates in the US over the requirement that any woman considering a termination must view a sonogram. Sanger argues against this requirement, stating that its aim is to produce a confrontation: Mandatory ultrasound disrupts the law’s traditional respect for privacy, bodily integrity, and decisional autonomy in matters of such intimacy as reproduction, pregnancy, and family formation. It is harassment masquerading as knowledge.66 As Sanger67 goes on to argue, the insistence that seeing the image assists in decision making stems not from any innate truth about what an ultrasound picture reveals but from what the visual politics of abortion has taught us to see … Deploying the image of her own fetus to argue with her confuses public debate with a protected choice and coercion with consent. The image does not tell the woman anything she does not know. The image of the fetus will look, no doubt, as every other fetus does. The requirement to view is not about giving new information but drawing on a powerful discourse about motherhood and the responsibilities of women.   Palmer, J. (2009) ‘Seeing and knowing Ultrasound images in the contemporary abortion debate’, Feminist Theory, 10: 173–89. 64   Nicolson, M. and Fleming, J. (2013) Imaging and Imagining the Fetus: The Development of Obstetric Ultrasound, Baltimore: Johns Hopkins University Press, 71. 65   Lie, M., Graham, R., Robson, S. and Griffiths, P. (2019) ‘“He looks gorgeous”: iuMR images and the transforming of foetal and parental identities’, Sociology of Health and Illness, 41(2): 360–77. 66   Sanger, C. (2017) About Abortion, Oxford: Oxford University Press, 103. 67   Ibid, 109. 63

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This discussion has highlighted how images can be used to integrate the fetus into the life course, with attempts being made to portray the fetus as ‘one of us’. One of the primary difficulties, and a central theme of this book, is that we cannot understand our life course in individual terms. We are constructed in and through our relationships.68 The use of fetal imagery to inform us of our starting point on life’s journey is false because it does not represent the relational context in which lives start, and are lived.

The ‘maternal–fetal conflict’ As mentioned in the introduction to this chapter, much of the legal and public debate over pregnancy and abortion presents the issue as one involving a clash between the rights of the fetus and the rights of the mother. Indeed, that is the normal way of presenting many legal cases. However, it is a particularly poor way of understanding pregnancy. The experience of pregnancy is one of interaction, not conflict. Most pregnant woman will not see the issue as ‘the fetus versus the mother’ but as a merging of identities. As Young puts it: [p]regnancy challenges the integration of my body experience by rendering fluid the boundary between what is within, myself, and what is outside, separate. I experience my insides as the space of another, yet my own body.69 Nussbaum has explained why she believes the individual should be the basic unit for political thought: It means, first of all, that liberalism responds sharply to the basic fact that each person has a course from birth to death that is not precisely the same as that of any other person; that each person is one and not more than one, that each feels pain in his or her own body, that the food given to A does not arrive in the stomach of B.70

  Herring, J. (2019) Law and The Relational Self, Cambridge: Cambridge University Press. 69  Young, I. (2005) On Female Body Experience, Oxford; Oxford University Press, 49. 70   Nussbaum, M. (1999) Sex and Social Justice, Oxford: Oxford University Press, 62. 68

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Whatever one thinks of this argument generally, it is immediately clear that what she is saying is not true of the fetus. The pain of the mother affects the fetus, and the food given to the mother can arrive in the stomach of the fetus. The biological reality is that pregnancy is a relationship of profound interconnection.71 Little emphasizes the significance of the intercorporeality involved in pregnancy: To be pregnant is to be inhabited. It is to be occupied. It is to be in a state of physical intimacy of a particularly thorough-going nature. The fetus intrudes on the body massively; whatever medical risks one faces or avoids, the brute fact remains that the fetus shifts and alters the very physical boundaries of the woman’s self. To mandate continuation of gestation is, quite simply, to force continuation of such occupation.72 The standard presentation of ethical debates around legal regulation being about competing rights fails to capture this. Barbara Katz Rothman writes: the reigning medical model of pregnancy, as an essentially parasitic and vaguely pathological relationship, [which] encourages the physician to view the fetus and mother as two separate patients, and to see pregnancy as inherently a conflict of interests between the two. Where the fetus is highly valued, the effect is to reduce the woman to what current obstetrical language calls the ‘maternal environment’.73 The reality is that all interaction and dealings with the fetus must be mediated through, and with, the woman. Pregnancy is utterly relational.74 Much more can be said about this understanding of pregnancy, but it is revealing how the standard legal and ethical tools, using rights of autonomy (choice), bodily integrity, and individual well-being, fail at this point. A relational ethics of care approach can be far more effective. It argues that, rather than asking what rights or responsibilities are owed to   Herring, J. (2011) ‘The loneliness of status: The legal and moral significance of birth’ in F. Ebtehaj et al (eds), Birth Rights and Rites, Oxford: Hart. 72   Little, M. (1999) ‘Abortion, intimacy and the duty to gestate’, Ethical Theory and Moral Practice, 2: 295. 73   Rothman, B. (1989) Recreating Motherhood: Ideology and Technology in a Patriarchal Society, Brunswick: Rutgers University Press, 89. 74   Herring, J. (2019) ‘Ethics of care and the public good of abortion’, University of Oxford Human Rights Hub Journal, 1–21. 71

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an individual in response to their status, we ask what the responsibilities and rights are owed in relation to a relationship.75 These issues are all the more significant given increasing knowledge about epigenetics and the way that events during pregnancy can affect the child’s life post-birth. It is easy in the light of evidence to impose ever heavier burdens on women to regulate their life during pregnancy in order to protect ‘the future child’. However, Karpin76 has argued in favour of: a legal remedy for psychosocial harm to future people that does not place the central burden on women. Indeed, the intention would be to shift the burden away from individuals by recognizing that the harm is systemic, cumulative, continuous, and somatic. As Karpin notes, when prenatal harms are discussed, it is pregnant women’s use of drugs, alcohol and smoking which are normally the centre of attention. She, however, highlights maternal stress as having a major impact on prenatal well-being. Here, it is society’s lack of support for pregnant woman which should be the focus of concern.

Miscarriage The Miscarriage Association77 summarizes the definitions of terms used: Miscarriage is when a baby (or fetus or embryo) dies in the uterus during pregnancy. In the UK, that definition applies to pregnancies up to 23 weeks and 6 days, and any loss from 24 weeks is called a stillbirth. If the baby is born alive, even before 24 weeks, and lives even for a matter of minutes, that is considered a live birth and a neonatal death. However, as they note, different countries have different definitions. It should also be added that miscarriage is normally understood to be an unintentional loss of the fetus during pregnancy and so does not cover terminations.   This argument is developed more fully in Foster, C. and Herring, J. (2018) Identity, Personhood and the Law, Berlin: Springer. 76   Karpin, I. (2018) ‘Vulnerability and the intergenerational transmission of psychosocial harm’, Emory Law Journal, 67: 1115–34. 77  https://www.miscarriageassociation.org.uk/information/miscarriage/ 75

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Miscarriage can be a profoundly sad experience. Bendavid found a ‘significant minority of those suffering miscarriage suffer ‘intense and sustained grief, depression and anxiety symptoms’.78 However, it receives little, if any, recognition in the law. Indeed, there is little public or social acknowledgement of the issue, save in online forums.79 It is striking that vast tracks of academic writing and media presentations can be found on abortion, but there is so little on miscarriage. This is despite it being a very common experience. Mullin80 estimates around a quarter of women in the US will experience a miscarriage at some point in their lives. It is a ‘disenfranchised grief ’.81 The silence around miscarriage can be put down to several things. First, there is still a sense of guilt that surrounds miscarriage.82 There is enormous pressure around the ‘cult of motherhood’, where mothers are expected to do everything to promote their children’s well-being. We will explore this further in Chapter 5, but the expectations around pregnant women are so great that it is impossible to be the ‘perfect pregnant woman’, meaning where there is a miscarriage the mother is likely to blame herself for not living up to the ideal.83 These feelings of guilt may be enhanced by the feeling miscarriage is not something to be discussed in public. Second, feminist commentators have noticed a reluctance towards public acknowledgement around female bodies, especially linked to what is regarded as ‘human messiness’. As with menstruation, the mixture of blood, sex and feminine ‘leakiness’ is uncomfortable for the male imagination.84 Third, the links between abortion and miscarriage appear to have caused a reluctance even among feminists to write on the issue. Layne85 claims feminist commentators ‘abandoned their sisters in hours of need’ and   Bendavid, J. (2019) Psychological Outcomes of Those Experiencing Early Pregnancy Loss, https://minerva-access.unimelb.edu.au/handle/11343/227179 79   Keane, H. (2009) ‘Foetal personhood and representations of the absent child in pregnancy loss memorialization’, Feminist Theory, 10(2): 153–71. 80   Mullin, A. (2015) ‘Early pregnancy losses: Multiple meanings and moral considerations’, Journal of Social Philosophy, 46(1): 27–53. 81   Browne, V. (2016) ‘Feminist philosophy and prenatal death: Relationality and the ethics of intimacy’, Signs: Journal of Women in Culture and Society, 41(2): 385–407. 82   Keane, H. (2009) ‘Foetal personhood and representations of the absent child in pregnancy loss memorialization’, Feminist Theory, 10(2): 153–71. 83   Mullin, A. (2015) ‘Early pregnancy losses: Multiple meanings and moral considerations’, Journal of Social Philosophy, 46(1): 27–53. 84   Shildrick, M. (1997), Leaky Bodies and Boundaries, Abingdon: Routledge. 85   Layne, L. (2003) Motherhood Lost, New York: Psychology Press, 239. 78

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contributed to their pain by ‘retaining a studied silence’ on pregnancy loss. In part there may be a difficulty because responses to miscarriage seem tied into the debates over abortion. If we see miscarriage as a tragedy and something to be mourned, it is claimed to be difficult at the same time to promote rights to abortion. As Layne puts it ‘the fear … is that if one were to acknowledge that there was something of value lost, something worth grieving in a miscarriage, one would automatically accede the inherent personhood of embryos and fetuses’.86 The perceived dangers of recognized fetal status are not inevitable. There are understandings of fetal personhood that can overcome them. As argued above, the relational model of full moral status described above sees a fundamental difference between a wanted and an unwanted pregnancy, seeing the first as deserving of full moral and legal protection while the latter as justifying a termination. Under such a view it may be possible to explain that it is entirely understandable that a wanted termination can be seen as the appropriate, even required, response, while a miscarriage is a tragedy. The law plays a major role in the silence surrounding miscarriages. In essence they are invisible to the law. The law draws an important distinction between stillbirths and miscarriages. The Births and Deaths Registration Act 1953, section  41, as amended by the Stillbirth (Definition) Act 1992, section 1(1), defines a stillbirth as follows: a child which has issued forth from its mother after the 24th week of pregnancy and which did not at any time breathe or show any other signs of life. For a stillbirth a birth certificate is offered, the parent can name the child so it has a recognized identity, and government advice makes clear that a funeral can be arranged. It is notable that the official government advice talks of the ‘stillborn child’ and the ‘baby’.87 Furthermore, benefits, including maternity pay, maternity allowance, parental leave and parental bereavement pay, are all available following a stillbirth. This is all in striking contrast to a miscarriage, occurring earlier than 24 weeks, for which there is no requirement for a birth or death certificate to be issued. Indeed, it is not possible to apply for one.88 The benefits will not be available. Although, for example, the Church of England has   Ibid, 240.  https://www.gov.uk/register-stillbirth 88   Lens, J. (forthcoming), ‘Miscarriage, stillbirth and reproductive justice’, Washington University Law Review. Available at SSRN: https://ssrn.com/abstract=3549430 86 87

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an approved liturgy for stillbirths, there is none for miscarriage (although no doubt a service could be created).89 The Miscarriage Association notes, ‘For some parents, the sadness of pregnancy loss before 24 weeks is increased by the fact that there is no documentation that acknowledges the loss of their baby.’90 Some hospitals do now provide ‘certificates’ to record the birth, even though those have no formal standing. This can give official confirmation that something of significance has happened and has been promoted as good practice by the Royal College of Obstetricians and Gynaecologists.91 But without a formal record of the miscarriage it is as if the event never occurred.92 As one mother put it, ‘as far as the world is concerned my baby would be a miscarriage and there would be no more mention of her’.93 Mounting pressure on the issue has led to the inclusion in the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019 of section 3(1), requiring that: The Secretary of State must make arrangements for the preparation of a report on whether, and if so how, the law ought to be changed to require or permit the registration of pregnancy losses which cannot be registered as still-births under the Births and Deaths Registration Act 1953. No report has yet been issued but the government has fairly consistently taken the view that the age of viability is a good one for distinguishing cases of miscarriage from stillbirths.94

Conclusion This discussion of the status of the fetus has cast some helpful light on the law’s understanding of the life course. Three main messages emerge. First, we have seen how lawyers and jurisprudes tend to emphasize the importance of autonomy and mental capacity as the prime basis of   Paveley, R. (2019), ‘Breaking the silence about miscarriage’, Church Times, 5 April.   Miscarriage Association (2020) Certification, London: Miscarriage Association. 91   Royal College of Obstetricians and Gynaecologists (2005) Good Practice Guide: Registration of Stillbirths and Certification for Pregnancy Loss before 24 Weeks of Gestation, London: RCOG. 92   Drewett, Z. (2018) ‘Mother’s campaign for birth certificates for miscarried babies’, The Guardian, 8 February. 93  Ibid. 94   Fairbairn, C. (2019) Registration of Stillbirth, London: House of Commons Library. 89 90

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personhood. That explains why the fetus is not regarded as a person or as having human rights, but sets up problems for other cases, including people with severe intellectual impairment and babies. Second, we have seen how the law and legal philosophy use a highly individualized way of understanding the world which posits legal disputes as clashes between rights. That approach, it has been argued, is particularly inappropriate in the context of pregnancy, and is indeed generally unhelpful. Finally, it has been shown how legal and social interaction can have an impact on whether events in the life course are regarded as significant or not. The silence around miscarriage, bolstered by the law, means it largely goes unacknowledged, even though it is a significant event in many women’s lives. By contrast, fetal imaging has meant the fetus has increasingly become imagined as a stage in the life course, even though the image created is an artificial one.95 In the next chapter, we explore the world post-birth: childhood.

  Lupton, D. (2013) The Social Worlds of the Unborn, Basingstoke: Palgrave Macmillan.

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Childhood

Introduction Childhood is a time of life that gives rise to competing connotations and conflicting images. A golden era of innocence and fun; or a time of abuse? Are children little angels or little devils? Some children are admired for their goodness and clarity of thought: Greta Thunberg, who started her School Strike for Climate protests aged 15, and the countless children supporting her have played an enormous role in the public debates around environmental issues. She is seen by some as a visionary. By contrast, the media is still obsessed with Robert Thompson and Jon Venables who, at the age of ten, kidnapped, tortured and murdered James Bulger, aged two. Many years later they are still presented in the tabloid media as evil.1 We shall see in this chapter that the law’s response to childhood plays an important role in reflecting and reinforcing the conflicting images society has about children. One of the major themes of this chapter is that childhood, in many ways, is a response to adulthood. How we understand childhood tells us much about how we understand adulthood. To some extent childhood gets defined in terms of which adult characteristics children lack. Hence, part of the law’s response to childhood is a list of things which children cannot do, which adults can. But there is also a growing literature on the goods of childhood, which are reflected in the legal sphere by special rights that children, but no adults, have. This chapter will start by exploring some of the broader models of childhood in the literature before exploring how these are reflected in conflicting legal responses to childhood.   Edwards, N. and Wells, T. (2018) ‘Evil child killer Jon Venables was living with secret girlfriend who knew about his sick past’, The Scottish Sun, 17 February.

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Models of childhood In this section I will describe in broad terms some of the models of childhood which have provided overarching ways of understanding young people. Of course, there are those who reject the concept of childhood altogether, and those views we will deal with in a section entitled ‘Social construction of childhood’. It should be noted that different models of childhood seem more accurate or gain prominence at different times in history and in different geographical locations. So, to some extent, they are a reflection of a particular cultural context. Furthermore, it should not be thought that only one model may be adopted at a time: often attitudes towards children are contradictory.

The child as developing adult Many parents will be familiar with the developmental approach to childhood. This suggests that the child gradually improves their physical, mental, emotional and social skills as they ‘grow up’ and become increasingly like an adult. This is encouraged by charts of expected growth in terms of weight and height gain produced by respected health bodies. Indeed, ‘ticking off milestones’, particularly in the early years, is common practice for parents, who worry if the milestones are not reached by a particular age or take pride if they are reached early. I am sure I am by no means the only parent who has a wall marking their children’s height so they can see how they have been gradually growing taller. Rousseau2 proposed five stages a child travels through to reach adulthood: (1) (2) (3) (4) (5)

infancy (birth to age 2); the age of sensation (3 to 12); the age of ideas (13 to puberty); the age of sentiment (puberty to age 20); and the age of marriage and social responsibility (age 20 onwards).

Such developmental models, and there are many of them, lead too easily to childhood being presented as simply the process by which someone becomes an adult. That way of understanding childhood seems to downplay the importance of childhood itself. The child is ‘deficient’ at birth and during childhood is given the skills and attributes they need to   Rousseau, J.-J. (1762) Émile, London: Dent. For a more recent formulation see Kohlberg, L. (1984) The Psychology of Moral Development, New York: Harper and Row.

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become a ‘successful’ adult. Interventions in the lives of children should be based on asking what intervention will produce the best adult. A good childhood becomes reduced to creating a good adult. This is a highly problematic approach. I will highlight four challenges. First, it seems to be based on the idea there is a ‘ideal’ of adulthood we are reaching for and that if a child fails to achieve the expected standards then they have ‘failed’. The dangers of this approach can be seen from Gilligan’s powerful critique of the Kohlberg test for moral development.3 Gilligan complained that Kohlberg’s test, designed to determine a child’s progress in moral reasoning, promoted a particular form of moral thinking, one dominated by ‘male thinking’ and focused on justice. This failed to take into account other moral values such as ‘care’. Clearly there is much to discuss about that debate, but for now it is enough to note how difficult it might be to establish what a good progression to adulthood is if we do not agree on what is good adult thinking, living and so on. The second challenge to the view that childhood is primarily about development to adulthood is that it does not see much good in childhood in itself. As we shall see in a later section of the chapter (page 102ff), some commentators make the case for there being ‘goods’ in childhood that are not well captured by the idea of childhood as a passage to adulthood. Does a good childhood not involve play and wonder, which may play little role in achieving goals? Further, does the model not suggest that adults have got things right and can set the agenda as to how children should be treated? That seems an oppressive way for adults to treat children. A third objection to the developmental model is that it presents the child as passive in this process. Green claims the model ‘positions the child as overwhelmingly and unidirectionally created by either society (socialization) or biological maturation and genetics (developmental psychology) or both’.4 Children’s role is to grow and make sure they do not do anything that inhibits their growth. The sense the child might shape their own future or, indeed, shape the futures of those around them is ignored. A final objection is that it sees children as ‘little adults’. Gopnik writes: Children aren’t just defective adults, primitive grownups gradually attaining our perfection and complexity. Instead, children and adults are different forms of homo sapiens. They have very different, though equally complex and powerful,

  Gilligan, C. (1982) In a Different Voice, Cambridge: Harvard University Press.   Green, L. (2016) Understanding the Life Course, London: Polity Press, 39.

3 4

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minds, brains, and forms of consciousness, designed to serve different evolutionary functions.5 She goes on to explain: ‘Babies’ brains are actually more highly connected than adult brains; more neural pathways are available to babies than adults.’6 We tend therefore to greatly underestimate the abilities of babies: We used to think that babies and young children were irrational, egocentric, and amoral. Their thinking and experience were concrete, immediate, and limited. In fact, psychologists and neuroscientists have discovered that babies not only learn more, but imagine more, care more, and experience more than we would ever have thought possible. In some ways, young children are actually smarter, more imaginative, more caring, and even more conscious than adults are.7 So, although the image of childhood as a time of growth and development is intuitive and widespread, it certainly has several problematic aspects.

Childhood as a time of purity A different model sees childhood as a time of innocence and purity, where the child is gradually corrupted by the adult world.8 Like the developing adult model, it pictures childhood as a progression, but rather than being an upwards trajectory towards the goods of being an adult, it is seen as a downwards trajectory to the corruption that is adulthood.9 This has been an influential theory among some religious, particularly Christian, writers, who see children gradually becoming more sinful as they develop the capacity to choose evil and are open to the temptations of the adult world.10 The response to the argument that childhood is a time of purity has considerable practical significance. If it is true that childhood is indeed a time of bliss and purity, we would be seeking to maintain it for as long   Gopnik, A. (2009) The Philosophical Baby: What Children’s Minds Tell Us About Truth, Love, and the Meaning of Life, New York: Farrar, Straus and Giroux, 5, 9. 6   Ibid, 11. 7  Ibid. 8  Smith, K. (2011) ‘Producing governable subjects: Images of childhood old and new’, Childhood, 19(1): 24–37. 9   Rousseau, J.-J. (1762) Émile, London: Dent. 10   Although other Christian thinkers have emphasized the concept of ‘original sin’ and claimed that children need overcome their natural instinct to sin. 5

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as possible. By contrast, if it is wretched state then the state has a duty to move us on to adulthood as quickly as possible.11

End of childhood It is common to read of the ‘end of childhood’ or a ‘crisis of childhood’.12 This is the belief that in recent years we have seen dramatic changes in the lives of children, meaning the innocence and wonder of childhood has been eroded. This was prominently claimed in David Buckingham’s book After the Death of Childhood,13 which claimed: ‘The sacred garden of childhood has been increasingly violated.’ In 2006 the then Archbishop of Canterbury Rowan Williams attracted considerable attention in the media when he declared that childhood was under threat, being damaged by commercial pressures, family breakdown and parents who refuse to grow up.14 Stevi Jackson and Sue Scott write that ‘[c]hildhood is increasingly being constructed as a precious realm under siege from those who would rob children of their childhoods, and as being subverted from within by children who refuse to remain childlike’.15 Alongside this narrative is the message that the distinction between adulthood and childhood is becoming blurred, with adults eating ‘children’s food’ and children wearing ‘adult clothes’, for example. West has written of the ‘adultification’ of children and the ‘infantilization’ of adults, leading to a ‘generational mulch’.16 So, paradoxically, children are behaving more like adults, and adults are behaving more like children. An article for the BBC, for example, suggests that people should now be seen as teenagers until they reach 24.17   Matthews, G. and Mullin, A. (2018) ‘The philosophy of childhood’ in E. Zalta (ed) The Stanford Encyclopedia of Philosophy, Stanford: University of Stanford. 12   See, for example, Kehily, M. (2010) ‘Childhood in crisis? Tracing the contours of “crisis” and its impact upon contemporary parenting practices’, Media Culture Society, 32: 171–92. 13   Buckingham, D. (2000) After the Death of Childhood, London: Polity Press. 14   BBC News Online, ‘Childhood “in crisis”’, 18 September 2006, http://news.bbc. co.uk/1/hi/programmes/breakfast/5355080.stm 15  Jackson, S. and Scott, S. (1999) ‘Risk anxiety and the social construction of childhood’ in D. Lupton (ed), Risk and Sociocultural Theory: New Directions and Perspectives, Cambridge: Cambridge University Press, 86. 16   West, D. (2010) The Death of the Grown-Up: How America’s Arrested Development Is Bringing Down Western Civilization, New York: Griffin. 17  BBC News, ‘Life begins at 24  … why being a teenager now lasts 15  years’, 22 January 2018. 11

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There are a number of responses to this ‘moral panic’. An obvious one is to say it is based on an idealized vision of childhood. The suggestion that in the past children did not suffer sexual abuse or family disharmony is hard to believe. We may be more aware of these harms than we were in the past, but it is hard to prove there was in fact a lower prevalence. A second might be to say the changing nature of childhood is highly mixed. Especially in the West, there is increased consumerism targeted at children and it might be argued that parents are remarkably indulgent towards children in meeting their needs. The spending power of children might sit uncomfortably with the idea that children are suffering a crisis. This perspective might suggest it would be better to talk of changes to childhood, rather than a crisis in childhood. If children treat adults with less respect, that might indicate an awareness of their position as rights holders and not being subservient, rather than suggesting moral delinquency. If there are higher levels of divorce that might mean fewer children are living in unhappy families. And so forth. An alternative response would be to argue we should listen to children on these issues. Action for Children in a 2019 survey of children found that ‘fitting in’ was a major concern, while nine out of ten of those interviewed said they were worried about issues such as poverty, sexism and Brexit.18 However, interestingly, the survey found that while two thirds of parents and grandparents thought childhood was ‘getting worse’, only a third of children agreed. Finally, we might take the concerns seriously. There can be no denying the significant rise in pornography use, body issue concerns and self-harm among young people.19 The impact of pornography in the objectification of women is well established. It is increasingly used as a form of sex education by young people, something which must be concerning. To take one statistic, 71 per cent of young men said they had slapped, choked, gagged or spat on their partner, with a third saying they did not ask for consent. It is hard not believe this is because such behaviour has been mainstreamed, with nearly 75  per cent accepting this was a result of pornography.20 In another survey, 38 per cent of women said they had experienced unwanted slapping, choking, gagging or spitting.21 Further, children’s mental health is clearly an issue.22 There certainly does appear to   BBC News, ‘UK is “sleepwalking into crisis of childhood”, charity warns’, 9 July.   Wild, J. (2013) Exploiting Childhood: How Fast Food, Material Obsession and Porn Culture are Creating New Forms of Child Abuse, London: Jessica Kingsley Publishers. 20  https://www.bbc.co.uk/news/uk-scotland-51967295 21  https://www.bbc.co.uk/news/uk-50546184 22   Gunnell, D., Kidger, J. and Elvidge, H. ‘Adolescent mental health in crisis’, British Medical Journal, 361: 2608–9. 18 19

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be a huge increase in diagnosis in mental health among young people. It might be easy to dismiss this as improvements in detection and awareness of mental health issues, rather than changes in the actual health of young people. However, the fact that there was a 68 per cent increase in selfharm cases presenting in hospital between 2011 and 2014 seems hard to so readily dismiss.23 Jim Wild’s book, Exploiting Childhood: How Fast Food, Material Obsession and Porn Culture are Creating New Forms of Child Abuse,24 expresses concern at the relentless stream of advertisements and pornography to which children are exposed. It would be easy to dismiss this as simply moralism in disguise. But the issues of pornography, body image and mental health are hardly unique to children. These are problems for all of society, but it is revealing that adults fixate on the implications for children, rather than acknowledging the implications for themselves. Perhaps, then, the concerns about childhood have a genuine basis, but they are just as much concerns about adulthood too.

Children and adulthood One of the major themes in understanding childhood is to distinguish it from adulthood. At one extreme there are those who deny the division between the two; at the other there are those who see there being important differences between adulthood and childhood. For many commentators, a point in between these two extremes is sought. Martyn Hammersley25 notes the similarity to debates in feminism over the differences between men and women. He notes: Feminists have been caught between an inclination to deny that there are inherent differences between men and women, on one hand, and an insistence on the distinctiveness and value of women’s experiences, on the other. The same sort of tension seems to operate within Childhood Studies: in some respects, differences between children and adults are played down, denying deficit views and promoting children’s right to adults’ rights, but on other occasions the differences between  Ibid.   Wild, J. (2013) Exploiting Childhood: How Fast Food, Material Obsession and Porn Culture are Creating New Forms of Child Abuse, London: Jessica Kingsley Publishers. 25   Hammersley, M. (2017) ‘Childhood Studies: A sustainable paradigm?’, Childhood, 24(1): 113–27, 125. 23 24

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children and adults are emphasised; this being essential to the rationale for Childhood Studies as a distinct field. We will be exploring these issues further as the chapter progresses.

Social construction of childhood One of the liveliest debates around childhood studies is the extent to which childhood is a social construction. For those unfamiliar with the concept, constructionism is an idea found in a wide range of social sciences. In essence it is a claim that a concept does not have an objective meaning, but that its meaning is taken from the society and age in which it is situated. In this context it means there is no universal concept that is true for all children but rather what ‘child’ means depends on different societies and different times. It is not, on this view, a scientific or fixed concept, but one that changes over time and across borders. The challenge to childhood came from Philippe Ariès, in 1960,26 who looked at the historical analysis of childhood and claimed that childhood did not exist in medieval times, when children were seen as mini-adults as soon as they could talk and walk. Hence, child marriage was seen as uncontroversial. While there have been disagreements over Ariès’ methodology, he opened up the possibility of there being societies that have no concept of childhood,27 and that, therefore, each society creates its own version of childhood, if any at all. The social construction view is that society assumes that childhood is a particular set of experiences and labels these as childhood and attaches a particular meaning to them. The fact that that meaning varies between different cultures and societies, and at different times, shows that the meaning of childhood is not a natural given, but reflects the attitudes of the broader society. Norozi and Moen write28: The idea that childhood is socially constructed refers to the understanding that childhood is not natural process rather it is society which decides when a child is a child and when a child

  Ariès, P. (1960) Centuries of Childhood, New York: Vintage.   Stainton-Rogers, R. and Stainton-Rogers, W. (1992) Stories of Childhood: Shifting Agendas in Child Concern, London: Prentice-Hill. 28   Norozi, S. and Moen, T. (2016) ‘Childhood as a social construction’, Journal of Educational and Social Research, 6: 75–98, 76. 26 27

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becomes an adult. The notion of childhood cannot be seen in isolation. It is deeply intertwined with other factors in society. Indeed, it is striking that defining childhood has become problematic. Constructionists argue the difficulty in producing a clear definition of childhood reinforces their view that the concept is the product of particular societies and communities. It might seem that the most natural understanding of childhood is that it relates to age. The United Nations Convention on the Rights of Child (UNCRC) deems anyone below the age of 18 a child. This, however, is problematic. There seems a huge difference between those who are six months old, and those who are 17 years old. Indeed, there are more significant differences between those ages than between those who are 17 and those who are 30. If all that unites the group of children is that they have a chronological age that does not suggest that anything particularly meaningful can be said about childhood. Even if we were to suggest it is not age per se but the physical, social and psychological developments that typically occur at certain ages, this would not help. Different people will develop in different ways, depending on personal, social, educational and cultural contexts. Class, disability, ethnicity and gender might all be seen as impacting development. It would be hard to pick a particular age at which certain intellectual milestones would be even vaguely accurate across all times or places. Also much depends on what the milestones of adulthood are. We might choose knowing how to operate a smartphone as a sign of adulthood, for example, but that might indicate there are many more under-18-year-olds who are adults and many more over-18-year-olds who are children! Or is knowledge of the royal family a mark of adulthood? Or, if we were to propose the ability to comfort someone who is crying? Again there is not an age which relates to this. Such things seem to depend on attributes not associated with age. So, when someone points to a study which shows that children lack characteristic x that adults do not have, we might question the study and ask ‘why choose x?’ and ‘how is x assessed?’. Do adults get to choose the form of assessment? Did adults get to choose what they considered to be knowledge justifying a higher legal status? Such questioning leads to doubt as to whether anything certain can be said about childhood which does not reflect an implicit bias about what childhood should be like. Despite these points, it might simply be said that there are some significant aspects in which children are less able than adults, mental capacities being one, and that these cannot be reduced to social construction. Surely babies are clearly lacking in abilities adults have.

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However, Alison Gopnik et al29 report that even young children are as good as adults at theoretical reasoning. They argue that babies ‘think, draw conclusions, make predictions, look for explanations, and even do experiments’. As Matthews writes: For many people the art or philosophy of their childhood is never equaled, let alone surpassed, by the art or philosophy of their adult lives. If painting or doing philosophy has any non-instrumental value for them, it is their child art and their child philosophy that have such value.30 Allison James and Adrian James suggest that we can identify some essential characteristics of children: childhood is a developmental stage of the life course, common to all children and characterized by basic physical and developmental patterns. However, the ways in which childhood is interpreted, understood, and socially institutionalized by adults through their engagement with children and childhood varies considerably across and between cultures and generations. And, importantly, it varies with regard to the concepts of child specific needs and competencies that are made evident in law and social policy as well as in the more mundane and everyday social interactions that take place between adults and children.31 They argue that simply seeing childhood as a social construction risks losing sight of the commonalities of childhood. Perhaps, then, a compromise view is the best. There are many assumptions about childhood which are socially produced. But there are some universal biological needs and behaviours common to all children.32 It’s just there are not very many of these.  Gopnik, A., Glymour, C., Sobel, D.M., Schulz, L.E., Kushnir, T. and Danks, D. (2004) ‘A theory of causal learning in children: Causal maps and Bayes nets’, Psychological Review, 111(1): 3–32. 30   Matthews, G. (1996) The Philosophy of Childhood, Cambridge: Harvard University Press, 123. 31   James, A. and James, A. ‘Childhood: Toward a theory of continuity and change’, American Academy of Political and Social Science, 575: 25–37, 36. 32   Woodhead, M. (1997) ‘Psychology and the cultural construction of children’s needs’ in A. James and A. Prout (eds) Constructing and Reconstructing Children, Abingdon: Routledge. 29

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Gender and childhood One important aspect of the social construction of childhood is the impact of societal forces on gender. There are extensive debates over the extent to which different behaviours between those assigned male or female are due to biological factors or are socially conditioned, and it is not possible to do that debate justice here.33 There is, however, widespread acceptance of the concept that, to some extent, social conditioning impacts on the identities of children as gendered people. Young people report considerable pressure to dress, perform sexually,34 speak and relate to others in particular ways. A further aspect of the debate is that children’s understandings of sex, gender and sexuality are shaped by the images and attitudes of those around them. There is concern that patriarchal gender norms and heteronormativity are imposed on children from an early age.35

Law and children This section will not set out the whole of the law on childhood, which would take a separate book.36 It will, however, provide a discussion of legal interventions in relation to childhood at a general level. We will then move on to the more theoretical models that could govern the law’s construction of childhood. The key legal responses to childhood will now be summarized.

Legal responses to childhood: protection One of the law’s primary responses to childhood is in offering a series of protections to children, particularly through the criminal law. These are typically in the form that it is a criminal offence to do something to someone under a certain age. Such offences seek to deter people from acting in a particular way towards a child. Sometimes the law is separating   Roberts, S. (2012) ‘Boys will be boys … won’t they? Change and continuities in contemporary young working-class masculinities’, Sociology, 47(4): 671–86. 34   Connell, R. (2000) The Men and the Boys, Cambridge: Polity. 35  Corteen, K. and Scraton, P. (1997) ‘Prolonging “childhood”, manufacturing “innocence” and regulating sexuality’ in P. Scraton (ed), Childhood in Crisis?, London: Taylor & Francis. 36  See, for example, Fortin, J. (2012) Children’s Rights and the Developing Law, Cambridge: Cambridge University Press. 33

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out acts that are permitted for an adult but are not permitted for a child (such as regulation over the sale of alcohol). But on other occasions, the act is already unlawful if committed against an adult, but is seen as even more serious if committed against a child. For example, under the Sexual Offences Act 2003 there is the general offence of rape (section 1) and then a specific offence of rape of a child under 13 (section 5). The age of the victim in other crimes (for example assaults) is simply marked at the sentencing stage. There is no special crime of assault of a child, but the fact a victim is a child may well lead to a higher sentence being imposed than would be the case if the victim were an adult.37 But in the case of rape, the age of the child is reflected in the name of the offence, not just the sentence. The most significant protections in criminal law offered to children relate to consent. There are a host of activities that are offences unless they are done with the consent of both parties. Tattooing, sexual activities or surgery would all be unlawful, for example, without such consent. The question then arises whether or not children have the capacity to consent to harms. The law breaks this down into two categories of cases: • those where the consent of the child will be a defence, but only if the child is shown to have capacity to give consent; • those where the consent of the child is never a defence, even if the child has capacity. The first category of cases is not particularly notable for our purposes. The consent of a child who lacks capacity is as worthless in this context as the consent of an adult who lacks capacity. Children are, therefore, treated in a similar way to adults. The only point of significance may be that there seems to be a presumption of a lack of capacity in relation to children, while there is a presumption of capacity in relation to an adult.38 It is in the second category, where there is an age limit, that there is a significant difference in treatment. Even though the child has capacity (the same level of understanding as an adult) their consent is ineffective. Perhaps the best-known example of this is that a child under the age of 16 cannot give effective consent to sexual intercourse, even if it is shown the child has the understanding and maturity of an adult. There are quite a number of these age bars and they will be discussed later (see page 118).

  See, for example, whole life sentences for murder of a child under the Criminal Justice Act 2003, as amended. 38   Mental Capacity Act 2005, s 1(2). 37

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Whichever justification for such legislation is used, the driving motivation is protection of children. Rose39 explains why this protection of children is seen as so important to the state: Childhood [became] the most intensively governed sector of personal existence. In different ways, at different times, and by many different routes varying from one section of society to another, the health, welfare, and rearing of children has been linked in thought and practice to the destiny of the nation and the responsibilities of the state. The modern child has become the focus of innumerable projects that purport to safeguard it from physical, sexual, and moral danger, to ensure its ‘normal’ development, to actively promote certain capacities of attributes such as intelligence, educability and emotional stability. At the heart of the law’s protective role is an assumption that children are vulnerable. Vulnerability is at the heart of the law’s response to childhood. Indeed, in a sense it can be seen as almost definitional. To be a child is to be vulnerable and in need of protection. Meyer40 usefully separates out the alleged forms of childhood vulnerability into three categories: physical, social and structural. These are readily understandable. Physical vulnerability refers to the suggestion that children’s bodies tend to be weaker and smaller than those of adults. Many adults can pick up a child; not many children can pick up an adult. Social vulnerability refers to the fact that children are said to lack the social skills, experiences and relational contexts to protect themselves from harm. The reference to structural vulnerabilities relates to the argument that children have limited access to resources such as transport, food and medical care, especially without adults to enable their access. Further, children are taught to be wary of adulthood and the multiple dangers they face, which it is said they are unable to protect themselves from. Anneke Meyer’s argument is that the notions of innocence and vulnerability combine to provide childhood a form of ‘moral rhetoric’, meaning that ‘children and childhood function to explain and legitimize any practice or opinion as right while removing the necessity to provide reasons: children are the reason’.41 This image of the child as being vulnerable is seen as justifying a paternalistic response. Children are seen as open to a range of harms that   Rose, N. (1989) Governing the Soul, London: Routledge, 121.   Meyer, A. (2007) ‘The moral rhetoric of childhood’, Childhood, 14: 85–102. 41  Ibid. 39 40

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adults do not face, and they lack the resources to respond to those harms. Adults are presented as being in a position to protect children from the harm and to help them cope with any harms they do befall. Ironically, this role of adults as protectors is used to mean that adults are permitted to exercise force to ensure children are protected.42 A final point before leaving the role of law as protector is that the law is highly selective of the kinds of dangers that children face. Sexual abuse and physical harm at the hands of strangers tend to be emphasized. Yet the numbers of children who suffer sexual or physical abuse at the hands of strangers is tiny. Children are far more likely to be abused by someone known to them than by a stranger. Far more children are harmed by the environment or by social or economic harms.43 The ‘vulnerability’ depicted in the media presents the government as posing no risk to children: the risk is from individuals, while the government is the protector of children. Such views can sideline the impact of socioeconomic disadvantage on children.

Legal response to childhood: welfare A second legal response is to give children particular privileges as compared to adults. We can see this in English law, in the well-known ‘paramountcy principle’ found in section 1(1) of the Children Act 1989,44 which states: When a court determines any question with respect to— (a) the upbringing of a child; or (b) the administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration. The reference to ‘paramount consideration’ has been subject to quite some academic debate,45 but it is generally taken to mean that the courts should focus on the welfare of the child, and not consider the interests of   Children Act 2004, s 58 authorizes parents to use force less than actual bodily harm by way of punishment. 43   Herring, J. (2018) Vulnerability, Childhood and the Law, Berlin: Springer. 44   Herring, J. (2005) ‘Farewell welfare’, Journal of Social Welfare and Family Law, 27: 159–81. 45   Herring, J. (1999) ‘The Human Rights Act and the welfare principle in family law – conflicting or complementary?’, Child and Family Law Quarterly, 11: 223–45. 42

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adults.46 So, in a family case, if the interests of a parent favour solution A and the interests of a child favour solution B, then solution B must be chosen. Indeed, that seems to be the position even if solution B slightly favours the child but is very harmful to the parent. This especial privileging of children is found in many jurisdictions. The United Nations Convention on the Rights of the Child, Article 3 states: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. This is generally taken to be slightly different from the paramountcy principle in the Children Act 1989 as it accepts that the interests of adults can be a consideration. Nevertheless, it makes it clear that children’s interests rank higher than those of adults. The emphasis placed on children’s welfare may reflect the view that, if a court order causes a loss or hurt, children have fewer resources open to them than adults do. Children lack the material, psychological and relational resources that parents have. If children are the most vulnerable, the law should do most to protect them. Further, of all the parties to a family dispute it is clear that children are least to blame.

Legal responses to childhood: services It also seems that children have particular rights against the state or privileges in services that others do not have. The most obvious would be the right to education, which is generally seen as applying to children, but not adults.47 Another example might be medical services, such as free prescriptions available under the NHS, which are not available generally to adults. These can be justified in part by the state’s need for children to develop into worthy and healthy citizens, but also because we cannot expect children to provide for such services themselves.

  Eekelaar, J. (2002) ‘Beyond the welfare principle’, (2002) 14 Child and Family Law Quarterly, 14: 237–52. 47   European Convention on Human Rights, Article 2, First Protocol. 46

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Legal response to childhood: parenthood A major aspect of the law’s response to children is the allocation of responsibilities for and rights over them to parents (and others in a parental position). We will discuss this in detail in Chapter 8.

Legal responses to childhood: citizenship rights Children are often seen not having the citizenship rights that adults can claim. Hence, they are not able to vote or stand in elections. There are also liberties included here, such as not being accountable under the criminal law. Generally, these reflect the fact that children are not yet in a position to accept the responsibilities of citizenship and so should not have the rights and responsibilities that go with that.

Autonomy and children At the heart of legal regulation of people is the concept of autonomy. For many commentators, at the heart of the debates about the legal response to childhood is the argument that children lack capacity to make competent decisions and therefore cannot exercise autonomy. First, is it necessary to say a little more about autonomy. As Daly48 explains, the concept of legal autonomy means: we are all permitted to define what constitutes a ‘good life’, and to live accordingly, as long as we do not harm others. It does not matter whether our decisions are ‘rational, irrational, unknown, or non-existent.’ The law provides legal tools to us as independent legal individuals to maintain our autonomous status. It ostensibly ensures that free people will be treated equally, their liberty guaranteed against encroachment by government or others. This right to be able to choose how to live is seen as a key principle of freedom. Daly suggests it is ‘the quality most valued in Western democracies’.49 For many, it forms the basis of the English legal system. Any law which restricts freedom, for example by creating a criminal   Daly, A. (2018) Children, Autonomy and the Courts, Amsterdam: Brill, ch 3.   Ibid, 135.

48 49

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offence, can be justified only if it is done in the name of protecting others from harms or because a person cannot exercise autonomy.50 We will explore the philosophical basis behind the concept of autonomy further in Chapter  9. For now, it is enough to emphasize that this right applies only to those who are capable of making decisions as to how they lead a good life. If they lack the mental characteristics necessary, then they are not able to make those decisions. And, generally, this is seen to be the position of children, at least in respect of important decisions of the kind that the law will be interested in. At least, that is the standard version of the argument, which I will develop a little further before critiquing it.

The case that children should not have autonomy rights To be clear, when people claim that children lack autonomy it is not claimed that children are unable to make a decision, but rather that the decisions that children take are not entitled to the kind of respect due to the decisions of adults with capacity. Generally speaking, for a decision to be protected by autonomy rights the decision must be one which is made with an understanding of the relevant facts and which a person reaches applying their own reasoning and values to it. This will be discussed in more detail in Chapter 9. For now, it should be noted that to have the strongest claims to autonomy a person must understand the relevant information and weigh it in the balance using values they have adopted for themselves to reach a rational decision. Opponents of children having autonomy rights claim that, in a range of ways, children lack these abilities: they will not understand the necessary information; or not be able to exercise their will free from the influence of parents or others; or will lack the foresight and intellectual skills for rational thought; or will be unable to hold clear values they have adopted for themselves.51 There is certainly evidence to show that children, as compared with adults, generally have limited understanding of facts, are impressionable and suggestible, and have more limited powers of reasoning.52 Viljoen,   Ibid, 123.   Matthews, G. and Mullin, A. (2018) ‘The philosophy of childhood’, in E. Zalta (ed) The Stanford Encyclopedia of Philosophy, Stanford: University of Stanford. 52   Saz, P., Bittencourt-Hewitt, A. and Sebastian, C. (2015) ‘Neurocognitive bases of emotion regulation development in adolescence’, Developmental Cognitive Neuroscience, 19(1): 558–66. 50 51

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Penner and Roesch argue53 that adolescents have lower abilities to appreciate the long-term consequences of their decisions. Indeed, they claim that, although it used to be assumed that the cognitive functioning of people in mid-adolescence was comparable to that of adults, in fact brain development continues until one’s early twenties. There is also evidence of adolescence being a time of increased impulsivity and sensation-seeking.54 Matthews and Mullin suggest that ‘it is typical for philosophers to be sceptical about the capacity for children under the age of ten to have any capacity for autonomy, either because they are judged not to care stably about anything, lack information, experience and cognitive maturity, or are too poor at critical reflection’.55 However, there is certainly no consensus on this. Daly argues: Advances in neurobiology highlights that our brains do not reach full maturity until our mid-20s at least, challenging many of our assumptions about the child/adult divide. Empirical research demonstrates that although children do not reason as ‘well’ as adults, context is crucial (because with help, they often can), and it is very difficult to generalise about what children can do at a particular age.56 Perhaps because of the conflicting evidence from psychology, many commentators highlight maturity as a key issue. As Archard puts it57: Children, or at least children of a certain age, may not differ markedly from adults in respect of their cognitive and volitional capacities. They may be as capable as older humans of making their own minds up about what to do and be as independent in their resolution to act on their choices. But they may simply not have had as much experience of the world as their adult counterparts. Being thus naïve and inexperienced in the ways   Viljoen, J. Penner, E. and Roesch, R. (2011) ‘Competence and criminal responsibility in adolescent defendants: the roles of mental illness and adolescent development’ in D. Bishop and B. Feld (eds) The Oxford Handbook of Juvenile Crime and Juvenile Justice, Oxford: Oxford University Press. 54   Delmage, E. (2013) ‘The minimum age of criminal responsibility: a medico-legal perspective’, Youth Justice, 13: 102–21. 55   Matthews, G. and Mullin, A. (2018) ‘The philosophy of childhood’, in E. Zalta (ed) The Stanford Encyclopedia of Philosophy, Stanford: University of Stanford. 56   Daly, A. (2018) Children, Autonomy and the Courts, Amsterdam: Brill, 121. 57   Archard, D. (2017) Children Family and the State, Abingdon: Routledge, p 17. 53

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of the world they will not be as able, that is as qualified, as older (and wiser) humans are to make sensible choices. If persuasive, this is an important argument for two reasons, in particular. First, it means that the debates over the understanding and reasoning abilities of children can be put to one side. Whatever evidence is introduced to show that children are far more capable of reasoning than we have assumed, nothing can get round the fact they simply have not had experience of the world. Second, even if a particular child can show they have the same reasoning abilities as an adult, they cannot demonstrate the same level of maturity as an adult. But the argument is not persuasive. ‘Maturity’ is in danger of simply being another word for being older. If that is all it means, then we are saying that older people have more autonomy rights than younger people because they are older, which is simply a circular argument. More plausibly, maturity means experiences of life: having met a range of different people; heard different viewpoints; suffered different emotions and so forth. However, it is far from clear that that is related to age. As Alderson’s study of very sick children demonstrates, life experiences can give considerable insight.58 So, it is rather the quality of what you have experienced and how you have come to understand it that matters more than the years you have been on the planet. In any event, it seems people repeat the same mistakes again and again, suggesting that maturity does not bring with it greater mental capacity. Supporters of the claim that children should not have any autonomy rights claim that children lack the capacity to exercise autonomy, are likely to be abused, and this will cause harm. As Archard argues, ‘granting fundamental liberties to a child before he possesses the capacities to be the guardian of his own life is cruel’.59 Further, children are a ‘valuable asset’. Indeed, they are the taxpayers of the future. They require nurturing and supporting so that they fulfil that promise, rather than respecting foolish decisions which might mean they become dependent on the state for support. However sympathetic you are to the arguments in this section about children’s lack of capacity, it seems to be arguing too much to say that no child has sufficient autonomy. At its strongest, the case must be that very few children do.   Alderson, P. (1993) Children’s Consent to Surgery, Buckingham: Open University Press. 59   Archard, D. (2001) ‘Philosophical perspectives on childhood’ in J. Fiona (ed) Legal Concepts of Childhood, Oxford: Oxford University Press, 52. 58

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The case for full autonomy rights By contrast to the views discussed in the previous section, there are some commentators who argue that children should have all the autonomy rights that adults have open to them. This is commonly known as the ‘child liberation’ case. It seems that those seeking to make that case have three routes open to them: (1) To build up further evidence on the reasoning and understanding abilities of children to demonstrate that they are on a par with those of adults. This evidence may be either (a) that children’s abilities are far higher than is commonly supposed (‘traditional child liberation’) or (b) that adults’ abilities are far lower than is commonly supposed (‘modern child liberation’). (2) To accept that children have lower abilities than adults, according the standards used for capacity, but to deny they are so low that their decisions do not deserve respect. (3) To accept that children have lower reasoning and understanding abilities than adults, but argue that we have good reason to respect people’s views even if they lack capacity. That would require reliance on principles other than autonomy. My views on this are as follows. I do not think the case for (1)(a) is made out. I think the case for (1)(b) is well made. I think that (2) is not made out. As will be argued further in Chapter 9, we should have a high bar for decisions to be seen as autonomous. I think that (3) is also well made out, and that argument is developed in Chapter 9.60 Arguments 2 and 3 will discussed in Chapter 9 because they are really points about capacity generally, rather than specifically about children. So, here the focus will be on the traditional and modern child liberation arguments.

Traditional child liberation In the 1960s and 1970s there was a growth of interest in child liberation. This view, while initially attracting considerable attention, has fallen from popularity in recent years and has few adherents today. In essence, the claim of child liberation is that childhood is used as a construct to   Mullin, A. (2011) ‘Children and the argument from marginal cases’, Ethical Theory and Moral Practice, 14(3): 291–305.

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control and disadvantage children. We need to liberate children from the ‘tyranny’ that is imposed through childhood and treat them as we do all human beings.61 The argument went that children’s ability to make decisions for themselves was underestimated; deliberately so, because it meant that children could be kept as ‘super-pets’ or slaves for the convenience of adults. The child liberationist argument claimed that children should have the same legal rights that adults had. For example, John Holt62 argued for children having the right to vote, work, own property, receive minimum state education, use drugs and be able to consent to sexual relations. Child liberationists see childhood as a means by which adults are able to exercise power over children. Claire Cassidy et al wrote that children: are stifled and excluded from a society formed and defined by adults’ interests until they – the children – are trimmed and shaped in a way that allows adults to find children agreeable. This demonstrates the power relation between adult/child quite clearly.63 Adults set themselves up as ‘all-knowing’ experts to whom children must defer. Children who do not obey are seen as behaving morally wrongly and, indeed, ‘immaturely’.64 Ironically, being obedient to adults is seen as the best mark of becoming mature. Child liberationists today might invoke the argument that treating children and adults differently amounts to age discrimination. Although the Equality Act 2010 prohibits age discrimination in the workplace, the provision of goods, facilities and services, strikingly, persons under the age of 18 are not covered. Harriet Harman, in introducing the Bill, explained: It is right to treat children and young people differently … and there is little evidence of harmful age discrimination against young people.

  For example, Holt, J. (1974) Escape from Childhood, London: Pelican.  Ibid. 63   Cassidy, C., Conrad, S.-J., Daniel, M.-F., Figueroia-Rego, M., Kohan, W., Wu, X. and Zhelyazkova, T. (2017) ‘Being children: children’s voices on childhood’, International Journal of Children’s Rights, 15: 1–26, 15. 64   Medina-Minton, N. (2019) ‘Are Children an Oppressed Group? Positing a Child Standpoint Theory’, Child and Adolescent Social Work, 36: 439-40. 61 62

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A statement from the Equalities Office65 expanded this explanation: It was decided that age discrimination legislation is not an appropriate way to ensure that children’s needs are met. It is almost always right to treat children of different ages in a way which is appropriate to their particular stage of development. Any such legislation would require a large number of exceptions. Even if it is accepted that the treatment of children as different from adults is a form of discrimination,66 it might be argued that it is justified, the most likely justification being the issue raised in the previous section: that children lack capacity to make decisions for themselves. What the discrimination argument means is that those wanting to treat children differently from adults must produce a convincing reason why that should be so. Child liberation has plenty of critics. At the heart of many responses is that the theory fails to appreciate that if children were treated like adults, far from leading to their liberation, this would open them to exploitation and abuse. As Archard writes67: The child liberationists overstate their case when they represent all childhood incapacity as mere conventional, enforced dependency. Some of it is natural. Being very young does mean being small and weak, even if the contrast between dependent child and independent adult can be exaggerated. The awareness nowadays of sexual abuse, modern-day slavery and the dangers of social exclusion mean that a straightforward argument that ‘childhood is a prison from which children need liberating’ has few supporters. We know that adults take advantage of other adults who do not have the protection of childhood, in terms of sexual exploitation, employment and finance. We can predict all too well that adults would do the same to children if children were not protected as they are by the law.

  UK Government Equalities Office (2010), Equality Act 2010: Banning Age Discrimination In Services, Public Functions And Associations, Equality Impact Assessment, London: TSO, 25. 66  Young-Bruehl, E. (2012) Childism: Confronting Prejudice against Children, New Haven, CT: Yale University Press. 67   Archard, D. (2005) Children: Rights and Childhood, Abingdon: Routledge, 26. 65

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The next section suggests in response that maybe, therefore, the problem lies with the kinds of rights we currently give adults, rather than the position of children.

Modern child liberation I have supported the basic premise of the child liberationists but argued that the current law is flawed not because it underestimates the capacities of children, but because it overestimates the capacities of adults.68 Adults, just like children, fail to understand the necessary facts, are heavily influenced by the views of others, and have not developed their own values. So, we should treat adults and children in the same way, but by treating adults like children. In Chapter 9, there will be further elaboration of the lack of capacity of adults, and in Chapter 5, a challenge to the kinds of law we currently give adults. Therefore, only a very brief explanation will be provided here. In Chapter 5 it will be argued that we need to reject the law’s assumption that the norm is the autonomous liberal individual and replace it with the norm of the vulnerable person. Hence, while the law might pretend that adults do not need care and are self-sufficient, I argue that adults do need care, and it is commonly provided by children. Once the vulnerabilities and challenges to capacity for adults are recognized, the justification for distinctions then falls away. If we were to see vulnerability and interdependence as being at the heart of the human condition, then this would change how we would understand decision making.69 It would no longer be about individual ideas of autonomy but taking care of each other together. As Wall70 puts it: human rights would be understood as grounded, not in modernist ideas of autonomy, liberty, entitlement, or even agency, but in a postmodern circle of responsibility to one another. Such a model of rights would be suitable for both adults and children.

  Herring, J. (2018) Vulnerability, Childhood and the Law, Berlin: Springer.   Clough, B. (2017) ‘Disability and Vulnerability: Challenging the Capacity/ Incapacity Binary’, Social Policy and Society, 16(3): 469-481. 70   Wall, J. (2008) ‘Human rights in light of childhood’, International Journal of Children’s Rights, 16: 523–43, 541. 68

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As Wall expresses it, this requires a shift from ‘individual autonomy’ to ‘interdependent responsibility’. Interdependent responsibility means: Each of us belongs to interdependent networks of received developmental supports, imposed top-down protections, and active bottom-up opportunities for agency. Together, but not separately, these interlocking trajectories create dynamic societies capable of expanding human mutual responsibilities rather than contracting into exclusions and hegemonies.71 Adopting such an approach would require a major rethinking of the law.72 Without such a transformation, the argument that adults should be treated in the way children currently are treated would be unacceptable to most people.

Moderate views Many writers, while sympathetic to child liberationist cause, are unwilling to completely equate children and adults. They prefer, instead, to propose a moderate route, with children’s autonomy being recognized to some extent, but not so much as that of adults. For example, Daly promotes a ‘children’s autonomy principle’ which means that: children should get to choose – if they wish – how they are involved (process autonomy) and the outcome (outcome autonomy) unless it is likely that significant harm will arise from their wishes.73 Notably this view seeks to give some weight to children’s autonomy: both in the extent to which they are involved and in the weight attached to their views. The argument that we should respect children’s autonomy unless significant harm arises is a common theme among moderate approaches. In explaining her approach, Daly argues:

  Wall, J. (2015) ‘Why children’s rights matter’ in C. Bernard and J. Shea (eds) Giving Children a Voice: The Transforming Role of the Family, Newcastle upon Tyne: Cambridge Scholars Publishing, 43–51, 44. 72   Herring, J. (2019) Law and the Relational Self, Cambridge: Cambridge University Press. 73   Daly, A. (2018) Children, Autonomy and the Courts, Amsterdam: Brill, ch 3. 71

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‘Autonomy’ simply should not mean that children are abandoned to harmful situations, or to manipulation by another. It is the lack of nuance which is the problem – we can have a conception of autonomy which involves a degree of paternalism only where necessary. It also means that respect for children’s autonomy involves having to go to the trouble of facilitating their decision-making process – providing information, giving advice and support, and properly resourcing these facilities. This, she suggests, justifies respecting children’s autonomy without giving it the same status as adults’, because that would mean children would be ‘abandoned to harmful fates unaided’. Many thinkers on children’s rights have been drawn to an approach which seeks to ensure that children have maximum autonomy when they reach adulthood – ‘a child’s right to an open future’,74 as it has become known. It is worth exploring one of the leading writers in this area: John Eekelaar. He argues that children have three types of interests: basic, developmental and autonomy interests. He explains that basic interests are children’s claims concerning their physical, emotional and intellectual well-being. Developmental interests include claims to be able maximize their potential and maximize the resources available to them during childhood, while an autonomy interest is ‘the freedom to choose [their] own lifestyle and to enter social relations according to [their] own inclinations uncontrolled by the authority of the adult world, whether parents or institutions’.75 He explains that where there is a clash between these interests, basic and developmental interests should trump autonomy interests. There are two reasons for this ranking. First, Eekelaar argues that we should consider how a child might retrospectively, as an adult, have wished to be treated. He believes that most of us would not have wanted all our autonomy wishes granted as we were growing up, certainly not those that interfered with basic or developmental interests. Second, he argues that the ideal which we should be striving for is ‘to bring a child to the threshold of adulthood with the maximum opportunities to form and pursue life goals which reflect as closely as possible an autonomous

  Feinberg, J. (2007) ‘The child’s right to an open future’ in R. Curren (ed) Philosophy of Education, Oxford: Blackwell. 75   Eekelaar, J. (1986) ‘The emergence of children’s rights’, Oxford Journal of Legal Studies, 6: 161–78, 170–1. 74

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choice’.76 A child who develops into an 18-year-old with maximum autonomy will, then, have the maximum choice to decide for themselves how they wish to live their life. Eekelaar argues that to achieve this we need to ensure that during childhood the child’s basic or developmental interests are protected, even where the child’s autonomy interests point in a different direction. He argues, further, that enabling a child to have maximum autonomy in adulthood requires restrictions on their childhood now. It also requires that children be able to practise making decisions for themselves as they grow up. Children therefore must exercise autonomy in order to be able to have it later on. As Freeman puts it: We would not be taking rights seriously if we only respected autonomy when we considered the agent was doing the right thing. But we also would be failing to recognise a child’s integrity if we allowed him to choose an action, such as using heroin or choosing not to attend school, which could seriously and systematically impair the attainment of full personality and development subsequently.77 So, the position we have reached is this. If we accept a model of the kind promoted by Eekelaar, there is an acceptance that some limitation can be imposed on the autonomy of children, in the name of protecting their developmental or basic interests. These restrictions on the autonomy of children are commonly justified in the name of promoting a child’s autonomy later in life. Eekelaar’s approach is not unproblematic. Parents inevitably have to choose between different interests or skills a child might have: sport or music, for example. If we ask what, as an adult, the child would want, this is problematic because what the child will think when they grow up will depend on the choice. If the parents choose music and the child grows up a talented musician, they will approve of their parents’ decisions. However, if the parents choose sport and the child becomes a successful sportsperson, the child will approve of that decision.78   Eekelaar, J. (1994) ‘The interests of the child and the child’s wishes: the role of dynamic self-determinism’, International Journal of Law Policy and the Family, 8: 42–63, 60. 77   Freeman, M. (1992) ‘Taking children’s rights more seriously’, International Journal of Law Policy and the Family, 6: 42–63, 66. 78   A similar issue arises in raising a child with a particular religious belief or ethnic identity. 76

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There are also problems because the hypothetical adult will decide using adult eyes. Would the hypothetical adult let the child go to an expensive Santa’s grotto at Christmas, or would they regard that as a waste of money? There is a real danger that children are regarded only as ‘adults in the making’ and childhood is not appreciated in its own right. Lucinda Ferguson has strongly criticized much writing on children’s rights for failing to take a child-centred version of children’s rights, giving children the rights adults think they should have, rather than looking at the issue from the children’s perspective.79 A rather different concern is that Eekelaar’s approach very much focuses on producing maximum autonomy for children. This may be important but there are other values that are important too. We want children to learn the values of altruism and the importance of relational obligations. Allowing them to make decisions unless they are going to cause themselves harm seems to place insufficient weight on developing other desirable characteristics, apart from autonomy.

Children’s welfare The other major conceptual tool for considering childhood apart from autonomy is the concept of children’s welfare.80 If children are not able to make decisions for themselves, then others should make decisions for them based on what promotes the welfare of the child. Immediately that raises a host of controversial questions over what does promote a child’s welfare. It will be instantly apparent that anyone looking at the lives of parents in England will see a bewildering range of views on what is a good way of raising children. Whether in terms of issues around diet, discipline, religion, schooling, internet use or the importance of study, parents simply do not agree. This makes it difficult for the law therefore to assess what is in the interests of a child’s welfare.

  Ferguson, L. (2013) ‘Not merely rights for children but children’s rights: the theory gap and the assumption of the importance of children’s rights’, International Journal of Children’s Rights, 12: 177–208. 80  Skelton, A. (2018) ‘Children and well-being’ in A. Gheus, G. Calder and G. Wispelaere (eds) The Routledge Handbook of the Philosophy of Childhood and Children, Abingdon: Routledge. 79

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The meaning of welfare The first major question is what we mean by welfare in this context. The notion of a ‘good life’ is fiercely debated among philosophers. This is a complex debate, and there is not space to properly enter into it here.81 To hedonists, happiness is the sole marker of a good life, in which case the law should be seeking to promote the happiness of children. To virtue ethicists, a good life is marked by the characteristics of virtue and we should be seeking to raise children who are altruistic and kind. Autonomists might see the meeting of one’s own goals in life as ideal, in which case we should be seeking to enable children to formulate these goals and then reach them. Charles Foster and I82 have suggested that ‘wellbeing can only sensibly be defined by reference to the nexus of relationships in which humans exist. It can include the cultivation of virtues, such as relationship, the achievement of worthwhile goals, and the satisfaction of one’s obligations.’ It will be immediately apparent that a judge seeking to promote the welfare of a child is facing an unenviable task in deciding what welfare means. The most sophisticated discussion by the courts on welfare can be found in Re G (Education: Religious Upbringing).83 Munby LJ emphasized that welfare in section 1 of the Children Act 1989 should be understood broadly to cover the child’s well-being: Evaluating a child’s best interests involves a welfare appraisal in the widest sense, taking into account, where appropriate, a wide range of ethical, social, moral, religious, cultural, emotional and welfare considerations. Everything that conduces to a child’s welfare and happiness or relates to the child’s development and present and future life as a human being, including the child’s familial, educational and social environment, and the child’s social, cultural, ethnic and religious community, is potentially relevant and has, where appropriate, to be taken into account. The judge must adopt a holistic approach.84

  Foster, C. and Herring, J. (2018) Altruism, Welfare and the Law, Berlin: Springer.   Herring, J. and Foster, C. (2012) ‘Welfare means relationality, virtue and altruism’, Legal Studies, 32(3): 480–98. 83   [2012] EWCA Civ 1233. 84   Ibid, [27]. 81 82

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Somewhat controversially, he made it clear this is not simply a matter of happiness: I have referred to the child’s happiness. Very recently, Herring and Foster85 … have argued persuasively that behind a judicial determinations of welfare there lies an essentially Aristotelian notion of the ‘good life’. What then constitutes a ‘good life’? There is no need to pursue here that age-old question. I merely emphasise that happiness, in the sense in which I have used the word, is not pure hedonism. It can include such things as the cultivation of virtues and the achievement of worthwhile goals, and all the other aims which parents routinely seek to inculcate in their children.86 Furthermore, the child’s welfare has to be considered in their relational context: The well-being of a child cannot be assessed in isolation. Human beings live within a network of relationships. Men and women are sociable beings. As John Donne famously remarked, ‘No man is an Island …’. Blackstone observed that ‘Man was formed for society’. And long ago Aristotle said that ‘He who is unable to live in society, or who has no need because he is sufficient for himself, must be either a beast or a god’. As Herring and Foster comment, relationships are central to our sense and understanding of ourselves. Our characters and understandings of ourselves from the earliest days are charted by reference to our relationships with others. It is only by considering the child’s network of relationships that their wellbeing can be properly considered. So a child’s relationships, both within and without the family, are always relevant to the child’s interests; often they will be determinative.87 The judge, when deciding about a child’s welfare, had to act as a ‘judicial reasonable parent’ and have regard to the general standards in 2012 and the ‘ever-changing nature of the world’. Munby LJ expounded three aspects of this. First, we must recognize that equality of opportunity   Herring, J. and Foster, C. (2012) ‘Welfare means relationality, virtue and altruism’, Legal Studies, 32(3): 480–98. 86   [2012] EWCA Civ 1233, [29]. 87   Ibid, [30]. 85

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is a fundamental value of our society: equality as between different communities, social groupings and creeds; and equality as between men and women, boys and girls. Second, we foster, encourage and facilitate aspiration: both aspiration as a virtue in itself and, to the extent that it is practical and reasonable, the child’s own aspirations. Far too many lives in our community are blighted, even today, by lack of aspiration. Third, our objective must be to bring the child to adulthood in such a way that the child is best equipped both to decide what kind of life they want to lead – what kind of person they want to be – and to give effect so far as practicable to their aspirations. Put shortly, our objective must be to maximize the child’s opportunities in every sphere of life as they enter adulthood. And the corollary of this, where the decision has been devolved to a ‘judicial parent’, is that the judge must be cautious about approving a regime which may have the effect of foreclosing or unduly limiting the child’s ability to make such decisions in future.88 A full analysis of such conceptions of welfare is beyond the scope of this book. But there is one aspect of the debates over the concept of welfare that is relevant to the life course. That is the debate over whether children’s welfare differs from adults’ welfare or, in other words, whether there are particular aspects of a child’s good life which differ from an adult’s.

Goods of childhood As mentioned earlier, one mainstream view is that childhood is a vehicle to reach adulthood. Aristotle saw children as imperfect, unfinished adults.89 Todres90 summarizes well the popular image of childhood: the dominant view of children today is that they are adults in the making – that is, dependent individuals who are not yet capable of mature and autonomous thought or action and who need to be socialized to conform to the world. A successful childhood is, on that view, one that produces a good adult. Decisions concerning children should be made primarily based on what will help to produce a successful adulthood.   Ibid, [80].   Gheaus, A. (2015) ‘Unfinished adults and defective children: On the nature and value of childhood’, Journal of Ethics and Social Philosophy, 12: 1–21. 90   Todres, J. (2014) ‘Independent children and the legal construction of childhood’, Southern California Interdisciplinary Law Journal, 261–92, 270. 88 89

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In a challenge to such an approach, there has been a rapid growth in the philosophical literature explore ‘the goods of childhood’. This is the view that there are goods that are intrinsic to childhood itself. If accepted, it has significance consequences on how we understand childhood. Gheaus writes that if there are goods of childhood: childhood is not entirely a predicament, but also a privilege insofar as it is a state of life when we display higher abilities to experiment, learn, enjoy and relate to others in trustful and spontaneous ways…. In this case, children are more than deficient adults.91 At one extreme, advocates of the goods of childhood might claim that childhood is a morally superior status.92 However, it may not be helpful to reduce down the debate to asking whether childhood is better than adulthood. As Gheaus93 writes: the change from childhood to adulthood may not in every way be either progress – as the view of ‘children as unfinished adults’ would have it – or regress – as suggested by the view of ‘adults as defective children.’ Rather, it is a transformation from one intrinsically valuable kind of human being to a different intrinsically valuable kind of human being. Before exploring the debate over the goods of childhood, it is important to emphasize its significance. First, if childhood is bad it would mean that, as an overarching policy, we would be doing all we could to get through it quickly. A primary goal of legal and social interventions would be to enable children to reach adult status as quickly as possible. Second, if there are goods of childhood, then these could justify different legal treatments for children and adults. For example, children might be entitled to rights to enable them to enjoy those goods, while adults would not need those rights as they could not access the goods.

  Gheaus, A. (2015) ‘Unfinished adults and defective children: On the nature and value of childhood’, Journal of Ethics and Social Philosophy, 12: 1–21, 4. 92   Dwyer, J. (2011) Moral Status and Human Life: The Case for Children’s Superiority, Cambridge: Cambridge University Press. 93   Gheaus, A. (2015) ‘Unfinished adults and defective children: On the nature and value of childhood’, Journal of Ethics and Social Philosophy, 12: 1–21, 20. 91

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Brennan94 has used that first point to make an argument that we do believe there are goods of childhood. She creates a thought experiment where a pill could be taken and a child would immediately transform into an adult. She doubts we would think it advisable to take the pill, indicating we do not think childhood is simply a useful route to adulthood.95 If you thought the taking of the pill was a good idea, that would indicate you saw childhood as a severe disadvantage. I suspect many people would think that it would not be a good idea to take the pill. But what if we reversed the question: if as an adult you could take a pill so you became a child again, would you take it? This may take us back to Gheaus’s point that it is not that one stage of life is better than the other, but that there is a good in the natural process from childhood to adulthood. There is a further tricky aspect to the issue. Is the argument about whether the goods in question are only available to children (they are unique goods of childhood), or is it that children are able to access these goods more easily than adults or simply an empirical claim that most children are able to enjoy these goods?96 Or is the claim that these ‘goods’ would not be beneficial to adults? Gheaus97 claims: the goods of childhood are good for adults, too, and  … they are not typically entirely out of adults’ reach. However, given biological facts about children (such as underdeveloped prefrontal cortices) and other factual constraints (such as the need for someone to work in order to ensure survival), adults cannot hope to enjoy these goods to the same extent as children. So, what are some of the alleged goods of childhood? The following regularly appear as suggestions in the literature.

Innocence It is sometimes claimed that sexual innocence is a good for childhood. Brighouse and Swift propose this, although there is little explanation for   Brennan, S. (2014) ‘The goods of childhood and children’s rights’, in F. Baylis and C. McLeod (eds) Family-Making: Contemporary Ethical Challenges, Oxford: Oxford University Press, 29–48. 95   Presumably she has in mind that you would live the same total number of years whether you take the pill or not. 96   Hannan, S. (2018) ‘Why childhood is bad for children’, Journal of Applied Philosophy, 35: 11–28. 97   Gheaus, A. (2015) ‘Unfinished adults and defective children: On the nature and value of childhood’, Journal of Ethics and Social Philosophy, 12: 1–21, 3. 94

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what precisely is the good in mind.98 It might be the idea that sexual feelings, if unrequited, can be a source of frustration or distraction and children do not have that burden, although that sounds like the absence of a harm, rather than a good as such. There may be a question mark over whether children are lacking any sexual feelings at all.99 Assuming they do, it may be the claim is that children’s sexual feelings are free from guilt or other adult preoccupations and so more pleasurable than adults. But that seems to vary hugely from person to person and adult to adult.100

Trust Children are commonly credited with being able to love and trust without inhibition or reservation. Children can very quickly form attachment and deep trust in a way that adults seem not to be able to do. However, Hannan101 questions whether this is a benefit. She notes that the dangers of inappropriate trust are not equal for adults and children: Children’s vulnerability is more profound and asymmetric than the vulnerability associated with most adult relationships. Moreover, children are often unaware of their vulnerability, insensitive to facts about the world and those they are in relationships with. While my friends can harm me – intentionally or not – this vulnerability is roughly reciprocal.… Most importantly, adults can normally withdraw their love and trust and choose to exit relationships that don’t suit their needs. Even if children had this option, which they often don’t, they might not realise that they were being treated badly, or know what to do if they did realise it.

Being carefree It is commonly supposed that childhood is a time of being carefree, lacking concerns about the future. However, that may not necessarily be a good thing. Being uninhibited for an adult (for example through intoxication) is normally seen as a harm and a potential source of danger.102 Not being   Brighouse, H. and Swift, A. (2014) Family Values, Princeton: Princeton University Press. 99   Hannan, S. (2018) ‘Why childhood is bad for children’, Journal of Applied Philosophy, 35: 11–28. 100  Ibid. 101   Ibid, 27. 102  Ibid. 98

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aware of the longer-term consequences of actions or not understanding dangers may be a source of disadvantage, rather than a benefit.

Imagination and play It is sometimes claimed that children have greater gifts of imagination, for example with games of ‘make-believe’ whereas adults seem more restricted. Gheaus writes: the real distinguishing mark of childhood is children’s superior ability to learn and change in the light of experience and their mental flexibility that allows them to imagine how things could be – as opposed to how they actually are – better than adults.103 She104 refers to some goods that are unique to childhood: ‘engaging in world discovery, artistic creation, philosophical pursuits and experimentation with one’s self ’. These, she argues, can only be fully accessed during childhood. The new can only be discovered once in human nature as we experiment with versions of ourselves for a while, but by adulthood our self is set. She explains further the need for: the experiencing of caring affection from adults whom the children can trust and love wholeheartedly and unstructured time dur ing which children engage in fantasy play, experimentation and undirected exploration of the world and of their minds. Macleod105 argues that adults reach cognitive maturity and this inhibits their capacity for imaginative play. However, Hannan106 replies that adults are able to engage in imagination and play. She notes the popularity of novels, televisions shows and movies, even for adults. Live action role   Gheaus, A. (2015) ‘Unfinished adults and defective children: On the nature and value of childhood’, Journal of Ethics and Social Philosophy, 12: 1–21, 20. 104   Gheaus, A. (2018) ‘Children’s vulnerability and legitimate authority over children’, Journal of Applied Philosophy, 35: 60–75, 64. 105  Macleod, C.M. (2018) ‘Are children’s rights important?’ in E. Brake and L. Ferguson (eds) Philosophical Foundations of Children’s and Family Law, Oxford: Oxford University Press. 106   Hannan, S. (2018) ‘Why childhood is bad for children’, Journal of Applied Philosophy, 35: 11–28. 103

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play is popular, and also sexual fantasy. Sports and computer games are all signs of adult play and imagination. Nevertheless, Brennan107 argues: Despite the rise of play therapy for adults and discussions of making peace with one’s inner child, there seems to be something unique about play as a good of childhood.

Conclusion on the goods of childhood The debates over the goods of childhood are hard to assess. While it is easy to recognize many of the alleged benefits in the lives of children, two questions are raised. The first is whether these goods are in fact denied to adults, or whether it is just that our society makes it difficult for adults to enjoy them. I know, for example, that when I am with my children at a playground I sensibly watch them play, but if I think no one is looking, I will swing as high as anyone! So, is it just our inhibitions or embarrassment that stop us being childlike?108 Or is there something inevitable about being ‘grown up’ that denies us access to these goods? The second is that, as will be apparent from the discussion, several of these goods might be seen as a mixed blessing. Complete trust is good if the person is worthy of the trust, but harmful if not. Uninhibited play is good if someone is checking whether you are safe, but not if they are not. That makes it difficult to declare that any of the alleged goods are always and straightforwardly good.

Harms of childhood A very different perspective is that childhood is a harm. It is a necessary evil to get us to adulthood. So, Lomasky109 writes that were one condemned … to remain a child throughout one’s existence, or to grow in bulk without simultaneously growing in the capacity to conceptualize ends and to act for their sake, it would be a personal misfortune of the utmost gravity.   Brennan, S. (2014) ‘The goods of childhood and children’s rights’, in F. Baylis and C. McLeod (eds) Family-Making: Contemporary Ethical Challenges, Oxford: Oxford University Press, 29–48, 46. 108   Giesinger, J. (2017) ‘The special goods of childhood: Lessons from social constructionism,’ Ethics and Education, 12(2): 201–17. 109  Lomasky, L. (1987) Persons, Rights and the Moral Community, Oxford: Oxford University Press, 202. 107

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From such a perspective, it is correct to focus our response to childhood on ensuring the child successfully reaches adulthood and is able to appreciate the joys of adulthood, ideally as quickly as possible. So, from this perspective, what are harms of childhood?

Impaired reasoning It is commonly claimed that children have impaired reasoning, in particular, means-ends reasoning. That is the reasoning needed if one has a goal and one needs to determine how to reach that goal. So, if an adult is feeling hungry we might think they should be able to easily work out ways to find food and decide what kind of food would be suitable, whereas a child might not be able to do so. They may not understand that the desire they have is for food. Or even if they do understand their feeling, they may not know where or how food might be available. This means, the argument goes, that children lose out in identifying and meeting their needs. Children are also said to be dominated by emotions which govern their decisions. Children often respond in anger or frustration and seem to find it more difficult than adults to control their emotions. In all these ways, children are harmed, it is said, because they do not reach their goals and are not in control of their lives.

Lack of identity Children, it is said, lack a ‘stable practical identity’.110 They lack a set of moral positions and identity, settled projects and values. This leads to their aims being incoherent and frequently subject to change. This causes problems with long-term planning and consistency.

Need for support Children need intervention in their lives to have their basic needs met and to develop. Particularly early on, adults make decisions over many areas of their lives, including what they eat and who they socialize with. Indeed, it is parents who get to decide what happens for large parts of their day, especially for younger children. It is regrettable that children need these, entirely appropriate, limits on their freedom for day-today activities.   Brennan, S. (2014) ‘The goods of childhood and children’s rights’, in F. Baylis and C. McLeod (eds) Family-Making: Contemporary Ethical Challenges, Oxford: Oxford University Press, 29–48. 110

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Lack of moral agency Some argue that not only are children impaired in their rational thinking, they also lack moral agency. That means they cannot live ethically good lives, and this is a harm to them. The argument, from Kantian origins, is that an ethically good person chooses to do the good over the evil and that requires a degree of understanding and autonomy that children lack.111 Children who are forced to share or share without realizing what they are doing lack goodness. Further, from a virtue ethics perspective, it might be claimed that children cannot have empathy or altruism if they lack the ability to understand the position of others.112 This might be questioned from two perspectives. First, it might be argued that, in fact, research suggests that children have higher levels of empathy generally than others and can be extremely affectionate and kind. Second, it might simply be claimed that ethical responses do not require rational ability. Indeed, the heights of love, bravery or compassion do not involve a choice but instinctive acts.113 The toddler running over and hugging her friend who has fallen over is acting just as virtuously, if not more so, than the philosopher who, after many hours of consideration, decides to donate £10 to a famine relief charity. Third, even if children are morally deficient, some would say they are not so in a way that makes childhood harmful. If, as some suggest, children are more caring, even if not in a thought-through way, that may not necessarily be bad.114

Vulnerability Children are said to be vulnerable.115 Sarah Hannan says that vulnerability per  se is not bad, but it is for children, because it is ‘profound and asymmetric’.116 They are physically weak and their bodies are easily prone   Korsgaard, C. (2005) ‘Two conceptions of goodness’, The Philosophical Review, 92(2): 169–95. 112   Darwall, S. (1998) ‘Empathy, sympathy, care’, Philosophical Studies, 89(2–3): 261–82. 113   Jaworska, A. (2007) ‘Caring and full moral standing’, Ethics, 117(3): 460–97. 114   Gheaus, A. (2015) ‘Unfinished adults and defective children: On the nature and value of childhood’, Journal of Ethics and Social Philosophy, 12: 1–21, 20. 115  Schweiger, G. and Graf, G. (2017) ‘Ethics and the dynamic vulnerability of children’, The Ethics Forum, 12(2): 244–61. 116   Hannan, S. (2018) ‘Why childhood is bad for children’, Journal of Applied Philosophy, 35: 11–28, 14. 111

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to illness and harm; for example, the skulls of babies are still thin. They are in a state of profound vulnerability. They also lack the resources to reason or to physically escape from danger. It is claimed that this vulnerability is asymmetrical to that of adults as, according to Hannan: it’s one thing for adults to voluntarily open themselves up to others, but children have no such choice. Similarly, even when adults cannot entirely avoid unwanted vulnerability they have greater resources to protect themselves. That children are vulnerable in absolute terms, and considerably more vulnerable than those with extensive power over them, is bad for children.

Conclusion on the harms of childhood As with the debate over the goods of childhood, there are two similar issues which are raised. The first is whether these alleged harms are not experienced by adults too. I think adults suffer from all the impairments in reasoning children have (see Chapter 9 for further discussion). Second, I am not sure these alleged harms are actually all harms. Living with the heart rather than the head is not necessarily bad. Not having a fixed identity is not necessarily harmful. Patrick Tomlin argues that the problem is we cannot really compare adulthood and childhood if they are measured by different standards.117 He makes this point: imagine, at the ends of such lives, we could give people a pill which ensured that they had a period of ten years or more where their mental and physical capacities deteriorated into those of children. Would we give people that pill? It seems doubtful, to say the least. We spend billions of pounds trying to combat ‘illnesses’ in which something like this happens. Why imagine that inferior intellectual and physical ability is a personal tragedy at the end of a life, but a boon at its beginning? His point is that childhood may be a good at the start of life, but it is good as being at that stage. He argues ‘it cannot be better or worse to be an adult or a child, as what is better or worse for you depends on whether you are an adult or a child’. But that seems to assume the distinction is

  Tomlin, P. (2018) ‘Saplings or caterpillars? Trying to understand children’s wellbeing’, Journal of Applied Philosophy, 35: 112–31, 112. 117

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one we should draw. Whether we are children or adults, I would argue, in the right contexts, innocence, trust, play and so forth are good. Everyone should be encouraged to enjoy them. Similarly, impaired reasoning and needs can be experienced by both adults and children. We all need a helping hand or a cuddle sometimes, however old we are.

Children’s rights In this section we will consider whether the law should recognize that children have rights. Rights play an important role in our legal and political system. Therefore, granting or denying children rights sends a significant message. Colin Macleod118 separates out three important functions of rights: (1) A signalling function. He explains: ‘Rights pick out particular interests or claims of persons and express the idea that moral agents have reason to be especially attentive to securing a protected interest or respecting a protected claim.’ (2) A normative weight. He explains that where there is a genuine right to an interest this indicates it should have weight over claims for which there is not a right. So, where a government is seeking to determine whether to spend money on giving person A x or person B y, if A has a right to x but B does not have a right to y then it should spend the money on giving A x. Of course, it may be that both A and B have rights to x and y, respectively, and then the government must decide how to balance those rights. (3) An enforcement dimension. The state and the law should ensure that if a person has a right to something there are means of enforcing that right. So, I like eating chocolate, but I have no right to chocolate, and so if I cannot get hold of it I cannot bring any kind of legal claim against the government or other public authority for failing to ensure I can eat chocolate. However, my children have a right to education. If they are not able to access education, they could bring a claim against the state authorities for failing to protect their right.

 Macleod, C.M. (2018) ‘Are children’s rights important?’ in E. Brake and L. Ferguson (eds) Philosophical Foundations of Children’s and Family Law, Oxford: Oxford University Press, 163.

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While, therefore, the debates over whether or not children have rights are commonly undertaken by lawyers, it is important not to forget that the legal context is only one in which rights have an important role. In political and public decision making, rights can be pivotal. In legal terms the disputes between those who wish to give priority to children’s autonomy and those who wish to emphasize the importance of children’s protection are often played out as a clash between children’s rights and children’s welfare. However, it is important to appreciate that that there is nothing inherently tied to autonomy or protection within the nature of children’s rights or within the nature of children’s welfare. In other words, one can claim to be a children’s rights supporter and yet regard the right to protection as the most important children’s right and downplay the importance of the right to autonomy. Similarly, a child protectionist may yet believe the best way to protect children is to allow them to make decisions for themselves. That said, it is true that the majority of those commentators who emphasize children’s rights do so because it can be an effective route to promote children’s autonomy, and most of those who promote children’s welfare place more weight on children’s protection. Further, it is important not to present the debate too starkly. There are few (if any) children’s rights supporters who would not recognize rights to protection and acknowledge the need to balance rights to autonomy and rights to protection. And there are few children’s welfare supporters who would not recognize the benefit to children of allowing them to make decisions about their lives. John Eekelaar’s analysis, discussed above, is deliberately framed in terms of interests so that it could be adopted by either a children’s rights or children’s welfare approach. Therefore, it matters much less whether you are a children’s welfare or children’s rights supporter than the values you put in to utilize rightsor welfare-based reasoning. So, if you are committed to the idea that autonomy is important, you will produce the same outcome whether you use a welfare- or a rights-based analysis. Perhaps, therefore, the important thing about the rights versus welfare debate is the symbolic value. As Ferguson119 states: The statement that a child has a particular right is both an expression of an existing social norm that recognises the

  Ferguson, L. (2013) ‘Not merely rights for children but children’s rights: The theory gap and the assumption of the importance of children’s rights’, International Journal of Children’s Rights, 21: 177–208, 177. 119

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importance of the content of that legal right to the child, as well as a means of changing social norms to be more reflective of that importance. Before going further, it should be mentioned that there are some legal scholars who find the language of rights unhelpful. For them, the debate over whether children should have human rights is irrelevant, as they don’t think anyone should have rights. I will assume for my purposes here it is accepted that there are rights that adults should and do have. The question is where children fit into that picture. Here, are the four alternatives. Children’s rights: model 1

Children’s and adults’ rights

On this model, children and adults have exactly the same set of rights. All people are entitled to the same rights, regardless of their age.

Children’s rights: model 2 Rights which children and adults have

Children’s rights

Adults’ rights

Rights which adults, but not children, have

This model imagines that children have some of the rights that adults have, but not all. It also imagines that there are no rights that children have that adults do not.

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Children’s rights: model 3

Children’s rights

Adults’ rights

This model envisages that there are some rights that both children and adults have, but there are also some rights that only adults have and some rights that only children have. Children’s rights: model 4 Children have no rights

Adults’ rights

This model suggests that children have no rights. Human rights make sense only for adults. We will explore these options as we progress the discussion.

The basis for rights There is a dispute among jurisprudes about the basis of rights. While this can appear a technical argument, it reveals a deep division about the nature of humans. As a standard there are said to be two primary theories on the nature of rights: the will or choice theory, and the interest theory.120

 Macleod, C.M. (2018) ‘Are children’s rights important?’ in E. Brake and L. Ferguson (eds) Philosophical Foundations of Children’s and Family Law, Oxford: Oxford University Press.

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The will or choice theory Under the will or choice theory, core to the concept of a right is that the right holder can choose whether or not to enforce that right.121 Rights are about giving especial power or significance to certain choices. Therefore, a person ‘cannot be described as a right-holder unless he or she is able to exercise a choice over the exercise of that right’.122 Hence, for H.L.A. Hart, freedom is at the heart of rights and so it must be in the nature of rights that an adult can decide to limit their rights.123 This theory poses real challenges for those who cannot exercise a choice, including at least some children. Indeed, some critics of the choice theory have used the example of children to suggest this shows the theory is flawed.124 Supporters of the choice theory have two options when considering children. One is to suggest that children’s rights can be held in trust by their parents, who can exercise the choice on children’s behalf. This would enable them to support the idea of children’s rights, but by putting the power of their exercise in the hands of parents that would be seen by many to mean that children’s rights will do nothing to strengthen the position of children. The other is simply to bite the bullet and say children do not have rights. This does not mean they should not be protected in the law and have a special position in the law, it is simply that rights are not the best way of doing this.125

The interest theory Under the interest theory, rights protect well-being. We identify the key things that are important for human thriving and protect those interests with rights. This theory would have no difficulty with the concept of children’s rights because clearly children have interests. It would open

  Steiner, H. (1994) An Essay on Rights, Oxford: Blackwell.   Fortin, J. (2003) Children’s Rights and the Developing Law, Cambridge: Cambridge University Press, 12. 123   Hart, H.L.A. (1995) ‘Are there any natural rights?’, The Philosophical Review, 64: 131–47. 124   Brennan, S. (2014) ‘The goods of childhood and children’s rights’, in F. Baylis and C. McLeod (eds) Family-Making: Contemporary Ethical Challenges, Oxford: Oxford University Press, 29–48. 125   Griffin, J. (2008) On Human Rights, Oxford: Oxford University Press. 121 122

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up the possibility that there are different goods that children need from those adults need, and so children’s and adults’ rights need not correlate.126 Opponents will typically argue that the interest theory fails to give sufficient protection to notions of autonomy. It opens up the possibility of saying to someone that their rights justify overriding their wishes. In theory, a patient who refuses to receive medical treatment might be told it’s in their interest to receive treatment, and even though they do not want it they have a right to it. That can be somewhat mitigated if we see respect for autonomy as one of the interests that people have, and many supporters of an interest approach would use such an argument to say treatment should not be given to the patient in the scenario just discussed.127

Special rights for children As already mentioned, there are some who claims that there are special rights which children, but not adults, have. There are two primary reasons why people believe such rights exist. The first is a belief that there are special goods of childhood which adults do not have. We discussed this issue at page  102. To accept such a claim, it would be necessary to agree that such goods of childhood exist and that they are suitable to be protected by legal rights. The second is that children may be particularly prone to certain harms to which adults are not prone and so need rights to defend them from those harms. This issue is discussed at page 107. I have argued that, in my view, neither of these claims is made out. At least, I accept the many goods and harms claimed for childhood, but argue these are available to adults too

United Nations Convention on the Rights of the Child The United Nations Convention on the Rights of the Child is the leading international document on children’s rights.128 Created in 1989, it has been signed by all the countries in the world except for the United States.   MacCormick, N. (1982) ‘Children’s rights: A test-case for theories of right’ in N. MacCormick (ed) Legal Right and Social Democracy, Oxford: Oxford University Press. 127   There are some theories which attempt to combine interest and will theories, but these will not be discussed here. 128   Article 1 of the UN Convention defines a child as any human being below the age of 18 years ‘unless under the law applicable to the child, majority is attained earlier’. 126

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Some countries have incorporated it into their national law; for others, such as the UK, it is an internationally signed treaty that can impact on the interpretation of the law but is not directly enforceable. The UN Convention provides a wide range of rights. Of particular note are the following: • Children have the right to have their ‘best interests’ as a ‘primary consideration’ in all actions concerning them.129 • Children have ‘the inherent right to life’.130 • A child ‘who is capable of forming his or her own views [has] the right to express these views freely in all matters affecting the child’.131 Additionally, Article 5 states: States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. The reference to ‘the evolving capabilities of the child’ implies that not every child will be able to exercise every right in their own name.

Critics of children’s rights There are some critics of children’s rights. As we have seen, supporters of the choice theory of rights may claim that children who cannot exercise choice cannot have rights. Another issue of concern is whether rights work well in the family context in which most children live. Children live much of their childhood dependent on adults, and their relationship with adults is crucial. Rights typically pit one person’s claims against another, which might be thought inappropriate in a family context. Sacrifice and mutual support are the overriding values of the family unit, rather than the individual marketplace philosophy where rights might make more sense. It may be possible   Article 3(1).  Article 6. 131  Article 12. 129 130

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to produce a vision of rights that promotes individual autonomy and interpersonal connection, but this would not be identical to rights as they are commonly understood.132 We will explore alternative visions of rights in Chapter 5. A further argument is that even if in theory children’s rights are beneficial, in practice they can be used to the disadvantage of women and children.133 The fear is that rights are of use to those who have strength within society and, in particular, rights are of use to men as tools of oppression. For example, children’s rights could be used to investigate and control the intimate lives of women. This concern arises particularly because of the problems over the enforcement of children’s rights. If children’s rights can only realistically be enforced by adults, it may be that such rights will be used only for the benefit of adults. In R (on the Application of Williamson) v Secretary of State for Education and Employment,134 Baroness Hale memorably opened her speech: My Lords, this is, and has always been, a case about children, their rights and the rights of their parents and teachers. Yet there has been no one here or in the courts below to speak on behalf of the children … The battle has been fought on ground selected by the adults.

Children and the use of age in law One of the most striking features of the law is how age is used in different ways. To give you just a flavour, here are some ages at which you can do different things.135 A child can have a bank account in their own name and must now receive education. 10 years old: A child can be convicted of a crime. 12 years old: A child can see a film certified as 12A without an adult and can be trained to take part in dangerous performances as long as the local authority gives a licence. 5 years old:

  Herring, J. (2013) Caring and the Law, Oxford: Hart.  Olsen, F. (1992) ‘Children’s rights: Some feminist approaches to the United Nations Convention on the Rights of the Child’, International Journal of Law, Policy and the Family 6: 192–220. 134   [2005] 1 FCR 498, para 71. 135   These examples are taken from Child Law Action Service (2020) At What Age Can I …?, London: Child Law Action Service. 132

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13 years old: A child can get a job, but with a limit on the number of hours they can work. A child can be locked up in a secure unit of a children’s home for up to 72 hours, or longer by court order, if looked after by a local authority. 14 years old: A child is responsible for wearing a seatbelt. With a licence, they can take part in public performances abroad, which can include singing, playing, performing, being exhibited for profit, taking part in a sport or working as a model. 16 years old: A child can: get married; consent to have sex; and donate blood. They can buy aerosol paint and buy a pet. 17 years old: A child can join the Royal Navy or the Royal Marines as an officer at 17 (with parental consent), the Royal Air Force at 17 years and six months, and the Army at 17 years and nine months. 18 years old: A person can: buy alcohol and tobacco; make a will; and vote in elections. 21 years old: A person can drive any mechanically propelled vehicle. Such laws are easy to criticize. To many people they appear inconsistent and confusing. It would be difficult to find an entirely consistent line of reasoning to explain why you can have sex with your MP at age 16 but are not at that point deemed sufficiently mature of vote for them! But clearly what the law is trying to do is acknowledge that different activities carry different dangers. A child should be permitted to do a safer activity earlier than a more dangerous one. A major criticism of the use of age in this way by the law is that it draws a bright line between one day and the next. Surely nothing magical happens on the night of your 16th birthday which makes you suddenly more mature. That is the issue to be considered next.

Bright lines The law inevitably draws bright lines. That is, in part, because the rule of law requires that the criminal law be clearly defined so that a person can know in advance whether their proposed conduct will be a criminal offence or not.136 Imagine a law which said it was an offence ‘to drive at too fast a speed’. This would clearly seem to breach the rule of law requirement. A driver would not know in advance what speed a court   Raz, J. (1979) The Authority of Law, Oxford: Oxford University Press, ch 1.

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might deem to be ‘too fast’. A set speed limit, say 30mph, offers clear guidance as to what speed is regarded too fast. That example provides us with another evident benefit of such a bright line, which is ease of proof. A court can easily resolve a case about whether a car was driving over 30mph with appropriate technology. A case of ‘driving at too fast a speed’ could take a considerable amount of time to resolve. Of course, such bright-line rules have a serious drawback. They can operate in a way which in some cases may seem over-protective. Imagine if a person is driving at 35mph in a 30mph zone and can show that, given their excellent driving abilities, the weather conditions and lack of other vehicles or pedestrians, their driving was, in fact, safe. They would nevertheless have committed the offence. Perhaps more plausibly, a driver may be driving at 26mph, and so commit no offence but, in all the circumstances, might not be driving at a safe speed. They would, nevertheless, be entitled to be acquitted of the speeding offence. In short, the clarity and efficiency of the bright line comes with ‘errors’ on either side of it. These arguments apply too in relation to age of consent. No one will pretend that at, say, midnight on their 16th birthday a teenager magically acquires the knowledge and maturity to be treated as an adult. Rather the age of consent or permission provides a bright-line determination. No one believes that every child under a particular age in fact lacks capacity to consent or that every child over that age has capacity, but rather that there are sound policy reasons for conclusively presuming lack of capacity before that age. I suggest that in order to justify a bright-line decision in relation to age we need to be persuaded of the following: (1) the situation is better resolved by using a bright line than individual assessment in the particular circumstance; and (2) age is a good way to draw that line, and the correct age has been selected. Thinking about the first point, an interesting contrast can be drawn between consent to medical treatment and consent to sex. In English law a child who is below the age of 16 can give effective consent to receiving medical treatment, if they are able to persuade a doctor that they have sufficient maturity to understand the issues raised (Gillick competence, as it is known137). By contrast, in relation to sex, there is a bright-line rule that a child under the age of 16 cannot consent. Even if the child were able to show they were especially mature they would not be able to give consent.  After Gillick v West Norfolk and Wisbech AHA [1986] 1 AC 112.

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The distinction between these examples is readily justifiable for two reasons. First, while a doctor may have the expertise, detachment and time to make such an assessment, a would-be sexual partner does not. Second, the doctor is proposing to provide medical treatment, which we might suppose is beneficial for the child. Therefore, even if the doctor has got the capacity question wrong (the child does not have capacity to consent) no great harm is done. Indeed, if the child lacks capacity the doctor can provide the treatment anyway. By contrast, if the would-be sexual partner has the consent question wrong (the child does not have capacity to consent), they will have committed a serious wrong (rape). This comparison, therefore, gives us helpful guidance as to when an individual assessment of capacity is appropriate and when an age-based rule is needed. The individual assessment is particularly appropriate where there is an expert decision-maker or where the activity in question is a beneficial one for the child. These points can help explain the law as it has developed in relation to consent to medical treatment, which will be considered next.

Consent to medical treatment In Gillick v West Norfolk and Wisbech AHA138 there was a dispute over whether a teenage girl could give effective consent to receive contraceptive treatment, without her mother’s consent. The House of Lords held that if the doctor decided the girl had ‘sufficient understanding and intelligence to enable her to understand fully what is proposed’ to make the decision (or was ‘Gillick competent’), she could give as effective consent as an adult. Many commentators took the logic of the court’s approach to be that if a child had the same levels of capacity as an adult then it would make no sense for the law to distinguish them.139 However, to some consternation, later cases140 stated that the Gillick approach only applies to cases of consent and that in cases of refusal, even if a child was Gillick competent, their refusal could be overridden.141 As MacDonald J in Plymouth Hospitals NHS Trust v YZ and ZZ142 confirmed: ‘With respect  Ibid.   Cretney, S. (1989) ‘Gillick and the concept of legal capacity’, Law Quarterly Review 105: 356–62. 140   Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64. 141   For alternative readings of the case law see Gilmore, S. and Herring, J. (2011) ‘“No” is the hardest word: Consent and children’s autonomy’, Child and Family Law Quarterly 23: 3–30. 142   [2017] EWHC 2211 (Fam). 138 139

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to children under the age of 16, the court has the power to override the decisions of a Gillick-competent child where it is in the child’s best interests for it to do so.’ To many commentators the law makes no sense. If the child is competent to decide the question, it seems a bit odd to say to them: ‘You can decide this issue but only if you decide to answer “‘yes”. If you decide “no” we may override your wishes.’ It is especially odd because it is a far greater infringement of a child’s rights to operate on them without their consent than to deny them treatment that they would like to have. If anything, the law would be more logical if it said that the doctor cannot operate on the child if they refuse but has a discretion if they consent.143 There are two ways that the current law could be justified. One approach focuses on capacity. In a controversial argument, Stephen Gilmore and I have argued that a child may have capacity to consent to treatment, but lack the capacity to refuse treatment.144 Examples will clarify our argument. Imagine a child has grazed her knee and a teacher offers a plaster. Most children will know what it is like to have a plaster and be able to understand the process sufficiently to consent. They may not, however, understand the consequences of refusing to accept the plaster (the risks of septicemia) and so lack the capacity to refuse. Similarly, in a more complex case, a child may be offered a range of treatments for their condition and have the capacity to refuse one (maybe one they have tried before), but not have sufficient capacity to refuse to consent to other more complex treatments. The child needs to understand the details about what they are consenting to or what they are refusing in order to have capacity to do so. It is, therefore, quite plausible that a child has the capacity to consent, but not refuse. This argument has been objected to by those who argue that in order to have capacity to make a decision about a medical treatment the child must understand what both receiving and refusing a treatment involves. An alternative justification is to argue that the current law is perfectly logical once it is recalled that the basis of the law relating to children is set out in section 1 of the Children Act 1989 – the welfare principle. The law is based on the view that, if the doctor wants to perform treatment, this will be in the best interests of the child because this is the view of the medical expert. The law is then engineered to make it as easy as possible   The law becomes particularly illogical when the parent is under the age of 16 and can have a greater say over her child’s body than her own: Plymouth Hospitals NHS Trust v YZ and ZZ [2017] EWHC 2211 (Fam). 144   Gilmore, S. and Herring, J. (2011) ‘“No” is the hardest word: Consent and children’s autonomy’, Child and Family Law Quarterly 23: 3–30. 143

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to enable the doctor to go ahead. The doctor can operate either if the mature minor consents, or if the parents consent, or if the courts give approval. The law could hardly do more to enable the doctor to treat, once they have decided that the treatment is in the best interests of the child. Put this way, the law is a clear example of ensuring that the child’s best interests are promoted.

Conclusion This chapter has explored the concept of childhood. Several key themes emerge. First, we can see the emphasis that is placed in the commentary and the law on the concept of autonomy. A primary justification for the difference in treatment in law between children and adults is that children lack the capacity to exercise autonomy. However, some commentators argue this underestimates the capacity of children, while others argue it overestimates the capacity of adults. We will be returning to this theme in the next chapter. Second, we have seen how the law has struggled to deal with the evolving capacities of children. As we have seen, in some circumstances, an individual assessment of capacity is undertaken, but in others a brightline test based on age is used. We have explored how different approaches may be appropriate in different circumstances. We will return to some of those issues in Chapter 9. Third, we have seen how the social understandings of childhood end up being reflected in and reinforced by the law. The image of childhood as a time of innocence at threat from the adult world leads to the protectionist threads in the law. By contrast the image of childhood being a time for self-development underpins the emphasis placed on autonomy for children.

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Introduction In many ways this was the hardest chapter of the book to write. While it would not be difficult to find books and articles on law and children, and law and older people, Law and Adults does not seem to have captured the market, or even the legal imagination. Admittedly, it looks like a hard sell. Adulthood is a blank. The legal literature appears not to have any special rules that relate to adulthood. Similarly, in the sociological literature, while we might have a reasonably clear conception of what old age and youth look like, middle age is more of a blur. This, however, is revealing and significant. The law has no special ‘law of adulthood’ because that is the standard law. Look at a standard textbook on criminal law, tort law or contract law to find the law of the adulthood. That will not be stated overtly, but such books will typically include brief sections on how the law operates with regard to children, or to people with impaired capacity, as ‘exceptional cases’. Indeed, it would be perfectly possible, and may be quite common, for a student to go through their legal studies having read no cases on children or older people. Our students leave university well able to advise the businessperson on a commercial contract but utterly unable to advise the 15-year-old who finds herself pregnant, or the 80-year-old with dementia who opposes her family’s plans to put her into a care home. This chapter will not, therefore, list a series of special legal provisions that deal with adulthood. Rather, it is the unspoken assumption that what applies to an adult person is the ‘normal’ law. Yet it will be argued in this chapter that this assumption, and the assumption of what a typical adult person is like, has a profound impact on the values underpinning

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the law. Before examining that a little more, the nature of adulthood will be discussed.

Sociology and adulthood Adulthood in sociology is both key and invisible. It is ‘a central category’ because ‘it provides the unarticulated background to a majority of social enquiries’.1 But the meaning of adulthood is rarely expressed because it is taken as the default category.2 So, although it appears in the literature, it is often in the shadow as the stage towards which children are heading, and the stage from which older people have headed away. It therefore goes unarticulated and unchallenged. One example of the problems with the concept of middle age is the difficulty in defining when it starts or ends.3 There seems little consensus4 on the issue, with one recent study of popular opinion suggesting middle age starts at 60.5 It is interesting to note that a recent YouGov survey concluded ‘the ages between 30 and 47 don’t quite fit into any category according to the survey’,6 because people disagreed or did not know if they were middle aged. Not surprisingly, there have been calls to introduce new categories such as young adulthood or late middle age to create greater certainty.7 Although it has proved difficult to define middle age, there is general agreement that the social markers of adulthood are normally taken to be stable full-time work, a stable relationship, independent living and parenthood. Interestingly, this is less a matter of age as such, but rather of having ‘achieved’ something. However, it seems to be accepted that a person may reach middle age and not have achieved these goals. In this sense, one can ‘fail’ at middle age in a way it seems you cannot fail at   Blatterer, H. (2006) ‘Contemporary adulthood: Reconceptualizing an uncontested category’, Current Sociology, 55(6): 771–92. 2  Ibid. 3   Lachman, M. (2015) ‘Mind the gap in the middle: A call to study midlife’, Research in Human Development, 12: 327–34. 4   Hutchison, E. (2018) ‘Middle adulthood’ in E. Hutchison (ed), Dimensions of Human Behavior: The Changing Life Course, London: Sage. 5  https://www.nhs.uk/news/lifestyle-and-exercise/middle-age-starts-at-60-claimsmedia/ 6  https://www.independent.co.uk/life-style/young-people-under-30-british-peopleage-how-old-survey-a8244111.html 7   Lachman, M. (2015) ‘Mind the gap in the middle: A call to study midlife’, Research in Human Development, 12: 327–34. 1

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childhood or old age. Those are natural and unavoidable life stages. This fact – that we can articulate what is presented as a successful middle age but not what middle age itself is – reflects its opacity. Blatterer8 notes the ambiguity around whether the category of middle age is an ideal or a description: Let’s imagine the following: a man and a woman in their midtwenties. The woman holds a baby in her arms, a small child clings to her father’s hand. The woman wears an apron, her husband his work-overalls. There is a ‘Sold’ sign perched on the fence that surrounds the freshly painted house. A generously sized car sits in the driveway. No one could ever mistake the man and woman in this romanticized picture for adolescents, and few would suggest that they were not adults. That is true, but as he then notes there is some jarring about the image. It seems too ‘right’, almost as if the couple have not really lived because they have followed the standard script too closely. It looks like something from an advertisement rather than ‘real life’. Some might even feel sorry for the couple: they have got caught in the rut of expectations. They have reached the ideals of middle age, but perhaps they have done so too well. These sorts of concerns emphasize one of the themes of the book, the debates over individualism. This is the argument that we are nowadays permitted (even encouraged) to develop our own life narrative, free from the constraints or expectations of others. Perhaps this explains the unease with the couple mentioned in the previous paragraph; they have not shown enough individuality. Arguably, it also explains the blank in modern middle age. In the past we had ‘a society in which people’s lives were as highly standardized as the sheet steel from which the cars were welded together’.9 This meant that, according to Lee,10 once ‘adult’ and employed, one could expect to stay ‘the same’ for the rest of one’s life in a range of ways; one’s identity was stabilized by sharing the work environment with more or less the same people throughout one’s working life; the geographical area one lived in would remain the same since   Blatterer, H. (2006) ‘Contemporary adulthood: Reconceptualizing an uncontested category’, Current Sociology, 55(6): 771–92, 790. 9   Beck, U. (2000) The Brave New World of Work, Cambridge: Polity Press, 68. 10   Lee, N. (2001) Childhood and Society: Growing Up in an Age of Uncertainty, Buckingham: Open University Press, 66. 8

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the organization one belonged to had set down firm roots in that area; and, even if one were dissatisfied with one’s job, one would not have to seek a position with another organization (in another place with different people) because time and effort would bring the reward of career progression. On this perspective, once one was married with children and in a settled job middle age was achieved. There was nothing more to do. Except, perhaps, wait for ‘the middle age crisis’! Nowadays the ideal of middle age may have lost the appeal it once had. Indeed, if anything, these ‘settling down’ milestones are somewhat disparaged. ‘Living the dream’ is unlikely to involve a 9–5 job, kids, a Vectra and a nice semi-detached house. Despite its normative pull, the classic model of middle age is no longer an accurate description of adulthood.11 As Sarah Lowe and colleagues12 have found, while 65 per cent of men and 75 per cent of women had reached the traditional markers of adulthood (marriage, parenthood, home ownership and financial independence) during adulthood in the 1970s, by 2000 fewer than half had done so. So, although the classic ideal of middle age still has a powerful hold on the imagination, it is increasingly not accurate as a statement of what middle age is like, nor indeed accepted as a vision for what it should be like. We are left with a void as to what middle age means. In some ways, the law may be more helpful as a guide to what middle age is about than sociology.

The legal norm of the adult man Legal rights and structures are shaped around a norm of what the self is like. The legal understanding of the person profoundly affects the kinds of legal rights we give them. The law is premised on a self which is independent, capacitous and rational.13 Hence, the law emphasizes as key rights, autonomy, bodily integrity, privacy and liberty. Our right to be able to make our own choices over how to act, and to be subject only to those responsibilities we choose to take, are seen as central pillars of   Hockey, J. (2009) ‘The life course anticipated: Gender and chronologisation among young people’, Journal of Youth Studies, 12(2): 227–41. 12  Lowe, S., Dillon, C., Rhodes, J. and Dillon, C. ‘Defining adult experiences: Perspectives of a diverse sample of young adults’, Journal of Adolescent Research, 28(1): 31–68. 13   Nedelsky, J. (2014) Law’s Relations, Oxford: Oxford University Press. 11

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the economic, social and legal structures. The role for the law in such a model is to protect us as individuals from unwanted intrusions and to protect our liberty to pursue our own goals for our life. In short, rights are about keeping other people away from us. The law recognizes that there are those for whom these rights are not appropriate, particularly those with impaired mental capacity. Such people are often described as ‘vulnerable’ and that terminology is used to monitor, supervise and discipline them.14 They lack those essential skills to direct their own lives and protect themselves, and so need others to do that for them. Lawyers tend to take for granted the individualized nature of the self.15 It is found in the names we give our cases: Smith v Jones indicates there is a person called Smith who is claiming against another called Jones. In criminal cases, the whole process is based on the idea the defendant is a self who can be held to account for what they have done in the past: that they are the same person now, and when they are punished, as they were when they committed the crime. The law assumes that there are individual human beings who can be given legal rights and responsibilities. Further, the nature of those rights, interests and responsibilities reveals our understanding of what is important about the self. The understanding of what a person is, what is important to people, and how people flourish will powerfully influence what we consider to be good law. Despite the extensive evidence of the relational nature of the self, the law emphasizes the separation of human beings into separate individual selves and claims that we recognize the different interests, claims and personalities of each one. It is worth repeating Martha Nussbaum’s16 explanation for why she believes the individual should be the basic unit for political thought: It means, first of all, that liberalism responds sharply to the basic fact that each person has a course from birth to death that is not precisely the same as that of any other person; that each person is one and not more than one, that each feels pain in his or her own body, that the food given to A does not arrive in the stomach of B.

  Fineman, M. (2009) ‘“Elderly” as vulnerable: Rethinking the nature of individual and societal responsibility’, Elder Law Journal, 20: 71–103. 15   Herring, J. (2019) Law and the Relational Self, Cambridge: Cambridge University Press, ch 1. 16   Nussbaum, M. (1999) Sex and Social Justice, Oxford: Oxford University Press, 62. 14

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Someone’s personal identity in this sense consists of those features she takes to ‘define her as a person’ or ‘make her the person she is’.17 Crucially, it identifies those features that make her different from others. By taking seriously the nature of the unique self, the law avoids a person being seen as merely part of a group, with no regard for what makes us different. We saw in Chapter 3 that the Kantian ideal of the moral actor has a powerful influence on the debates over moral status. Kantian writing on the self imagines a person who finds absolute moral values through the power of rational thought. Similarly, the ‘homo economicus’ of mainstream economics is driven by reason to rank and maximize desire satisfaction. These highly influential understandings of the self imagine a self free from relationships and society, who strives for moral or economic perfection through rationality. There is no discussion of relationships; indeed, if anything, these are seen as threatening objectivity. The focus on rationality underplays the worries, prejudices, unwanted desires, ambivalences and fears that are central to human experience. A significant body of writing rejects these conceptions of the individual self. Naffine writes: We can think of human beings as discrete individuals, fully independent of one another and preferring it that way, because others cause worry: they pose a threat to property and personal security. Such nervous, self-isolating beings need law to keep others at bay. They do best – are most autonomous, even happy – when left to their own devices. This way of thinking about persons may seem quite natural because it has been so influential in our Western liberal legal and political tradition.18 However, she explains that this image of the self is a caricature. No one can, in fact, survive without the practical, emotional and psychological support of others. One of the consequences of the image of the legal self as free, rational and autonomous is that those who do not live up to this ideal are seen as not full legal subjects. As Willett, Anderson and Meyers19 explain:  Olson, E. (2015) ‘Personal identity’ in E. Zalta (ed) Stanford Encyclopaedia of Philosophy, Stanford: Stanford University. 18  Naffine, N. (2014) ‘The liberal legal individual accused: The relational case’, Canadian Journal of Law and Society, 29: 123–132, 123. 19   Willett, C., Anderson, E. and Meyers, D. (2019) ‘Feminist perspectives on the self ’, Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/entries/feminism-self/, accessed 30 July 2020. 17

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Since women have been cast as lesser forms of the masculine individual, the paradigm of the self that has gained ascendancy in US popular culture and in Western philosophy is derived from the experience of the predominantly white and heterosexual, mostly economically advantaged men who have wielded social, economic, and political power and who have dominated the arts, literature, the media, and scholarship. As a result, feminists have not merely perceived the self as a metaphysical issue but have also drawn attention to its ethical, epistemological, social, and political imbrication. So, the definition of the individual self presupposes and privileges a particular class of humans. The image of the self as in its nature governed by rationality, self-direction and self-sufficiency has meant that caring work and relating to others are regarded as subservient aspects of the self. As Willett et al put it: ‘To identify the self with the rational mind is, then, to masculinize the self.’20 They go on to explain: The masculine realm of rational selfhood is a realm of moral decency – principled respect for others and conscientious fidelity to duty – and of prudent good sense – adherence to shrewd, fulfilling, long-range life plans. However, femininity is associated with a sentimental attachment to family and friends that spawns favoritism and compromises principles. Likewise, femininity is associated with immersion in unpredictable domestic exigencies that forever jeopardize the best-laid plans and often necessitate resorting to hasty retreats or charting new directions. By comparison, the masculinized self appears to be a sturdy fortress of integrity. The self is essentially masculine, and the masculine self is essentially good and wise.21 This individualized notion of the self, as bounded and self-contained, encourages the promotion of self-reliance and independence within the law. As Code writes: His independence is under constant threat from other (equally self-serving) individuals: hence he devises rules to protect himself from intrusion. Talk of rights, rational self-interest,

 Ibid.  Ibid.

20 21

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expediency, and efficiency permeates his moral, social, and political discourse.22 This emphasis on the contained, self-sufficient self can be seen as an exercise of power. A legal system based on such a norm will work well for some people, but not others. For those who fail to live up to it, the legal system will magnify the disadvantages they suffer. The traditional visions of the self promote an ablest, classist and racist vision of the white, able-bodied male as the norm around which to develop legal responses. As Clifford Geertz, a renowned anthropologist, notes: The Western conception of the person as a bounded, unique, more or less integrated motivational and cognitive universe, a dynamic center of awareness, emotion, judgment, and action organized into a distinctive whole and set contrastively both against other such wholes and against a social and natural background is, however incorrigible it may seem to us, a rather peculiar idea within the context of the world cultures.23

Challenges to the legal norm In this section I want to propose an understanding of human nature which would not need to have special accommodations for the young or the older person or those with disabilities, but which would rather more accurately depict the whole of the human condition. We need a model of legal regulation that recognizes the reality that relationships and caring responsibilities, far from being impediments to the self, are core to people’s identity. As Willett et al ask: Who models this free, rational self? Although represented as genderless, sexless, raceless, ageless, and classless, feminists argue that the Kantian ethical subject and homo economicus mask a white, healthy, youthfully middle-aged, middle- or upperclass, heterosexual, male citizen. On the Kantian view, he is an impartial judge or legislator reflecting on principles and deliberating about policies, while on the utilitarian view, he is  Code, L. (1991) What Can She Know? Feminist Theory and the Construction of Knowledge, Ithaca: Cornell University Press, 77–8. 23   Geertz, C. (1974) ‘From the native’s point of view: On the nature of anthropological understanding’, Bulletin of the American Academy of Arts and Sciences, 28: 26–61, 58. 22

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a self-interested bargainer and contractor wheeling and dealing in the marketplace. It is no accident that politics and commerce are both domains from which women have historically been excluded. It is no accident, either, that the philosophers who originated these views of the self typically endorsed this exclusion. Deeming women emotional and unprincipled, these thinkers advocated confining women to the domestic sphere where their vices could be neutralized, even transformed into virtues, in the role of empathetic, supportive wife, vulnerable sexual partner, and nurturant mother.24 I will articulate an alternative understanding of the self, which more accurately describes human nature and matches the human experience across the life course. This would start with a norm of vulnerable, interdependent, caring people. The importance of upholding and maintaining those relationships becomes the key role of the law. The law does not emphasize independence, liberty and autonomy; but rather seeks to uphold relationships and care. To develop this, I explore three aspects of the self.

The vulnerable self As Fineman25 has argued, vulnerability is a ‘universal, inevitable, enduring aspect of the human condition’. This has led to a significant body of academic writing exploring the idea that humans are in their nature vulnerable: the theory of universal vulnerability, as it is sometimes called. To understand this theory a little more we need to understand what it is to be vulnerable. P is vulnerable if the following three factors are present: (1) P faces a risk of harm; (2) P does not have the resources to be able to avoid the risk of harm materializing; and (3) P would not be able to adequately respond to the harm if the risk materialized.   Willett, C., Anderson, E. and Meyers, D. (2019) ‘Feminist perspectives on the self ’, Stanford Encyclopaedia of Philosophy, https://plato.stanford.edu/entries/feminism-self/, accessed 30 July 2020. 25   Fineman, M. (2008) ‘The vulnerable subject: Anchoring equality in the human condition’, Yale Journal of Law and Feminism, 20: 1–61; Herring, J. (2016) Vulnerable Adults and the Law, Oxford: Oxford University Press. 24

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Normally, the word ‘vulnerable’ is used to designate a particular person or group of people as being at particular risk of a harm. This is commonly then used to suggest that that person or group needs particular protections from the law or other social interventions, to put them in a position so that they are protected, or can protect themselves, from harm. Vulnerability is typically seen as being an undesirable state, which you should seek to avoid. However, the claim of ‘universal vulnerability’ is that everyone is vulnerable. The body in its nature is constantly open to harms and hurts. We are literally breakable and woundable. But that is not just true of our bodies. Our emotional, psychological and social selves rely on others, and are at constant risk of distress.26 From our earliest beginnings we are in relationships of dependency and we continue so for much, if not all, of our lives. Sometimes receiving, sometimes giving, care; often doing both. Relationships of dependency are central to our lives. There is much more that would need to be said about the claims of universal vulnerability to fully develop the theory,27 but I want to focus on three issues which are particularly key for this book.

Life stages and vulnerability Assuming for the moment the idea of universal vulnerability is accepted, it might be argued that nonetheless the lived reality is that people are not equally vulnerable. Although we are all limited by our bodies in different ways – by what we can and cannot do – these restrictions may be more apparent for some people than others, and at some stages of life than others. There are two replies to this. First, it is easy to exaggerate the differences between ages. We might imagine, for example, that an adult can usually feed themselves, whereas a baby needs someone to help them. So, surely that shows a notable difference in vulnerability. However, we all (or nearly all) need people to grow, distribute and sell food. Even those in the ‘prime of health’ are reliant on others for services, from public transport to the supply of energy and food. The dependence which is a core aspect of humanity is often unacknowledged. As Simo Vehmas28 puts it:

  Foster, C. and Herring, J. (2018) Identity, Personhood and the Law, Berlin: Springer.   Herring, J. (2019) Law and the Relational Self, Cambridge: Cambridge University Press, ch 2. 28   Vehmas, S. (1999) ‘Discriminative assumptions of utilitarian bioethics regarding individuals with intellectual disabilities’, Disability and Society, 14: 37–62, 60. 26 27

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non-disabled people tend to forget their own dependence on services, such as the provision of the water that comes out of the tap – an obvious obstacle to their independence. The concept of independence is clearly defined according to society’s expectations about what people normally do for themselves and how they do it…. It seems, therefore, reasonable to conclude that people are best described as interdependent since people are sometimes autonomous, sometimes dependent, sometimes providing care for those who are dependent. Second, there is a lively debate amongst supporters of universal vulnerability on how to explain the different experiences of vulnerability. Martha Fineman accepts that in a typical lifespan there will be times of different capacity and strengths. But the typical ‘adult liberal subject’ focuses on just one part of that lifespan (middle age) and essentializes this as the standard. That means the vulnerable nature can get overlooked. She argues: Throughout our lives we may be subject to external and internal negative, potentially devastating, events over which we have little control – disease, pandemics, environmental and climate deterioration, terrorism and crime, crumbling infrastructure, failing institutions, recession, corruption, decay, and decline. We are situated beings who live with the everpresent possibility of changing needs and circumstances in our individual and collective lives. We are also accumulative beings and have different qualities and quantities of resources with which to meet these needs of circumstances, both over the course of our lifetime and as measured at the time of crisis or opportunity.29 Other writers have suggested that we are equally valuable throughout our lives and it is the provision of social resources which grants some people greater resilience to their vulnerability than others. Hence, taking that line, I have argued: It is true that at different times and in different circumstances we may be more overtly in use of societal resources should   Fineman, M. (2009) ‘ “ ‘Elderly’ as vulnerable”: Rethinking the nature of individual and societal responsibility’, Elder Law Journal, 20: 71–103, 99. 29

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not disguise the fact that we are in need of communal and relational support for all our lives. We may be differently positioned within a web of economic and social relationships and this will impact on our experience of vulnerability and the resources at our disposal.30 In some of her writings Fineman seems to take a similar line observing that ‘[v]ulnerability … is both universal and particular; it is experienced uniquely by each of us … our individual experience of vulnerability varies according to the quality and quantity of resources we can command’.31 One way of understanding the issue is to consider it in terms of resilience.32 Fineman and Grear33 argued: While vulnerability is universal, resilience is particular, found in the assets or resources an individual accumulates and dispenses over the course of a lifetime and through interaction with and access to society’s instructions. Resilience can take a range of forms, as Martha Fineman and Silas Allard34 explain: There are different types of resilience-producing resources, accumulated across different social sites. For example: material resources are produced in employment and financial arrangements; social resources are gained when we act with others, as we do in unions and by taking political or civic action; ‘human capital’ is accumulated through educational institutions or other skill-generating sites like apprenticeships; relational resources are formed in families and friendships; and existential resources can come from interaction within religious institutions or through aesthetic experiences.

  Herring, J. (2018) Vulnerability, Childhood and the Law, Berlin: Springer, 65.   Fineman, M. (2011) ‘The vulnerable subject and the responsive state’, Emory Law Journal, 60: 251, 269. 32   ten Have, H. (2016) Vulnerability, Abingdon: Routledge. 33   Fineman, M. and Grear, A. (2014) ‘Introduction’ in M. Fineman and A. Grear (eds) Vulnerability, Aldershot: Ashgate, 5. 34  Fineman, M. and Allard, S. (2017) ‘Vulnerability, the responsive state, and the role of religion’, in J. Springhart and G. Thomas (eds) Exploring Vulnerability, Berlin: Vandenhoeck & Ruprecht GmbH & Co KG, 185–207, 193. 30 31

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There is clearly a tension here between the solidarity provided by the claims of universal vulnerability and an acknowledgement that different levels of resilience can impact on its lived experience. Phil Bielby35 finds a way through this: while our unique experience of vulnerability is contingent on the resilience to withstand what happens to us during our life, what we are vulnerable to is not contingent, as it is rooted in our universal vulnerability, which is constant. The recognition that aspects of universal vulnerability are experienced more acutely or onerously due to limitations on resilience that we all encounter further entrenches a solidarity understanding of vulnerability. … the right question to ask is how constraints on one’s resilience to cope with universal vulnerability are causing one’s lived experience of vulnerability to be more acute or onerous than that of someone else, rather than whether one is vulnerable or not, or how vulnerable one is. This perhaps then clarifies the apparent disagreement. In so far as the resilience is provided by sources external to the self (for example by social provision or societal resources), we can acknowledge the universal vulnerability and locate the different experiences in the different levels of social provision.36

The use of vulnerability Part of the public and legal response to childhood and dementia, for example, can be explained by an attempt to bolster the image of the invulnerable ideal norm. Gilson37 writes of ‘the production of invulnerability’ to capture the idea that if the distinction between the vulnerable and non-vulnerable is emphasized then this encourages people to disavow their own vulnerability, by exaggerating the vulnerability of others.38 Hence, adults seek to deny their own vulnerability by projecting their vulnerabilities onto children.   Bielby, P. (2008) Competence and Vulnerability in Biomedical Research, Berlin: Springer, 16. 36   See also Engster, D. (2019) ‘Care ethics, dependency, and vulnerability’, Ethics and Social Welfare, 13: 100. 37   Gilson, E. (2011) ‘Vulnerability, ignorance and oppression’, Hypatia, 26: 308–32, 309. 38   Satz, A. (2010) ‘Overcoming fragmentation in disability and health law’, Emory Law Journal, 69: 277–301. 35

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Goods of vulnerability The emphasis on vulnerability is key to human nature and is a desirable characteristic.39 It requires us to be welcome and open to our interconnection with others and the wider world. It warns us against puffing ourselves up or judging each other harshly. It encourages cooperation; looking out for each other; working together to find solutions to the problems we all face. Because we cannot always look after ourselves, we need to offer and receive help from each other. A recognition of our mutual vulnerability that leads to empathy and understanding is essential40 and will create intimacy and trust. As Carse puts it, ‘Our vulnerability is inextricably tied to our capacity to give of ourselves to others, to treasure and aspire, to commit to endeavors, to care about justice and about our own and other’s dignity.’41

The caring self Once it is understood that humans are universally vulnerable the importance of care becomes obvious. Caring relationships are essential to our survival, to our understandings of ourselves, and to the things we value. As Feder Kittay writes: A world without care would not only be a dismal world, it would be a world in which great harm would be done. A world in which nobody cared about anyone else would be a world in which needs of those who could not attend to their own needs (and that is all of us at some point in our lives) would be neglected.42

  Bedford, D. and Herring, J. (eds) (2020) Embracing Vulnerability: The Implications and Challenges for Law, London: Taylor & Francis. 40   Feder Kittay, E. (2011) ‘The ethics of care, dependence, and disability’, Ratio Juris, 44: 49–72. 41   Carse, A. (2006) ‘Vulnerability, agency and human flourishing’ in C. Taylor and R. Dell’Oro (eds) Health and Human Flourishing, Washington: Georgetown University Press, 48. 42   Feder Kittay, E. (2019) Learning from My Daughter: The Value and Care of Disabled Minds, Oxford: Oxford University Press, 168. 39

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We reach then the position that our value lies not in ourselves as isolated egos but in our caring relationships. As Reinders43 puts it: Being loved by someone is what matters most in our lives. What we do not often think about, however, is the logic of this statement, and this logic is what I ask you to contemplate for a moment. If ‘being loved’ is the most important thing in our lives, then the most important thing is something we cannot do by ourselves or on our own. It’s not a goal we can strive for, it is not something we can achieve. To be loved by someone implies that the most important thing in our lives is something we can only receive as a gift. We are used to seeing care as something that adults do for children or others who cannot look after themselves. However, Wildemann Kane44 argues: both care receiver and caregiver are members of a caring relationship. Thus, moral growth does not end at adulthood, but is continually developed and honed as adults and children alike form new caring relationships with one another. This is correct. The traditional model of parent as carer and child as recipient of care fails to acknowledge the ways that children ‘parent’ the adults in their life. Children care, mould, control, discipline and cajole their parents, just as parents do their children. The parent–child relationship is very much a two-way process.

The relational self Connecting the themes of our inherent vulnerability and the importance of care is the claim that the human self is profoundly relational.45 People are in their very nature interdependent and vulnerable. It is through our

  Reinders, H. (2011) ‘The power of inclusion and friendship’, Journal of Religion, Disability and Health, 15(4): 431–6, 432. 44   Wildemann Kane, L. (2016) ‘Childhood, growth, and dependency in liberal political philosophy’, Hypatia, 31(1): 156–70, 168. 45   Nedelsky, J. (2014) Law’s Relations, Oxford: Oxford University Press. 43

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relationships that our human selves are made.46 As Baier47 puts it, ‘[a] person, perhaps, is best seen as someone who was long enough dependent on other persons to acquire the essential arts of personhood. Persons are essentially second persons who grow up with other persons’. We define and understand ourselves in terms of our relationships. It is our relationships that give our life meaning and constitute our identity. The story of our lives is told to, by and through those we interact with.48 That is why bereavement and relationship breakdown are two of the greatest sadnesses most people experience and why they have such an impact on the self. As Strathern explains: The person is construed from the vantage points of the relations that constitute him or her; she or he objectifies and is thus revealed in those relations. The agent is construed as the one who acts because of those relationships and is revealed in his or her actions. If a person is an agent seen from the point of view of her or his relations with others, the agent is the person who has taken action with those relations in view. In this the agent constitutes a ‘self ’.49 Feder Kittay’s50 writing on this is particularly fascinating. She cares for her daughter, Sesha, who is severely disabled. She explains that intellectual capacity is not central to relationships because it is: a place in a matrix of relationships embedded in social practices through which the relations acquire meanings. It is by virtue of the meanings that the relationships acquire in social practices that duties are delineated, ways we enter and exit relationships are determined, emotional responses are deemed appropriate, and so forth. A social relation in this sense need not be dependent on ongoing interpersonal relationships between conscious individuals. A parent who has died and with   Gergen, K. (2011) Relational Being, Oxford: Oxford University Press.   Baier, A. (1985) ‘Cartesian persons’ in A. Baier (ed) Postures of the Mind: Essays on Mind and Morals, Chicago: University of Minnesota Press, 17. 48   Purcell, E. (2016) ‘Disability, narrative, and moral status’, Disability Studies Quarterly, 36: 1–24. 49   Strathern, M. (1988) The Gender of the Gift: Problems with Women and Problems with Society in Melanesia, Berkeley: University of California Press, 273. 50   Feder Kittay, E. (2009) ‘The personal is philosophical is political: A philosopher and mother of a cognitively disabled person sends notes from the battlefield’, Metaphilosophy, 40: 606–62, 661. 46 47

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whom one can no longer have any interchange still stands in the social relation of parent to us, calling forth emotions and moral attitudes that are appropriate or inappropriate. Discussions of identity and moral value often appear to start with the ideal person: one who is driven by self-awareness, logic and exceptional IQ. The ideal philosopher perhaps. But to start there is the wrong place. If we start with those with profound disabilities or with children, we discover a richer account of humanity, one which highlights what it is that generates the highest moral status: relationships of care, interdependence and mutuality.51 In isolation our lives have no great value and lack meaning. It is in our coming together and intertwining our lives that moral value is found.

Uniting human values Using the values of a vulnerable, caring and relational self to base the law around would have many advantages. First, it would provide a vision for humanity which reflects our experiences and life throughout the life course, rather than the current emphasis on autonomy, liberty and selfsufficiency, which possibly resonate only with the experiences of a small section of part of the life cycle. Second, it challenges the divisions that can be created between ‘them and us’: ‘the competent and the not competent’; the adult and the child; the ‘vulnerable and the non-vulnerable’. It means that in seeking intervention or protection we need to recognize our own fallibility, weakness and vulnerability to influence in determining what is the correct response. Third, a focus on our universal vulnerability and need for care highlights how society in a variety of ways privileges some and disadvantages others. The normal use of vulnerability (that a person lacks the ability to look after themselves) locates the source of the vulnerability within the body of the individual. Indeed, they may even be seen as being responsible for the position they are in. Under universal vulnerability we see the different experiences people have of vulnerability, reflecting the allocation of resources and power in society.

  Goodley, D. and Runswick-Cole, K. (2016) ‘Becoming dishuman: Thinking about the human through disability’, Discourse: Studies in the Cultural Politics of Education, 37: 1–29.

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The impact of the new norm The significance of changing the legal norm is profound. Dodds argues: Attention to vulnerability … changes citizens’ ethical relations from those of independent actors carving out realms of rights against each other and the state, to those of mutuallydependent and vulnerability-exposed beings whose capacities to develop as subjects are directly and indirectly mediated by the conditions around them.52 This means that the state does not owe obligations to just a few particularly vulnerable citizens, but to all citizens. It breaks down the division between ‘welfare recipients’ and ‘taxpayers’, acknowledging the dependence of all on the state.53 Under the current approach, vast sums of money are spent on ensuring there is adequate sewerage and toileting provision for most people, and this goes unquestioned, but if an individual has particularly toileting needs, this can be seen as a special burden on the state, which might not be affordable.54 The universal vulnerability approach focuses on which needs the states meets and which it does not. Martha Fineman argues the role of institutions is important: This focus on institutions is to my mind one of the most significant aspects of the vulnerability analysis. Societal institutions are theorized as having grown up around vulnerability. They are seen as interlocking and overlapping, creating layered possibilities of opportunities and support but also containing gaps and potential pitfalls. These institutions collectively form systems that play an important role in lessening, ameliorating, and compensating for vulnerability. Together and independently they provide us with resources in the form of advantages or coping mechanisms that cushion us when we are facing misfortune, disaster, and violence. Cumulatively, these assets provide individuals with resilience in the face of our shared vulnerability.55   Dodds, S. (2007) ‘Depending on care: Recognition of vulnerability and the social contribution of care provision’, Bioethics, 21: 500–21, 501. 53   Fineman, M. (2010) ‘The vulnerable subject and the responsive state’, Emory Law Journal, 60: 251–321. 54   R (McDonald) v Kensington and Chelsea RBC [2011] UKSC 33. 55   Fineman, M. (2010) ‘The vulnerable subject and the responsive state’, Emory Law Journal, 60: 251–321, 319. 52

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The response may not therefore be in seeking to address individuals’ ‘weaknesses’ but rather in re-examining the distribution of support. To take another example of how using the norm of a vulnerable caring self would make a difference, rather than starting from the assumption that each person is free to negotiate their own contracts and that the law should respect liberty of contract, in fact we should start from the image of vulnerable contractors liable to manipulation and exploitation.56 The current law of contract in England has no general duty of good faith. Although each party must avoid actively deceiving the other party, there is no general obligation to disclose defects in items you are selling. The law seems designed to encourage the strong party to take full advantage of the weak. This may make sense if the norm at play is highly intelligent, experienced businesspeople. But if the norm is the vulnerable contractor, duties of good faith and regulations prohibiting one party to take advantage of another would dominate contract law. We now move on to consider two issues which can be particularly relevant in middle age and highlight issues about the role of law in people’s life choices.

Infertility We mentioned earlier that traditionally having children is seen as a marker for adulthood. Indeed, it is not uncommon to hear people refer to their children as their greatest achievement and/or most rewarding aspect of their life. But for infertile people that option is absent, save for some intervention in the form of assisted reproductive treatment or adoption. For many, infertility is a cause of much sadness.57 Infertility is a good example of how there can be a clash between expectations of the life course and individual experience. It is, therefore, interesting to see the legal response to it. On the one hand, some might say that there are lots of things in life which we would like to do but misfortune or illness means we cannot. The state cannot take on the legal obligation of meeting everyone’s wishes. On the other hand, infertility could be seen as equivalent to a disability. It is widely held that, so far as possible, the state has a duty to help disabled people reach a position where   Herring, J. (2016) Vulnerable Adults and the Law, Oxford: Oxford University Press, ch 8. 57  McQuillan, J., Greil, A., White, L. and Jacob, M. (2003) ‘Frustrated fertility: Infertility and psychological distress among women’, Journal of Marriage and Family, 7: 1007–18. 56

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they are equal to able-bodied people, so those with fertility issues should be given the assistance they need to have children. Of these two views it is the latter which is reflected more in the law, although as a limited right.58 The state provides, albeit it in a limited way, assisted reproductive treatment through the National Health Service in cases where it believes there is a reasonable chance of producing a baby. There is also a thriving private provision of in vitro fertilization (IVF). This does raise the question, however, of why this need is seen as more significant than other wishes people might have for their lives. In part, it may be that the (limited) state provision of IVF is an acknowledgement of the importance of fertility to many people. As McQuillan et al note: For women especially, parenthood may be considered a master status in the sense that motherhood casts its shadow over other statuses and permeates the performance of a wide range of social roles. A large body of scholarship testifies that it is difficult to separate motherhood from feminine identity, socially or personally. If motherhood is a master status, then we expect infertility to be distressing only to women who want children but who remain childless.59 However, it is precisely for this reason that some writers have expressed concern. Because having children is presented as a key marker of adulthood, this creates ‘compulsory parenthood’.60 It is seen as ‘natural’ that a woman will want to have a child. Talk of there being a right to assisted reproduction and infertility as a form of disability61 simply reinforces the ‘pronatalist’ culture’. Whitehead writes that having a child ‘is a lifecourse event that women feel is owed to them as a by-product of being a middle-class, heterosexual, married, and socially stable woman’.62 It is, she suggests, seen as a confirmation of a woman’s femininity and   SH v Austria, App. No 57813/00.  McQuillan, J., Greil, A., White, L. and Jacob, M. (2003) ‘Frustrated fertility: Infertility and psychological distress among women’, Journal of Marriage and Family, 7: 1007–18, 1016. 60  Riggs, D. and Bartholomaeus, C. (2018) ‘“It’s just what you do”: Australian middle-class heterosexual couples negotiating compulsory parenthood’, Feminism & Psychology, 28(3): 373–89. 61   Kheterpal, A. and Singh, S. (2012) ‘Infertility: Why can’t we classify this inability as disability?’, Australasian Medical Journal, 5(6): 334-9. 62  Whitehead, K. (2016) ‘Motherhood as a gendered entitlement: Intentionality, “othering” and homosociality in the online infertility community’, Canadian Review of Sociology, 53(1): 94–101. 58

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‘motherhood also offers women access to a new cultural space reserved for mothers, often referred to as “the mommies club”. In this space women have access to a cultural world that revolves around their identification with the social category of mother.’63 This all adds to the assumption that ‘real women’ have children. One interesting manifestation of the tensions over this topic is concern in the media about ‘successful’ women choosing their ‘careers over children’.64 The Daily Express ran the headline ‘Careers come first as women choose not to have children’, and The Guardian ‘My generation has to choose between a child or a career. We can’t afford both’.65 Such articles take as a given that a woman will want to have a child, even if it is a desire that is trumped by other considerations. It is notable even in the more positive portrayals of those who do not have children that there needs to be a justification, whether it is career progression or ecological or financial reasons.

Domestic abuse Our relationships are what give meaning to our lives. They are meant to be sources of love, support and flourishing. They are meant to build us up, to keep us going when times are tough, to give us meaning beyond our selves. Yet in situations of domestic abuse, relationships are used to tear people down, to destroy their sense of self-worth and to coerce them. The trust that is essential for there to be love is turned back on the victim as a weapon of abuse. The home that should be a place of security and comfort is turned into a prison. The shared history that should be a source of joy becomes a tool of terror. Historically, domestic abuse was seen as a private matter. In early times, it was seen as the responsibility of a husband to maintain order within his household, and he had the right, even duty, to use violence to maintain his authority. More recently, it was seen as a private matter for the couple to resolve themselves. The state was only to get involved if the abuse started to affect the public. Most strikingly, a husband was permitted to rape his wife with impunity until the case of R v R in 1992.66 Recent  Ibid.   O’Grady, S. (2018) ‘Careers come first as women choose not to have children’, Daily Express, 23 November. 65   Cosslett, R. (2017) ‘My generation has to choose between a child or a career. We can’t afford both’, The Guardian, 14 April. 66   [1992] AC 259. 63 64

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feminist scholarship has done much to challenge the privacy narrative, and the courts have now recognized that victims of domestic abuse have a legal right to state intervention.67 Two primary arguments have been used to justify this change in legal response. The first is the idea that individuals have human rights, and these deserve protection whether the source of the infringement is the state or another citizen. So, from the early days of the European Convention on Human Rights it has been acknowledged that citizens have a right not to be tortured, and so the state must not torture its citizens. However, from the point of view of the victim, their rights are as much infringed if the torture is committed by a fellow citizen as they are if committed by the state. So, recently the courts have accepted that there is a right to protection from torture, whoever is doing the torture. That has been applied to cases of domestic abuse.68 Second, and perhaps more significantly, feminist scholarship has highlighted how domestic abuse should be understood as a form of oppression against women. Patriarchy plays a central role in domestic abuse, as Madden Dempsey explains: the patriarchal character of individual relationships cannot subsist without those relationships being situated within a broader patriarchal social structure. Patriarchy is, by its nature, a social structure – and thus any particular instance of patriarchy takes its substance and meaning from that social context. If patriarchy were entirely eliminated from society, then patriarchy would not exist in domestic arrangements and thus domestic violence in its strong sense would not exist … . Moreover, if patriarchy were lessened in society generally then ceteris paribus patriarchy would be lessened in domestic relationship as well, thereby directly contributing to the project of ending domestic violence in its strong sense.69 Catherine MacKinnon explains ‘[w]omen are sexually assaulted because they are women: not individually or at random, but on the basis of sex, because of their membership in a group defined by gender’.70 Domestic   Herring, J. (2020) Domestic Abuse and Human Rights, London: Intersentia.   Opuz v Turkey (2010) 50 EHRR 28. 69   Madden Dempsey, M. (2007) ‘Towards a feminist state’, Modern Law Review, 70: 908–41, 938. 70   MacKinnon, C. (1991) ‘Reflections on sex equality under law’, Yale Law Journal, 100: 1281–308, 1301. 67 68

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abuse in this way reinforces other social structures that inhibit women’s access to places of power. Further, it replicates the disadvantages in the outside world within the domestic. For example, the attempts by the male perpetrators of abuse to prevent their female partners entering the workplace or public arena are but imitations of broader attempts to restrict women’s access to the workplace. There is a complex interrelationship between broader social inequalities (particularly patriarchy) and domestic abuse. The social inequalities enable and assist domestic abuse; and the domestic abuse supports and enables the social inequalities to exist. There is a two-way mutual support process going on. As the Parliamentary Assembly of the Council of Europe’s Committee on Equal Opportunities for Women and Men71 puts it: Violence against women is a question of power, of the need to dominate and control. This in turn is rooted in the organization of society, itself based on inequality between the sexes. The meaning of this violence is clear: it is an attempt to maintain the unequal relationship between men and women and to perpetuate the subordination of women. Domestic abuse, therefore, provides a good example of how an issue which was at one time seen as a private matter, which did not require state intervention, is now seen as a major human rights interference, which requires state involvement. Here we might see a benefit of acknowledging the importance of using the caring, vulnerable relational self. We can see how while domestic abuse in the past was seen as private, in fact social forces enabled and supported the man to perform his role as ‘rule enforcer’ in ‘his’ house. While in the past it was assumed that the matter was best left to the parties to resolve, and so the woman could escape if things got too bad, our current understanding of the impact of domestic abuse shows how that assumed capacity was mistaken. Now we can see that domestic abuse is not a choice made by the parties, but a powerful manifestation of broader patriarchal forces.

Conclusion This chapter has explored the ‘vacuum’ of middle age. In particular, it has highlighted how the law assumes that middle age is the norm   Parliamentary Assembly, Council of Europe, Committee on Equal Opportunities for Women and Men (2002) Domestic Violence, Geneva: Council of Europe, para 12.

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for humanity, but selects a particular understanding of that norm: a self-sufficient, autonomous, ‘able-bodied’ man. It has been argued that structuring the law around such a norm works well for those who are enabled to live in accordance with the norm, but disadvantages many others: disabled people, people with mental impairments, children, those with care responsibilities, to list just a few. It has argued that using a norm of a vulnerable, caring, relational self would provide a basis for the law that would accord with the lives of most people. It would also acknowledge the extent to which those who live within the traditional norm have been ‘empowered’ to do so by state provision. The chapter ended by exploring with two examples, legal responses to life events. With infertility, we have the complex issue that there is a strong desire to be a parent, although to recognize that desire as a right might be seen as reinforcing assumptions that producing children is an expected, even required, part of life. With domestic abuse, we have seen how privacy has in the past been used to justify non-intervention. However, modern understanding recognizes the impact of domestic abuse on wider society; and, indeed, the impact of wider society on domestic abuse. The current acceptance of a right to protection from domestic abuse, while far from being fulfilled yet, is an acknowledgement that apparently ‘private choice’ can reflect powerful social forces.

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Introduction Old age conjures up a wild mix of emotions and responses. It is probably the age of life that people most fear, at least in its latter stages. David Mitchell has conjured up the terror old age has for many: Behold your future.… You will not apply for membership, but the tribe of the elderly will claim you. Your present will not keep pace with the world’s. This slippage will stretch your skin, sag your skeleton, erode your hair and memory, make your skin turn opaque so your twitching organs and blue-cheese veins will be semi-visible. You will venture out only in daylight, avoiding weekends and school holidays. Language, too, will leave you behind, betraying your tribal affiliations whenever you speak. On escalators, on trunk roads, in supermarket aisles, the living will overtake you, incessantly. Elegant women will not see you. Store detectives will not see you. Salespeople will not see you, unless they sell stair-lifts or fraudulent insurance policies. Only babies, cats and drug addicts will acknowledge your existence. So do not fritter away your days. Sooner than you fear, you will stand before a mirror in a care home, look at your body, and think, ET, locked in a ruddy cupboard for a fortnight.1 But it is not difficult to find positive images of old age too: a couple sitting back in their deckchairs as they sail off on their luxury cruise, for example.   Mitchell, D. (2004) Cloud Atlas, London: Sceptre, 182–3.

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For many, old age will be a rest from work and a time to enjoy hobbies and other interests. One of the difficulties about writing about older people is the widely different experiences people in this age group have. Old age is not just a personal issue. It is common to find it presented as a challenge for governments. Ban Ki-moon, former Secretary-General of the United Nations, has written: the social and economic implications of [ageing] are profound, extending far beyond the individual older person and the immediate family, touching broader society and the global community in unprecedented ways.2 In response to the negative portrayals, it is notable that in recent years older people have come to be seen as a potential resource for society. An active ageing is encouraged; employment well beyond the traditional ‘retirement date’ is feasible; and older people are becoming seen as a solution for, rather than a cause of, some of the challenges society faces.3

Sociology of old age Molly Andrews, in a highly influential article,4 has suggested that our understanding of old age is clearly shaped by social assumptions and expectations around age. She lists three features of old age which we will discuss here.

The right to an old age Andrews notes that ‘while we assume it is our inherent right to life for a certain number of years, we nonetheless resist the idea of our ageing’. As she suggests, many people expect to live into old age. A person who dies in, say, their fifties or sixties would nowadays be thought to have gone ‘before their time’. It is certainly now common for people to plan for their retirement, allocating quite a bit of current disposable income to   Ban Ki-moon (2012) ‘Introduction’ in UN Population Fund and HelpAge International, Ageing in the Twenty-First Century: A Celebration and A Challenge, Geneva: United Nations, i. 3   Van Dyk, S. (2016) ‘The othering of old age: Insights from Postcolonial Studies’, Journal of Ageing Studies, 39: 109–20. 4   Andrews, M. (2012) ‘Unexpecting age’, Journal of Ageing Studies, 26: 386–401. 2

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pensions and the like. It is understandable that people assume they will live into old age as life expectancy in most countries has been gradually increasing. Currently, ‘Baby boys born in the UK in 2018 can expect to live on average to age 87.6 years and girls to age 90.2 years, taking into account projected changes in mortality patterns over their lifetime’.5 Indeed, Kirkwood,6 a professor of gerontology, has declared ‘ageing is no longer inevitable or necessary’. He explains: The commonest misconceptions about the ageing process are that we age because in some fundamental sense we cannot survive for longer, or that we’re programmed to die because this is necessary to make way for the next generation. Neither of these ideas is correct… We now understand that our bodies are not programmed with some unavoidable sell-by date; we are not programmed to die.7 The possibility of avoiding old age is connected to an increasing interest in the biology of old age. There are two primary theories as to why the body ages.8 The first is that parts of the body simply suffer wear and tear over time and gradually stop working, or work less well. The second is that there is a ‘biological clock’ which programmes the body to age as a natural process. Under the first model, those seeking to avoid ageing will explore ways of replacing broken-down parts of the body. While we can already see this occurring with hip and knee replacements and even organ transplants, replacing other parts of the body, particularly the brain, seems to pose considerable challenges. Under the second theory, work is undertaken to see if it is possible to ‘stop the biological clock’ so that the body parts can last for longer.

Fragmented relationship between phases of life Andrews claims we struggle to imagine old age. Simone de Beauvoir writes about the difficulty of connecting our current lives with the old people we foresee becoming:

  Office for National Statistics (2020) Life Expectancies, London: ONS.   Kirkwood, T. (2001) The End of Age, London: Profile. 7   Ibid, 10–11. 8   Hunt, S. (2016) The Life Course, Basingstoke: Macmillan, 252. 5 6

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When we look at the image of our own future provided by the old we do not believe it: an absurd inner voice whispers that that will never happen to us – when that happens, it will no longer be ourselves that it happens to. Until it is upon us old age is something that only affects other people.9 As Andrews10 puts it, ‘old age is a faraway land, so different from all that we know and is knowable to those who are not yet “there”’. Even when people reach old age it is common to hear people say they don’t ‘feel their age’. J.B. Priestley, when aged 79, wrote: It is as though, walking down Shaftesbury Avenue as a fairly young man, I was suddenly kidnapped, rushed into theatre, and made to don the grey hair, the wrinkles and the other attributes of age, then wheeled on stage. Behind the appearance of age I am the same person, with the same thoughts, as when I was young.11 But, for others, old age can be seen as a culmination of a lifetime of experience and a time to look back in retrospect. Bertrand Russell12 wrote: On reaching the age of eighty it is reasonable to suppose that the bulk of one’s work is done, and that what remains to do will be of less importance. The serious part of my life ever since boyhood has been devoted to two different objects which for a long time remained separate and have only in recent years united into a single whole. I wanted, on the one hand, to find out whether anything could be known; and, on the other hand, to do whatever might be possible towards creating a happier world… I may have thought the road to a world of free and happy human beings shorter than it is proving to be, but I was not wrong in thinking that such a world is possible, and that it is worthwhile to live with a view to bringing it nearer. I have lived in the pursuit of a vision, both personal and social. Personal: to care for what is noble,   De Beauvoir, S. (1970) The Coming of Age, London: W.W. Norton & Co, 11–12.   Andrews, M. (2012) ‘Unexpecting age’, Journal of Ageing Studies, 26: 386–401. 11   Cited in Hockey, A. and Alison, J. (2014) Social Identities across the Life Course, London: Palgrave, 22. 12   Russell, R. (1956) Portraits from Memory, New York: Simon Schuster, 540–1. 9

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for what is beautiful, for what is gentle; to allow moments of insight to give wisdom at more mundane times. Social: to see in imagination the society that is to be created, where individuals grow freely, and where hate and greed and envy die because there is nothing to nourish them. These things I believe, and the world, for all its horrors, has left me unshaken. Indeed, one of the theories promoted for a successful old age is continuity theory, where the older person draws on values and experiences of their life to make sense of old age.13 Perhaps for most people there is a somewhat uneasy mixture between these understandings of old age. In some areas, old age seems a fitting concluding chapter of life, while in others it grates.

Assumptions around ageing Normally the stages of life present as an ascent to middle age, and then as a decline in old age.14 It certainly used to be true that old age was expected to be a time of slowing down, ill health and dependency. However, those assumptions, while still having a hold on the social perception of old age, have been challenged. It is not difficult to find books with titles such as How Not to Look Old,15 The Age-Well Project,16 Successful Ageing17 and Rewind Your Body Clock.18 Such books often see successful ageing as a product of choices and effort. This, however, ignores the societal conditions which makes this easier for some than for others. The importance of these social images of old age is explored further in the next section.

 Breheny, J. and Griffiths, S. (2017) ‘“I had a good time when I was young”: Interpreting descriptions of continuity among older people’, Journal of Ageing Studies, 41: 36–52. 14   Carr, A., Biggs, S. and Kimberley, H. (2015) ‘Ageing, diversity and the meanings of later life’, Contemporary Readings in Law and Social Justice, 7: 7–21. 15   Stone, M. (2013) How Not to Look Old, London: CreateSpace. 16   Streets, A. and Saunders, S. (2019) The Age-Well Project: Easy Ways to a Longer, Healthier, Happier Life, London: Piatkus. 17   Levitin, D. (2020) Successful Ageing: A Neuroscientist Explores the Power and Potential of Our Lives, New York: Penguin. 18   Goddard, J. (2019) Rewind Your Body Clock: The Complete Natural Guide to a Happier, Healthier, Younger You, London: Watkins Publishing. 13

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Old age as a social construct It is possible to see old age as a social construct.19 According to Macnicol,20 ‘A basic truism of gerontology is that age per se is meaningless: it is always mediated through social processes and cultural attitudes.’ These social processes and cultural attitudes can be seen as being about an exercise of power. As Rachel Barken claims: Sociologists, many of them writing from feminist perspectives, theorize age relations as an array of institutional, cultural, and interactional processes that produce and sustain inequalities between and among people of different ages. Age is relational because one’s membership in an age group (e.g., youth and old age) is defined vis-à-vis other age groups, and because membership in a given age group confers certain advantages and disadvantages. Age relations intersect with other systems of inequality; leading to diversity among members of the same age group. Within youth-oriented Western cultures, older people are often disadvantaged by age relations and are the frequent targets of ageism (i.e., discrimination on the basis of age).21 The argument here is that old age is created as way of marginalizing a group of people, particularly by making negative assumptions about them. So, while the reality is that there are huge differences among those aged over, say, 65, there are powerful images of older people which are used to lump them all together and enable power to be exercised against all. For example, the assumptions that older people are in cognitive decline and lacking in energy were formerly used to justify the concept of retirement, even though many over-65s were perfectly capable of continuing in their work. Assumptions that older people are wealthy have been used to justify requiring older people to pay for social care, even though many older people face severe poverty. Assumptions that older people are kind and friendly are used to justify expectations they should take the lead in volunteering work. The construction of old age has a powerful impact on the social and legal response. So, when old age was seen as primarily a time of rest   Cook, P. (2018) ‘Continuity, change and possibility in older age: Identity and ageing as discovery’, Journal of Sociology, 54: 178–90. 20   Macnicol, J. (2012) Age Discrimination, Cambridge: Cambridge University Press, 3–4. 21   Barken, R. (2019) ‘“Old age” as a social location: Theorizing institutional processes, cultural expectations, and interactional practices’, Sociology Compass, 13(4): 12673–92. 19

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following a life of work or domestic duties, then it was seen as appropriate that there should be a retirement age at which people should stop working and that state provision was available to ensure workers were given a good retirement. However, with extended life expectancies, this has been challenged. No longer are ‘the old’ a small and dependent part of the population.22 Hence, we have seen the move away from retirement, and a decline in the provision of social care and welfare payments in old age. Now, individuals are expected to provide for themselves in old age and pay for their own social care. This has caused severe hardship for those unable to provide their own care. The modern expectations that older people should be self-sufficient are echoed in the idea of active, positive or successful ageing, which we will discuss next.

Successful ageing Simone de Beauvoir described ageing in these terms: A limited future and a frozen past: such is the situation that the elderly have to face up to. In many instances it paralyzes them. All their plans have either been carried out or abandoned, and their life has closed about itself; nothing requires their presence; they no longer have anything whatsoever to do.23 Cowley suggests that such a gloomy picture sees ageing as essentially about loss: loss of physical and mental capacities, loss of autonomy and independence, loss of fertility, loss of identity-conferring jobs and other roles and opportunities, loss of parents and siblings and friends, and eventually, the loss of one’s home as one moves (is moved) into institutional care.24 It is not surprising that there have been attempts to produce a more positive account of ageing, in part, because old age is now a long period of time and the kind of gloomy analysis offered by de Beauvoir would be   Biggs, S. (2006) ‘Ageing selves and others: distinctiveness and uniformity in the struggle for intergenerational solidarity’ in J. Vincent, C. Phillipson and M. Downs (eds) The Futures of Old Age, London: Sage, 109–16. 23   De Beauvoir, S. (1970) The Coming of Age, London: W.W. Norton & Co., 15. 24   Cowley, C. (2016) ‘Coming to terms with old age – and death’ in G. Scarre (ed) The Palgrave Handbook of the Philosophy of Ageing, Basingstoke: Palgrave, 134. 22

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hard to bear, but also partly because improved medicine and economic well-being have made different understandings of health feasible. This has led to a growth of literature on the concept of successful ageing. In short, this is the idea that older people should reject the stereotypes of old age and live life to the full. The World Health Organization (WHO) defines active ageing as ‘… the process of optimizing opportunities for health, participation and security in order to enhance quality of life as people age’.25 WHO goes on to highlight the features of this as: having autonomy; having independence; and quality of life.26 Put in such terms, active ageing may be thought as relatively uncontroversial. Themes of a successful old age are seen as: being physically fit; being free to go to cultural events, including those that are traditionally associated with young people, such as music festivals; dressing in ‘trendy clothing’; and socializing with people of any age. Blaikie suggests it means ‘not just to dress “young” and look youthful, but to exercise, have sex, take holidays, socialise in ways indistinguishable from those of their children’s generation’.27 However, this presentation is dependent on a particular understanding of what a successful life is like. Indeed, you do not have to be much of a cynic at all to suggest that the concept of ‘successful ageing’ is ageist, as it appears to suggest a successful old age is one where you act as a young person. By way of contrast, we could see old age as having a different quality from youth. It might be a time to develop virtues, for example. 28 Wareham suggests: … most virtue-ethical thinkers agree that virtue is an attitude or character disposition that strives for human excellence, and should result in optimal moral behavior, or at least behavior that can be qualified as the best given the circumstances. The development of virtuous attitudes is thus conceived as a process of moral self-development. Importantly, this developmental process is seen as a life-long endeavor which requires life-experience and maturation, underscoring the   World Health Organization (2002) Active Ageing: A Policy Framework, New York: World Health Organization, 12. 26   Paúl, C. and Lopes, A. (2017) ‘Active ageing’ in N. Pachana (ed) Encyclopedia of Geropsychology, Berlin: Springer. 27   Blaikie, A. (1999) Ageing and Popular Culture, Cambridge, Cambridge University Press, 104. 28   Laceulle, H. (2017) ‘Virtuous ageing and existential vulnerability’, Journal of Ageing Studies, 41: 1–17. 25

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potential relevance of a virtue-ethical perspective for the study of ageing.29 MacIntyre sees ‘narrative unity’ as key to virtuous life, whereby a person develops a framework for what is valuable and worth striving for.30 He argues that without some unifying framework our life lacks a narrative coherence. Old age can be a time for focusing and shaping the coherence for our life narrative. This image of a successful life might present a very different idea about what a successful old age is like than that found in the active ageing literature. Another criticism of ‘successful ageing’ is that it is unrealistic for many. It is based on assumptions of good health and a reasonable income. There is some evidence that the presentation of ‘positive ageing’ makes people feel negative about their lives when they cannot live up to it.31 Gilleard talks of the ‘darker side of ageing’, which he argues should be acknowledged as a part of growing old.32 It sometimes claimed that active ageing is a ‘state of mind’, suggesting that those who do not live in line with the popular image have not ‘made an effort’. But this ignores the fact that past experiences during the life course and societal factors greatly impact on the options available in old age.33 In response to such concerns, the idea of active ageing has certainly attracted the attention of governments. Zaidi and Howse34 write that ‘Policy is to be shaped in a way that combines the promotion of individual well-being with the achievement of benefits to the wider society.’ It might be said that encouraging older people to be active and independent is not only good for their well-being but also good for society, in reducing the burden on the state or others. The concern, however, is that this may lead to cuts in provision for older people and blame for those who do not live up to the ideal of ‘independence’. This is a particular concern because the positive ageing discourse arose, in part, as a response to anxieties about the economic impact on society of an increasing number of older people.   Wareham, C. (2018) ‘What is the ethics of ageing?’, Journal of Medical Ethics, 44: 128–32. 30   MacIntyre, A. (2016) After Virtue, Notre Dame, IN: University of Notre Dame Press, 216. 31  Ibid. 32   Gilleard, C. (2018) ‘The darker side of ageing’, Journal of Ageing Studies, 44: 28–42. 33   Cooney, T. and Curl, A. (2019) ‘Transitioning from successful ageing: A life course approach’, Journal of Ageing and Health, 31(3): 528–51. 34  Zaidi, A. and Howse, K. (2017) ‘The policy discourse of active ageing: Some reflections’, Journal of Population Ageing, 10: 1–10. 29

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Ageism The World Health Organization35 has suggested that ‘ageism may now be more pervasive than sexism or racism’. Examples of ageist language, jokes and terminology are easy to find. For example a study of online language found ‘assumptions and judgments, older people as different, uncharacteristic characteristics, old as negative, young as positive, infantilization, internalized ageism, and internalized micro aggression.’36 Levy and Macdonald37 find extensive evidence in the media of older people treated as burdensome, forgetful, ill, incompetent, and unattractive, leading to negative behavior such as disrespectful, avoidant, and patronizing behavior as well as unwarranted simplified and slow communication, physical and financial neglect and abuse, and unwanted segregated housing. More specifically they found negative treatment in employment, including: being denied access to promotion and salary increases; forced retirement; and discrimination in appointments. They also note discrimination in health, including being denied treatment because the illness is ‘just part of normal ageing’, or being given inappropriate medication.38 It would be wrong to see ageism as only concerning distasteful jokes and patronizing attitudes. Chonody39 talks about how categories such as age and sex are used to privilege some and disadvantage others. Society is stratified by false dichotomizations based on sociodemographic characteristics, and this binary system creates groups (e.g., male/female), which are then associated with privilege, producing a context for valuation of one group over another. The power, resources, and rewards attributed to certain members of society are used to maintain this privileged   WHO (2015) Ten Facts on Ageing and the Life Course, Geneva: WHO.   Gendron, T., Welleford, A., Inker, J. and White, J. (2016) ‘The language of ageism: Why we need to use words carefully’, Gerontologist, 56(6): 997–1006, 1005. 37   Levy, S. and Macdonald, J. (2016) ‘Progress on understanding ageism’, Journal of Social Issues, 71: 5–25, 7. 38   Swift, H., Abrams, D. and Marques, S. (2013) ‘Threat or boost? Social comparison affects older people’s performance differently depending on task domain’, Journals of Gerontology, 68: 23–30. 39   Chonody, J. (2016) ‘Positive and negative ageism: The role of benevolent and hostile sexism’, Affilia: Journal of Women & Social Work, 31(2): 207–18, 217. 35 36

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status through the creation of social policy to support it and the reinforcement of social norms that legitimize it. This system of stratification is unified in its function of privileging some while oppressing many. She argues that age is one of these forms of stratification and is often used to oppress older people, who are seen as slow, rigid and obsolete. As Calasanti, Slevin and King note, ‘old age does not just exacerbate other inequalities but is a social location in its own right, conferring a loss of power for all those designated “old” regardless of their advantages in other hierarchies’.40 Hence older women are subject to a distinct trope of stereotypes and disadvantages that are not experienced by older men.

Age discrimination The Universal Declaration of Human Rights (UDHR), adopted by the United Nations (UN) General Assembly in 1948, recognized in its opening Article that all humans are born free and equal in dignity and rights. Article 2 explains that ‘Everyone’ is entitled to all the rights and freedoms set forth in it, ‘without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. It is striking to a contemporary reader that age is not included in that list (although it might be said to be included under ‘other status’). That is a sign of how lawyers, at least until recently, did not see age as a head of discrimination. This may be because, in relation to children, the special treatment of children was seen as natural and uncontroversial, and it was considered that older people were, if anything, benefited in old age through the state provision of pensions. In 1996, a General Comment (n. 6) of the Committee supervising the Covenant on Economic Social and Cultural Rights (ICESCR) had clarified that Article  2 did include age. That is uncontroversial and, indeed, a UN Independent Expert on the Enjoyment of All Human Rights by Older Persons was appointed in 2014. In her 2015 report, she pointed out how: Ageist attitudes still persist throughout the world, leading to discriminatory practices towards older persons, including in care settings. Age-based discrimination generates a lack of   Calasanti, T. Slevin, K. and King, N. (2006) ‘Ageism and feminism: From “et cetera” to center’, NWSA Journal, 18(1): 13–30, 14.

40

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self-esteem and disempowerment, and undermines an older person’s perception of autonomy.41 In England it was not until the introduction of the Equality Act 2010 that a coherent approach to age discrimination was taken. That legislation, which is still the primary legislation in the area, is, however, subject to three significant limitations. First, it only deals with age discrimination in relation to: access to employment, training and education; membership of associations and clubs (with some exceptions); and provision of goods and services. Second, it does not apply those under the age of 18, save in relation to associations and work. We discussed the impact of this on children in Chapter 4. Third, age discrimination is permitted in a number of listed fields including, for example, charities offering proportionate assistance to particular age groups42 or using age to assess risk for the purpose of deciding what premium to charge a customer for motor or travel insurance.43 The Act covers direct and indirect discrimination. Direct discrimination is where a person is treated less favourably than others, explicitly on the basis of age. An obvious example would be if a club allowed entry only to those under the age of 30. Indirect discrimination arises where a criterion or practice is used which does not, on the face of it, relate to age, but it puts those of a particular age at a disadvantage. An example might be requiring access to the internet to use a service (assuming fewer older people have internet access than younger people). Both kinds of discrimination can be justified if the use of the requirement is a proportionate means of achieving a legitimate aim. It should be noted that the law protects people who are disadvantaged due to their perceived age as well as their actual age. The legislation is clear that sometimes discrimination is permitted. For example, the Equality Act 2010, section 159 allows an employer faced with two or more candidates who are equally well qualified for the job to select one from a particular age group if that group is disadvantaged by their age, or where it can be shown to be an occupational requirement to employ someone of a particular age. The most obvious example of that would be selecting an older actor to play a character of more advanced age in a play.  Kornfeld-Matte, R. (2015) Autonomy and Care of Older Persons – Report of the Independent Expert on the Enjoyment of All Human Rights by Older Persons, New York: United Nations. 42   Sections 193 and 194. 43   Schedule 3, art 5, para 20A(2). 41

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Clearly, there is much detail in the legislation and case law, and it is not possible to go into it all here, but I will highlight two key points. First, the motivation for the discrimination is irrelevant. In James v Eastleigh,44 a swimming pool offered free access to those of pensionable age. The thinking behind the policy was to help those who were on lower incomes, as at the time pensionable age was 60 for women and 65 for men. Nevertheless, the House of Lords held that the policy amounted to sex discrimination. It was well motivated but treated people differently on the basis of their age and sex. The second key point is the question of justification. It is generally suggested that it is easier to think of cases where age discrimination is justified, than cases where sex or race discrimination might be justified.45 The very fact that most commentators accept the need for special regulations concerning children (as discussed in Chapter  4) demonstrates this. One of the primary arguments in favour of justification is the argument mentioned in Chapter 4: that age discrimination is not as serious as other forms of discrimination since everyone suffers the same disadvantages connected to particular ages across a lifetime. As Gosseries46 puts it, ‘a society that relentlessly discriminates between people on grounds of age can still treat them equally over their complete lives … Everyone’s turn [at being discriminated against] comes’. However, as argued in Chapter 4, that does not really justify the action. To treat a person on account of an arbitrary characteristic, rather than undertake an assessment of their individual abilities and circumstances, is a denial of dignity for that person.47 It is, for example, no justification for sex discrimination against women in the workplace that they may be treated more favourably in a spa. Unjustified discrimination cannot be ‘made up for’ by favourable discrimination in other places or at other times.48 The leading case on justification is Seldon v Clarkson Wright and Jakes.49 There, the Supreme Court had to consider two arguments in favour of justifying a mandatory retirement age of 65. The first was   [1990] 2 AC 251 (HL).   Gosseries, A. (2014) ‘What makes age discrimination special: A philosophical look at the ECJ case law’, Netherlands Journal of Legal Philosophy, 43: 59–72. 46  Ibid. 47   Goosey, S. (2019) ‘Is age discrimination a less serious form of discrimination?’, Legal Studies, 39: 533. 48   Boni-Saenz, A. (2019) ‘Age, time and discrimination’, Georgia Law Review, 53: 845–92. 49   [2012] UKSC 26. 44 45

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‘intergenerational fairness’ and, in particular, the claim that to ensure access to employment for young people meant that older workers needed to have a fixed retirement age. The second was that, without a retirement age, employers would need to use tests to determine whether workers had the cognitive and physical skills for the job. Such ‘unseemly debates about capacity’ could undermine dignity. The Supreme Court accepted both arguments. The arguments used were somewhat thin. Although we might accept that it is a social good to ensure younger workers have job opportunities, it is not clear that forcing older workers out of their jobs is an appropriate way of doing that. And even if it is, why the need for employment for younger people necessarily trumps fairness for older workers was not fully explored.

Elder abuse Only relatively recently has elder abuse received the attention it deserves and been recognized as a major social problem. For too long it has been hidden and ignored.50 While there is more discussion of the issue today than there used to be, there is still considerable difficulty over finding the correct legal response to it. Elder abuse, it has been claimed, has reached the position that domestic violence had reached several decades ago.51 There is now an acceptance of the problem and that something needs to be done, but the law is yet to provide an effective set of remedies.52 The starting point is that older people, like everyone else, have a fundamental human right to protection from abuse. It is crucial that elder abuse is understood in its broader context. As the Toronto Declaration on the Global Prevention of Elder Abuse puts it, ‘Ultimately elder abuse will only be successfully prevented if a culture that nurtures intergenerational solidarity and rejects violence is developed.’53 Elder abuse deals with a wide range of behaviour. Indeed, while there are some commonalities between cases that fall under the broad label, there are major differences in the issues raised by, for example, neglect by care home staff, and cases of elder abuse between spouses where the   House of Commons Health Committee (2004) Elder Abuse, London: The Stationery Office, 1. 51   Mornington, M. (2004) Responding to Elder Abuse, London: Age Concern. 52   Pillemer, K., Burnes, D., Riffin, C. and Lachs, M. (2016) ‘Elder abuse: Global situation, risk factors, and prevention strategies’, The Gerontologist, 56: S194–S205. 53   World Health Organization (2002) The Toronto Declaration on the Prevention of Elder Abuse, Geneva: WHO. 50

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abuse has lasted throughout the whole of the relationship.54 The behaviour of nurse Colin Norris55 who killed four elderly patients is very different from the harm done to an older man suffering dementia who is neglected by his exhausted wife. Elder abuse involves a complex amalgam of causes and requires sensitive and subtle responses.56

Statistics on elder abuse There is an extensive literature on the prevalence of elder abuse.57 One difficulty in obtaining statistics is that the Crime Survey for England and Wales (CSEW) does not currently capture the experience of people aged over 60 when collecting statistics for domestic abuse and sexual violence. The largest UK study was in 2008, carried out for Comic Relief, when the Department of Health58 found that 2.6 per cent of people aged 66 or over who were living in their own private household reported mistreatment59 involving a family member, close friend or care worker in the past year. If the sample is an accurate reflection of the wider UK older population it would mean 227,000 people aged over 66 suffering mistreatment in a given year. The figures rise if incidents involving neighbours or acquaintances are included, to 4 per cent, or 342,400 people.60 Three quarters of those interviewed said that the effect of mistreatment was either serious or very serious. The researchers believed these figures to be on the conservative side as they did not include care home residents in their survey, and some of those most vulnerable to abuse lacked the capacity to take part. Also, even among those interviewed there may have been those who, for a variety of reasons, did not wish to disclose abuse.61 A literature review looking at evidence of elder abuse around the world concluded that 6 per cent of older people had suffered significant   Roberto, K. (2016) ‘Abusive relationships in late life’, in L. George and K. Ferraro (eds) Handbook of Ageing and the Social Sciences, 8th edn, New York: Routledge. 55   BBC News (2008) ‘Killer nurse must serve 30 years’, 4 March. 56   Ayres, M. and Woodtli, A. (2001) ‘Concept analysis: Abuse of ageing caregivers by elderly care recipients’, Journal of Advanced Nursing, 35: 326. 57   Bows, H. (2009) Violence Against Older Women, London: Palgrave. 58   O’Keeffe, M., Hills, A., Doyle, M. et al (2008) UK Study of Abuse and Neglect of Older People Prevalence Survey Report, London: Department of Health. 59   In this study, ‘“mistreatment” is used to describe both abuse and neglect. There are four types of abuse: psychological, physical and sexual abuse (sometimes referred to collectively as ‘interpersonal abuse’) and financial abuse’ (ibid, 3). 60   Ibid, 4. 61   Ibid, 7. 54

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abuse in the last month: 5.6 per cent of older couples had experienced physical violence in their relationships and 25 per cent of older people had suffered significant psychological abuse.62 Another meta-analysis found a pooled abuse rate of 15.7 per cent of older people.63 There can be no doubt that elder abuse is prevalent and a major blight on the lives of many older people. A systematic survey of elder abuse in community settings found that one in six older people suffer some form of abuse each year.64

Defining elder abuse The abuse of older people can take many forms: sexual abuse;65 financial abuse; misuse of medication; physical abuse; neglect; and humiliating behaviour.66 It may be carried out by relatives, carers, friends or strangers.67 Defining elder abuse has proved controversial68 and there is no standard definition.69 The abuse of older people can take many forms: longstanding domestic violence; abuse of caregivers by care recipients;70 community harassment;71 an inhibiting fear of violence in public spaces;72   Cooper, C. Selwood, A. and Livingston, G. (2008) ‘The prevalence of elder abuse and neglect: A systematic review’, Age and Ageing, 37: 151–72. 63  Yon, Y., Mikton, C., Gassoumis, Z. and Wilber, K. (2017) ‘Elder abuse prevalence in community settings: A systematic review and meta-analysis’, The Lancet Global Health, 5(2): e147. 64  Ibid. 65   Hawks, R. (2006) ‘Grandparent molesting: Sexual abuse of elderly nursing home residents and its prevention’, Marquette Elder’s Advisor, 8: 159. 66   House of Commons Health Committee (2004) Elder Abuse, London: The Stationery Office, 1. 67   McCreadie, C. (2002) ‘A review of research outcomes in elder abuse’, Journal of Adult Protection, 4: 3–11. 68  See, for example, Dixon, J., Manthorpe, J., Biggs, S., Mowlam, A., Tennant, R., Tinker, J. and McCreadie, C. (2010) ‘Defining elder mistreatment’, Ageing and Society, 30: 403. 69   Brammer, A. and Biggs, S. (1998) ‘Defining elder abuse’, Journal of Social Welfare and Family Law, 20: 385–403. 70   Phillips, L., De Torres, E. and Briones, G. (2000), ‘Abuse of female caregivers by care recipients: another form of elder abuse’, Journal of Elder Abuse and Neglect, 12: 123. 71   Biggs, S. (1996), ‘A family concern: Elder abuse in British social policy’, Critical Social Policy, 16: 63–82. 72  Meyer, E. and Post, L. (2006) ‘Alone at night: A feminist ecology model of community violence’, Feminist Criminology, 1: 207–21. 62

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retaliation by adults for abuse they suffered as children;73 and abuse of grandparents by grandchildren they are caring for.74 It is unsurprising that a single definition cannot be agreed.75 Indeed, Phillipson and Biggs argue, ‘Attempts to define and map the extent of elder abuse indicate that it should not be seen as a single monolithic phenomenon, but that it takes a variety of forms in different settings and in different kinds of relationships.’76 The World Health Organization has adopted the following definition: ‘a single or repeated act or lack of appropriate action occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person’.77 While this would capture anything we are likely to want to label elder abuse, it is far too wide. It could cover, for example, a gay man coming out to his homophobic parents. Or perhaps even an adult child failing to send a Mother’s Day card. Both of these could be said to cause distress. I have promoted an approach which separates out three aspects of abuse78: coercive control; intimacy; and patriarchal structural inequality, in which I include ageism. It is the intersection of these three aspects that creates the core wrong of intimate abuse, but other combinations are relevant. The benefit of this analysis is that it enables us to break down more clearly the forms of abusive behaviour into significant categories. It also helps brings out the multiple wrongs that can be part of elder abuse. It does not, however, draw a sharp line between what counts as elder abuse and what does not. Of these three elements the concepts of coercive control and intimacy are reasonably straightforward. More needs to be said about the role of structural inequality in elder abuse.

  Campbell Reay, A. and Browne, K. (2001) ‘Risk factor characteristics in carers who physically abuse or neglect their elderly dependants’, Ageing & Mental Health, 5: 56–62. 74   Kosberg, J. and Macneil, G. (2005) ‘The vulnerability to elder abuse for grandparents raising their grandchildren: An emerging global phenomenon’, Journal of Elder Abuse and Neglect, 15: 33–51. 75   McCreadie, C. (1996) Elder Abuse: Update on Research, London: Age Concern. 76   Phillipson, C. and Biggs, S. (1995) Elder Abuse in Perspective, Buckingham; Open University Press, 202. 77   World Health Organization (2002) The Toronto Declaration on the Prevention of Elder Abuse, Geneva: WHO. 78   Madden Dempsey, M. (2009) Prosecuting Domestic Violence, Oxford: Oxford University Press. 73

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Elder abuse reflects and is reinforced by both ageist and sexist attitudes.79 It is not suggested that men cannot be the victims of elder abuse.80 But the social meaning and impact of abuse differs when the sex of the parties is taken into account. It is generally accepted that women are significantly more likely to be victims of violent elder abuse than men81 and that most protagonists are men.82 The Comic Relief study found that 80 per cent of cases of interpersonal elder abuse were carried out by men.83 Too often older people are regarded as having little to contribute to society and as having impaired understanding. This makes it easy to downplay the impact of crimes upon them. Ageism as a cause of abuse can be most apparent in maltreatment in care homes. Research has demonstrated that abusive behaviour in a nursing home is often normalized and can easily come to be regarded as ‘standard treatment’, or necessary for the ‘smooth running’ of the home. Older people in some residential settings are seen as a waste of space, incapable of feeling. The routines and bureaucracy of the nursing home sometimes seem to count for more than the interests of the individual residents.84 Ageism can also make it harder for elder abuse to be identified and tackled. It causes a lack of social inclusion, dependency on others and a lack of access to information and remedies; and all of these can contribute to the social circumstances that enable elder abuse to continue to take place.85 The lack of alternative facilities for older people both in terms of housing and social support can make escaping from the abuse as terrifying as the abuse itself. Fitzgerald argues: by constructing older people as both dependent and a burden, it is implied that society has developed a feeling that   Tong, R. and Lintz, H. (2019) ‘A feminist analysis of the abuse and neglect of elderly women’, Analyzing Violence Against Women, 167. 80   Pritchard, J. (2001) Male Victims of Elder Abuse: Their Experiences and Needs, London: Jessica Kingsley. 81   Bergeron, L. (2005) ‘Abuse of elderly women in family relationships: Another form of domestic violence against women’ in K. Kendall-Tackett (ed) Handbook of Women, Stress, and Trauma, Abingdon: Routledge. 82   Mears, J. (2003) ‘Survival is not enough: Violence against older women in Australia’, Violence Against Women, 9: 1478–502. 83   O’Keeffe, M., Hills, A., Doyle, M. et al (2008) UK Study of Abuse and Neglect of Older People Prevalence Survey Report, London: Department of Health. 84   Salari, S. (2006) ‘Infantilization as elder mistreatment: Evidence from five adult day centers’, Journal of Elder Abuse and Neglect, 17: 53–72. 85   Department of Health (2005) Safeguarding Adults, London: Department of Health. 79

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all people over 65 years old need care. And the implication of nurturing such a dependent (and growing) population is that older people are made much more vulnerable through disempowerment, stereotyping and, ultimately, a denial of their basic human right. Hence, the challenge is to go beyond individual prejudices and recognise that dependency is often enforced, and that we should consequently seek to work in a way which empowers people to take control over their own future and not to ‘infantilize them’.86 A proper understanding of elder abuse thus requires not only an appreciation of ageism and sexism, but also the way the two intersect.87 Other forces may also be at play and will also need to be examined: racism,88 homophobia and disability discrimination can all impact on a case of elder abuse.89

Legal responses to elder abuse Of course, the standard criminal law applies just as much where the victim is an older person as for anyone else.90 So, an incident of elder abuse will often amount to one of the standard criminal offences such as assault or theft. Currently there are no crimes that are specifically designed to protect older people. The current provision of criminal law has a notable gap in the lack of a general offence of neglect. There are some circumstances in which a specific criminal offence can be found, such as section 20(1) of the Criminal Justice and Courts Act 2015, which states: It is an offence for an individual who has the care of another individual by virtue of being a care worker to ill-treat or wilfully to neglect that individual.

  Fitzgerald, G. (2006) ‘The realities of elder abuse’ in A. Wahidin and M. Cain (eds) Ageing, Crime and Society, Cullompton: Willan Publishing, 94. 87   See Madden Dempsey, M. (2009) Prosecuting Domestic Violence, Oxford: Oxford University Press, ch 7. 88   Aitken, L. and Griffin, G. (1996) Gender Issues in Elder Abuse, London: Sage, ch 3. 89   Turrell, S. (2000) ‘A descriptive analysis of same-sex relationship violence for a diverse sample’, Journal of Family Violence, 15: 281–304. 90   Payne, B. (2005), Crime and Elder Abuse, New York: Charles C. Thomas. 86

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Notably there is no acknowledgement of ‘age hate’ crime.91 Parliament has created a range of racially or religiously aggravated offences.92 These recognize that where an assault is aggravated by hostility to race or religion, a particular wrong is done. There is no equivalent for an assault motivated by hatred of age abuse.93 The argument in favour of an offence of age hate crime is that there would be a recognition of the particular social harm the offence causes and the impact it can have on the wider community.94 However, hate crime offences are seen by some as controversial.95 This is not the place to enter a debate over the appropriateness of the currently existing hatred laws, but assuming their justification, it might be argued that race hate crime is not a suitable model for ageist crime. First, while accepting that crimes of hatred on the grounds of race represent a major social problem, it is far from clear that elder abuse offences manifest hatred. Second, much elder abuse will not be motivated by hate but caused by infantilization or neglect. It may therefore be that the ‘race hate’ model which has been effective for religious and sexual orientation crimes may be inappropriate for age hate crimes. A better approach would be to create a specific offence of elder abuse. This would have the benefit of marking the distinctive wrongs of elder abuse. The legal debates around elder abuse have often centred on a debate between those who have sought to draw an analogy with legal responses to domestic violence and others who have turned to the law on child abuse. Those who refer to the domestic violence model emphasize empowering victims by providing them with a range of legal remedies they can use to protect themselves, while the child protection model emphasizes the obligations on the state to protect vulnerable citizens. In fact, neither model provides a perfect match. Elder abuse requires its own unique civil legal response. It is striking that there is no public protection regime to protect victims of elder abuse. We have a sophisticated legal framework setting out the obligations on local authorities to protect children in need and to authorize protective measures where children are in need, but there   Mason-Bish, H. (2013) ‘Examining the boundaries of hate crime policy: Considering age and gender’, Criminal Justice Policy Review, 24(3): 297. 92   Crime and Disorder Act 1998, sections 28–32. 93   Crown Prosecution Service (2019) Policy Guidance on Crimes Against Older People, London: CPS, 1. 94   Hall, N. (2005) Hate Crime, Cullompton: Willan Publishing. 95  McLaughlin, E. (2002) ‘Rocks and hard places: The politics of hate crime’, Theoretical Criminology, 6: 493–512. 91

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is no equivalent for older people. Adopting a rights-based approach will require the state to ensure that all people are protected from abuse.96 This requires a clear set of duties on local authorities to investigate, intervene and protect, among others, older people who are being abused, or are at risk of abuse.

Conclusion This chapter has explored old age. It is at this age that negative associations can cause acute disadvantage. It is commonly regarded as the most troubling age, both for individuals, but also for society as a whole. It is an age where significant resources may be required from society, but with no economic return. Increasingly, the language of ‘active ageing’ is used, with the benefit of challenging old age as a time of dependence, but with the disadvantage of impliedly placing responsibility for care needs in old age at the feet of older people themselves. The law has responded to ageism with provisions dealing with age discrimination. However, they are focused on a narrow band of cases, and the courts seem particularly willing to find justifications. I have argued that the failure to appreciate the attack on dignity that age discrimination represents has meant that the courts have not taken the wrong sufficiently seriously. Similarly, there is only a limited response to the issues around elder abuse, with only very limited legal responses.

  Manthorpe, J. (2006) ‘Local responses to elder abuse: building effective prevention strategies’, in A. Wahidin and M. Cain (eds) Ageing, Crime and Society, Cullompton: Willan.

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Death

Introduction The final stage of life is, of course, death. Traditionally death has been ‘the topic that should not be discussed’, and it received little academic or media attention. That is changing with popular books being written about death,1 a rapid growth in academic studies of death,2 and a wide-ranging public debate over the right to die. This chapter will start by exploring the definition of death, a hotly disputed issue. The definition of death reflects debates about what it means to be alive. There are, therefore, echoes of the debates over when life begins, discussed in Chapter  3. Here, the legal approach will be compared with the philosophical and sociological literature on the nature of death. The chapter will then turn to issues over a right to die and responses to suicide.

Disputes over the definition of death There is a lively debate over the definition of death. At first that might seem surprising. Surely, such a foundational concept would have a clearly agreed definition? So, it is helpful first to clarify why the definition of death has proved controversial. There are three primary reasons. First, technologies have developed so that people can be kept ‘alive’ in ways which would have been unimaginable even a few decades ago. Most   Office for National Statistics (2020) Death, London: ONS.   For example, Brooks-Gordon, B., Ebtehaj, F., Herring, J., Johnson, M. and Richards, M. (eds) (2007) Death Rites and Rights, Oxford: Hart. 1 2

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biological functions can now be performed by mechanical devices. The idea of a person being kept alive forever, which at one time would have been laughable, now seems more plausible. This, then, raises the issue of what kind of prolonged existence might count as being kept alive, as opposed to ‘keeping a corpse warm’. Second, the issue of when a person dies has some practical significance. In the past it was notable that the primary debates surrounding death in England were theological and concerned when a soul was thought to leave the body, that being the key issue of interest. Now, the time of death has huge significance in the area of organ transplantation. If an organ is to be useable for transplant it is important it is as ‘fresh’ as possible. That means that it must be removed as soon after death as possible. But that then raises the question: when does death occur?3 Such is the practical significance of this that some commentators have suggested it might be helpful to separate out the questions of generally when a person is deemed to be dead and when organs can be removed.4 Third, the definition of death raises some deep questions about the nature of the self. Integral to the questions about the definition of death are questions about what it means to be alive and what we value about human life. That raises some profound ethical and, potentially, religious questions. This explains why the debate over what might seem a rather technical, or even morbid, topic has generated such controversy. A good example of the emotions raised are the different attitudes involving the teenager Jahi McMath,5 who suffered devastating neurological damages as a result of a tonsillectomy. She met the definition of brain death. However, at the request of her family, she was kept alive through mechanical ventilation, tube feedings and other supportive care. The case raised considerable public attention. Media reports claim that one unnamed ethicist stated that the thinking of the parents ‘must be disordered’ and that the treatment was not ‘life support’ because the patient was dead. They were ‘trying to ventilate and otherwise treat a corpse. She is going to start to decompose’.6 Nevertheless it is clear that in the eyes of the

  Foley, E. (2011) The Law of Life and Death, Cambridge: Harvard University Press.   Chau, P.-L. and Herring, J. (2020) Emerging Medicine and the Law, Berlin: Springer, from which this chapter draws. 5   Discussed in Truog, R. and Miller, F. (2014) ‘The meaning of brain death: A different view’, JAMA Internal Medicine, 174(8): 1215–16. 6   Szabo, L. (2014) ‘Ethicists criticize treatment of teen, Texas patient’, USA Today, 10  January, www.usatoday.com/story/news/nation/2014/01/09/ethicists-criticizetreatment-brain-deadpatients/4394173/ (accessed 30 July 2020). 3 4

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parents Jahi was still alive and there was value in keeping her alive through technological means. What to one person was the degrading treatment of a corpse was to another maintaining a precious life.

The law While there has been lively debate in the medical and ethical literature on the definition of death, it has not been a major issue for lawyers. That is because the courts have taken the line that the legal definition of death should match the medical definition. Hence, for the courts the issue is seen as essentially one of expert evidence. In Airedale NHS Trust v Bland7 Lord Keith, with the support of the other members of the House of Lords, held: ‘In the eyes of the medical world and of the law a person is not clinically dead so long as the brain stem retains its function.’ In Re A8 Johnson J relied on the fact that doctors had certified a brainstem-dead child as dead for medical purposes as the basis for declaring the child legally dead too. The fact the parents believed the boy was still alive counted for nothing when weighed against the expert medical opinion. More recently the courts have been a little more hesitant about this approach, recognizing that where the parents had a different understanding of death it was not automatic that the medical view must prevail. In Re A (A Child)9 in 2015, Hayden J had to deal with a case where a child had been assessed as dead by the medical team following the routine brainstem death tests, but the parents would not accept the conclusion. Hayden J explained the medical tests which had been used: The brain stem tests followed well established clinical guidelines. Despite the impressive name, they are, in fact, simple bedside tests: an assessment of the pupils’ reaction to light; corneal reflexes; cough reflex; evidence of any respiratory movement; apnoea tests; and gag reflex. For each test, on those two separate occasions, the results pointed overwhelmingly and sadly, conclusively, to brain stem death. Dr Playfor gave expert evidence to the courts on the nature of brainstem death. Hayden J summarized his evidence in this way:

  Airedale NHS Trust v Bland [1993] 1 All ER 221.   Re A [1992] 3 Medical Law Review 303. 9   [2015] EWHC 443 (Fam). 7 8

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brain stem death, does not equate to the death of the whole brain. There are studies that demonstrate that you can have electrical activity in some areas of the brain after brain stem death is established. The key point, he said, is that no patient has ever regained consciousness or awareness following brain stem death. Dr Playfor went on to explain the reason for that in language which I found to be simple and accessible. The nerves which generate the breathing mechanism and maintain the integrity of the heart rate are all connected to the brain stem. In simple terms, when the brain stem dies, it is impossible for a patient to breathe unassisted. Notably, while confirming that under English law the child was dead, Hayden  J acknowledged that under Saudi Arabian law, and perhaps American law, the child would not be dead because there was not ‘whole brain death’ (a term we will explore shortly). Further he noted: the facts of this case are a reminder once again that in a multi-cultural society there has to be recognition that people, particularly those with strong religious beliefs, may differ with medical professionals as to when death occurs. In the Christian, Muslim and Jewish faiths the concept of the ‘breath of life’ has ancient and important resonance. It is hardly difficult to understand why the still breathing body is regarded as alive, even though ‘breath’ may be entirely delivered by machine. Nevertheless, the medical view prevailed, and Hayden J stated, ‘the time has now come to permit the ventilator to be turned off and to allow Child A, who died on 10 February, dignity in death’. It seems that while Hayden J was willing to listen and respect the views of the parents, this would not lead to a departure from the medical evidence. This approach was followed in Re M (Declaration of Death of Child).10 The case was particularly difficult because, although the baby was found to be irreversibly brainstem-dead, he was kept connected to a ventilator and his heart continued to beat. He gained weight and occasionally his limbs moved. The parents as a result rejected the determination of death and opposed removal from ventilation. The Court of Appeal emphasized that the determination of death was a clinical matter, and in this case the appropriate clinical guidelines had been followed and the court would

  [2020] EWCA Civ 164.

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accept the medical assessment.11 It is, perhaps, shocking that although the baby was certified as dead on 1 October 2019, the case was not heard in the High Court until four months later and not resolved by the Court of Appeal until 14 February 2020. It might be thought that the approach of the courts is understandable. Deferring to medical expertise in what can be a controversial and complex subject has obvious appeals. Yet, in assuming the definition of death is primarily a scientific issue, the courts are taking one particular side of the debate.

Alternative understandings of death In this section some of the different understandings of death will be examined.

Brainstem death Brainstem death is widely accepted in the UK and many other European countries as the medical definition of death.12 The brainstem is the most caudal, or lowest, part of the brain, and connects the spinal cord with the rest of the brain. It contains the medulla oblongata, midbrain and pons. These structures are responsible for general wakefulness, controlling blood pressure, body temperature and breathing. Normal spontaneous breathing will be impossible if the brainstem is injured. If the brainstem ceases to function then medical assistance from ventilators and the like is needed to breathe. For the UK the understanding of brainstem death is governed by the Academy of Medical Royal Colleges’ A Code of Practice for the Diagnosis and Confirmation of Death, which sets out in detail the definition of brainstem death, and is reinforced by the NHS’s overview of brain death.13 The latter explains: Brain death occurs when a person no longer has any activity in their brain stem and no potential for consciousness, even though a ventilator is keeping their heart beating and oxygen circulating through their blood.   Oxford University NHS Trust v AB [2019] EWHC 3516 (Fam).   Pallis, C. and Harley D. (1996) ABC of Brain Stem Death, London: BMJ Books. 13   NHS (2020) ‘Brain Death’, https://www.nhs.uk/conditions/brain-death/ 11 12

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Notably, a patient in a persistent vegetative state (PVS) is alive according to the brainstem approach. Retaining brainstem functions, PVS patients exhibit some or all of the following: unassisted respiration and heartbeat; wake and sleep cycles (made possible by an intact ascending reticular activating system, although destruction to the cerebrum precludes consciousness); pupillary reaction to light, and eye movement; and such reflexes as swallowing, gagging and coughing. Supporters of the brainstem death approach tend to emphasize the fact that those who are brainstem dead have lost those key capacities to engage in the things we find valuable in life. The Academy of Medical Royal Colleges explain their support for defining death as brainstem death in this way: Death entails the irreversible loss of those essential characteristics which are necessary to the existence of a living human person and, thus, the definition of death should be regarded as the irreversible loss of the capacity for consciousness, combined with irreversible loss of the capacity to breathe. This may be secondary to a wide range of underlying problems in the body, for example, cardiac arrest. The irreversible cessation of brain-stem function whether induced by intra-cranial events or the result of extra-cranial phenomena, such as hypoxia, will produce this clinical state and therefore irreversible cessation of the integrative function of the brain-stem equates with the death of the individual and allows the medical practitioner to diagnose death.14 As we shall see shortly, other definitions emphasize the capacity for consciousness or the capacity to breathe. Supporters of the brainstem death definition argue their approach combines both because with brainstem death both consciousness and capacity to breathe have been lost. Gardiner et al,15 supporting brainstem death, claim: These two essential capacities are found in the brain, particularly the brainstem, and represent the most basic manner in which the human organism can sense and interact with its environment.   Medical Royal Colleges and Department of Health (2008) A Code of Practice for the Diagnosis and Confirmation of Death, London: Academy of Medical Royal Colleges, 8. 15   Gardiner, D., Shemie, S., Manara, A. and Opdam, J. (2012) ‘International perspective on the diagnosis of death’, British Journal of Anaesthesia, 108(S1): i14–i28. 14

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Critics of the brainstem death definition either believe it is too strict or too broad. Those who believe it is too broad sometimes argue that it elevates the brain to being the essential organ of the person.16 The body is made up of much more than the brain, opponents point out. To declare the person dead when only part of them (the brain) is not working reveals too narrow an understanding of the person. We are more than our brains. Shewmon17 states that homeostasis (maintenance of the internal environment of the living organism), energy balance, wound healing, fighting off infections, development of a febrile response, successful gestation of a fetus, sexual maturation and proportional growth are all capable of occurring in people who are ‘brain dead’. This was the issue in Re M (Declaration of Death of Child),18 where the brainstem-dead child was able to receive food and was ‘warm to the touch’.19 It seems there is too big a gap between the official definition of death and how it is understood by the person in the street.20 Conversely, those who claim brainstem death is too narrow a definition argue that, as mentioned above, a person who is a PVS patient is unable to interact with the world in any meaningful sense.

The end of consciousness This approach towards death is based on a person’s capacity for consciousness.21 Typically, consciousness here refers to some kind of subjective experiences. Once that capacity is lost irreversibly then the person should be regarded as dead. Use of this definition would mean that PVS patients would be regarded as dead. And so Engelhardt22 is able to refer to the permanently unconscious as ‘biologically living corpses’.   Potts, M., Byrne, P. and Nilges, R. (eds) (2000) Beyond Brain Death: The Case Against Brain Based Criteria for Human Death, Dordrecht: Kluwer; Shewmon, D. (1998) ‘“Brainstem death”, “brain death”, and death’, Issues in Law and Medicine, 14: 125–46. 17   Shewmon, D. (2001) ‘The brain and somatic integration: Insights into the standard biological rationale for equating “brain death” with death’, Journal of Medicine and Philosophy, 26: 457–78, 467–8. 18   [2020] EWCA Civ 164. 19   Maguire, A. (2019) ‘Towards a holistic definition of death: The biological, philosophical and social deficiencies of brain stem death criteria’, The New Bioethics, 25(2): 172–84. 20   Byrne, P. and Rinkowski, J. (1999) ‘“Brain death” is false’, Linacre Quarterly, 42–9, 42. 21   DeGrazia, D. (2004) ‘Biology, consciousness, and the definition of death’ in T. Shannon (ed) Death and Dying, Lanham: Rowman and Littlefield, 1–8. 22  Engelhardt, T. (1999) ‘Redefining death’, in S. Youngner, R. Arnold and R. Schapiro (eds) The Definition of Death, Baltimore: Johns Hopkins University Press. 16

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This approach tends to be supported by arguing that with the end of consciousness comes the end of our ability to think and meaningfully interact with the outside world.23 Veatch argues that once that ability is lost the person should be treated as dead, even if in some biological sense they are alive. It is notable that no jurisdiction has adopted the test, despite its academic support. Lizza argues that the loss of the potential of consciousness marks the end of ‘kind of being that we are’.24 In McMahan’s words, we are a ‘living but unoccupied human organism’, the treatment of which is ‘governed morally by principles similar to those that govern the treatment of a corpse’.25 As Savulescu26 puts it, ‘it is our mental life which constitutes who we are, not the machine that supports it’. Opponents of this approach argue it is too wide. Some have speculated that people with severe cognitive impairments might be deemed to lack consciousness and be classified as dead, although consciousness is unlikely to be lost unless a patient is in a state such as PVS. Speck Sullivan emphasizes that if a person appears alive, even if their consciousness is impaired, they are still regarded as one of us: People very often ‘count’ as members of their human communities without the capacities of consciousness or of social interaction, and that is part of what makes their situations so tragic – they still count, but the way in which they do so may be painful if some of their capacities are impaired.27

The ending of cardiac function Under this definition, if the heart irreversibly stops beating, the patient is dead. It is important to stress the irreversibility of this event because the heart may stop but the patient be resuscitated, so, clearly, it would be nonsensical to declare death every time a person’s heart stops. Historically,   Veatch, R. (1989) Death, Dying and the Biological Revolution, New Haven, CT: Yale University Press; Veatch, R. (2005) ‘The death of whole-brain death’, Journal of Medicine and Philosophy, 30: 353–62. 24   Lizza, J. (2006) Persons, Humanity and the Definition of Death, Baltimore, MD: Johns Hopkins University Press, 6. 25   McMahan, J. (1995) ‘The metaphysics of brain death’, Bioethics, 9(2): 91–126, 125. 26  Savulescu, J. (2003) ‘Death, us and our bodies: personal reflections’, Journal of Medical Ethics, 29: 127–30, 130. 27   Speck Sullivan, L. (2018) ‘What does a definition of death do?’, Diametros 55: 63–74, 65. 23

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it was cessation of breathing, the heart no longer beating, and coldness to the touch which signified death.28 One prominent supporter of the loss of cardiac function definition is the Danish Council of Ethics, which preferred it to the brain death definition.29 The Council took the view that the definition of death is not a technical question, but must be decided in terms of how the community as a whole understands death. It argued that the person in the street would view the stopping of the beating heart as the criterion for death because the heart is widely seen as a symbol of life.30 So, even if the notion of the beating heart as the key to life is not logically or philosophically justifiable, it is intuitively felt to be the essential mark of life. One difficulty with this approach is the requirement of irreversibility, as it can be hard to determine whether the cessation of cardiac function is irreversible until further medical intervention has been used. Another difficulty is that it is also now clear that the stopping of the heart does not immediately lead to an end of brain activity. This then could lead to a person being treated as dead even though there is some form of consciousness.

The end of the organism If the body is seen as a ‘working organism’ with various functions then it might be possible to define death as when that organism ceases to achieve those functions.31 The functions of the body might include metabolism, reproduction, sensation and locomotion. Only once all of these are no longer being performed should the body be said to have died.32 This approach is supported by those who criticize the brain death criterion because it elevates the brain over the rest of the body. It would argue that a human being performs many functions, some, but not all, of which relate to the brain. Using the end of the organism as the criterion for death recognizes that bodies are made up of many parts and perform   Shah, S., Truog, R. and Miller, F. (2011) ‘Death and legal fictions’, Journal of Medical Ethics, 37: 719–22. 29   Shewmon, D. (2001) ‘The brain and somatic integration: Insights into the standard biological rationale for equating “brain death” with death’, Journal of Medicine and Philosophy, 26: 457–78. 30   Truog, R. (1997) ‘Is it time to abandon brain death?’, Hastings Centre Report, 27: 29–31. 31   Lamb, D. (1987) Death, Brain Death and Ethics, Abingdon: Routledge. 32   An extreme view is that death only occurs when every cell in the body has died, but that has few supporters and would not be practical. 28

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many functions. The brain and its functions are only part of what the body does. Opponents of this view consider that it treats the body like a piece of machinery and yet most people regard their bodies as more than an organism that takes in and expels air, for example. Such an approach overlooks what most people regard as most important about their bodies: feelings, thoughts, emotions and the like. As McMahan33 argues: The term ‘death’ can refer to our ceasing to exist … or it can refer to a biological event in the history of an organism. … An organism dies in the biological sense when it loses the capacity for integrated functioning. … But if we are not organisms, this is of little consequence. … What it is important to be able to determine is when we die in the nonbiological sense – that is, when we cease to exist. … We die or cease to exist when we irreversibly lose the capacity for consciousness…. The best criterion for when this happens is a higher-brain criterion.

Desoulment For those of a religious persuasion, death is often defined as the moment the soul leaves the body and moves on to the afterlife (desoulment). The concept of a ‘soul’ is not easy to define. Roughly speaking, the soul is the spiritual essence of a person that continues after death.34 The Catholic Encyclopaedia suggests: ‘The soul may be defined as the ultimate internal principle by which we think, feel, and will, and by which our bodies are animated’,35 although the definition of the soul is a matter of heated and complex debate among theologians.36 Of course, such a definition will be rejected by those who deny the existence of a soul. Even if the existence of a soul is accepted, there is the problem that the moment of desoulment is not apparent to humans and cannot therefore readily provide a basis of a legal or medical test.

  McMahan, J. (1995) ‘The metaphysics of brain death’, Bioethics, 9(2): 91–126, 92.   Eberl, J. (2005) ‘A Thomist understanding of human death’, Bioethics, 19: 25–48. 35   Hughes, P. (1947) The Catholic Encyclopaedia, New York: Encyclopaedia Press. 36   See, for example, Moreland, J. and Rae, S. (2000) Body and Soul, Downers Green: Intervarsity Press. 33 34

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Death as a process All the approaches defined so far have sought to indicate the point in time at which death occurs. An alternative approach argues that death is better seen as a process that occurs over time. Occasionally there will be a clear instant of death, for example where a person is blown up in an explosion. But otherwise there is no easy cut-off point at which we can mark the line between a person who is alive and a person who is dead. As one dying patient put it, ‘death keeps taking a little bit of me’.37 This approach is similar to the gradualism approach some take to the question of when a fetus becomes a person. The argument in support of this is that there is no one moment where we can say that a person has ‘died’. We can be sure by the time of putrefaction that a person is now dead, but to select one point of the process as the moment of death is artificial. Indeed, it may be clear from the debates above that no one view is clearly correct. There are losses of different capacities at different times and no one ‘magical moment’ when life ends. This approach argues that to seek to define death is an impossibility. Disputes over what death means are likely to lead to high-minded debates between theologians, philosophers, lawyers and medics, which are, to be frank, likely to go nowhere. It is more profitable to focus on particular questions: at what point is it appropriate to authorize the burial of a body? When can organs be removed from a body for transplant to another person?38 When can a person whose body is being artificially ventilated have the machine switched off? It would be possible to have different answers to these questions.39 The primary argument against this approach is that it is helpful for relatives and medical professionals to have a single clear moment of death. If a person stops breathing and a relative asks a doctor if they have died, the answer “Well, for some purposes they have, but not for others” is simply unkind. In such situations we need a single clear authoritative declaration that the patient is (or is not) dead.

  Quoted in Kafetz, K. (2002) ‘What happens when elderly people die’, Journal of the Royal Society of Medicine, 95, 536-8, 536. 38   Zamperetti, N., Bellomo, R. and Ronco, C. (2003) ‘Defining death in non-heart beating organ donors’, Journal of Medical Ethics, 29, 182–5. 39   Chau, P.-L. and Herring, J. (2020) Emerging Medicine and the Law, Berlin: Springer; Youngner, S. and Arnold, R. (2001) ‘Philosophical debates about the definition of death: Who cares?’, Journal of Medicine and Philosophy, 26: 527–37. 37

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Choice Another option would be to allow people to select their own definition of death. This might be based on an acknowledgement that reasonable people differ over the definition of death. Religious and ethical views might impact on different people’s understanding of death. Enabling people to select the best definition would provide the best protection for their autonomy and respect for religious belief. This approach is not as far-fetched as it might at first sound. Japan and two US states (New York and New Jersey) have such a system.40 They both use a default definition but allow people to opt to be exempt from this definition, choosing between set alternatives. This can be presented as giving effect to an advance directive.41

Choosing between the definitions We can see in these debates many of the issues which have arisen in other areas of the life course. When looking at a major event, do we look at the matter from an individual’s perspective or from the perspective of the community? To what extent should individuals be encouraged or permitted to define their own life course? What is it that is at the heart of being human? Hence, we see in the debates the issue of whether mental activity or existing as a biological organism is more important (reflecting the debates over whether personhood rests in mental capabilities or in being a member of the human species; see p 54). In the arguments over whether death should depend on the appearance to an outside observer or the experiences of the individual themselves, we see echoes of debates as to whether life stages are a social matter or a question of individual perception (see p 179). And in the debate over whether people should be encouraged to define death for themselves, we see the theme of the debate over individualization (see p 127). Another way of considering this debate is as a power struggle between different areas of expertise. Who gets to define death? Is that to be left to the medical profession, to the courts, to religious figures or to individuals themselves? We can see similar issues in relation to marriage (see Chapter 8), where different groups have different understandings   Kato, Y. (2013) ‘Conscience in health care and the definitions of death’, Croatian Medical Journal, 54: 75–7. 41   Veatch, R. and Ross, L. (2016) Defining Death: The Case for Choice, Washington, DC: Georgetown University Press. 40

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of an important stage of life, and the law seeks to mediate between the alternate views. In practice, it is the law that gets to decide these disputes and, as already mentioned, so far the English courts have in recent times tended to follow the medical definition of death, although that is not an uncontroversial line to take.42 Finally, there is an acknowledgement that major life events of this kind are complex. As the ‘death as a process’ approach suggests, it may be helpful to break down the question of when a person dies into a series of different questions which need not all be answered in the same way. This might enable us, for example, to allow a person to make decisions about death on some matters but not others. It might, therefore, enable a more nuanced approach to the question.

Sociology of death In contrast to the very individualistic focus on the definition of death in the legal and ethical literature, in the sociological literature, death is seen as having impact on the community. Durkheim writes: ‘When someone dies, the group to which he belongs feels itself lessened and, to react against this loss, it assembles. Collective sentiments are renewed which then lead men to seek one another and to assemble together.’43 In this sense, death is not just a biological or medical fact but a social one. Death can be an event uniting a family or even bringing a community together. It is rare for a person’s death not to be marked by some kind of public event, often a religious service. As mentioned in the introduction to this chapter, death used to be seen as a taboo event, but there is greater discussion of it now. Although Walter argues, ‘lay people are now thoroughly socialised: they talk of a loved one’s death as a series of medical events and interventions, and are disturbed if no medical cause of death can be ascertained’.44 So, while in the past the religious or spiritual aspects of death may have been emphasized in the public discourse, it seems that now medical issues are highlighted.

  Lizza, J. (2006) Persons, Humanity and the Definition of Death, Baltimore, MD: Johns Hopkins University Press. 43   Durkheim, E. (1912) The Elementary Forms of Religious Life, New York: Free Press, 339. 44   Walter, T. (2008) ‘The sociology of death’, Sociology Compass, 2(1): 317–36. 42

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Legal regulation of death There are some obvious things that law has to say about death. In criminal law terms, causing death can amount to murder or manslaughter, generally thought to be the most serious criminal offences. However, the limits of the criminal law often go unnoticed. There are many decisions that are made that do cause death but which are not seen as murder. Søren Holm45 talks of ‘death policies’: decisions which will cause death but are rarely openly acknowledged as doing so. One example would be the rationing of health care or the withdrawal of funds from a health care service. Another would be setting speed limits on the roads. These decisions involve a weighing up of the deaths that might result with the social good of the overall policy. Such decisions are rarely made explicit. Partly because many decisions are primarily undertaken in economic terms, there is a perception (or reality) that lives are given a financial value, something which seems improper – or at least illogical, as no amount of compensation can be given to a person who has died! However, Holm is correct to note how the scope of criminal law tends to be narrowed to cases where we can identify an individual whose actions directly cause death. A car manufacturer would never be held accountable for producing a fast car, aware that some of its products would be involved in fatal accidents. The major debate over the legal regulation of dying is, of course, over euthanasia, or assisted dying, and we address that next.

Assisted dying The debates over the ethical issues around assisted dying are fierce. Fierce, for very good reason: the stakes are high. For supporters of a liberal approach to assisted dying the traditional opposition to it leaves people in a state of misery and pain. It denies them the most basic human right: the right to die at a time and in a manner of their choosing. To opponents of liberalization, permitting euthanasia involves a devaluing of human life and putting the most vulnerable members of the population at risk of being killed involuntarily. The debate also reflects profound differences in beliefs about the nature of death. To some, death is the ultimate disaster to be avoided at all costs. We must ‘Rage, rage against the dying of the

  Holm, S. (2018) ‘The ethics of death policies’ in A. Lever and A. Poama (eds) The Routledge Handbook of Ethics and Public Policy, Abingdon: Routledge.

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night’, as Dylan Thomas put it.46 To others, a good death is marked by peace and acceptance. This is not the place to discuss all of the issues around the euthanasia debate, but I want to highlight three particular issues which touch on some of the themes of this book. Before doing so, a brief outline of the law will be provided.

Assisted dying and the law Lord Sumption47 set out these principles as summarizing the current law governing cases where a person wishes to die: (1) In law, the state is not entitled to intervene to prevent a person of full capacity who has arrived at a settled decision to take his own life from doing so. However, such a person does not have a right to call on a third party to help him to end his life. (2) A person who is legally and mentally competent is entitled to refuse food and water, and to reject any invasive manipulation of his body or other form of treatment, including artificial feeding, even though without it he will die. If he refuses, medical practitioners must comply with his wishes. … A patient (or prospective patient) may express his wishes on these points by an advance decision (or ‘living will’). (3) A doctor may not advise a patient how to kill himself. But a doctor may give objective advice about the clinical options (such as sedation and other palliative care) which would be available if a patient were to reach a settled decision to kill himself. The doctor is in no danger of incurring criminal liability merely because he agrees in advance to palliate the pain and discomfort involved should the need for it arise. This kind of advice is no more or less than his duty. The law does not countenance assisted suicide, but it does not require medical practitioners to keep a patient in ignorance of the truth lest the truth should encourage him to kill himself. The right to give   Thomas, D. (1952) ‘Do not go gentle into that good night’ in D. Thomas, Collected Poems 1934–1952, London: Clearwater Press. 47  In R (Nicklinson) v Ministry of Justice [2014] UKSC 38, [255]. 46

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and receive information is guaranteed by article 10 of the Convention. If the law were not as I have summarized it, I have difficulty in seeing how it could comply. (4) Medical treatment intended to palliate pain and discomfort is not unlawful only because it has the incidental consequence, however foreseeable, of shortening the patient’s life … (5) Whatever may be said about the clarity or lack of it in the Director’s published policy, the fact is that prosecutions for encouraging or assisting suicide are rare. Between 1998 and 2011, a total of 215 British citizens appear to have committed suicide with medical assistance at the Dignitas clinic in Switzerland. Not one case has given rise to prosecution. Although cases of assisted suicide or euthanasia are periodically reported to the police (85, we were told, between 1 April 2009 and 1 October 2013) there has been only one recent prosecution for assisting suicide, and that was a particularly serious case. However, as a sign of the complexity of the law, even that summary is controversial, in particular, as we shall see, on the first point. It certainly seems that in some circumstances not only is a state official permitted to prevent suicide, they may be required to do so. However, the rest of Lord Sumption’s points would be widely accepted as accurate. This is not the place to provide a thorough overview of the law on end-of-life decisions, but it is worth exploring some of the themes of the debate which are particularly relevant for this book.

Autonomy To many people, autonomy should be the central value in this area of the law. The individual in question is best placed to assess what is best for them, and it is a basic human right that people should not be forced to do things against their wishes, unless there is very good reason. There is a detailed discussion of autonomy in Chapter 9. For now, it is enough to quote Joseph Raz, who defined autonomy in this way: The ruling idea behind the ideal of personal autonomy is that people should make their own lives. The autonomous person is a (part) author of his own life. The ideal of personal autonomy is the vision of people controlling, to some degree,

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their own destiny, fashioning it through successive decisions throughout their lives.48 The opposite of autonomy is paternalism. That is where someone else decides what is best for you. It is how children are often treated. Adults, it is said by autonomy supporters, should be allowed to make their own decisions. Debbie Purdy (who brought legal proceedings to change the law on assisted dying) has written: I want to be in control of my life, and that means I want to be able to live it as long as I can, but I want to be able to choose what quality of life is livable; I don’t want somebody else to tell me that ‘the quality of your life’s ok, what are you complaining about?’ I want to be able to make those choices myself. I want the help and support to make it.49 As we have seen throughout this book, autonomy is normally a powerful theme in the legal regulation of the life course. As Debbie Purdy’s quote indicates, some people feel that determining the time and nature of their death is a key part of their life story. Particularly for those unable to commit suicide, the right to assisted dying is seen as a fundamental human right, and the law should be changed to permit it. To many, the autonomy argument is very powerful. However, the issue is not straightforward. A common counter-argument is that if the law allowed assisted dying, people might be pressurized into seeking assisted dying. The less convincing version of this argument is that relatives seeking an inheritance might try and persuade an elderly person to commit suicide. Clearly this is a concern, but it seems that can be easily dealt with by putting adequate safeguards in place to ensure that a person seeking assisted dying is not being pressurized. A more persuasive version of the argument against legalizing assisted dying is that it will create an ‘indirect pressure’ on people to seek death. This fear was also well captured by Lord Sumption in R (Nicklinson) v Ministry of Justice50: The vulnerability to pressure of the old or terminally ill is a more formidable problem. The problem is not that people   Raz, J. (1986) The Morality of Freedom, Oxford: Clarendon Press, 269.   Quoted in Commission on Assisted Dying (2013) The Current Legal Status of Assisted Dying is Inadequate and Incoherent, London: Demos, 70. 50   [2014] UKSC 38, [228]. 48 49

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may decide to kill themselves who are not fully competent mentally. I am prepared to accept that mental competence is capable of objective assessment by health professionals. The real difficulty is that even the mentally competent may have reasons for deciding to kill themselves which reflect either overt pressure upon them by others or their own assumptions about what others may think or expect. The difficulty is particularly acute in the case of what the Commission on Assisted Dying called ‘indirect social pressure’. This refers to the problems arising from the low self-esteem of many old or severely ill and dependent people, combined with the spontaneous and negative perceptions of patients about the views of those around them. The great majority of people contemplating suicide for health-related reasons are likely to be acutely conscious that their disabilities make them dependent on others. These disabilities may arise from illness or injury, or indeed (a much larger category) from the advancing infirmity of old age. People in this position are vulnerable. They are often afraid that their lives have become a burden to those around them. The fear may be the result of overt pressure, but may equally arise from a spontaneous tendency to place a low value on their own lives and assume that others do so too. Their feelings of uselessness are likely to be accentuated in those who were once highly active and engaged with those around them, for whom the contrast between now and then must be particularly painful. These assumptions may be mistaken but are none the less powerful for that. The legalisation of assisted suicide would be followed by its progressive normalisation, at any rate among the very old or very ill. In a world where suicide was regarded as just another optional end-of-life choice, the pressures which I have described are likely to become more powerful. It is one thing to assess someone’s mental ability to form a judgment, but another to discover their true reasons for the decision which they have made and to assess the quality of those reasons. I very much doubt whether it is possible in the generality of cases to distinguish between those who have spontaneously formed the desire to kill themselves and those who have done so in response to real or imagined pressure arising from the impact of their disabilities on other people. There is a good deal of evidence that this problem exists, that it is significant, and that it is aggravated by negative modern attitudes to old age and sickness-related disability. Those who

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are vulnerable in this sense are not always easy to identify (there seems to be a consensus that the factors that make them vulnerable are variable and personal, and not susceptible to simple categorisation). The claim then is that any plausible law liberalizing the right to die will contribute to negative messages about certain classes of people, which in itself might exacerbate the wish to die within that group. The claim has two linked elements. The first is that nearly all proposals about reform of the law on assisted dying limit assisted dying to certain groups (for example, people with serious disabilities or those near the end of life). The difficulty, as Lord Sumption and Kate Greasley claim, is this seems to send a message that we can understand why a person with a serious disability, or who is very elderly, may want to kill themselves, but we cannot understand why others would.51 Even if you are not convinced that, on its own, a liberalizing law would create a strong pressure, given a society which has such negative presentations of disability and treats so many of its older people so badly, the message of a law liberalizing assisted dying takes on a sharp force. To those living in soulless care homes, cut off from social interaction in poor quality care, the state seems to offer no help or concern and just offers assisted dying. To disabled people excluded from many goods in society and left by the government in poverty and undignified situations, any liberalization may suggest that not only do we treat you as if we think you would be better off dead, this is what we actually think. Further consideration about the validity of these concerns could involve examining jurisdictions which have adopted a more liberal approach to euthanasia and assisted suicide. Perhaps predictably, supporters of euthanasia argue that these jurisdictions demonstrate that effective safeguards can be put in place, while opponents argue that evidence from these jurisdictions reinforces their concerns. Lord Neuberger provided a thoughtful conclusion on the international evidence in R (on the application of Nicklinson) v Ministry of Justice52: that no abuse could be proved, but that neither could it be shown that fear of abuse was ill-founded. Note that these are not arguments in principle against a liberalization of the law, but are based on the current state of society: one which marginalizes and excludes older people and disabled people. If we were able to overcome these negative attitudes and had a society which offered   Greasley, K. (2010) ‘R (Purdy) v DPP and the case for wilful blindness’, Oxford Journal of Legal Studies, 30(2): 301–26. 52   [2014] UKSC 38, [88]. 51

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high-quality care of older people and positive responses to disability, then a liberalization of the law on assisted dying would not carry the connotations it does. But, certainly in the Anglo-American context, such a change seems a long way off. We have, then, a real difficulty. We have sympathy for those desperate to end their suffering and concern for groups marginalized in society who may feel pressure to end their lives. John Harris writes: there are two groups of vulnerable people to whom we owe concern, respect and protection. One consists of those who might be pressured into requesting death. The others are those, like Tony Nicklinson, who are cruelly denied the death they seek. We are surely not entitled to abandon one group of vulnerable people in favour of another.53 This captures what is the dilemma for most people. However, Harris then goes on to suggest that one group is ‘more vulnerable’: We have somehow to protect both. Those who might be encouraged to die are and remain free to refuse. They are not victims unless they make themselves victims. Those seeking assisted death are the more vulnerable because they are truly coerced, absolutely prevented from obtaining the remedy they seek. They seek death and are denied it: these are genuinely coerced and are certainly the victims of tyranny.54 That seems to downplay the position of a person pressurized into requesting death. It is not clear why are they are ‘truly’ coerced. Perhaps it comes down to this. A law which permits assisted dying in certain circumstances (for example, when people are very elderly or facing the end of their life) will work well for some. The articulate, confident, intelligent person will have control over their ending. But it will work badly for others. The lonely older person cooped up in a care home with no interaction with others and feeling they are a ‘waste of space’ may think that the liberalizing of the law is sending them a message that it is time to go. Or the disabled person ignored by society and socially excluded by the lack of provision may find a change in the law threatening.   Harris, J. (2015) ‘Cancelling our captivity’ in C. Brewer and M. Irwin (eds) ‘I’ll See Myself Out, Thank You’ – Thirty Personal Views in Support of Assisted Suicide, Newbold on Stour: Skyscraper Publications,139–44, 142. 54  Ibid. 53

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The answer may be in two parts. First, we need to greatly improve the treatment of, and messages about, older people and disabled people to ensure they do not feel that society would rather they were dead. Second, the law could be presented not as a right or expectation, but rather something that is permitted in extreme cases. This, I suggest, could be done by using the defence of necessity in the criminal law, which acknowledges that very occasionally a death is justified. This use of necessity may make it clear the law is not saying there is an expectation or norm of seeking death when one is elderly or depressed. This debate echoes some themes in this book: first, that we live in an interconnected society. It should not just be about what rights work well for you, but what system of rights works best for all. This debate highlights how a legal right which works well for one group of people might work badly for another. Great care needs to be exercised to tailor the law so it operates appropriately for all. Second, it illustrates the dangers of grouping people together in broad categories, such as older people or disabled people. Representatives of these groups can be found on both sides of the debate.

Capacity to consent to die As we shall explore further in Chapter 9, it is generally agreed that in order to exercise autonomy you must have capacity to do so. That is an important issue in this area as, if a person wishes to die, their autonomy could be questioned in several ways: (1) The person’s wish to die may be temporary. A good example of such a case would be where a person is normally happy and enjoys life but is prone to moments of intense suicidal depression (see, for example, Rabone v Pennine Care NHS Trust, discussed later55). In such a case there is a clash between meeting the person’s wishes now and their wishes in the future. This is an issue which we will explore further in Chapter 9. For now, it will be noted that in such a case it is far from clear that assisting such a person to die, or even permitting them to die, can be said to be justified in the name of respect for autonomy. Other examples may be where a person’s wish to die is prompted by the ending of a relationship or a diagnosis of illness, and where we are confident this will pass when the person has come to terms

  [2012] UKSC 2.

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with the situation. So, an autonomy-based regulation would need to ensure the wish to die is a settled one. (2) The decision is based on a false misunderstanding. An example might be where someone has received a diagnosis and assumes, incorrectly, that they will suffer pain. We might assume that once they discover more information or are able to consider all the facts, the decision they reach will be different. The difficulty is that people are notoriously bad at foreseeing how they will cope with disability or serious illness. There is much evidence that at the time of initial diagnosis people may feel suicidal, but over time they come to accept their position and no longer seek death.56 Again, any reform based on autonomy would need to ensure a person was fully informed and aware of the issues around their decision. (3) Studies have shown that more than 90 per cent of suicide victims have a diagnosable psychiatric illness.57 The most common psychiatric conditions associated with suicide are mood disorders, such as bipolar disorder and unipolar depression, but others include schizophrenia, alcoholism, substance abuse, and personality disorders, such as borderline or antisocial personality disorder. These can all impact on the extent to which a person’s decision is autonomous. This last point is key. We should not forget that, when looking at cases where people want to die, the cases that come to court are exceptional.58 Most suicide cases involve people plagued by mental illness and despair. These are not carefully thought-out, autonomous decisions.59 Many of those who are dissuaded from suicide or prevented from killing themselves are very grateful for the intervention. A good example from the English case law is Rabone v Pennine Care NHS Trust,60 where Ms  Rabone normally lived a happy, fulfilled life, but suffered from bouts of intense depression. During these she was typically suicidal, was hospitalized, and recovered, grateful for the medical intervention. During one bout, the hospital failed to properly care for her and she committed suicide. The   Broome, M. and de Cates, A. (2015) ‘Choosing death in depression: A commentary on “Treatment-resistant major depressive disorder and assisted dying”’, Journal of Medical Ethics, 41: 586–7. 57   Arsenault-Lapierre, G., Kim, C. and, Turecki, G. (2004) ‘Psychiatric diagnoses in 3275 suicides: A meta-analysis’, BMC Psychiatry, 4: 37. 58  Miller, G. (2015) ‘Treatment-resistant depression and physician-assisted death’, Journal of Medical Ethics, 41: 885–6. 59   Herring, J. (2014) ‘Book review: Assisted Suicide: The Liberal, Humanist Case against Liberalisation’, International Journal of Law in Context, 10(2): 273–6. 60   [2012] UKSC 2. 56

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House of Lords found that the hospital had breached her right to life. No one for a moment suggested that allowing her to commit suicide was respecting her autonomy. We know that, when she was well, she wanted to live. Indeed, Baroness Hale referred to the right to be prevented from committing suicide, and such a claim could be put in terms of ensuring the wishes of the ‘authentic self ’ were satisfied. The European Parliamentary Assembly Committee on Legal Affairs and Human Rights, considering evidence around assisted dying, stated: Medical professionals working within the palliative care sector have emphasised the fragility of patients’ desire for death and the rapid changes that, in their experience, may occur in response to good symptom control or psychological interventions. The dangers of acceding to rare requests for voluntary active euthanasia and physician assisted suicide should not be underestimated.61 The difficulty with these capacity arguments is that, even at their strongest, they may lead us to conclude (I suspect plausibly) that most people seeking death lack competence, but it is difficult to believe that everyone seeking death is lacking capacity. The argument, it might be thought, at best goes so far as to say there is a strong presumption against capacity in the case of an end-of-life request. But virtually all supporters of assisted dying promote a careful set of mechanisms in place to ensure that only those who genuinely wish to die should receive assistance. Typically, reforms require consultation with a relevant expert, careful assessment by a psychiatrist and a waiting period before the decision is acted upon. The points just made only go to how strict we are about these assessments and to an estimate of how many people will be able to satisfy the requirements. Lady Hale in R (Nicklinson) v Ministry of Justice62 stated: It would not be beyond the wit of a legal system to devise a process for identifying those people, those few people, who should be allowed help to end their own lives. There would be four essential requirements. They would firstly have to have the capacity to make the decision for themselves. They would secondly have to have reached the decision freely without undue influence from any quarter. They would thirdly   European Parliamentary Assembly Committee on Legal Affairs and Human Rights (2003) Report, Brussels: European Parliament, para 12. 62   [2014] UKSC 38, [314]. 61

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have had to reach it with full knowledge of their situation, the options available to them, and the consequences of their decision: that is not the same, as Dame Elizabeth pointed out in Re B (Treatment), as having first-hand experience of those options. And they would fourthly have to be unable, because of physical incapacity or frailty, to put that decision into effect without some help from others. I do not pretend that such cases would always be easy to decide, but the nature of the judgments involved would be no more difficult than those regularly required in the Court of Protection or the Family Division.

Negative versus positive rights Autonomy is normally used to support a liberty claim or a negative claim right, in other words, that people should be left alone to make decisions about their lives. In the context of end-of-life debates this means the negative autonomy argument may get us so far as to say a person with capacity who wishes to die should not be impeded by others from doing so. That gets us close to the current position: suicide is not a crime, but euthanasia and assisted suicide is. Negative autonomy does not get us to the position that a third party is required to, or even permitted to, help them do so. To render euthanasia lawful, we need to make something closer to a positive autonomy claim. The problem is that positive autonomy claims are rare. We are not required to do everything we can to help other people do what they want. Indeed, where what they want to do is illegal or harmful it may be unlawful for us to do so. A may have autonomy right to cut off his ear if he wants to, but that does not mean B is required to, or even permitted to, help him do so. Lord Sumption explained this argument in the context of end-of-life debates: whatever right a person may have to put an end to his own life depends on the principle of autonomy, which leaves the disposal of his life to him. The right of a third party to assist cannot depend on that principle. It is essentially based on the mitigating effect of his compassionate motive. Yet not everyone seeking to end his life is equally deserving of compassion. The choice made by a person to kill himself is morally the same whether he does it because he is old or terminally ill, or because he is young and healthy but fed up with life. In both cases his desire to commit suicide may be

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equally justified by his autonomy. But the choice made by a third party who intervenes to help him is very different. The element of compassion is much stronger in the former category than in the latter.63 This, then highlights a potential problem for those seeking a more liberal approach: the argument for autonomy, as a liberty, only gets us so far as saying that suicide or attempted suicide should not be a criminal offence; it does not appear to be sufficient to create the kind of assisted dying law which liberalizing advocates seek. There are, however, some potential routes around this dilemma. We might argue that although autonomy is commonly perceived as a negative right, in certain cases it can be sufficient to require the state to provide the means by which a person may carry out their wishes. That is most plausibly the case where two criteria are satisfied. The first is that the value that a person is seeking to fulfil is of substantial significance to that person. The second is where what is sought is a valuable option for the state to support. These might be the kind of claims made to justify a right to marry or a right to education, for example. Can a similar kind of argument be made in relation to death? As to the first question, this is something on which commentators disagree. Ronald Dworkin has classified end-of-life decisions as ‘critical interests’, representing the core values of a person. Dworkin has written: ‘Making someone die in a way that others approve, but he believes a horrifying contradiction of his life, is a devastating, odious form of tyranny.’64 He argues that many people believe their deaths should ‘keep faith’ with the way in which they have lived their lives. The closing chapter of a story is a crucial one. Not all supporters of autonomy are happy with Dworkin’s presentation, however, because it appears to leave the door open for someone to say to a person requesting death: ‘I know you are now saying that you want to die, but a better fit with your life story (your critical interests) would be for you to live longer.’ One response to such an argument is to insist that only the individual concerned is in a position to determine what life ending will fit in with their values. Further, as Greasley has noted, the precise time and manner of death is not actually in itself a particularly important point in most people’s life stories.65   Ibid, [214].   Dworkin, R. (1993) Life’s Dominion, New York: Vintage. 65   Greasley, K. (2010) ‘R (Purdy) v DPP and the case for wilful blindness’, Oxford Journal of Legal Studies, 30(2): 301–26. 63 64

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A more promising argument for supporters of a positive autonomy right to die may be that developed by Joseph Raz, who has suggested that giving autonomy in death helps autonomy in life: Inevitably shaping one’s dying contributes to giving shape, contributes to the form and meaning one’s life has. Those who reflect, plan and decide on the manner of their dying make their dying part of their life. And if they do so well then by integrating their dying into their life they enrich their life. It can transform one’s perspective on one’s life; reduce the aspects of it from which one is alienated, or those that inspire a sense of helplessness or terror. It is a change that makes one whole in generating a perspective, a way of conceiving oneself and one’s life free from some of those negative aspects.66 This seems a more plausible claim. Even if, as Greasley67 claims, the precise manner of death does not reflect a critical interest for many, Raz’s argument that having the possibility of control gives a richness to the final period of life may be one which is true for more people. Whether the reassurance in one’s final years that, if needed, the option of assisted dying is there is sufficiently beneficial to individuals and to the state to rank it alongside rights to education or marriage is debatable. What, interestingly, it does show is that control of a later point of one’s life course (such as death) can give the current stage of life course (such as preparing for death) greater richness. A second set of arguments that could be raised to defeat the argument that autonomy can only lead to a liberty would be based on disability rights. There is not space to develop this fully, but there is widespread agreement that where a person, as a result of a disability, is unable to act on their choices, the state should offer resources to enable them to live out their choices so they are not disadvantaged as compared with an ablebodied person. Uncontroversially, that means there is a duty on the state, and even private bodies, to ensure there is access to public buildings and services. More controversially, it might be said to extend beyond this to other services which are not normally identified as a public good but as a choice a person might make. Hence, there is, for example, a lively debate as to whether disabled people should have access to sex work or drugs.   Raz, J. (2012) ‘Death in our life’, 28 May, Oxford Legal Studies Research Paper No 25/2012, available at SSRN: https://ssrn.com/abstract=2069357 67   Greasley, K. (2010) ‘R (Purdy) v DPP and the case for wilful blindness’, Oxford Journal of Legal Studies, 30(2): 301–26. 66

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The question is whether a disabled person can call on state resources to enable them to have the same right to harm themselves as an able-bodied person. That is too complex a question to properly address here. Even if the disability claim is only sufficient to access public goods, that still raises the question of whether seeking one’s own death could be a public good. In very extreme cases it might be.

Sanctity of life/dignity Sanctity of life is, for some, the key principle in the end-of-life debates, although it is notable that in recent years it has received much less attention in the public debates.68 Sanctity of life is claimed as an important moral and legal principle which cannot be breached, even in the name of autonomy. While much discussed, the concept is understood in many different ways and needs some unpacking. At its heart is the claim that there is a value in every human life which is independent of the experiences of the individual. It is common to contrast, therefore, ‘sanctity of life’ views with ‘quality of life’ views. Quality of life asks about the pleasures and pains of the individual; whereas sanctity is an inherent value which is not dependent on the experiences of the person. Sanctity of life claims there is an intrinsic value in all human life: one that exists even if the individual does not value their own life or even if the individual is unable to experience things that we normally think are valuable aspects of life. One of the important consequences of this is that everyone has equal sanctity of life. Because it does not depend on the experiences, abilities or qualities of an individual but is an inherent feature of human beings, no one can claim to have more ‘sanctity of life’ than another. There are two key questions to be asked about a sanctity of life theory. The first is where this value comes from and what its nature is. The second is what should be our response to that value. We look first at what this sacred value is and where it comes from. Of course, given the nature of the claim, it cannot come from the individual themselves.69 So, the source of the value must be external to the individual. As Sulmasy70 has put it (using the terminology of intrinsic dignity rather than sanctity of life):  Stevens, K. (2020) ‘On the puzzling death of the sanctity-of-life argument’, Argumentation, 34: 55–81. 69  Ibid. 70   Sulmasy, D. (2017) ‘Death and dignity in Catholic Christian thought’, Medicine Health Care and Philosophy, 20(4): 537–43, 538. 68

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By intrinsic dignity, I mean that worth or value that people have simply because they are human, not by virtue of any social standing, popular admiration, or any particular set of talents, skills, or powers. Intrinsic value is the value something has by virtue of being the kind of thing that it is. Intrinsic dignity is the name we give to the value that human beings have by virtue of the fact that they are human beings. This value is thus not conferred or created by human choices, but is prior to human attribution. Similarly, Kaczor and George71 explain this ‘endowment dignity’, as they call it, is ‘not achieved by the individual or given to the individual by others. We have endowment dignity or intrinsic dignity in virtue of our humanity.’ So, if the value does not come from the individual, where does it come from? The literature indicates three primary views. The most straightforward is a claim that the value is from God. As God, it is claimed, regards all human life as precious and equally precious, this means we should value all human life. The appeal of such a view is that it offers a ready explanation of the equality of the value of human life. If we take it God loves all humans equally, then all have equal value. However, it seems highly problematic to base a legal system on an overly religious belief, certainly in any jurisdiction where there is considerable diversity in religious belief. Second, some commentators have sought to rely on a quasi-spiritual, albeit not necessarily religious, claim. Hoffmann  LJ in the Court of Appeal in Bland 72 explained: we have a strong feeling that there is an intrinsic value in human life, irrespective of whether it is valuable to the person concerned or indeed to anyone else. Those who adhere to religious faiths which believe in the sanctity of all God’s creation and in particular that human life was created in the image of God himself will have no difficulty with the concept of the intrinsic value of human life. But even those without any religious belief think in the same way. In a case like this we should not try to analyse the rationality of such feelings. What matters is that, in one form or another, they form part   Kaczor, C. and George, R. (2017) ‘Death with dignity: A dangerous euphemism’ in S. Munders (ed) Human Dignity and Assisted Death, Oxford: Oxford University Press. 72   Airedale NHS Trust v Bland [1983] 1 All ER 231, 251. 71

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of almost everyone’s intuitive values. No law which ignores them can possibly hope to be acceptable. Ronald Dworkin assumes that most people share the ‘fundamental’ idea that human life is intrinsically valuable, and worthy of a kind of awe, just because it is human life. … Any human creature, including the most immature embryo, is a triumph of divine or evolutionary creation, which produces a complex, reasoning being from, as it were, nothing, and also of what we often call the ‘miracle’ of human reproduction, which makes each new human being both different from and yet a continuation of the human beings who created it.73 These kinds of claims are hard to assess. First, I am not convinced that these would receive widespread acceptance among people nowadays. Second, even if they did, I think there is a real difficulty in telling someone who does not accept this understanding of the specialness of all human life that the law is going to impose that view upon them and deny them assisted dying on that basis, particularly, where the consequence of doing that involves them having to endure great pain. The third alternative is to suggest that the source of valuing is the wider society or community. As Baroness Hale put it in Purdy: ‘It is not for society to tell people what to value about their own lives. But it may be justifiable for society to insist that we value their lives even if they do not.’74 We might see here the typical response we might give to a person who is feeling suicidal and saying their life is pointless: “But you do matter to us, your life is precious.” This does seem a more plausible claim. There is a sense of loss to most people when members of the community die, even if they did not know them. The issue that arises if we accept for now that there is sanctity of life is how much value is attached to it. Some commentators seem to assume that sanctity of life is an absolute value and there is nothing else to weigh against it, or no other principles, even autonomy, that might weigh against it. But there is no need to take such an approach. Especially if one takes the community interest approach there seems no difficulty in finding that a life has value for the community and that the life has value or disvalue for the person involved. It seems plausible then in cases where a person   Dworkin, R. (1993) Life’s Dominion, New York: Vintage, 85–6.   R (Purdy) v DPP [2009] UKHL 45, [68].

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is finding their life utterly miserable that these feelings may outweigh the value the individual finds in their life.

Conclusion At first thought, dying seems a personal matter, but throughout this chapter we have seen that dying, death and their legal regulation raise important social issues. They are relational experiences. Our deaths affect those around us, and how society understands and interprets deaths has important ramifications for those still living. In closing this chapter, I must express some despair over the end-of-life debates. While mountains of books and years of intellectual energy are written on the rights and wrongs of euthanasia, many older and disabled people are dying in poverty, freezing temperatures and desperate hunger. Their final months, or if they are particularly unlucky, years, are spent in inadequate care homes marked by over-medication and neglect. If only a portion of the academic, legislative and media attention focused on this issue were spent seeking to improve the lot of older people and disabled people, improving the quality of palliative care and combatting ageist and disablist attitudes. Trumpeting the rights of sanctity of life or autonomy at the end of life seems pretty pointless if neither of those values seem to receive much attention in the way we treat older people, disabled people and those beset by mental illness.

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Introduction At one level it might be thought that family law is the most natural area for a life course approach to be taken. Yet it is striking how the term ‘family law’ has become restricted to a very narrow understanding of families and a rather restrained set of issues. For example, older people rarely feature in textbooks on family law, although they play a key role in family life. Similarly, family law still centres on marriage, or marriagelike relationships, with friendships receiving little recognition, although they may be a key part of many people’s lives. You would not need to be too cynical to suggest that you can expect a good friend to be with you for life, unlike a spouse. Nevertheless, it should be noted that, even with current divorce rates, most marriages do last forever. This chapter will focus on three questions relevant for this book. The first is the definition of a family: what makes family life for the law and for people in their personal life. The second is the nature of parental status and parental rights. The third is whether the law ought to encourage or privilege certain forms of family.

Families and the life course In one sense, families provide a stable factor during a person’s life course. Whatever other changes there may be to an individual’s personal circumstances and position in society, they will remain a member of their family throughout their life. Their position within a family structure may change over the years (from grandchild to grandparent, with many steps along the line), but family-formed identities will stay. So, you are born as

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the child of person X and will remain in that relationship for the whole of your life. Your understanding of that relationship and role within it may change, but the basic status (‘child of X’) will remain. You are also, at least in nearly all societies, born into a family: a group of people with primary responsibility to raise you. This is typically marked by having a surname, thereby linking you to a series of other people in kinship.1 To some people this can be a very strong identity. They may have family traditions (for example that ‘the Browning family’ always have a picnic on New Year’s Day) or typical traits (‘the Browning family’ always leave everything to the last minute). Of course, some work hard to reject their family traditions and identity. But whether accepted or rejected, they play a role in a person’s identity. For the law, the question of how to define family relationships has proved complex. Different labels help place an individual within a kinship network. According to Lang et al,2 ‘All cultures provide linguistic concepts and psychological cues that serve to distinguish levels of genetic and levels of in-law kinship.’ While different labels are used and different ties are emphasized, the notion of having a place in a family which changes over time seems important in many societies. These formal ties are often recognized by law, with different rights being placed on them.3 In this section, I will explore these different ties and how they are recognized within the law. The law plays a role not only in defining certain relations (there is, for example, a legal definition of a parent) but also in ranking them.

What is family? Within sociology and law there is a widespread division about what constitutes a family. The key question is whether a family is formed by a genetic connection or a common life. We might explain some of the debates by saying it all depends on the purpose for which you are using the definition of family. For example, if a doctor investigating possible genetic conditions asks about a patient’s family, it is clear they are interested in blood relations because that is what is significant for the   Although for concerns about this, see Herring, J. (2012) ‘The power of naming: surnames, children, and spouses’, in M. Freeman and F. Smith (eds) Law and Language, Oxford: Oxford University Press, 310–27. 2  Lang, F., Wagner, J. and Neyer, F. (2009) ‘Interpersonal functioning across the lifespan: Two principles of relationship regulation’, Advances in Life Course Research, 14(1–2): 40–51. 3  Ibid. 1

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purposes of genetics. However, if the doctor is asking a patient who is depressed about their family members, they are probably considering who can offer support to the patient and will not really be too concerned about blood ties. But it is not possible to resolve all such debates in this way. For example, a child may live with a stepfather and occasionally see his genetic father. If a dispute arises over the upbringing of the child, who is the father: the stepfather or the genetic father? Three aspects of family life will be considered to explore these issues.

The importance of social relationships One approach to defining a family is to explore what we value in a family relationship and then seek to determine which kinds of relationship promote those values. Most people would point to the ‘personal relationships goods’,4 which include love, empathy, trust, affection, companionship and the like. But these can be provided by a friend as well as a relative. So, is there anything unique in family relationship goods? Can a good friend be ‘as good as a sister’? Or are there things only a sister can provide? Or is the answer to that question that once a friend becomes ‘as good as a sister’ she is a sister? There are three particular goods that can most plausibly be said to be presented in a family setting. The first is that the relationship has connections with the past and the future. There is a history of family relationships which normally go back to birth, which is rarely present in other relationships. Family traditions; special places with family significance; shared memories of times past: all seem to reflect the special nature of families. Such things may be found in friendships as well but may be less deep-rooted. That may explain why a relationship which seems to have lasted a very long time might be said to become family-like. That description seeks to reflect the fact it is a friendship which is long-lasting and has become key to identity. Perhaps that use of language demonstrates there is not a hard-and-fast line between friendship and family, but that a friendship takes time and must possess certain qualities if it is acquire the closeness we expect of a family relationship. Second, there may be a degree of resilience in a family relationship which is not present in others. A bitter row might end a friendship, but we might expect that family members will make up … eventually. Perhaps this reflects an acceptance that in family life arguments are inevitable and  Gheaus, A. (2018) ‘Personal relationship goods’, in E. Zalta (ed) The Stanford Encyclopedia of Philosophy, Stanford, CA: Stanford University.

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it is part of family life to work through those arguments. Friendship can be more fickle, and a friendship punctuated with disagreements is likely to end, when a family relationship would not. It is very hard to prove whether claims of this kind are correct or not, and, perhaps, the answer will vary from person to person. Third, there may be special duties owed to family members that are not owed to strangers. We might owe a general duty to help those in need (for example to rescue someone in peril we come across), but that is a limited duty. If a family member is in need, we will feel a stronger obligation. We may learn that a person is in financial need but would feel no particular obligation to pay that person money in the way we might if they were a relative. These extra duties are known in the philosophical literature as associative duties. It has proved difficult to account for the source of these. One view is that it might be some kind of reciprocal understanding. We know this person has helped us in the past (or would do so if the need arose) and so we are obliged to help them. Another view sees the obligation flowing from the value of relationship to you.5 Seglow6 argues that relationships are key to people’s lives flourishing, and that these generate obligations. However, this still raises the issue of whether it is the quality of the relationship itself or the familial title which is key. In other words, does ‘because they are a family member’ add anything to the nature of the obligation? That question is hard to answer as the discussion in this section demonstrates. It may be that there is no societal consensus on this. To some, all that matters is the quality of the relationship, and the family tie counts for little. To others, it is clear that the blood tie is significant. Perhaps the best we can do is to say different people value these things differently, and there is no right answer to the perennial question of the importance of blood.7

  Lord, E. (2016) ‘Justifying partiality’, Ethical Theory and Moral Practice, 19: 569–90; Keller, S. (2013) Partiality, Princeton, NJ: Princeton University Press. 6   Seglow, J. (2013) Defending Associative Duties, Abingdon: Routledge. 7  Vaillant, G. (2012) Triumphs of Experience: The Men of the Harvard Grant Study, Cambridge, MA: Belknap Press. 5

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Family as a social relationship Morgan8 emphasized the importance of family practices, highlighting that families are produced out of daily interactions and routines. Family is a ‘doing’ rather than an abstract blood tie, he suggested. He explains that this means that often families are ‘a mixture of love and hate, burden and duty, support and neglect, approval and disapproval’.9 That is the nature of family relationships. Finch has used the rather different terminology of ‘display’. She explains that displaying families is the process by which individuals, and groups of individuals, convey to each other and to relevant others that certain of their actions do constitute ‘doing family things’ and thereby confirm that these relationships are ‘family’ relationships.10 Both of these approaches indicate that family is not ‘a thing’ but a relationship. This means that a formal definition of family (such as a blood tie) is not meaningful. Finch11 explains: It is precisely because relationships are both defined and experienced by their quality – not simply their existence – that family relationships need to be displayed as well as ‘done’. Displaying families confirms the qualitative character of a given relationship, at a particular point in time, as ‘family’. In itself this requires a message to be conveyed that this relationship ‘works’ as a family relationship. If it does not work, then its existence as a family relationship is called into question. Hence a ‘father’ who has no involvement in his child’s life or an ‘aunt’ who never sees her nephew may not really be a father or an aunt if they are not doing these relationships, whereas a person heavily involved in a child’s life, despite there being no blood tie, might be seen as a member of the child’s family. As that last sentence shows, however, it can be difficult to break free from the assumption that a family is a blood tie. If a person is heavily involved in a child’s life we might establish they are now a member of the child’s family, but how do we know if they are a mother, father, uncle   Morgan, D. (2011) Rethinking Family Practices, Abingdon: Routledge, 24.  Ibid. 10   Finch, J. (2007) ‘Displaying families’, Sociology, 41, 65–80. 11   Ibid, 73. 8 9

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or aunt, or a childminder or some other relationship? Perhaps if family is about doing rather than blood, the distinctions between wider relatives fall away. But the language of the traditional blood relationships is hard to get away from. We talk of ‘deadbeat dads’ to indicate that although a man is still a ‘dad’, he is not a good one. And of a ‘stepfather’ to acknowledge he is a sort of father, but not a full father. To move to the view advocated here – that it is the day-to-day relationship which marks a family – would require a major change in the way language around families is used. It is for this reason that supporters of the social relationship model of a family have commonly suggested it might be better to abandon the language of family and instead use terms such as ‘intimacies’,12 ‘personal life’13 and kinship.14 Such language may help break away from traditional ideas that a family is constituted through blood ties. For example, Jamieson promotes the use of intimacy: In everyday current usage, intimacy is often presumed to involve practices of close association, familiarity and privileged knowledge, strong positive emotional attachments, such as love, and a very particular form of ‘closeness’ and being ‘special’ to another person, associated with high levels of trust. Recent discussions of intimacy emphasize one particular practice of generating ‘closeness’ above all others, self-disclosure. Intimacy of the inner self, ‘disclosing intimacy’ or ‘self expressing intimacy’ has become celebrated in popular culture as the key to a ‘good relationship’ although some academic work has suggested that this type of intimacy may be more of an ideological construct than an everyday lived reality.15 Smart advocates the concept of ‘personal life’ as key to the nature of the self:   Jamieson, L. (2005) ‘Boundaries of intimacy’ in L. McKie and S. CunninghamBurley (eds) Families in Society: Boundaries and Relationships, Bristol: The Policy Press, 189–206; Jensen, A. and McKee, L. (2003) ‘Theorising childhood and family change’ in A. Jensen and L. McKee (eds) Children and the Changing Family: Between Transformation and Negotiation, Abingdon: Routledge, 1–14. 13   Smart, C. (2007) Personal Life, Cambridge: Polity Press. 14   Mason, J. (2008) ‘Tangible affinities and the real life fascination of kinship’, Sociology, 42, 29–46. 15   Jamieson, L. (2005) ‘Boundaries of intimacy’ in L. McKie and S. CunninghamBurley (eds) Families in Society: Boundaries and Relationships, Bristol: The Policy Press, 189–206, 189. 12

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‘The personal’ designates an area of life which impacts closely on people and means much to them, but which does not presume that there is an autonomous individual who makes free choices and exercises unfettered agency. This means that the term ‘personal life’ can invoke the social, indeed it is conceptualized as always already part of the social. This is because the very possibility of personal life is predicated upon a degree of self-reflection and also connectedness with others.16 This kind of terminology may help us move away from the heteronormative assumptions that, for example, a child can have only one mother and one father. It may acknowledge the complex and fluid nature of families in a more sophisticated way than our traditional blood-tie language does.

Family as blood tie Supporters of the traditional model of defining family in terms of blood tie may make two kinds of argument. The first is, essentially, a negative one. If we do not use the blood tie and focus instead on the content of the relationships, this creates unacceptable uncertainty. A child may have several adults who feature in their life (for example, a biological parent, a childminder, a teacher and a family friend). If we need to identify who gets to decide an issue concerning a child, we cannot start to investigate the strength of these different relationships. We need to have a readily accessible test to determine who has a right as a family member to make decisions for or with someone. Only the blood tie offers that degree of certainty. The second approach is to dispute the downplaying of the blood tie in the social model. As already mentioned, some are convinced that people have a stronger obligation to help relatives in need and that this obligation exists even in the case of relatives they do not get on with. For example, there is evidence from money left in wills that there is a pull towards favouring family members rather than close friends.17 Some commentators put this in evolutionary terms: there seems to be an evolutionary preference for those with whom one has a genetic relationship. It has been argued that: ‘there is something morally important missing from the lives of children in families formed in non-standard ways, who are

  Smart, C. (2007) Personal Life, Cambridge: Polity Press, 28.   Finch, J. (2007) ‘Displaying families’, Sociology, 41, 65–80.

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not genetically related to their parents’.18 Velleman19 argues that children born using gametes are harmed because an acquaintance with biological relations is necessary in order to develop an adequate sense of self: In coming to know and define themselves, most people rely on their acquaintance with people who are like themselves by virtue of being their biological relatives…. If I want to see myself as another, however, I don’t have to imagine myself as seen through other people’s eyes: I just have to look at my father, my mother and my brothers, who show me by way of family resemblance what I am like. That is certainly a controversial view. Is it really plausible to say that an adopted child or a child born using donated gametes is in a sub-standard family? Velleman’s argument seem unconvincing. All kinds of reasons may mean a person lacks direct knowledge of their biological relatives. They may be orphaned, or the child’s assumed parents may never tell them the truth. It is far from clear in these cases that the child suffers. Indeed, many people see family blood ties as something to escape from, rather than being key to identity: “I don’t want to be like my father” may be as common as “I want to be like my older sister”.

Intended family A third model is that a family should be chosen or intended. This ties in with the theme of individualism. Hence, we have the idea of ‘family by choice’. This theory was initially developed by LGBT activists, who argued that families were those one chose to have as a family. This might be particularly important for, say, a gay person rejected by their family, who might find a ‘new family’ with people supportive of their orientation.20 It certainly seems true that, in social terms, families of choice match the reality. Few people nowadays will spend time with an aunt or nephew they do not like, simply because they feel they ought to ‘keep in touch   Witt, C. (2014) ‘A critique of the bionormative concept of the family’ in F. Baylis and C. McLeod (eds) Family-making: Contemporary Ethical Challenges, Oxford: Oxford University Press, 121–45. She goes on to critique that argument. 19   Velleman, D. (2005) ‘Family history’, Philosophical Papers, 34: 358–78, 365. 20   Cohler, B. (2005) ‘Life course social science perspectives on the GLBT family’, Journal of GLBT Family Studies, 1(1): 69–95. 18

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with the family’. But whether the language of family by choice captures the sense of obligation that some people feel to family members, even family members they do not like, is a matter of debate.

The law and families It is striking that the definition of family is rarely an issue in family law. The question of parental status, which will be discussed in the next section, is a detailed one but, apart from that, little significance attaches to a person being another’s grandparent or aunt, for example. Occasionally the word ‘family’ is used, for example in the Rent Act 1977 in relation to succession to tenancies. In Fitzpatrick v Sterling Housing Association Ltd,21 Lord Slynn took a very social approach to defining families: ‘there should be a degree of mutual inter-dependence, of the sharing of lives, of caring and love, or commitment and support’. That enabled him to conclude that a same-sex couple could be regarded as members of a family. In other circumstances, a list of those who qualify as family is given, such as in the Human Tissue Act 2004, section 54(9), which lists those in a ‘qualifying relationship’ who can consent to dealing with human material of a deceased person, in this order: (1) (2) (3) (4) (5) (6) (7) (8)

spouse or partner (including civil or same-sex partner) parent or child (in this context a ‘child’ can be any age) brother or sister grandparent or grandchild niece or nephew stepfather or stepmother half-brother or half-sister friend of long standing

Notably, friends are included, but at the end of the list. It may be that here we seen the importance of certainty. A doctor wanting to deal with human material cannot be expected to find out the closest friend of the deceased; it is so much easier to find the closest blood relation. So, there is no formal definition of a family in the law. This reflects the somewhat ambiguous approach that the sociological literature suggests is found in society generally.

  [2000] 1 FCR 21.

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Parenting It used to be fairly straightforward to define a parent in legal terms. The father was the person whose sperm was used to create the child, and the mother was the person who provided the egg. The only difficulty was in proving those facts. For those purposes, the law developed a series of presumptions, such as that the woman who gives birth to a child is the mother, and her husband would be the father. However, this straightforward definition has come under challenge in the last 60 years, from two main sources. First, increasingly, children are raised in families involving a range of different parent figures. Step-parents, grandparents, childminders, family friends may all play a major role in raising a child. It is increasingly rare for a child to be born to a couple who remain as the primary carers of that child throughout the child’s life. This has challenged the traditional model of parenting. Second, modern technologies mean that children can be born to a couple using donated gametes, where there is no expectation that the providers of those gametes play a role in the child’s life. This has led to a lively debate over who should be regarded as the parents of a child in the eyes of the law. Here are some of the views taken.

Genetics and parenthood For some, parenthood should remain connected with genetics. As mentioned earlier in this chapter, one line of argument is based on certainty. Once we move away from the genetic link, all the other criteria, such as the quality of the relationship or the intention of the parties, are inherently vague and put those dealing with children, such as education and health professionals, in an impossible position. However, that may exaggerate the ease with which a teacher, for example, can determine the genetic truth! A husband may be convinced he is the father of the child his wife gave birth to, but he may be mistaken. A teacher is not really in a position to determine the biological truth. However, saying that we should use genetics because all the other possibilities are worse is not the ideal argument to make. One positive argument is a claim that because parents own their genetic material they have a property or quasi-property claim over the child. The difficulty is that this does not fit in with the kinds of claims we believe parents should have, which are not like those over a piece of property, and this argument certainly does not capture the concept of responsibilities. However, there may be elements of this thinking in the argument that parents commonly talk of a child as ‘theirs’.

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Consider also the case of Webster v Norfolk22 where, due to errors, it was assessed that parents were abusing their young children, who were removed from them and placed with adopters. Several years later it became clear that the children had not been abused and the parents sought their return. Had there been nothing to the genetic claim one might have thought this would be an easy case, as the children had no memory of their parents and were well settled with the adopters. The Court of Appeal, however, found it an agonizing case, as have many commentators. Although it was decided to leave the children with the adopters, the fact the case is seen as deeply troubling suggests there is something in the genetic argument, even if it cannot be articulated. One argument that is sometimes suggested but which can be quickly dismissed is that a child has a right to know what their genetic origins are, and so it is best if the genetic parent is recognized. This argument is weak because, even accepting a child has a right to know their genetic origins, this does not mean that the genetic originator has to be given the label ‘parent’. It would be easy to set up a register of genetic origins, without generating parental status. A powerful argument against genetic status is adoption.23 If, as most people believe, and most studies suggest, a child does not suffer by being raised by adoptive parents, it seems hard to explain why adoptive parents should be seen as lesser than genetic parents.24

Labour-based accounts This view, which has received less attention in the literature, argues that parenthood is allocated based on the labour of parents. It is a form of reward or compensation for the effort put in. This may be preferred to the ‘child welfare approach’ (see later), which looks at the quality of the relationship between the adult and child, as this relationship may be too vague and too variable to be assessed. One interesting consequence of this approach is that, certainly at birth, the mother will be recognized as having made a greater contribution than the father and so have a stronger parental claim. To some, that is unacceptable because we should see parents as equal, something the genetic approach enables more easily. But   [2009] EWCA Civ 59.   The same argument could be used about children born using assisted reproduction. 24   Overall, C. (2015) ‘What is the value of procreation?’, in F. Baylis and C. McLeod (eds) Family-making: Contemporary Ethical Challenges, Oxford: Oxford University Press, 121–45. 22 23

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there is no denying that, at birth, the person who has gestated the child will have made a significant contribution and more sacrifices for the child. Hursthouse argues: ‘[I]n bearing children, Mrs Average does something morally significant and worthwhile which Mr Average does not match, whereby they are not morally on a par.’25 Another consequence of the labour-based approach is that in a surrogacy case the woman who carries the child will have the primary right over the child, as opposed to the commissioning parent. The labour-based approach does acknowledge that, as the child grows, other adults may engage in significant levels of care of the child and come to deserve the status of parent. That could even include a paid child carer. It is these practical applications (stronger claims of the mother; surrogacy and childminding) which lead some to prefer the intentional parent model (see later) which would deny parental status to those who have done work in caring for the child but were not intended to have a parental role.

Child welfare model Under this view, parenthood should be allocated based on who will be the best parent for the child. This is normally based on who has the closest relationship with the child and is therefore likely to make the best decision for the child. This has some overlaps with the labour-based accounts. We might assume that a person who has spent care labour on the child will have got to know them best. The language of care, rather than labour, might be preferred on the basis that a parent can more closely identify with it. The strongest argument in favour of this approach is that it is closely tied to the primary legal consequence of parenthood: that a parent has the right to make decisions about a child’s upbringing. It also fits in with the guiding principle behind the law on childhood, namely that the child’s welfare should be paramount (see Chapter 4). The difficulty, however, is that it might seem to be unclear who will be best placed to make decisions for a child. In many cases this might be purely speculative. It might also too easily open a gestational parent to challenge. For example, if a single teenage woman has given birth, a wealthy person who has previously successfully raised children might claim they will be able to offer the child a much better standard of parenting. Here it may be that we can combine the labour account and say the sacrifices of labour indicate a strong presumption the woman will   Hursthouse, R. (1987) Beginning Lives, Oxford: Blackwell, 12.

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be committed to the child and so can be trusted with the label of ‘parent’. However, for many people, the child welfare model on its own will not offer sufficient protection to birth parents.

Intentional parent model A fourth approach is based on the intentions of the parties. The person who was intended to be the parent of the child is the parent. It must be admitted this does not initially sound a promising basis for an approach, but supporters highlight that it has desirable outcomes. The sperm donor does not intend to be a parent and so is not the parent; the partner of the woman receiving reproductive treatment does intend to be a parent and so is a parent; in surrogacy the commissioning parents can be regarded as the parents; and for a child produced more traditionally through sex both parties intend equally to be parents and so can be equal parents. For many people (but not all), this is the right outcome in these cases. For example, Hill, looking at cases of surrogacy, argues that intentional parents ‘carefully and intentionally orchestrated the pro-creational act, bringing together all the necessary components with the intention of creating a unique individual whom they intend to raise as their own’.26 There are, however, other situations where the approach seems problematic. If a man uses a condom when having sex with a woman, can he deny any parental responsibilities towards the child on the basis he did not intend to become a parent? Most countries, including England, have strict child support laws requiring a man in such a case to pay child support, with there being no defence of “I did not intend to create the child”. Perhaps more concerningly, it cannot be the case that a neighbour who spots that the woman next door is pregnant and announces “I intend to be the father” thereby acquires parental rights. That cannot be right. Or what of a person who keeps changing their mind as to whether they want to be a parent: are they constantly switching between being and not being a parent? It seems that supporters of the intentional parent model are going to have to add something more than intent to deal with these cases. The intention model does seem to work best as a kind of tie-breaker when the other models clash or can justify exceptions to a standard approach. It clearly ties in well with the emphasis on autonomy that we have discussed throughout the book, and, in particular, the general liberal approach that a person should not be subject to obligations unless   Hill, J. (1991) ‘What does it mean to be a “parent”? The claims of biology as a basis for parental rights’, New York University Law Review, 66: 353–420, 359.

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they have chosen to take them on. However, other approaches, such as ethics of care, emphasize responsibilities you have that are not dependent on choices that you have made but on the needs of others and your relationship to those parties.

Causation model A final view on parental status emphasizes causality. A person who has caused a child to come into existence can claim to be a parent. This certainly helps with the example of the neighbour given in the previous section: they may intend to be a parent, but with no causal link to the creation of the child they are not a parent. Similarly, the man who produces a child after failed contraception cannot deny he is the father, because he has caused the child to come into existence. It would seem to cover any genetic contributor (except perhaps in the case of stolen gametes), but also be open to others who have played a role in creating the child (for example the commissioning parents in a surrogacy case). However, it is somewhat vague. Is there a causal contribution from the doctor who assists in IVF treatment, or the taxi driver who drives the woman to the clinic, or the hotel owner who rents a couple a room for the night and so forth? One is stuck with saying either that a person only has to be a ‘but for’ cause, which is surely too wide, or that they have to be a significant cause, which might not be straightforward for, say, the partner of a woman receiving IVF. It may be that a combination of the intentional and causal factors together could produce satisfactory results in many cases. However, there is little here for those who take on a major parental role post birth, such as a step-parent or adoptive parents.

Conclusions on parental status It may well be that views as to the question of who is a parent will depend on which aspect of parental rights and parental responsibilities one considers. For example, focusing on the role of parent as decision maker in relation to the child may lead you to prefer the welfare-based account. By contrast, focusing on financial responsibilities may suggest that the genetic approach is most desirable because it will ensure the child will always have someone financially responsible for them. The genetic basis may be preferred for those who see the parental role as primarily simply a confirmation of a status. This opens up the possibility of a complex law of parenthood, with different people being parents in different senses.

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There may be much to be said in favour of such an approach in academic terms, but it is likely to cause confusion for the child and for professionals dealing with the child. English law does, in fact, create a division between those who are parents and those who have parental responsibility, allowing nuance in the law. We can have a person who is a father but has no parental responsibility: a man who is not married to the mother, is not registered as the father at birth and does not apply for parental responsibility. Similarly, we can have someone who has parental responsibility, but not the status of a father: a step-parent will have this role. The outcome is a slightly muddled picture, and we do not need to go into the details, but broadly parental responsibility is given to those with a close connection to the child, even if they do not have a genetic connection, while parenthood is primarily restricted to those with the genetic link but can be extended to those with a strong intention to be a parent. In legal terms, the status of parental responsibility is of greater practical significance than being a parent. We are edging towards the position that a person who is doing the job of a parent should be recognized as having parental responsibility. I would argue that that is appropriate. Parental status should be earned through care and dedication to the child, something not shown simply by a biological link. It is the changing of the nappy, the wiping of the tear and the working out of maths together that makes a parent, not the provision of an egg or sperm. We should give parental status and rights to those who are likely to make the best decisions for the child in question. That will be the persons who know the child best: the persons who are caring for the child day to day.

Parental rights and responsibilities How should a parent make decisions concerning their children? Section 3 of the Children Act 1989 states: In this Act ‘parental responsibility’ means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property. It is notable that English law uses the term ‘responsibility’ rather than ‘rights’ to describe the legal significance of the parental status. It was deliberately chosen to send the message that parents should see their role as not about exercising power over children, but rather seeking to promote their welfare. Lord Scarman argued that parents’ rights exist only

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for the purpose of discharging their duties to children: ‘Parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child.’27 There is much that could be discussed here, but I will focus on two issues.

Child-centred parenting The law seems to indicate that parents should be using their legal position only to further the interests of children. This move away from parental rights chimes with more modern understandings of parenthood. It has commonly been said that in recent decades we have seen a more democratic approach to parenting. As Jensen and McKee28 put it: Modern childhood is often portrayed in terms of enhanced democratic relationships between parents and children, with the assumption that children’s negotiating power has increased over time. The suggestion is that families today permit more individual choice and facilitate negotiated relationships. However, they warn against seeing this as parents and children being equal: ‘Within a market society themes of self-actualization, individualism and the ideology of personal choice may be masking persistent inequalities between children and adults, and children and parents.’29 The official legal position can certainly be questioned. First, it would be impossible for parents to exercise all of their rights in such a way as to promote the welfare of the child. That would be exhausting and unreasonable: a parent is entitled to some ‘me time’! But even if a parent were utterly self-sacrificial and child-focused in every decision, there are issues where it is simply impossible to know what decision will best promote the child’s welfare: what religious upbringing a child should have, if any; or, more mundanely whether a child should go on holiday to beach A or beach B. It seems that in such cases, at the very least, it must be acknowledged that parents have an element of discretion. This has led

  Gillick v West Norfolk and Wisbech AHA [1986] AC 112, 184.   Jensen, A. and McKee, L. (2003) ‘Theorising childhood and family change’ in A. Jensen and L. McKee (eds) Children and the Changing Family: Between Transformation and Negotiation, Abingdon: Routledge, 1–14, 1. 29   Ibid, 12. 27 28

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Alexander McCall Smith30 to argue that not all parental rights exist for the benefit of children. He suggests that parents have two kinds of parental rights: parent-centred and child-centred rights. Child-centred rights are rights given to parents to enable them to carry out their duties. So, the parent has the right to clothe the child as an essential part of enabling the parent to fulfil their duty of ensuring the health of the child. By contrast, parent-centred rights exist for the benefit of the parent. One example McCall Smith gives is that of the parental right to determine the religious upbringing of children. He argues that this right is given to enable parents to bring up children as they think is most appropriate. Parent-centred rights, he explains, are justified not because they positively promote the welfare of the child, but because they cannot be shown to harm the child, while they can benefit the parent. Such an approach has been supported by Andrew Bainham. He argues: ‘It is simply not reasonable to take the position that those who bear the legal and moral burdens which society expects of a parent should be denied all recognition of their independent claims or interests.’31 An alternative way of arguing the issue is to rely on what I have termed ‘relationship-based welfare’.32 Children, as we all do, live in the context of relationships. We cannot separate either the welfare or the rights of children from those of their parents. Their interests and rights are so intertwined and the parties so interdependent that to consider what decision will promote the welfare of the child, as an isolated individual, and without consideration of the interests of the parents, is simply impossible. Relationship-based welfare argues that children should be brought up in relationships that, overall, promote their welfare. Relationships are central to the lives of children and so should be at the centre of decisions about their lives. It is beneficial for a child to be brought up in a family that is based on relationships that are fair and just. A relationship based on the unacceptable demands of a parent is not furthering a child’s welfare. Indeed, it is impossible to construct an approach to looking at a child’s welfare that ignores the web of relationships within which the child is brought up. Supporting the child means supporting the  McCall Smith, A. (1990) ‘Is anything left of parental rights?’ in E. Sutherland and A. McCall Smith (eds) Family Rights: Family Law and Medical Ethics, Edinburgh: Edinburgh University Press. 31   Bainham, A. (2009) ‘Is anything now left of parental rights?’ in R. Probert, S. Gilmore and J. Herring (eds) Responsible Parents and Parental Responsibility, Oxford: Hart, 134. 32   Herring, J. (2005) ‘Farewell welfare’, Journal of Social Welfare and Family Law, 27: 159. 30

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caregiver, and supporting the caregiver means supporting the child. So, a decision can legitimately be made that benefits a parent, but not a child, if that can be regarded as appropriate in the context of their past and ongoing relationship. A central aspect of relationship-based welfare is that we need to take a long-term view when considering welfare. The danger with the childfocused approach is that it can lead to taking a snapshot approach. It looks at the pros and cons of a particular course of action at the time of the decision and determines the correct result. The problem with this approach is that it focuses attention simply on the current issues and fails to locate them as part of an ongoing relationship between the parties. What has happened to date in the relationship, and what will happen in the future between the parties, drops out of the picture. Brighouse and Swift33 argue that in good parent–child relationships children become part of the life of parents and receive the care, trust, affection and intimacy of being parented in a spontaneous way. That, however, is only possible if, to some extent, the child is involved in the life of the parents. The father who enjoys watching football every Saturday is doing nothing wrong in involving his children in footballwatching. Indeed, it may be that part of the good of parenting is that children get caught up in the pleasures of their parents, even if in later life they eschew them. Children living with parents who in a belaboured way seek out the best activities for children, with no thought of themselves, lose out on the natural spontaneity of family life. A parent seeking to engage a child in interests and hobbies which are good for the child but which the adult finds boring may not be productive of a good parent– child relationship.34 This may explain why, in fact, the courts are far more willing to intervene in a decision about children which is not directly related to the life of the parent, such as what medical treatment a child receives, but are reluctant to intervene in a decision which will directly affect the lifestyle of parents, such as whether they practise naturism.35

 Brighouse, H. and Swift, A. (2014) Family Values: The Ethics of Parent–Child Relationships, Princeton: Princeton University Press. 34  Altman, S. (2018) ‘Parental control rights’ in E. Brake and L. Ferguson (eds) Philosophical Foundations of Family Law, Oxford; Oxford University Press. 35   Re W (Residence Order) [1999] 1 FLR 869. 33

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Parental vulnerability I want to add a second, much more ignored aspect of parenthood. Brighouse and Swift36 describe vividly how children are vulnerable to the decisions and choice making of their primary caregivers and, initially, wholly dependent on them for their well-being. Parents have the power of life or death over their children, and this is not, at least when the child is young, reciprocated. Much has been written about the vulnerability of children, and that was considered in Chapter 4, but in this section the vulnerability of parents will be discussed.37 The work of parenthood is exhausting. Parents will go to extraordinary lengths to look after children because ‘that is what parents do’. That is no doubt why new parents are willing to go through the sleeplessness, toil and strains of the early years of parenthood. Yet, doing so renders parents themselves vulnerable. Despite the popular assumption, McLanahan and Adams38 in a meta review of the research found that ‘[t]he presence of children appears to be associated with lower levels of happiness and satisfaction and with higher levels of psychological distress for both women and men’. Further, the responsibilities of parenthood are emotionally exhausting. It is not difficult to find examples of high levels of concern among parents about children’s safety. Parents go to considerable effort to protect children from online dangers and keep children out of public spaces. This is manifested in, for example, the use of electronic surveillance of children (for example through wearable alarms, GPS, and so on).39 Rachel Cusk40 writes of becoming a parent:  Brighouse, H. and Swift, A. (2006) ‘Parents’ rights and the value of equality’, Ethics, 117: 80–108, 92. 37   Herring, J. (2019) ‘Vulnerability and medical decisions concerning children’ in I. Goold, J. Herring and C. Auckland (eds) Parental Rights, Best Interests and Significant Harms, Oxford; Hart. 38   McLanahan, S. and Adams, J. (1987) ‘Parenthood and psychological well-being’, Annual Review of Sociology, 13: 237–57. 39   Herring, J. (2017) ‘Parental responsibility, hyper-parenting, and the role of technology’ in R. Brownsword, E. Scotford and K. Yeung (eds) Oxford Handbook of Law, Regulation and Technology, Oxford: Oxford University Press. 40   Cusk, R. (2001) A Life’s Work: On Becoming a Mother, London: HarperCollins, 64. 36

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My compassion, my generalized human pity, has become concentrated into a single wound, a dark sore of knowing and of the ability to inflict … it is not to love but to its lack that I am suddenly alive … I have merely become more afraid of love’s limits, and more certain that they exist. This insecurity felt by parents is influenced by the message reinforced by public bodies, including the government, about the significant impact of decisions of parents on children’s welfare.41 This message that parents are core to their children’s welfare generates considerable pressure on parents. Where things go wrong, it is parents towards whom the blame is directed. This has all contributed to parents feeling that parenting involves acquiring and following the advice of experts. As Furedi puts it: ‘Getting advice – and, more importantly, following the script that has been authored by experts – is seen as proof of “responsible parenting”.’42 This is also reflected in ‘hyper-parenting’, where parents are going to excessive lengths to make the child the best possible child. Rosenfeld and Wise explain: This is happening because many contemporary parents see a parent’s fundamental job as designing a perfect upbringing for their offspring, from conception to college. … That is why the most competitive adult sport is no longer golf. It is parenting.43 Parenting has become a highly competitive business.44 I doubt there is a parent in the land who has not felt guilt that they are not doing the parenting job well enough. Poor parenting is blamed by the government for the course of dysfunctional children who, as they grow up, cause a host of social problems. As Furedi argued: the ‘parenting deficit’ is blamed for children’s mental health problems, educational difficulties, anti-social behaviour, and poor coping skills, and the destructive consequences of bad   Lotz, M. (2017) ‘Parental vulnerability’, Nordic Journal of Applied Ethics, 11(1): 41–60.  Furedi, F. (2011) ‘It’s time to expel the “experts” from family life’, Spiked, 12 September, www.spiked-online.com/newsite/article/11067#.Vqg1IiorLIU 43   Rosenfeld, A. and Wise, N. (2011) The Over-scheduled Child: Avoiding the HyperParenting Trap, New York: St Martin’s Press. 44  Fairclough, C. (2014) ‘Intensive parenting and the expansion of parenting’ in E. Lee, J. Bristow, C. Fairclough and J. Macvarish (eds) Parenting Culture Studies, Basingstoke: Palgrave. 41

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parenting last throughout a person’s life. According to the wisdom that prevails amongst policymakers and experts, everything from crime and drug addiction to teenage pregnancy and self-harm can be traced back to the way that mothers and fathers brought up their children.45 Furedi goes on to discuss the ‘pathologization of parenting’.46 As he points out, parents cannot win: We have a culture that not only continually promotes a hyperalarmist orientation towards the well-being of children but also blames parents for internalising its message. Not infrequently parents are blamed for being anxious about their children.47 Much of the literature on contemporary parenting promotes a merging of the identities of adult and child.48 The parents’ success is measured by how well the child performs by the standard measures. The concept of childhood agency or responsibility is lost. The powerlessness of parenthood gets no look in. The model of parenting that is commonly presented in the contemporary dialogue is of parents controlling, protecting and shaping their child. Much of this hyper-parenting and competitiveness is badly misplaced for two reasons. First, the job of parenting is interactive and co-operative with a wide range of members of society. We should not see parents alone as having the responsibility of shaping their children.49 Children care, mould, control, discipline and cajole their parents, just as parents do their children. The misdeed of a parent seeking to genetically engineer or hyper-parent their child is not just that the parent is seeking to impose a particular view of what is a good life on their child, although that is wrong. It is the error of failing to be open to change as an adult: failing to learn from children, failing to see that the things you thought were important are, in fact, not. It is failing to find the wonder, fear,   Furedi, F. (2014) ‘Introduction’ in E. Lee, J. Bristow, C. Fairclough and J. Macvarish (eds) Parenting Culture Studies, Basingstoke: Palgrave, viii. 46   Ibid, ix. 47   Furedi, F. (2010) Paranoid Parenting, London: Continuum, 4. 48   Herring, J. (2017) ‘Parental responsibility, hyper-parenting, and the role of technology’ in R. Brownsword, E. Scotford and K. Yeung (eds) Oxford Handbook of Law, Regulation and Technology, Oxford: Oxford University Press. 49   Lotz, M. (2019) ‘The real value of child-parent vulnerability’, Ethics and Social Welfare, 13(3): 244–60. 45

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loneliness, anxiety, spontaneity and joy of children, and to refind them for oneself.50

Family status In this section we will explore the extent to which the law ought to promote and support certain kinds of family relationships. Most of the literature has surrounded marriage, and that will be used as a focus of the discussion. The issue is best understood if we look at a common complaint about family law and marriage: that family law has traditionally privileged, and to a much lesser extent still does privilege, marriage over other family forms. A mixture of tax advantages, benefits in bureaucratic terms, legal advantages and social recognition all favour married couples over others. Imagine two couples living next door to each other, both couples having lived together for 20 years, but one couple are married and the other not. Tragically, overnight one partner from each couple dies, without leaving a will. For the married couple, the issue is relatively straightforward: the survivor will inherit their spouse’s estate (or much of it). For the unmarried couple, the situation is far more complicated. The survivor will not automatically inherit. They may apply to the court and the judge may well decide to make an award from the estate, but the whole process will be much more costly and difficult. Further, for the married couple there will be no inheritance tax payable, whereas there will be for the unmarried partner, if they are able to get a share of the estate. As this example indicates, it certainly appears that the state and the law are encouraging marriage and giving it special privileges that are not available to couples or groups who eschew marriage or are not able to marry. Is that justifiable? The issue has become more prominent as fewer couples choose to marry. Assumptions that married couples were the bedrock on which society was built have fallen away and marriage is now seen as a personal choice, rather than a requirement. Nearly half of children born in England and Wales are born to a woman who is not married. No longer can it be assumed that marriage and childbirth are linked together. So here we see the debate, which is a key one, about how the law ought to intervene in

  Herring, J. (2017) ‘Parental responsibility, hyper-parenting, and the role of technology’ in R. Brownsword, E. Scotford and K. Yeung (eds) Oxford Handbook of Law, Regulation and Technology, Oxford: Oxford University Press, 421.

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crucial life course events. Some of the approaches that could be taken by the law will be summarized before an analysis is undertaken.

State neutrality and autonomy One popular view is that the state should be neutral in regard to the different ways that couples organize their family lives. It is not the state’s business whether a person wishes to marry or not, live with someone of the same sex, live with two or more people or, indeed, live alone. Of course, there must be limits imposed by the criminal law, for example where a person is being abused, but otherwise the state should not be seen as privileging certain family forms. That is not to say there should be no form of legal regulation of intimate lives, but such regulations should be chosen by the individuals concerned. They might, for example, choose to set out in a contract the obligations between them. But the point is that the regulation is their choice, not imposed by the state. Brake claims marriage recognizes a single central exclusive relationship of a certain priority and duration [but] ignores alternative ideals of relationship: close dyadic friendships, small group family units, or networks of multiple, significant nonexclusive relationships that provide emotional support, caretaking, and intimacy.51 This kind of approach is very much in tune with individualism. You should be free to choose the kind of life course you wish and the form of legal governance you seek. Indeed, it might be said this is inevitable given increased individualism in family life. Even if we take marriage, it would be very difficult to describe married life in Britain today as there are so many different ways of ‘doing marriage’. People marry for a vast array of reasons and it can mean different things to different people. Martha Fineman has written: Marriage, to those involved in one, can mean a legal tie, a symbol of commitment, a privileged sexual affiliation, a relationship of hierarchy and subordination, a means of self-fulfilment, a social construct, a cultural phenomenon, a religious mandate, an economic relationship, the preferred   Brake, E. (2012) Minimizing Marriage: Marriage, Morality, and the Law, New York: Oxford University Press, 121.

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unit for reproduction, a way to ensure against poverty and dependence on the state, a way out of the birth family, the realization of a romantic ideal, a natural or divine connection, a commitment to traditional notions of morality, a desired status that communicates one’s sexual desirability to the world, or a purely contractual relationship in which each term is based on bargaining.52 This indicates that, even if we wanted to, it would be difficult to develop a law on marriage which resonated with all or even a majority of marriages. Similarly, it would be difficult for the state to promote marriage, given the lack of consensus on the definition of marriage. On the other hand, the problem, critics would say, is that marriage is deeply rooted in patriarchal and religious connotations. These can be found in law and in practice: Clare Chambers writes: The white wedding is replete with sexist imagery: the father ‘giving away’ the bride; the white dress symbolising the bride’s virginity (and emphasising the importance of her appearance); the vows to obey the husband; the minister telling the husband ‘you may now kiss the bride’ (rather than the bride herself giving permission, or indeed initiating or at least equally participating in the act of kissing); the reception at which, traditionally, all the speeches are given by men; the wife surrendering her own name and taking her husband’s.53 Hence, not only is the law flawed in promoting one kind of relationship over others; the one it has chosen to promote is particularly problematic. Those taking this approach would argue that a better model would be to recognize that we all have different kinds of ‘personal lives’ and, as Smart explains, ‘all sorts of families, all sorts of relationships and intimacies, diverse sexualities, friendships and acquaintanceships’.54 An interesting illustration of these issues is the response to same-sex marriage. Many within the LGBTI+ community have welcomed the recognition of same-sex marriage as a way of promoting acceptance of same-sex couples. Others are concerned that marriage is a heterosexist   Fineman, M. (2004) The Autonomy Myth: A Theory of Dependency, New York: The New Press, 99. 53   Chambers, C. (2017) Against Marriage: An Egalitarian Defence of the Marriage-Free State, Oxford: Oxford University Press, 42. 54   Smart, C. (2007) Personal Life, Cambridge: Polity Press, 188. 52

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institution and shoehorning gay and lesbian relationships into marriage will deprive them of their radical nature. Further, while it may benefit some same-sex relationships it will marginalize some. Susan Boyd states that marriage ‘can be viewed as an ideological “enclosure”, which prioritizes coupledom and heterosexuality, making these the norms against which all other relationships are measured’.55

Traditionalist pro-marriage Traditionalists argue that marriage is still a valuable institution and it is right for the state to support it. Other family forms carry a range of disadvantages, as compared to marriage. Ribar,56 in an extensive survey, concludes: Reams of social science and medical research convincingly show that children who are raised by their married, biological parents enjoy better physical, cognitive, and emotional outcomes, on average, than children who are raised in other circumstances. Indeed, there is plenty of evidence that married couples have higher average annual incomes than unmarried couples,57 have lower rates of relationship breakdown, lower rates of alcohol misuse … and the list goes on and on.58 The difficulty for the traditionalist case is that it is far from clear whether it is marriage that achieves these goods or whether it is the socio-economic background and personal characteristics of marriages which achieve them. After an extensive review of the literature, Goodman and Greaves conclude59:   Boyd, S. (2013) ‘“Marriage is more than just a piece of paper”: Feminist critiques of same sex marriage’, North Taiwan University Law Review, 8: 263–98, 97; Barker, N. (2012) Not the Marrying Kind: A Feminist Critique of Same-Sex Marriage, Basingstoke: Palgrave. 56   Ribar, D. (2015) ‘Why marriage matters for child wellbeing’, The Future of Children, 25(2): 11–31. 57  Ibid. 58   Wilcox, W. (2015) Thirty Conclusions from the Social Sciences, Virginia: University of Virginia. 59   Goodman, A. and Greaves, E. (2010) Cohabitation, Marriage and Relationship Stability, London: Institute for Fiscal Studies. 55

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Our findings suggest that while it is true that cohabiting parents are more likely to split up than married ones, there is very little evidence to suggest that this is due to a causal effect of marriage. Instead, it seems simply that different sorts of people choose to get married and have children, rather than to have children as a cohabiting couple, and that those relationships with the best prospects of lasting are the ones that are most likely to lead to marriage. Similarly, Miles, Balmer and Smith found that, once age and socioeconomic factors were taken into account, ‘there was little difference in breakdown rates between married and cohabiting respondents’.60 Goodman and Greaves make similar findings in relation to child welfare,61 concluding that encouraging parents to marry is unlikely to lead to significant improvements in young children’s outcomes. They found that there are differences in development between children born to married and cohabiting couples, but this reflects differences in the sort of parents who decide to get married rather than to cohabit. For example, compared to parents who are cohabiting when their child is born, married parents are more educated, have a higher household income and a higher occupational status, and experience a higher relationship quality early in the child’s life. It is these and other similar factors that seem to lead to better outcomes for their children. Having taken account of these (largely pre-existing) characteristics, the parents’ marital status appears to have little or no additional impact on the child’s development. Similarly, Claire Crawford and colleagues62 found that while at ages three and five children born to married parents have a higher cognitive and socio-emotional development, as compared to children of parents who are not married, marriage plays a relatively small, if any, role in causing this. We might ask if there are any rational reasons why married relationships or civil partnerships might be stronger than unmarried ones. The most plausible is that marriage or civil partnership may indicate a deeper   Miles, J., Balmer, N. and Smith, M. (2012) ‘When exceptional is the rule: Mental health, family problems and the reform of legal aid in England and Wales’, Child and Family Law Quarterly, 24: 2–32. 61   Goodman, A. and Greaves, E. (2010) Cohabitation, Marriage and Child Outcomes, London: Institute for Fiscal Studies. 62  Crawford, C., Goodman, A., Greaves, E. and Joyce, R. (2012) ‘Cohabitation, marriage and child outcomes: an empirical analysis of the relationship between marital status and child outcomes in the UK using the Millennium Cohort Study’, Child and Family Law Quarterly, 24: 176–99. 60

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commitment to the relationship.63 This may be true for many couples but is clearly not true for all. The current divorce rate demonstrates that marriage is not a guarantee of lifelong commitment. Indeed, in Eekelaar and Maclean’s research64 no difference in the level of commitment to the relationship was found between married and unmarried couples. There is, however, one sense in which it might be argued that a spouse or civil partner has a greater commitment to the relationship and that is in terms of the legal responsibilities undertaken. The potential financial liability of a spouse or civil partner is certainly greater than that undertaken by a cohabitee.65 In financial and legal terms, at least, a child is likely to be better off if his or her parents are married than if they are unmarried. Anita Bernstein sees one of the strongest arguments in favour of marriage being that ‘as a form of enforced commitment, state-sponsored marriage facilitates investment – that is, the sacrifice of short-term gain for the prospect of returns in the long term’.66 This may well be true but, as Eekelaar and Maclean67 point out, ‘marriage is neither a necessary nor sufficient condition for the acceptance of personal obligation’. They argue: It becomes increasingly difficult to identify being married in itself as necessarily, or even characteristically, constituting a significant source of personal obligations in the eyes of the participants in such relationships.68 They suggest it is the obligations negotiated by the parties which are the source of the obligation for all couples, be they married or cohabiting. As John Eekelaar69 has argued: Marriage clearly therefore has great social value, but much of the nature of its value is conferred upon it by those who enter it, and it is unlikely that its value can primarily be defined by law.   Morgan, D. (2011) Rethinking Family Practices, Basingstoke: Palgrave.   Eekelaar, J. and Maclean, M. (2004) ‘Marriage and the moral bases of personal relationships’, Journal of Law and Society, 4: 510–31. 65   Cleary, A. (2004) ‘Cohabitation – a word of caution’, Family Law, 34: 62. 66   Bernstein, A. (2003) ‘For and against marriage: a revision’, Michigan Law Review, 102: 129–65, 132. 67   Eekelaar, J. and Maclean, M. (2004) ‘Marriage and the moral bases of personal relationships’, Journal of Law and Society, 4: 510–31. 68   Eekelaar, J. (2008) Family Life and Personal Life, Oxford: Oxford University Press, 128. 69   Eekelaar, J. (2010) ‘Evaluating legal regulation of family behaviour’, International Journal of Jurisprudence of the Family, 1: 17. 63 64

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If, then, it is not marriage per se which provides these benefits but other privileged characteristics which benefit the couple and children, if anything it seems perverse to further benefit them by privileging marriage.70 However, we need to be a little careful with this argument. This is not a case for removing marriage. It is just to reject the argument that we should use family law to persuade more people to marry and thereby access the benefits of marriage.

Rethinking marriage An alternative approach may be to agree there is a case for a special privileging of certain relationships, it’s just that those selected by marriage are not appropriate. In other writing I have complained that marriage and family law seemed fixed on promoting certain kinds of sexual relations, primarily heterosexual ones.71 This can be seen by, for example, the requirement of consummation before a marriage can become a fully valid in English law. I have argued that instead the law should be engineered to promote and protect caring relationships. As emphasized in Chapter 5, we all have needs. Without the care and support of others, we would not survive for long. We are all profoundly dependent on others for our physical and psychological well-being. The meeting of the needs of its members is a central responsibility of society, and so society has good reason to enable and support caring relationships to meet the needs of others. Family law in its regulation of adult relationships can be seen as engaging in the following tasks: • the support and promotion of forms of intimate life; • the protection of individuals from abuse within the course of family life; and • the remedying of disadvantages and advantages caused by a relationship. Nearly all the interventions of family law regulation in adult family lives will fall into one or other of these categories. For each of these roles, the existence of a sexual relationship between the parties is irrelevant.  Berrington, A., Perelli-Harris, B. and Trevena, P. (2015) ‘Commitment and the changing sequence of cohabitation, childbearing, and marriage: Insights from qualitative research in the UK’, Demographic Research, 33: 327–62. 71   Herring, J. (2014) ‘Making family law less sexy and more careful’ in R. Leckey (ed) After Legal Equality: Family, Sex, Kinship, London: Taylor & Francis. 70

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Focusing especially on the first category, family law seeks to promote various kinds of relationship. It does this by providing social recognition through formal acknowledgement of certain kinds of relationship and, indeed, through not providing formal acknowledgement of others. It also promotes the approved relationship through legal regulation and protection that constitute an attractive background against which to enter into intimate relationships. Traditionally, family law has focused on sexual relationships, in particular marriage, as being the primary model of approved family life. I would argue that what might make a relationship worthy of promotion by the state is care and mutual support, rather than sex. To be blunt, society does not really gain much from a couple’s having sex, however pleasurable it may be for the participants! However, the state does benefit from care, particularly where that is of a person whose needs would otherwise fall on the state. It is such relationships that should receive the support of the state. Eichner writes: Because of its interest in the health, well-being, and dignity of its citizens, the liberal state has a vital interest in the success of relationships that foster caretaking, and should provide these relationships with the institutional support that will help them flourish.72 Assuming it is unacceptable for individuals to be left in great need without any help, care must be performed. The question then arises: who is to meet the costs associated with that care? Currently, that largely falls on individuals within those relationships. However, if people stop caring, through choice or economic need, that burden falls on the state. The diminishing state help for those in need has made the private provision of care ever more significant. The state, therefore, has a strong interest in providing what support it can to ensure caring relationships continue. The state also has a core interest that the distribution of care work is fair. In particular, the state has a role in ensuring that the division of care work does not exacerbate gender inequality. This leaves open the complex question of how the state should promote caring relationships. One important part of that can be through family law and, particularly, financial orders at the end of a relationship. I argue that it is important if care has taken place in the course of a relationship, that court orders are made to ensure, so far as possible, that one party has not lost out and another gained as a result. We need to ensure a fair sharing of the economic advantages and disadvantages that   Eichner, M. (2010) The Supportive State, Oxford: Oxford University Press, 128.

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flow from the relationship. Orders which do this can have a number of benefits. First, they recognize and value care work as something that is important not just to the recipient of the care, but also both to their family community and to the wider society. To leave a person who has undertaken care during a relationship with no financial recognition at the end is to devalue it. By contrast, the House of Lords in White v White73 justified the starting point of an equal division of marital assets on the basis that the contribution through childcare and home-making was as valuable as a financial contribution. The response of society to the disadvantage flowing from care will have an impact on the way individuals respond to care needs. Obviously, a system that provided no kind of financial compensation or support to a person who lost out financially through childcare or other forms of care would discourage people from undertaking such care. By contrast, a society that did provide some kind of compensation would be making it a more attractive option. The availability of financial orders on divorce is one way a state could seek to encourage or discourage care. Lady Hale74 has asked: Do we want to encourage responsible families, in which people are able to compromise their place in the world outside the home for the sake of their partners, their children and their elderly or disabled relatives, and can be properly compensated for this if things go wrong? I continue to hope that we do. Through financial orders on divorce, determined by the values of the law, our community is able to recognize the value and importance of care work. There is much more that our society needs to do to properly value that work, but this is a starting point. Without there being any financial orders recognizing the value of care work, women will be severely disadvantaged. The gendered division of childcare and housework is striking even today. A recent UK study found that each month women worked two days more than men on housework and childcare.75 Women were found to spend 28 per cent more time on housework than men and 31 per cent more on childcare.   [2000] UKHL 54.   Hale, B. (2011) ‘Equality and autonomy in family law’, Journal of Social Welfare and Family Law, 33: 3–23. 75   Oxfam (2016) ‘Women spend two days a month more than men on housework and childcare in UK, survey finds’, https://www.oxfam.org.uk/media-centre/pressreleases/2016/03/women-spend-two-days-a-month-more-than-men-on-houseworkand-childcare 73 74

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Certainly, there has been a shift in the attitudes expressed by oppositesex couples about how they ought to share housework and childcare,76 but the reality is that men still specialize in market work while women focus on non-market work such as housework or childcare. While female involvement in employment is at far higher rates than previously, it is often part time, and the division of housework is still unequally divided.77 The slight reduction in the gap is caused by women doing less work, rather than men doing more.78 Fetterolf and Rudman have estimated, looking at women in employment, that they spend an average of 24.5  hours per week on housework and childcare, whereas for men the figure was 16.6 hours.79 A Pew Center study asking parents if they struggled to balance work and parenthood found 58 per cent of millennial mothers saying that parenthood had had a significantly negative impact on their career, while only 19 per cent of fathers reported any impact.80 I would argue therefore that simply abolishing marriage would carry great dangers, certainly unless there were radical changes in the distribution of care work. Marriage is one of the few areas in which that work is valued and compensated. What is needed is to rethink what kinds of relationships deserve the special protection that we currently give marriage. Those should be ones marked by care. It may be that the label ‘marriage’ needs to be abandoned, but the basic structure of there being a special status designed to promote equality and fairness within a relationship is a good one.

Conclusion This chapter has explored the importance of family relationships within an individual’s life course. It has examined the role that law has undertaken in describing what kinds of relationships are deemed to be family and which relationships deserve a privileged status. At the moment it is   Treas, J. and Tai, T. (2016) ‘Gender inequality in housework across 20 European nations: Lessons from gender stratification theories’, Sex Roles 75: 495–512. 77   Treas, J. and Lui, J. (2018) ‘Studying housework across nations’, Journal of Family Theory and Review 5: 135. 78  Hook, J. (2010) ‘Gender inequality in the welfare state: Sex segregation in housework, 1965–2003’, American Sociological Review 115: 480–92. 79   Fetterolf, J. and Rudman, L. (2014) ‘Gender inequality in the home: the role of relative income, support for traditional gender roles, and perceived entitlement’, Gender Issues 31: 219–29. 80   Treas, J. and Lui, J. (2018) ‘Studying housework across nations’, Journal of Family Theory and Review 5: 135. 76

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marriage which is elevated as being deserving of particular protection. This chapter has argued that the traditional focus has been on blood ties as the definition of family, and sexual relationships as being at the heart of marriage. The law is beginning to break free of these constraints and that is a welcome move. We need to focus on caring relationships as being the hallmark of family, and as requiring the regulation that is currently given to marriage. It has been argued that some form of legal regulation is required because, at least as society currently operates, there is no fair sharing of care work. Legal interventions can ensure care work is valued and does not lead to disadvantage.

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Introduction The principle of autonomy plays a fundamental role in English law and, indeed, frequent references to this principle can be found throughout the book. It is at the heart of human rights, so much so that, according to one respected theory, those who are unable to exercise autonomy do not have human rights.1 This chapter will explore the importance of autonomy to the law and its relationship with mental capacity; and how the law deals with those who lack mental capacity. These issues are greatly illuminated by the life course theory.

The principle of autonomy The concept of autonomy is relatively straightforward. We should be allowed to make decisions about what happens to our lives. Children are told what to do by their parents, but adults should not be told how to behave by the law or the state unless there is a good reason. An example of a good reason would be that what you want to do will interfere with someone else’s right to choose what they want to do. What would not be a good reason is the state thinking someone is making a bad choice. You might think the amount of time I spend writing this book is immoral or a waste of time, but I should be free to spend my time as I wish, and I am not hurting people by doing so!

  Griffin, J. (2009) On Human Rights, Oxford: Oxford University Press.

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It is also perhaps notable that the rise of autonomy has been matched by a lack of confidence about declaring what is or is not in a person’s best interests. With a lack of trust in expertise and a breakdown in agreed moral values, it has become highly controversial to make decisions on what is or is not in someone else’s interests. What might be good treatment for one person might not apply for a different person with different values and lifestyle. If no one can authoritatively decide what is good way of life for someone, then we may as well let them decide. Hence, we have the ‘triumph of autonomy’.2 Supporters of autonomy emphasize the value that each of us puts on being in control of our destiny and being able to decide how to live out our version of the ‘good life’. One person may want to dedicate their life to the reading of poetry, and another to the drinking of beer. Many people will agree with Isaiah Berlin, who stated: I wish my life and decision to depend on myself, not on external forces of whatever kind. I wish to be the instrument of my own, not of other men’s act of will. I wish to be a subject, not an object; to be moved by reasons, by conscious purposes, which are my own, not by causes which affect me, as it were from outside.3 Dworkin4 has argued this is particularly important because it means our lives can reflect who we are. Autonomy, he suggests, ‘derives from the capacity it protects: the capacity to express one’s own character – values, commitments, convictions and critical, as well as experiential, interests – in the life one leads’. The alternative, paternalism, means that one’s life reflects the values and principles of others. And that sounds like a form of moral slavery. The emphasis on autonomy is a major part of the discussions around life course. We have already seen that one of the aspects of autonomy is being able to ‘write your life story’. This is seen as important because it enables planning: education is undertaken with a plan to pursue a career afterwards; saving is undertaken now to make a purchase later, and so forth. All these plans are important in organizing one’s life and can give people a sense of accomplishment for their life achievements. Where a person’s life course has gone wrong it is often because they have lost

  Foster, C. (2009) Choosing Life, Choosing Death, Oxford: Hart.   Berlin, I. (1968) Two Conceptions of Liberty, Oxford: Oxford University Press, 131. 4   Dworkin, R. (1993) Life’s Dominion, London: HarperCollins, 38. 2 3

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control of the trajectory of their life, and events out of their control mean they have ended up where they do not want to be.5

The law and autonomy The right of autonomy is well recognized in many areas of the law. For example, it is well established in medical law that a patient has a right to decide to refuse medical treatment. As Peter Jackson J in Heart of England NHS Trust v JB stated6: anyone capable of making decisions has an absolute right to accept or refuse medical treatment, regardless of the wisdom or consequences of the decision. The decision does not have to be justified to anyone. In the absence of consent any invasion of the body will be a criminal assault. The fact that the intervention is well-meaning or therapeutic makes no difference. Indeed, it would be a criminal offence to touch a person without their consent. Generally speaking, if a person has consented to a touching there will be no criminal injury unless a notable injury has occurred. Similarly, if the owner has consented to damage to their property, there is no charge of criminal damage.7 There are some exceptions to the principle. Notably, under the Mental Health Act 1983 a person can be given treatment for a mental disorder without their consent. More interesting for the purposes of this chapter is the recently developed jurisdiction for ‘vulnerable adults’, who can be treated contrary to their wishes.8 The Court of Appeal has confirmed the existence of the jurisdiction in DL v A Local Authority,9 where Munby J defined this group in the following way: [T]he inherent jurisdiction can be exercised in relation to a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, is, or is reasonably believed to be,   Hitlin, S. and Won Kwon, H. (2016) ‘Agency across the life course’ in J. Mortimer and M. Shanahan (eds) Handbook of the Life Course, Berlin: Springer. 6   [2014] EWHC 342 (COP), [12]. 7   See Herring, J. (2020) Criminal Law, Oxford: Oxford University Press, ch 7 for the detail of the law. 8   For a detailed discussion of the jurisdiction see Herring, J. (2016) Vulnerable Adults and the Law, Oxford: Oxford University Press. 9   [2012] EWCA Civ 253, [72]. 5

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either: (i)  under constraint; or (ii)  subject to coercion or undue influence; or (iii) for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent. It applies to those who have mental capacity, but whose autonomy is impaired. Where it is used the court will determine what is in the best interests of the person concerned. Hence, in DL v A Local Authority, an elderly couple were removed from the care of their son. They had capacity and wanted to stay with him, but he was abusive and dominated their thinking. Removing them from his care was justified as enabling them to make a more autonomous decision about where to live. We will return to this case later.

Mental capacity and autonomy It is generally, but not universally, thought that to be able to exercise autonomy one must have mental capacity. That is because if a person lacks mental capacity their decisions cannot be taken as a statement of their wishes as to the future. For example, if a person is suffering a delusion and believes that their deceased spouse is in fact alive in the South Pole and they set off to see them, then their wish to get to the South Pole to see their partner is not autonomous. Preventing them going to the South Pole to see their spouse is not interfering with their choice because what they want to do is impossible. They want their life story to be that they travel to the South Pole and see their spouse, but that cannot occur. The decision they want to make is impossible. Similarly, if someone is completely dominated by another person and their decisions merely repeat the wishes of their ‘master’, they are not ‘writing their stories of their lives’. Someone else is writing their life story for them. So, it is only when a person has sufficient information and is able to use it to make their own decision that we can start to invoke the kinds of arguments that autonomy relies on. Not everyone agrees with that argument. It might be argued that even those who lack capacity can make decisions, and we should respect their decisions. The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) can be relied on to make this claim. Article 12 of the Convention provides: (1) States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.

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(2) States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. Richardson argues: Under the CRPD, the approach is very different. The emphasis has moved from substitute to supported decision-making. Decisions are no longer to be made, however benignly, on behalf of the person with disability; instead she is to be supported and encouraged to make her own decisions. In its purest form there is no point beyond which legal capacity is lost. There is no binary divide. … These two paragraphs [of UNCRPD Art 12] can be read as requiring the law to give the same status and respect to decisions made by people with mental disabilities, however great the impact of those disabilities on their decision-making, as it gives to the decisions made by others. Legal capacity should not be dependent on mental capacity.10 The Committee on the Rights of Persons with Disabilities has adopted a line similar to Richardson’s and called for the rejection of capacity tests and the use of the best interests approach. Instead, we should focus on the ‘will and preference’ of every person, without assessing whether or not they have capacity.11 The committee states that ‘at all times, including in crisis situations, the individual autonomy and capacity of persons with disabilities to make decisions must be respected’. It may be that in some cases they will need support from family, friends or professionals to articulate their will and preferences, but once those are ascertained they deserve no less protection than those of a person with capacity. This is a dramatic argument and not without problems. One is that there will be some cases where, even with extensive support, the person is unable to present a view. A patient in a coma would be one example. So, there may be some cases where some kind of substitute decision making is required. A second is the difficulty, raised several times in this chapter, in determining what precisely someone’s will is if they have conflicting wishes. If a patient says, ‘I don’t want those red pills because red is the   Richardson, G. (2013) ‘Mental capacity in the shadow of suicide: What can the law do?’, International Journal of Law in Context, 9: 87–102, 100. 11   Committee on the Rights of Persons with Disabilities (2017) Equality and NonDiscrimination, Geneva: United Nations. 10

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colour of the devil and they are evil’, are they rejecting pills that are evil or are they rejecting the red pills (which are not evil)? In a case of conflicting wishes, how do we decide which is their real wish? What does it mean to respect a decision which has no connection with the reality? Simply saying we should respect everyone’s wishes is too simplistic a response to cases where a person lacks capacity. Finally, the UN Convention requires states to protect disabled people from abuse. To leave a person to suffer greatly on the basis that that was their choice, when in fact they had no understanding of the impact of their decision, is to deny them their rights, not to uphold them. We will return to this debate later (page 246). The remainder of this chapter explores four major issues within mental capacity law, considering what a life course perspective might offer.

Challenges to autonomy There is an extensive literature on the extent to which the law ought to respect autonomy. It is not possible to do that justice here, but some of the main issues will be discussed.

Autonomy and bad decisions Some argue that not all autonomous decisions demand respect. Keown claims: The capacity to choose brings with it the responsibility of making not just any old choice, but choices that do in fact promote, rather than undermine, human flourishing. Given the legitimate diversity of lifestyles and life-choices which are consistent with human flourishing, many choices are consistent with human well-being. We should, therefore, think carefully before restricting another’s autonomy. But it is difficult to see why patently immoral choices, choices clearly inconsistent with human well-being, merit any respect. In other words, an exercise of autonomy merits respect only when it is exercised in accordance with a framework of sound moral values.12

  Keown, J. (1998) ‘The legal revolution: From “sanctity of life” to “quality of life” and “autonomy”’, Journal of Contemporary Health Law and Policy, 14: 253–85, 263.

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It is a standard view that we can interfere in autonomous decisions that harm others. But here Keown is arguing that a decision which undermines the individual’s flourishing should not be respected. Such a view is often based on the claim that autonomy in itself is not good, it is the fact it tends, normally, to lead to flourishing lives which makes it good. If the justification for autonomy is based on flourishing we can interfere with it when it does not promote flourishing. The challenge for Keown is whether he can find consensus on what are ‘sound moral values’ and which choices are ‘consistent with human flourishing’. Supporters of autonomy may reply to Keown that it is because we cannot agree on such issues that we must let people use their own moral values and determine what, for them, constitutes flourishing. Maybe we could interpret Keown’s argument very narrowly and simply say that manifestly harmful decisions do not deserve respect. As Conly writes, ‘when individuals engage in behaviour that undercuts their own chances of happiness, state interference may be justified’.13 Conly also develops a slightly different argument for interfering in autonomy. She writes: If it is permissible, even obligatory, to stop me when I do something that seriously interferes with someone else’s chances of achieving the life he wants, I think it is equally permissible, and perhaps obligatory, to save me from myself. This resembles the arguments Eekelaar makes for restricting children’s rights (see page 98), namely that we may need to restrict autonomy in the present to increase autonomy in the future. Can we justify respecting a person’s decision if we know it will lead to their life going badly wrong and take them a long way from where they would like their life to be? If autonomy is about allowing a person to be the author of their life, should we allow respect for their authorship at one point in time to derail their grander life plan?

 Conly, S. (2013) ‘Against autonomy: Justifying coercive paternalism’, Journal of Medical Ethics, 40: 349–59, 351.

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Which decision? Many complex cases involving autonomy are ones where there are competing decisions. John Coggon14 has listed three versions of autonomy: (1) Ideal desire autonomy: leads to an action decided upon because it reflects what a person should want, measured by reference to some purportedly universal or objective standard of values. (2) Best desire autonomy: leads to an action decided upon because it reflects a person’s overall desire given his own values, even if this runs contrary to his immediate desire. (3) Current desire autonomy: leads to an action decided upon because it reflects a person’s immediate inclinations, i.e. what he thinks he wants in a given moment without further reflection. Clearly these may conflict. Imagine a person is choosing what to eat at a restaurant. The menu highlights a salad as extremely healthy; a stew as moderately healthy; and a burger and chips as extremely unhealthy. The person may have a current desire for the burger and chips, which just sounds great. However, they have recently decided to try and eat more healthily on medical advice and have determined to make health eating choices, although not trying to be too strict on themselves. In which case, their best desire autonomy might be the stew. And, let us assume, the ideal autonomy argument is the salad, given the medical advice. We might put this in terms of a life course approach. The self who is sitting in the restaurant that evening may have one autonomous wish; the self of the evening before who is carefully thinking through issues around healthy eating will have another; and the self in the future may wish that different decisions had been made earlier and if they were able to speak to their younger self, they would urge healthy eating. If we respect ‘autonomy’, which version of the self ’s autonomy do we respect?15 Which self is to write the story?16   Coggon, J. (2016) ‘Mental capacity law, autonomy, and best interests: An argument for conceptual and practical clarity in the Court of Protection’, Medical Law Review, 24(3): 396–414. 15   Hitlin, S. and Kirkpatrick Johnson, M. (2015) ‘Reconceptualizing agency within the life course: The power of looking ahead’, American Journal of Sociology, 120(5): 1429–72. 16   Bidart, C. (2019) ‘How plans change: Anticipation, interferences and unpredictabilities’, Advances in Life Course Research, 41: 100254–67. 14

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There is a slightly different way this point may be made. It is foolhardy to assume that all autonomous wishes carry the same moral weight. A considered autonomous decision, based on full knowledge of the facts and reflecting a person’s underlying and enduring values, might be thought to be deserving of greater moral weight than the decision based on mistakes or the one that is inconsistent with the values by which the person lives their life. If that view is accepted, then, at least in ethical terms, not all autonomous decisions deserve the same level of protection. This then opens up an approach that allows us to have a granulated respect for autonomy. Where a person’s decision is going to cause them serious harm, then that decision will need to be richly autonomous, and if it is not fully autonomous, we need not comply with it. Where, however, a decision will cause no harm, a weakly autonomous decision can be respected. Indeed, this may be what we are witnessing in the case law on vulnerable adults, at which was mentioned earlier in the chapter (see page 235). There, the impaired decisions of people with capacity are not followed because they represent only a severely impaired exercise of autonomy and the decision being made will cause serious harm. If that kind of approach is taken, life course theory can be particularly important in assessing decisions. It is only by looking back over a person’s life that we can understand their settled decisions, and by looking forward we can determine whether the decision they are making now fits in with their desired life trajectory.17

Other values: relational autonomy Another challenge to the pre-eminence of autonomy is that it overlooks other important values. There is a danger that autonomy ignores issues of obligations owed to others, the pursuit of community goals, notions of justice in healthcare decisions, and the importance of relationships in the lives of others. Some who are sympathetic to these concerns might decide to abandon autonomy altogether. But others argue that we need to find a new way of understanding it. One of the most popular approaches to this is the notion of ‘relational autonomy’.18 At the heart of this approach is a rejection of the idea that we live our lives as unconnected individuals. The traditional notion of autonomy promotes the concept of an isolated person deciding for himself what is in his best interests (the image of  Ibid.   Herring, J. (2014) Relational Autonomy and Family Law, Berlin: Springer.

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‘the male in the prime of his life’), whereas in fact we live lives based on interdependent relationships. We therefore need to recognize that, for most people, the question is not simply ‘What is best for me?’, but rather ‘Given the responsibilities that I owe to those in relationships with me and the responsibilities owed to me by others, what is the most appropriate course of action?’. We need a vision of autonomy that promotes the values of love, loyalty, friendship and care.19 Mackenzie20 has written: Feminist relational ethics rejects social atomism and understands persons as embedded in interpersonal and social relationships, and as shaped and constrained by intersecting social determinants, such as those of gender, race, class, sexuality, ability, and so on. In line with the agenda of relational ethics, relational autonomy theorists uphold the importance of personal autonomy, especially for women and other groups subject to historical and contemporary forms of social oppression. At the same time, relational autonomy theorists seek to analyse the ways that the development and exercise of personal autonomy is enabled or constrained by social relationships and by social norms, structures and institutions. It should be acknowledged that ‘relational autonomy’ is a fairly broad umbrella term, and writers using it are not in complete agreement.21 There are two aspects to it. The first is that we should assess capacity relationally. In other words, rather than sitting a person in a room with a psychiatrist to be tested as to their capabilities, we should ask whether a person, after discussion with friends and experts, and with support, can reach a decision. That is, in fact, how most people make decisions – with others – and so the ‘lonely’ assessment of capacity typically used by professionals is highly artificial. This approach would, however, acknowledge the ways that unhelpful pressures and relationships can impede a person’s decision making. As Westlund22 explains:

  Herring, J. (2013) Caring and the Law, Oxford: Hart.   Mackenzie, C. (2019) ‘Feminist innovation in philosophy: Relational autonomy and social justice’, Women’s Studies International Forum, 72: 144–76, 145. 21   Mackenzie, C. and Stoljar, N. (2000) Relational Autonomy, Oxford: Oxford University Press. 22   Westlund, A. (2018) ‘Relational autonomy and practical authority’ in P. Garavaso (ed) The Bloomsbury Companion to Analytic Feminism, London: Bloomsbury, 82. 19 20

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self-governance is a relational capacity – at the very least causally, in the sense that the capacities and competencies that one must exercise in autonomous choice and action can only be developed in and through relationships with other agents, but perhaps also constitutively, in the sense that what makes a choice or action one’s own cannot be explained without reference to some form of relationality. The second aspect of relational autonomy is that it acknowledges that most decisions are relational ones. They involve co-operation with and engagement with others. It can, therefore, often make more sense about seeing the ‘good life’ for a group of people in connected relationships, rather than a ‘good life’ for a single person. This then creates difficulties in cases where the wishes of one person are in conflict with the wishes of the group.

Is anyone autonomous? Perhaps the most direct challenge to autonomy is to question whether any decision can be said to be autonomous.23 There is extensive evidence that although we believe we make autonomous decisions, in fact our decisions are influenced (often unknowingly) by the way the questions were phrased. In one study,24 patients were offered two alternative treatments and were told the percentages of people who survived the treatments: 18 per cent of people selected the first treatment. The same group were then offered the two treatments and were told the percentage of people who died after the treatments (that is, the same statistic presented differently). This time, 44 per cent of people selected the first treatment. In other words, although it may appear that a patient is exercising autonomy, in fact the choice that they make may be influenced by the way the question is asked. But that is only one example of the myriad of ways our decisions are not the produce of our own rational thought processes. Conly gives the (not uncommon) example of a person ordering a large serving of fries, but then when sitting down to eat them wondering why they ordered the large serving. She questions whether such a person really wants a large serving. At least, she suggests, such a decision is normally a result of mistaken thinking:  Herring, J. (2017) ‘Peter Skegg and the question no-one asks: Why presume capacity?’, in J. Wall and M. Henaghan (eds) Law, Ethics and Medicine, Christchurch: Thompson. 24   Conly, S. (2012) Against Autonomy, Cambridge; Cambridge University Press, 38. 23

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As has by now been discussed convincingly and exhaustively (notably by Nobel Prizewinning Daniel Kahneman and Amos Tversky), we suffer from common, apparently ineradicable tendencies to ‘cognitive bias,’ which means that in many common situations, our decision-making goes askew. These biases are many and varied, but they have in common that they interfere with our appreciation of even quite simple facts, and lead us to choose ineffective means to our ends.25 Returning to the fries example, Conly argues that few people really want to become unhealthy, and many regret their decision to order the large fries later. Such a flawed decision, she claims, does not deserve respect (although some fries lovers might want to take issue with her assessment!). But the more serious point is that while we might like to think that we’re making a rational decision, are we in fact really influenced by factors outside our control? This becomes all the more apparent when we explore in more detail what is required to have full autonomy. Wall26 has argued that to act autonomously it must be shown a person is able: (i) to act free from undue interference or influence of others (the freedom condition); (ii) to exercise the capacity for rational thought and cognition (the competence condition); and (iii) to act according to the beliefs, values, and commitments that the person identifies or endorses as their own beliefs, values, and commitments (the authenticity condition). Mackenzie and Rogers, to similar effect, argue that, to be able to exercise autonomy, we need to display the following characteristics27: • Self-determination: This refers to the ability: … to determine one’s own beliefs, values, goals and wants, and to make choices regarding matters of practical import   Ibid, 24.  Wall, J. (2018) ‘Authentic decision-making and depression’ in C. Foster and J. Herring (eds) Law and Depression, Oxford: Oxford University Press. 27   Mackenzie, C. and Rogers, W. (2013) ‘Autonomy, vulnerability and capacity: a philosophical appraisal of the Mental Capacity Act’, International Journal of the Law in Context, 37–56, 40ff. 25 26

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to one’s life free from undue interference. The obverse of self-determination is determination by other persons, or by external forces or constraints. • Self-government: This refers to the ability: … to make choices and enact decisions that express, or are consistent with, one’s values, beliefs and commitments. Whereas the threats to self-determination are typically external, the threats to self-governance are typically internal, and often involve volitional or cognitive failings. Weakness of will and failures of self-control are common volitional failings that interfere with self-governance. • Having authenticity [A] person’s decisions, values, beliefs and commitments must be her ‘own’ in some relevant sense; that is, she must identify herself with them and they must cohere with her ‘practical identity’, her sense of who she is and what matters to her. Actions or decisions that a person feels were foisted on her, which do not cohere with her sense of herself, or from which she feels alienated, are not autonomous. Their point is that if these conditions are not fulfilled then a person cannot really be taken to have chosen a course of action for themselves. It may be that others have imposed values upon them or that they are not able to use their values to make decisions for themselves. Imagine, for example, a woman who is in a relationship of domestic abuse. She has reached a position where she simply obeys her partner on every issue. In such a case respecting her decisions is not respecting her autonomy. The problem is that if we require all of the conditions that Wall or Mackenzie and Rogers require, one might question how often anyone can meet all of these criteria and so be richly autonomous. Arguments of this kind have led me to suggest that ‘it is implausible that a large majority of people have capacity to make important medical decisions’28 and to question the presumption in favour of people having

 Herring, J. (2017) ‘Peter Skegg and the question no-one asks: Why presume capacity?’ in J. Wall and M. Henaghan (eds) Law, Ethics and Medicine, Christchurch: Thompson. 28

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capacity. Few, if any, of us really understand enough information or are able to use the information we have understood rationally, based on principles we have adopted, to be able to claim we are acting autonomously. However, it might be thought that if it were found few people have capacity this would open the door to rampant paternalism. But that is not necessarily so: it might be thought that doctors and judges are as bad at making decisions as anyone else. So, the questioning of the presumption of capacity is not necessarily an argument in favour of paternalism, but rather a suggestion we need to find other reasons, apart from autonomy, for respecting people’s decisions about their lives.

Capacity assessment In this section we will explore how the law assesses capacity. A brief overview will be given, before some critiques are offered.

The legal test The Mental Capacity Act 2005, section 1(2) makes it clear that the law presumes that a person has capacity unless there is evidence that they do not. Understandably, when a court is determining whether a patient has capacity, the views of the medical experts carry considerable importance’. But, ultimately, it is for the court, not the doctors, to determine the issue. Difficulties can arise if a patient refuses to participate in an assessment of capacity. In such a case that refusal could itself be seen as evidence of a lack of capacity, although it may be insufficient on its own. The general test for capacity is set out in section 2(1) of the MCA 2005: [A] person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. Section 3(1) explains what is meant by a person being unable to make a decision for themselves: [A] person is unable to make a decision for himself if he is unable – (a) to understand the information relevant to the decision, (b) to retain that information,

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(c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means). As this indicates, there are a number of ways in which a person may be said to be unable to make a decision. These can range from not understanding a key piece of information to not being able to weigh up the different factors. Before exploring this further, it is worth emphasizing that the courts take a ‘generous’ approach to capacity. Capacity under the MCA 2005 is assessed at the time the case is heard and in relation to the particular issue at hand. As Baker J put it in A Local Authority v P 29: Capacity is both issue-specific and time-specific. A person may have capacity in respect of certain matters but not in relation to other matters. Equally, a person may have capacity at one time and not at another. The question is whether at the date on which the court is considering the question the person lacks capacity in question. So, the question is always whether a person has capacity to decide a particular question at this particular time. As was explained in A Local Authority v TZ,30 the test of capacity in section 2(1) of the MCA 2005 involves a ‘diagnostic test’ and a ‘functional test’. Under the diagnostic test, it must be found that a person has impairment or a disturbance in the functioning of the brain. Under the functional test, it must be determined whether, as a result of the disturbance, a person is unable to make the decision. Importantly, it must be shown that the inability to make the decision results from the impairment. So, patients with no mental impairment who refuse all treatment because of their religious belief that God will cure them will still have mental capacity. Even if the doctors try to argue that the patients do not properly understand the reality of their situation that will not be because of a mental impairment. This appears to breach the UNCRPD. Article 12(2) of the Convention provides that people with disabilities may enjoy legal capacity ‘on an equal basis with others in all aspects of life’. Yet, here, if we have two people with delusions, the one whose delusion

  [2018] EWCOP 10.   [2013] EWHC 2322 (COP).

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is as a result of a mental disorder is treated differently from the one whose delusion is not.

Concerns with the courts’ approach to capacity: setting the bar low By and large the courts interpret the mental capacity test generously. We have already noted that there is a presumption in favour of capacity. Baker J warned against taking too strict an approach to capacity in PH and A Local Authority v Z Limited & R31: [the] courts must guard against imposing too high a test of capacity to decide issues such as residence because to do so would run the risk of discriminating against persons suffering from a mental disability. It seems, therefore, that the courts are more worried about finding a person lacks capacity when they have it, than finding a person has capacity when they do not. However, this is problematic. As Wall and I32 have written: It is a terrible thing to be assessed as lacking capacity when you do not – to have others make decisions on your behalf and set aside your own wishes based on what they think is in your best interests. You lose control over your life. You are no longer in charge of your destiny. It is a terrible thing to be said to have capacity when you do not – to be left to cause yourself and those you love great harm on the basis that you know what you are doing and you are making your own choices, when in fact your decisions are not really yours. To have others harm you and to be told no protection is offered because you have chosen this harm, even though it is against your deepest values, is horrific. As we argue, it is not obvious that the wrong done to a person who is incorrectly assessed as not having capacity is worse than the wrong done to a person who is incorrectly assessed as having capacity. That is especially so when what is proposed is medical treatment that will save them from   [2011] EWHC 2704 (Fam) at para 16.   Herring, J. and Wall, J. (2015) ‘Autonomy, capacity and vulnerable adults: Filling the gaps in the Mental Capacity Act’, Legal Studies, 35(4): 698–719, 698.

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pain and long-term harm. Putting it another way, if a doctor does not provide a patient with standard treatment and as a result the patient suffers great pain, long-term impairment or a risk to their life, then the doctor must have a very good reason for not providing them with treatment. It must be questioned whether the refusal to consent of the patient based on a flawed understanding of the position, or an otherwise impaired autonomy is sufficient to justify this outcome. So, where there is a risk of serious harm there are clear dangers in setting the bar of capacity as low as the courts do.

Concerns with capacity and the ability to use information to make a decision To have capacity, the patient must not only understand the information, but also be able to use the information, weigh it, and come to a decision. The courts have not interpreted this in a strict way. The kind of case where it has been relevant to the judgment is where a patient is in such a panic that they are unable to process the knowledge to reach a decision, and will therefore lack capacity to make the decision. For example, in Mental Health Trust v DD,33 a pregnant woman refusing to consent to a Caesarean section was able to understand the information relevant to the decision but due to her learning difficulties and autism spectrum disorder was found to be unable to weigh the information. Cobb J found she had ‘rigid and unshakeable thinking’. Controversially, in A Local Authority v E,34 a 32-year-old woman who suffered from anorexia nervosa and other health conditions, including alcohol dependence and a personality disorder, Jackson J concluded that E lacked capacity to refuse treatment in relation to forcible feeding: [T]here is strong evidence that E’s obsessive fear of weight gain makes her incapable of weighing the advantages and disadvantages of eating in any meaningful way. For E, the compulsion to prevent calories entering her system has become the card that trumps all others. The need not to gain weight overpowers all other thoughts. On what was in her best interests, a balance had to be struck between the value of E’s life and the value of her independence. There was a   [2014] EWCOP 11.   [2012] EWHC 1639 (COP).

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presumption in favour of life that was not displaced in this case. Forced feeding, if necessary, would be in her best interests. This case is illuminated by a life course analysis. We have a conflict between the wishes of E’s current self (to refuse treatment), the views of E’s self before the anorexia took hold (to receive treatment) and the views we predict E will have if the treatment is given (that she would be glad that treatment had been given). Which self do we listen to? Craigie,35 considering cases of depression, argues that being able to consider one’s future self can be seen as part of capacity: Caring about the interests of the future inhabitant of one’s body, and having at least some grip on what those interests will be, seem like prerequisites for engaging successfully in these processes. And perhaps this offers part of an explanation about how decision-making can be compromised in the context of disorders such as depression and bipolar disorder. Very crudely, the idea would be that as part of a much bigger picture the capacities necessary for diachronic agency are not functioning properly and this undermines the constitution of the self. She admits this is problematic. One option is to consider ‘giving weight to a reasonable prediction of what the patient’s future self would want in retrospect, in assessments of mental capacity’. This is perhaps easiest to apply in a case of a recurring condition, such as bipolar disorder, where a patient has subsequently expressed gratitude for interventions made to limit their behaviour in previous manic episodes, and may imagine they will do the same again. A life course perspective is helpful here. The individual is at a particular point of a journey, and their decision is going to have significant impact on their future self. We might try looking at the overall course of their life for guidance as to where they want their story to go. Is this a momentary blip which, if respected, will set their life off course from now on? Or is this current decision in line with their life normally? As far as we can tell, is their future self going to be content with this decision?36 These questions tie into the idea of authenticity that Mackenzie and Rogers discuss.37 Is this decision consistent with the self they have developed over time or are they under some momentary pressure which   Craigie, J. (2013) ‘Capacity, value neutrality and the ability to consider the future’, International Journal of Law in Context, 9: 4–19, 18. 36  Ibid. 37   See above p. 245. 35

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means this decision is out of line with the values exhibited during their life course? As Mackenzie and Rogers acknowledge, we must allow for a person to change the course of their life, but only if this decision is one they have reached in a richly autonomous way. This may justify the decision in E’s case. We may decide her decision not to eat is not the product of a richly autonomous decision, but is the product of the illness. Nor is it a decision her future self will identify with. As Craigie38 puts it: Their future self may come to the view that they should have been motivated in ways that they could not recognise or could not act on at the time, and this might be a fairly robust feature of people with a diagnosis of anorexia nervosa. That might be contrasted with a Jehovah’s Witness who, after careful thought and discussion, decides to accept a blood transfusion, despite that being out of line with their previous religious beliefs. The current law does not undertake such a deep analysis. As Craigie states39: Someone with bipolar disorder, for example, might clearly be choosing or acting in accordance with their current desires during a manic phase, but this perspective fails to capture what seemingly goes wrong with practical decision-making in such cases. As a result, if this understanding of commitments is adopted in assessments of mental capacity the reach of this area of law arguably does not extend as far as it should – a person may be judged to have mental capacity where this seems doubtful. There are ways the law could progress to be more nuanced in its approach. One option is ‘risk-relative capacity’.40 This is a suggestion that the degree of risk may affect how strictly we apply a test of capacity. So, if P wants to make a decision that might cause them significant harm, then we will require a lot of evidence to be persuaded that P has capacity. However, if the decision carries little risk, then we can be rather more lax in applying such a test. The proposal is a controversial one and many commentators   Craigie, J. (2013) ‘Capacity, value neutrality and the ability to consider the future’, International Journal of Law in Context, 9: 4–19, 17. 39   Ibid, 17. 40   Herring, J. (2008) ‘Entering the fog: On the borderlines of mental capacity’, Indiana Law Journal, 83: 1620–56. 38

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feel that it is inappropriate because a person either understands the issues or does not, and the degree of risk should not affect an assessment of their comprehension. An alternative argument is to suggest that capacity exists on a continuum, in such a way that we can offer some protection for those only just having capacity who are endangering themselves, but pay greater respect to the wishes of those who lack capacity, but only just. As Wall and I have argued: [W]e should not assume that autonomy is an ‘all-ornothing concept’. A richly autonomous decision requires full protection and the patient has the right to have their refusal respected, however serious the consequences. Where, however, the decision is only marginally autonomous, then it may be sufficient to deserve respect in cases where what the patient wants to do is something that is not particularly harmful. A weakly autonomous decision may, therefore, not be sufficient to justify doing an act that will lead to serious harm. It may be that the jurisdiction that is being developed in relation to vulnerable adults is providing a way of protecting those on the borderline of capacity. Such an approach can give greater acknowledgement that the self is on a life course and that decisions made now will impact on the future self. Seeing decisions within the context of the person’s life course will enable a more sophisticated analysis of their meaning and the weight that should be attached to them.

Advance directives Advance directives have become a topic of fierce dispute. Sometimes known as ‘living wills’, they allow the author to determine what will happen to them later in life if they lose capacity. One academic has reproduced her own advance directive, which reveals the concerns of many people. It reads: When I suffer from Alzheimer’s disease and I do not recognize my children anymore, and I have to reside in a nursing home permanently, I refuse lifesaving or prolonging treatment. I would hope for euthanasia. I realize there may be a time that I myself am past caring and not unhappy. But I do not want my children to witness and to suffer from my steady decline

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into nothingness. I see no point at all in continuing my life when I have lost the dignity, the purposes and the emotional commitments that I consider essential to the story of my life and my person.41 Such an action can be seen as an attempt to ensure that what happens to the person at the end of their life is a fitting end to the version of the good life that they have set for themselves and by which they choose to live.42 As Dworkin has put it: ‘[T]hey want their deaths, if possible, to express and in that way vividly to confirm the values they believe most important.’43 It should be added that uptake of advance directives seems to be fairly low. It may be that people feel there are too many scenarios to cover in a single document, or that they do not want to think about the future. More popular is a power of attorney, in which a person nominates someone to make decisions on their behalf. Before exploring the ethical issues raised by advance directives there will be a brief summary of the law.

The law An advance decision is defined in section 24(1) of the MCA 2005 thus: ‘Advance decision’ means a decision made by a person (‘P’), after he has reached 18 and when he has capacity to do so, that if – (a) at a later time and in such circumstances as he may specify, a specified treatment is proposed to be carried out or continued by a person providing health care for him, and (b) at that time he lacks capacity to consent to the carrying out or continuation of the treatment, the specified treatment is not to be carried out or continued. There are some important limitations to advance directives. They are only relevant once a patient lacks capacity. Also, they only allow patients to refuse treatment, they cannot demand treatment. Section 25 explains the three ways in which P’s advance decision may be invalid:   De Beaufort, I. (2007) ‘The view from before’, The American Journal of Bioethics, 7(4): 57–66. 42   Dworkin, R. (1993) Life’s Dominion, London: HarperCollins. 43   Ibid, 211. 41

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• P, with capacity, has withdrawn the advance decision – which withdrawal does not need to be in writing; • P has created a lasting power of attorney after making the advance decision and has given the donee the power to make the decision in question; or • P has done anything else that is clearly inconsistent with the directive in the advance decision. Clearly much more could be said about the regulation of advance directives, but for the purposes of this book the focus will be on the debates over how they should be treated.

Margo’s case Much of the discussion about advance directives has focused on a true case, that of a woman called Margo.44 Hers is a helpful case because it puts to one side a number of distracting issues about advance directives and focuses on the key ones. Margo was a successful academic who knew there was a history of dementia in her family. After extensive research, she signed an advance directive that if she were to fall ill she would not want life-sustaining treatment. Sadly, she did indeed develop early dementia and at the age of 54 she was described as extraordinarily happy, painting the same picture over and over again, reading random pages of books and eating peanut butter and jelly sandwiches. She developed an illness which could easily be treated with antibiotics, but her advance directive said she was not to be given treatment. The scenario is helpful because her extensive research meant that when Margo issued the advance directive she was aware of the forms of dementia that might arise, including that she might appear to be very happy. Also, the directive was written in very clear language. So, there was no argument about the interpretation of the directive or whether Margo had foreseen the precise situation which had arisen. Margo’s case produces a clear conflict between her current interests (she seemed to be enjoying life) and her values when she signed that advance directive (that she did not want to live with dementia).

  Firlik, A. (1991) ‘Margo’s logo’, Journal of the American Medical Association, 265–79; Miller, D., Dresser, R. and Kim, S. (2019) ‘Advanced euthanasia directives: a controversial case and its ethical implications’, Journal of Medical Ethics, 45: 84–9.

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The argument in favour of advance directives To advocates of advance directives, it is the fear of losing control which is at the heart of the issue. Few of us like being told what to do or having decisions made on our behalf without our consent. Advance directives offer the possibility of being able to make decisions about how we will be treated when we are not able to make decisions for ourselves. They enable us to make arrangements for the final chapter of our lives, if we are not able to write it ourselves. Ronald Dworkin has written one of the most persuasive cases in favour of placing weight on advance directives.45 Only a brief outline of his views can be presented here. To him the right of autonomy is central to our humanity. At the heart of his thinking about advance directives is the distinction between critical and experiential interests. He sees experiential interests as concerning the matters of momentary enjoyment or pleasure. They might include pursuing activities such as watching television or eating a doughnut. Critical interests are all about things that we consider good or valuable to our lives. Often critical interests are pursued despite the fact they do not provide enjoyment or pleasure. Sacrifices are made for family; projects are pursued even when they have lost some of the ‘first love’; religious observances are followed even when they are boring. Critical interests will involve matters which go to the core of the person, such as religious beliefs and important life projects. Dworkin argues that it is our critical interests that are most important to our autonomy and deserve the strongest protection. These are the things that are at the heart of our plans for our lives and define the self. For Dworkin a person’s critical beliefs survive incapacity. A person having lost capacity should be treated in a way which would be consistent with their critical interests, or at least not inconsistent with them. Dworkin can accept that some people without capacity may have experiential interests. They may be able to experience pleasure in certain activities, such as Margo’s love for peanut butter and jelly sandwiches, but respect for these experiential interests should never be at the expense of the patient’s critical interests articulated during their competent life. The incompetent person’s current wishes should be ignored ‘because he lacks the necessary capacity for a fresh exercise of autonomy. His former decision remains in force because no new decision by a person capable of autonomy has annulled it.’46 J. McMahan even suggests that the competent person is   Dworkin, R. (1993) Life’s Dominion, London: HarperCollins.   Dworkin, R. (2015) ‘Life past reason’ in H. Kuhse, U. Schüklenk and P. Singer (eds) Bioethics, Oxford: Blackwell, 333–40.

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retrospectively harmed if an advance directive is not followed. He argues that the competent part of a person’s life should be seen as dominant over the demented part, which should be ‘sacrificed for the greater good of her earlier self ’.47 Dworkin does not shy away from the implications of his approach. He refers to Margo and argues she has experiential interests: she is able to gain great pleasure from her activities. But her critical interests as expressed in her advance directive should trump any experiential interests. In short, she should be allowed to die. Critics of Dworkin’s views question the weight he places on experiential interests. It may be questioned whether it is possible to divide up a person’s interests into critical and experiential ones. At what point does a person’s enjoyment of a hobby become a critical interest? It has also been suggested that his views seem to imagine the world is made up of philosophers, who plan and develop a grand vision for their lives ruled by higher order preferences, whereas many people live each day as it comes, or at least a life marked by contradiction and chaos, rather than a grand plan. Rebecca Dresser suggests: many people take life one day at a time. The goal of establishing a coherent narrative may be a less common life theme than the simple effort to accept and adjust to the changing natural and social circumstances that characterize a person’s life.48 There is a danger Dworkin’s approach will benefit the more philosophically minded person, whereas the person who ‘goes with the flow’ will find themselves with few, if any critical interests. Byers49 offers a different response. She has argued that it is mistaken to see dementia as having a negative impact on a person’s life projects or their life as a whole. She accepts that it is possible for current experiences to undermine values to which a person once held dear, such as for a person discovering their long-term partner had been persistently unfaithful or for a person who determines their religious beliefs have been mistaken. In such cases, the person, in light of their current beliefs, may determine their life has been wasted. But that is not so in dementia. Dementia does

  McMahan, J. (2002) The Ethics of Killing, Oxford: Oxford University Press, 67.   Dresser, R. (2003) ‘Precommitment: a misguided strategy for securing death with dignity’, Texas Law Review, 81: 1823–45, 1844. 49   Byers, P. (2020) ‘Eudaimonia and well-being: questioning the moral authority of advance directives in dementia’, Theoretical Medicine and Bioethics, 41: 23–37. 47 48

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nothing to undermine the goodness of the earlier life. Cantor50 claims that dementia would ‘soil’ the image of his personality he has cultivated and McMahan51 claims that dementia ‘can retroactively affect the meaning and value of her life prior to the onset of dementia’. But it is hard to see why that is so. As Byers argues52: The onset of dementia does mean that life will change, and some capacities and capabilities will be impaired. But these unwelcome changes and impairments do not entail a loss of the moral value of what has been the case, nor do they entail that the [short term well-being] of a person living with dementia has little value in and of itself. A person’s wellbeing is valuable from her or his own perspective, which typically continues to be an evaluative perspective despite the onset and progression of dementia.

Arguments against advance directives Three different arguments will be considered against giving effect to advance directives.

Different person One argument against giving effect to advance directives is that the person who makes the advance directive is not the same person as the person who subsequently loses capacity. We are, it is said, a collection and continuity of memories and life stories.53 In the case of an Alzheimer’s patient, although his or her body remains the same, the loss of memory or connection with relatives or friends means that, with the onset of Alzheimer’s, a new person has come into being. Or at least it means that there has been such a change of personality and personhood that the competent person is no longer empowered to speak on behalf of the person lacking capacity.54  Cantor, N. (1996) ‘Discarding substituted judgment and best interests’, Rutgers Law Review, 48: 1193. 51   McMahan, J. (2002) The Ethics of Killing, Oxford: Oxford University Press, 502. 52  Byers, P. (2020) ‘Eudaimonia and well-being: questioning the moral authority of advance directives in dementia’, Theoretical Medicine and Bioethics, 41: 23–37, 36. 53   This is developed from the theories of Parfit, D. (1984) Reasons and Persons, Oxford: Oxford University Press. 54   Dworkin, R. (1993) Life’s Dominion, London: HarperCollins. 50

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Therefore the advance directive made when the person was competent should not have force. Robertson writes as follows: The values and interests of the competent person no longer are relevant to someone who has lost the rational structure on which those values and interests rested. Unless we are to view competently held values and interests as extending even into situations in which, because of incompetency, they can no longer have meaning, it matters not that as a competent person the individual would not wish to be maintained in a debilitated or disabled state. If the person is no longer competent enough to appreciate the degree of divergence from her previous activity that produced the choice against treatment, the prior directive does not represent her current interests merely because a competent directive was issued.55 Therefore, when making decisions about the person who has lost capacity, the views of the person with capacity are not the same person’s views. They are no more relevant than the views of a stranger. This argument is highly problematic. First, it elevates the mind as the core of identity, even if the mind of the person has changed the physical body and, most importantly, the person’s relationships with others have not changed. Does anyone, for example, believe that if their parent develops dementia, they somehow cease to be their mother or father? As life course theory highlights, our lives are a story of twists and turns. We change and develop, but remain the same person. It is in the nature of being a human being that our minds grow and develop. To suggest we are different people at different times is to ignore the nature of humanity. For lawyers, in particular, the argument that there is a different person when dementia occurs does not fit in with traditional legal rules. For example, a person facing a criminal charge has no defence based on the fact that the person who committed the crime is psychologically disconnected from them.

Can you predict? Another set of criticisms highlights the difficulties in determining whether when the person made the advance directive, they had sufficient information to make an informed decision about how they should be   Robertson, J. (1991) ‘Second thoughts on living wills’, Hastings Center Report, 21: 6–21, 7.

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treated if they were to lose capacity. That is a rather mundane point that leads us simply to conclude there will be some cases where the advance directive should not apply as it was not made with sufficient understanding. A more interesting argument is that we can never have capacity to make decisions about what should happen when we lack capacity because we cannot imagine what that will be like. There is much evidence that although people are terrified of living with certain conditions, if in fact they develop such conditions, they are far happier than they thought they would be.56 We may imagine that living with Alzheimer’s would be a horrific experience and yet many of those who do appear to be happy. Whatever research is undertaken, it is impossible to fully appreciate the experience of having dementia.

Primary obligation compassion Some argue that even if an advance directive can be seen as having some weight, our primary obligation towards the person lacking capacity is to show compassion and to seek their best interests. We should never harm a person who lacks capacity. Not even an advance directive can justify that.57 Dresser argues: [T]he law must also ensure that the present patient does not simply disappear in the shadow of the person she once was. The law must ensure that someone looks carefully at the patient whose fate is now in question. It is the best interests standard that shines the brightest light on the patient in the present … Courts should not permit competent persons to exercise tyranny over their lives as incompetent patients.58

Current wishes I argue we should attach considerable weight to the views and welfare of the current incapacitated person. Placing all the weight on critical interests means that, in the words of one learned commentator, the current individual is a person ‘to treat, control, restrain, or perhaps simply

  See Auckland, C. (2017) ‘Protecting me from my directive: Ensuring appropriate safeguards for advance directives in dementia’, Medical Law Review, 26: 73–97. 57   Dresser, R. (1994) ‘Missing persons: Legal perceptions of incompetent patients’, Rutgers Law Review, 46: 609–71. 58   Ibid, 646. 56

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tolerate … To take this sort of attitude towards someone is to see him as no longer fully human.’59 Dresser rejects an argument that the views of the competent person, as expressed in an advance directive, should dominate the decision as to how they should be treated, because she sees the demented person as vastly altered from the previous person: Courts have a hard time understanding the subjectivity of the incompetent patient. They sometimes speak as if a patient were still the competent person she once was; they sometimes construct a mythical, generalized competent person to inhabit the body that lies before them.60 Instead of focusing on what they would have wanted when competent, she proposes promotion of their best interests. I would emphasize two arguments. The first is that throughout our life course we change our views and perspectives on the world. Things we dread turn out to be surprisingly enjoyable; people we thought we would not like become friends. Fortunately, we are not tied to our initial experiences and views. This is not captured by an insistence that the directive must be followed. Dworkin would, maybe, reply that it is one thing for a person to choose to change their critical interests (for example if a person drops their religion) but another if a person loses their connection to their interests through an illness (for example dementia). Margo never chose to abandon her critical interests. But this puts too much weight on the intellect. Many major changes in life are not chosen, but happen to us. The faith that once burned brightly suddenly dies out; the love that was once fierce vanishes; the joy that marked a life is snuffed out by a tragic event. In all such cases there are changes to a person’s critical interests, but not by choice. Indeed, we might imagine someone bewailing their loss of faith. And that is human life: our values, circumstances and interests change. Sometimes through choice and sometimes not. To imagine our ‘critical interests’ are always chosen is to misunderstand human nature.

  Moody-Adams, M. (1990) ‘On the old saw that character is destiny’ in O. Flanegan and A. Rorty (eds) Identity, Character and Morality, Princeton: MIT Press, 12. 60   Dresser, R. (1994) ‘Missing persons: legal perceptions of incompetent patients’, Rutgers Law Review, 46: 609–71, 633. 59

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We should, therefore, value the current pleasures that Margo has. They may not be high minded or of intellectual value, or even ‘chosen’, but not many of things that are important to us are. Jaworska61 argues: the caregiver  … is faced with a person – or if not a fully constituted person, at least a conscious being capable of pleasure and pain – who, here and now, makes a claim on the caregiver to fulfil her needs and desires; why ignore these needs and desires in the name of values that are now extinct? This then leads to a wider point. The views of those lacking capacity do deserve respect, but that is not because of the principle of autonomy. As argued above, those lacking capacity cannot exercise autonomy. But there are other good reasons for respecting the views of those lacking capacity. There is the very practical point that giving treatment to a patient which they oppose may well not be clinically effective. Many treatments require the cooperation of the patient if they are to work. In cases of forced treatment, the physical and emotional harm to the patient and those administering the treatment may outweigh its benefits. We might also say that treating a person against their wishes fails to respect their rights to dignity and liberty, which are not dependent on capacity. We should not assume that only intellectuals deserve respect or value. We engage in the world with not just intellect, but also emotion, sense and instinct. Indeed, many of the most important decisions that we make are not the product of rational consideration, but of other emotions. Those with the most profound impairments can still demonstrate emotions of great value such as tenderness, joy or empathy. They are no less to be valued because they lack a rational basis.62 Most important human relationships survive a loss of capacity. Hilde Lindemann63 explains why she wants her family and friends to make decisions about her if she loses capacity. She explains: It wouldn’t matter very much if they didn’t do it my way. What would matter enormously was that they were abiding with me, holding me in my identity as mother, partner, friend, taking

  Jaworska, A. (1998) ‘Respecting the margins of agency: Alzheimer’s patients and the capacity to value’, Philosophy and Public Affairs, 105–38, 137. 62  Ibid. 63   Lindemann, H. (2018) ‘Feminist approaches to advance decisions’ in P. Garavaso (ed.) The Bloomsbury Companion to Analytic Philosophy, London: Bloomsbury, 423–37, 436. 61

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care of me. What would matter is that they – and I – were exercising my agency this one final time. She trusts her family or friends to listen to her and take her values into account, but the most important thing is it would be a decision made as part of their caring relationship.

Compromise views As between those who would give advance directives full effect and those who would give them no effect a compromise seems the sensible way ahead.64 On the central policy to adopt, it seems that both camps are too extreme. Dresser’s refusal to pay any regard to advance directives or the views of the competent person appears too strong. The case of Ahsan v University Hospitals Leicester NHS Trust65 is compelling. There a dispute arose whether a devout Muslim woman who now lacked capacity should be treated in a hospital which would treat her in line with her faith. Hegarty J thought it was obvious that she should: I do not think for one moment that a reasonable member of the public would consider that the religious beliefs of an individual and her family should simply be disregarded in deciding how she should be cared for in the unhappy event of supervening mental capacity. On the contrary, I would have thought that most reasonable people would expect, in the event of some catastrophe of that kind, that they would be cared for, as far as practicable, in such a way as to ensure that they were treated with due regard for their personal dignity and with proper respect for their religious beliefs. On the other hand, I am not convinced by Dworkin’s view that we should comply with an advance directive in relation to a critical interest, regardless of the pain it will cause the individual. As argued above, the current wishes and feelings of a person without capacity deserve respect, even if they are not the product of rational thought. One solution has

 Maclean, A. (2008) ‘Advance directives and the rocky waters of anticipatory decision-making’, Medical Law Review, 17: 1–28; Herring, J. (2009) ‘Losing it? Losing what? The law and dementia’, Child and Family Law Quarterly, 21: 3–29. 65   [2006] EWHC 2624. 64

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been proposed by Alasdair Maclean.66 He recommends following a clear advance directive unless the result would cause significant harm, pain or terror to the patient. My view would be similar to that, but with greater respect for following the views and feelings of the incompetent person. I would follow the current wishes of the individual unless those would cause the patient serious harm. Where the current individual does not have strong views or the proposal is not clearly helpful, then an advance directive can be used to determine how the patient is treated.67

Conclusions In this chapter we have explored the issues around the principle of autonomy. The paramountcy of autonomy has been challenged. Most people lack the necessarily information, authenticity and freedom to have the kind of capacity needed to make an autonomous decision, certainly of the kind which, if respected, would cause significant harm. It has been argued above that we exaggerate our capacities in claiming that autonomy justifies attaching strong moral weight to our decisions. Second, the elevation of the importance of rationality is seen in the way dementia is discussed in the literature. We need to acknowledge that with old age comes brain ageing, which affects us all in different ways. The social narrative of dementia, and particularly Alzheimer’s disease, as a horrific, terrifying disease which is widely feared has meant that the truth that brain deterioration is extremely common in old age and is a natural part of ageing has been lost. We need to find a way of valuing and treasuring the natural progression of old age, just as we value the earliest stages of life. The ageing of the brain will affect nearly all of us and needs to be regarded as part of being human, rather than a humiliating disease. Just because a person lacks capacity and is unable to make decisions does not mean that they lack rights or interests. Even if the views and desires of the incapacitated person are not the result of a rational decision, respect due to them as people requires us to give them weight. While rational decisions are worthy of legal respect and attention, so too should be our values, feelings, emotions and the other aspects of our humanity. Those with dementia may have lost the full power of rational thought; that does not mean they have lost the ability to feel, care or value. The emphasis  Maclean, A. (2008) ‘Advance directives and the rocky waters of anticipatory decision-making’, Medical Law Review, 17: 1–28. 67   Herring, J. (2009) ‘Losing it? Losing what? The law and dementia’, Child and Family Law Quarterly, 21: 3–29. 66

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on rational thought is reflected in the way that assessments of capacity are made. These tend to be cognitivistic and rationalistic. Matters such as emotion, personal identity and narrative are not included as ways in which decisions can be reached. It is only a failure to value our non-rational humanity that can lead to an assumption that those lacking capacity have ‘nothing to tell us’. We need to pay much more attention to the lived experiences of those with dementia and find ways of appreciating and respecting their views, emotions and humanity. We have also seen that people with questionable capacity are assessed and treated in isolation, and not seen as relational people, in mutually interdependent relationships. An assessment of capacity should be of an individual located within their network of family, friends and caregivers. Instead, the assessment is made of the individual sitting alone in a doctor’s office. Few of us in fact make important decisions on our own and without consultation and discussion with those around us. At least part of the assessment of capacity should be the extent to which the person within their support group of family and/or friends is able to make choices. Further, when decisions need to be made for a person of doubtful capacity, decisions should be made within the person’s relational context.

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10

Conclusion In this concluding chapter I will draw together some of the major themes of this book.

The life course The basic concept of the life course, with its trajectory through childhood, adulthood and old age, is familiar to most people. Yet the assumptions behind these different stages of life are often taken for granted. As discussed in Chapter 4, childhood is often seen as a time of vulnerability and lack of capacity. This is reflected, and reinforced, by the legal regime which sets in place a wide-ranging set of protections from harm, particularly in the area of sexual relations, and gives parents the authority to make decisions on behalf of children. Similarly, old age is commonly presented as a time of rest from employment and of declining capacities. Until recently this was reinforced by the state retirement age. However, the standard vision of the life course is under increasing strain, from a range of sources. One powerful factor is individualism. This is the idea that people should shape their own life course. They should not be bound by expectations about how people are meant to structure their lives. Hence, the long-standing expectation that children should only be born to married couples is now honoured as much in the breach as the observance. Whether you marry your partner or not is seen as a matter of choice, and few couples will feel enormous social pressure to do so. Older people are encouraged to fight against ageing and live an active old age. Few people nowadays feel they must live in a particular way because it is the ‘done thing’. Indeed, many people might slightly look down on a person who has followed a traditional trajectory of education, employment, marriage, parenthood and retirement: they

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have followed the pre-set route, rather than developing their own version of the good life. It would certainly be easy to find examples of the blurring of the lines between adults and children. Much of the literature on the ‘crisis of childhood’ is about children being seen to be engaging in behaviours which ‘should be left to adulthood’: sexual relations, viewing pornography or extreme dieting, for example. At the same time there are concerns about ‘kidults’, adults who behave as children and do not take on the expected behaviour of adults. Similarly, in old age, the media presentation of the ‘active old’ engaging in extreme sports and attending music festivals, reliving their youth, challenges assumptions about how older people should live. It would, however, be wrong to exaggerate the significance of individualism. It supposes a degree of agency and choice over lifestyle that few people have. True, a 40-year-old has the freedom to go off to university and study for a degree, but not many have the financial resources to do so. Indeed, for many people the life journey is marked by a sense of obligation, rather than autonomy and freedom. In particular, the care work undertaken primarily by women, caring for children and adults with impairments, means the language of autonomy does not ring true. People do not get to write their life story in whichever way they wish, rather they meet the obligations that come with living in relationships and with responsibilities. Life is chaotic, messy, disordered.

The individualized norm As argued in Chapter 5, the legal system seems designed around an ideal of the self-sufficient, autonomous, privileged man. The primary rights that are given in law are designed to protect freedom. The rights of liberty, autonomy and privacy keep others away and so protect the ideal. The law is reluctant to impose obligations on people, unless they have chosen to take these on. Contract law is designed to privilege the hard negotiator who is in the more powerful position. Woe betide the person who is too busy, illiterate or exhausted to read all the small print in the contract they sign. All power to the person who can afford the best lawyers to draft the most complex contract. This image of the norm for human being is, however, a fiction. The reality is that we are all vulnerable, relational and caring people. We live in and through our relationships with others, not glorified in our isolation. We cannot separate out our own interests from those we love and care for. A harm to our loved ones is a harm to us. The moments of joy in

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life are not found in our self-sufficiency, but in our interactions with others: the touch of a lover; the laugh of a friend; and the giggle of a baby. In promoting autonomy, self-interest and an individualized understanding of welfare, we might boost our country’s GDP, but we would not help lives to flourish. It is not surprising, then, that the legal system does not seem to work well for older people or children, and that therefore they need special regulations and provisions for their protection. That is normally explained on the basis that children are too immature for ‘adult law’ and that older people are ‘vulnerable’ and need especial protections. But the problem does not lie with the young or the old, but with our understanding of middle age: our assumption that middle age is the time of autonomy and self-sufficiency. In Chapter 5 it was argued that we need a different law. One which sees the promotion of good relationships as the primary goal of the law. One which acknowledges our universal vulnerability and the need to work together to deal with the challenges we all face. One which sees caring relationships as being the most important activity in life. Such a law would work well for children and older people – and for ‘adults’ too. Indeed, in constructing such a law we could break down the divisions erected over the legal regulation of children and adults. Once we recognize that adults are as vulnerable, ignorant, playful, foolish and impulsive as children there is no need for a different legal regime.

Over-intellectualism One of the themes of this book has been how the law – and, particularly, academic lawyers – has over-privileged intellectual capacity. Children are criticized for lacking the rationality and intellectual skills required for adult rights. The lowly status of fetuses is explained on the basis that they cannot engage intellectual self-awareness, as shown in Chapter 3. Those with dementia or other impairments of rationality are seen as lacking mental capacity, as discussed in Chapter 9. This, I have argued, has the danger of elevating our intellectual way of engaging with the world over our emotional, physical and relational ways. As seen in the discussion of dementia in Chapter 9, lawyers tend to dismiss the significance of feelings and views which are not the product of rational thought, and elevate the perspectives of those who think like academic philosophers. But we are so much more than our thoughts. Falling in love; the joy of seeing the snowdrop in spring; wondering at the vastness of space – these are not rational, but they are valuable and important.

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Time and the law Legal disputes in their nature limit the kind of factors that can be taken into account. Certain kinds of arguments will not be considered by courts. Certain matters are not susceptible to proof in a courtroom and so cannot be considered. One aspect of this is that when the courts consider a person’s rights or interests, these tend to be focused on the alleged incident at the centre of the court hearing. For example, in a criminal case the focus will be on whether or not A punched B on 21 April at 3 pm outside the King’s Arms. The wider issues about the history of the relationship between the parties or what has happened since will not be relevant to the criminal case, except in certain very defined circumstances (for example, if it is alleged that A was acting in self-defence, believing B was about to punch them). However, one of the messages from life course theory is that decisions made at one stage of a person’s life can have powerful impacts on another stage. This can cause a clash between the interests of the person that they are now and the interests of the person they are to become. As we saw in the discussion on mental capacity cases in Chapter 9, some cases involve different versions of the self. Do we listen to the views of the person before they became depressed? Do we listen to the views of the person currently depressed? Do we seek to ascertain what the views of the person in the future would be if treatment is provided? They may all tell us different things. The person in the past may hope for treatment if they become depressed. The currently depressed person may not believe treatment will help and may oppose treatment or seek death. The person in the future may be glad treatment was given, contrary to their wishes at the time. If we want to respect autonomy, which self do we listen to? I think that, here, life course theory can offer some insight. Looking at the trajectory and nature of a person’s life story we can determine what values have governed their life generally, even if the person does not associate with them now. We can look at what will make their life go well, not just now, but in the future. Similar issues can arise when we consider children. Do we favour the interests of the current child or the adult that child will become? Much of the writing on children has emphasized the importance of raising children to become successful adults. But that is often premised on a particular image of what a successful adult is: one who is self-sufficient, rational, and capable of economic productivity. Indeed, perhaps, rather than we adults seeking to mould children to match our expectations, we should be learning from them. Maybe we should seek to be adults who will wonder, be affectionate and act spontaneously.

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Real life It is often assumed to be in the nature of law that it categorizes and uses abstract rules to regulate human behaviour. So, it might seem natural that the law finds some appeal with the image of the life course. We can parcel up the stages of life and set out rules that govern it. However, life is never that simple and we so often get our categories wrong: they can reflect prejudices or the exercise of power. We like to think that parents look after children, but children look after their parents just as much. We see children as vulnerable and in need of protection, but parents are vulnerable and in need of protection too. We imagine people with dementia to be a drain on resources, and living with dementia to be a tragedy, thereby missing out on what dementia has to teach us about living. Perhaps one of the most useful things about the life course theory approach is that it provides targets to resist and challenge. To dance in our dotage; to philosophize in our infancy; and to rebel in our middle age. To find wisdom where society and the law tell us it will not be found; to find joy in the stages of life the law tells us are the least desirable; to be angry about the things that are taken for granted. All that can be done when we realize that our life stories are not ours to write alone. For life is a swirling, spontaneous, wild dance with others, not a finely honed script.

269

Index References to footnotes are given as the page number followed by the note number (e.g. 50n17)

A

age

abortion 45–6 and miscarriage 69–70 prevention by fathers 49 and ultrasound images 63–4, 65–6 abuse children 86, 94–5 domestic abuse 145–8 elder abuse 162–9 Academy of Medical Royal Colleges 175, 176 Action for Children survey 78 active ageing 155–7 Adams, J. 219 adolescence 8, 16, 33, 90 adoption 211 adult man, legal norm of see legal norm of the adult man adulthood 125–48 challenges to legal norm 132–42 domestic abuse 145–8 impact of the new norm 142–3 infantilization of adults 43, 77–8, 266 infertility 143–5 legal norm of the adult man 128–32, 266–7 sociology of 126–8 adultification of children 77–8, 266 advance directives 252–63 arguments against 257–62 arguments in favour of 255–7 compromise views 262–3 and the law 253–5

choosing your own 25–7 concept of 19–27 different kinds of 26 and individualism 20–7 as social construction 19–20 use of in law 41–2, 119–23 age discrimination see ageism ageing 3–4, 23, 155–7 see also age; ageism; old age ageism 4 age discrimination 26, 158–62, 169 age hate crime 168 choosing your own age 25–7 concept of 39–40 and elder abuse 165–8 in old age 154, 156, 158–62, 165–9 Alderson, P. 91 Allard, S. 136–7 Anderson, E. 130–1, 132–3 Andrews, M. 150, 151–2 Archard, D. 91–2, 94–5 Archer, M. 32–3 Ariès, P. 80 Aristotle 101, 103 aspiration 102 assessing capacity to make decisions 246–52 ability to use information 249–51 legal test 246–8 problems with courts’ approach 248–9 risk-relative capacity 251–2

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assisted dying 184–200 and autonomy 186–97 capacity to consent 191–4 and the law 185–94 negative vs positive rights 194–7 and pressurization 187–91 sanctity of life and dignity 197–200 assisted reproductive treatment 144–5 associative duties 204 authenticity 244, 245, 250–1 autonomy advance directives 252–63 assessing capacity to make decisions 246–52 and assisted dying 186–97 and bad decisions 238–9 best desire autonomy 240 case against autonomy rights for children 89–92, 239 case for full autonomy rights for children 92–9 and children 88–99, 112–13 and competing decisions 240–1 concept of 88–9, 233–5 continuum of capacity 252 current desire autonomy 240 extent of legal respect for 238–46 full autonomy 243–6 and highest moral status (personhood) 61, 62, 63 ideal desire autonomy 240 and interdependent responsibility 96 and interest theory of rights 116 and the law 235–6 and legal test of capacity 246–52 and mental capacity 236–8 negative vs positive rights 194 relational autonomy 241–3 and vulnerability 95–6, 235–6 Ayalon, L. 39, 40

B Baier, A. 140 Bainham, A. 217 Baker J 247, 248

Baker P 47 Balmer, N. 226 Ban Ki-moon 150 Barken, R. 154 Bauman, Z. 20 Beck-Gernsheim, E. 20, 21 Beck, U. 20, 21, 127n9 Bendavid, J. 69 Berlin, I. 234 Bernstein, A. 227 best desire autonomy 240 best interests 7–8, 14 and advance directives 259, 260 and autonomy 233–4, 236, 237, 241–2, 250 of children 7–8, 14, 86–7, 100–1, 117, 123 Bidadanure, J. 37 Bielby, P. 137 Biggs, S. 165 biological age 25, 26, 27 biological changes 15–16 birth, and highest moral status (personhood) 57–8 Blaikie, A. 156 Blatterer, H. 126n1, 127 blood ties 205, 207–8 Boyd, S. 224–5 brainstem death 173–4, 175–7 Brake, E. 223 Brennan, S. 104, 107, 109n110 Brighouse, H. 105, 218, 219 bright-line approach 41, 57, 58, 120–1 British Social Attitudes Survey 29 Buchmann, M. 24–5 Buckingham, D. 77 Burin, A. 57 Byers, P. 256, 257

C Calasanti, T. 159 Campbell, Menzies 39 canalization 24–5 Cantor, N. 257 cardiac function, and death 178–9 care homes, elder abuse 166

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INDEX

caring relationships 23, 24, 56, 59, 60, 96, 138–9, 143, 228–32 see also family law; relationships caring self 138–9, 143 Carse, A. 138 Cassidy, C. 93 Catholic Encyclopaedia, The 180 causation model of parenthood 214 certainty in law 6–7 Chambers, C. 224 child-centred parenting 216–18 child liberation arguments 92–9 moderate views 96–9 modern 95–6 traditional 93–5 child welfare model of parenthood 211, 212–13 childhood 73–124, 268 and autonomy 88–99, 112–13 best interests 7–8, 14, 86–7, 100–1, 117, 123 case against autonomy rights 89–92, 239 case for full autonomy rights 92–9 child as developing adult 74–6, 103–4 child-centred parenting 216–18 children’s rights 111–18 citizenship rights 88 and consent 84–5, 93, 119, 120–3 crisis of 77–9, 266 definition of 81 distinguished from adulthood 79–80 and gender 83 goods of 103–8, 116–17 harms of 78, 84, 86, 108–11, 116–17 impact on later life 13–14 legal protection 84–6, 112–13 legal responses to 83–8 and mental health 79 models of 74–83 paramountcy principle 86–7 right to services 87–8 shaping of by the law 6–7 social construction of 19, 80–3 as time of purity 76–7 transition to adulthood 18

and use of age in law 119–23 and vulnerability 85–6, 95–6, 106, 110 welfare of children 86–7, 99–111, 112–13 see also family law; parents/ parenthood children’s autonomy principle 96–7 children’s rights 111–18 basis for 115–16 critics of 118 functions of 111–12 models of 113–14 rights versus welfare debate 112–13 special rights 116–17 and United Nations 81, 87, 117 choice, and age 20–7 choice theory of rights 115–16 Chonody, J. 158–9 chronological age 25, 26 citizenship rights of children 88 civil partnerships 226–7 Cobb J 249 Code, L. 131–2 Code of Practice for the Diagnosis and Confirmation of Death 175, 176 Coggon, J. 240 cognitive ability/function in childhood 76, 82, 89–91, 92, 108–10, 111 and highest moral status (personhood) 52–3, 55, 56, 57, 58, 60, 61–3 of legal norm of the adult man 130–2 over-intellectualism 267 and true autonomy 243–6 see also advance directives; autonomy; mental capacity cognitive bias 244 cohabitation 225–7 cohort fairness 33–6 Colby, A. 2 Commission on Assisted Dying 187n49, 188 Committee on the Rights of Persons with Disabilities (UN) 237 community interest approach 199–200 Conly, S. 239, 243–4

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consciousness, and death 176, 177–8 consent age of 119, 120–1 and assisted dying 191–4 and children 84–5, 93, 119, 120–3 and medical treatment 116, 121–3, 185–6, 235–6, 245–55, 258, 261, 268 to sex 78, 84–5, 93, 119, 120, 121 see also advance directives; mental capacity constructionism see social constructions consumerism 78 control of life trajectory 14–15, 21–3 Covenant on Economic Social and Cultural Rights (ICESCR) (UN) 159–60 Cowley, C. 155 Craigie, J. 250, 251 Crary, A. 62 Crawford, C. 226 critical interests 195, 196 and advance directives 255–6, 259–60, 262 Critical Race Life Course Perspective 30 Crosnoe, R. 13 current desire autonomy 240 Cusk, R. 219–20

D Daily Express 145 Daly, A. 88–9, 90, 96–7 Daniels, N. 36 Danish Council of Ethics 179 De Beaufort, I. 253n41 De Beauvoir, S. 151–2, 155 death 171–200 advance directives 252–63 alternative understandings of 175–83 assisted dying 184–200 brainstem death 173–4, 175–7 and cardiac function 178–9 choosing between definitions 182–3 choosing your own definition 182 defining 171–3, 174, 175–83 desoulment 180

end of consciousness 177–8 end of the organism 179–80 and the law 173–5, 184–200 as a process 181 sociology of 183 dementia and advance directives 254–8 social narrative of 263–4 desoulment 180 developmental approach to childhood 74–6, 82, 103–4 developmental interests 97–8 diagnostic test of capacity 247 DiAquoi, R.C. 30 dignity 197–200 direct discrimination 160 disability and life course 30–2 see also advance directives; assisted dying; mental capacity discrimination and children 94 direct and indirect 160 and disability 30–2 and gender 27–9, 161, 166, 167 and race 29–30 see also ageism displaying families 205 divorce, and financial orders 230 doctors see medical profession Dodds, S. 142 domestic abuse 145–8 Down’s Syndrome 53, 63 Dresser, R. 256, 259, 260, 262 Duden, B. 64 Durkheim, E. 183 Dworkin, R. 195, 199, 234, 253, 255–6, 260, 262

E Eekelaar, J. 97–9, 113, 226–7, 239 Eichner, M. 229 elder abuse 162–9 and ageism 166–7 defining 164–7 legal responses to 167–9 prevalence of 163–4

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Elder, G. 10, 13 embryos 46 emotional age 25, 26, 27 employment age discrimination 158, 160, 161–2 and gender 27, 28, 35 and race 29–30 retirement age 5, 154–5, 161–2 Engelhardt, T. 177 epigenetics 68 equality/inequality and age relations 154 and children 94, 216 and disability 30–2 equality before the law 41 in family law 229–30 and gender 27–9, 161, 230–1 and highest moral status (personhood) 51, 53, 54, 55, 58, 60–1 and housework and childcare 230–1 and intergenerational justice 33–8 of opportunity 102 and race 29–30 and sanctity of life 197–8 social inequalities 147 see also ageism; discrimination; women Equality and Human Rights Commission 28 Equality Office 94 European Parliamentary Assembly Committee on Legal Affairs and Human Rights 193 euthanasia see assisted dying experiential interests 255–6 explicit legal regulation 5

F family law 201–32 blood tie 205, 207–8 and caring 229–31 causation model of parenthood 214 child-centred parenting 216–18 definition of family 202–9 families and the life course 201–9 and family status 222–31 genetics and parenthood 210–11

intended family model 208–9 intentional parent model 213–14 labour-based model of parenthood 211–12 legal definition of family 209 marriage 222–31 parental rights and responsibilities 215–22 parental status 210–15 parental vulnerability 219–22 rethinking marriage 228–31 and social relationship model 203–7 and state neutrality and autonomy 223–5 traditionalist view of marriage 225–8 see also childhood fathers/fatherhood 49, 205–6, 215, 231 see also parents/parenthood Feder Kittay, E. 54, 55, 56, 60, 62, 138–9, 140–1 feminism and differences between men and women 79–80 and domestic abuse 146 and men’s autonomy 24 and miscarriages 69–70 and relational autonomy 242 and the self 131, 132 see also women Ferguson, L. 99, 113 Fetal Alcohol Spectrum Disorder (FASD) 48–9 Fetterolf, J. 231 fetus 45–72 and abortion 45–6, 49, 63–4, 64–6 applying highest moral status approaches 57–9 biology of 46 debate about status 60–3 highest moral status (personhood) 50–63 human community approach 54–5, 57 legal status of 47–50 and maternal-fetal conflict 66–8

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fetus (continued) mental capabilities and moral status 52–3 and miscarriage 68–71 nature of personhood 50–1 relationality 56 stillbirths 70–1 and ultrasound images 63–6 Finch, J. 205 Fineman, M. 133, 135, 136–7, 142–3, 223–4 Fitzgerald, G. 166–7 foetus see fetus Fortin, J. 115n122 Foster, C. 100, 101, 234n2 Freeman, M. 98 friendships, in family law 201, 203–4, 209 functional test of capacity 247 Furedi, F. 220–1

G Galla-speaking tribe of N.E Africa 18 Gardiner, D. 176 Geertz, C. 132 gender and childcare 230–1 and childhood 83 and discrimination 27–9, 161, 166, 167 elder abuse 166–7 and housework 230–1 and legal norm 131, 132–3 and life course 27–9 self, nature of 131 see also women gender gap 28 generation fairness 33 genetics, and family law 202–3, 207–8, 210–11 George, R. 198 Gheaus, A. 103–5, 106–7, 203n4 Giddens, A. 20, 21, 32–3 Gilleard, C. 157 Gilligan, C. 75 Gilmore, S. 122–3

Gilson, E. 137 good life, concept of 62, 88, 100, 101 Goodman, A. 225–6 goods of childhood 103–8, 116–17 Gopnik, A. 75–6, 82 Gosseries, A. 161 Grear, A. 136 Greasley, K. 57, 58, 189, 195, 196 Greaves, E. 225–6 Green, L. 75 Guardian, The 145 Gullette, M. 4

H Hale, Lady/Baroness 49, 118, 193–4, 199, 230 Hammersley, M. 79–80 Hannan, S. 106, 107, 110 Harman, Harriet 94 harms of childhood 78, 84, 86, 108–11, 116–17 Harris, J. 190 Hart, H.L.A. 115 Haslanger, S. 28–9 hate crimes 168 Hayden J 173–4 Hayward, K. 43 Heckhausen, J. 24–5 Hegarty J 262 Hendricks, J. 3, 23 highest moral status (personhood) 50–63 applying the approaches 57–9 and autonomy 61, 62, 63 concept of 50–1 gradualist view 57–8 human community approach 54–5, 57, 60 and human equality 60–1 mental capabilities and moral status 52–3, 57, 60, 61–3 and moment of birth 57, 58 and relationality 56, 58–9, 60, 70 and virtue 62–3 Hill, J. 213 Hoffmann LJ 198–9 Holm, S. 184

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INDEX

Holt, J. 93 Horta, O. 52 House of Commons, Select Committee on Intergenerational Fairness and Provision 33–4 housework 230–1 Howse, K. 157 human community approach to personhood 54–5, 57, 60 Hunt, S. 10, 14, 16, 18, 30 Hursthouse, R. 212 hyper-parenting 220, 221

intended family model 208–9 intentional parent model 213–14 interdependent responsibility 96 interest theory of rights 116 intergenerational fairness 33–8, 162 and compensating benefits 34–5 definition of 33–4 and whole lives view 35–8 interrelation between lives 14 interrelationship between life stages 13–14 intimacy 165, 206 intrinsic dignity 197–8

I ideal desire autonomy 240 identity and advance directives 257–8, 261–2 and authenticity 244, 245, 250–1 and children 109 and family 201–2 and gender 28, 83 and individual choice 20–1 and life course perspective 10–11, 32–3, 42–3 see also self, nature of imagination and play 106–7 impaired reasoning (children) 108–9 implicit legal regulation 5 in vitro fertilization (IVF) 144, 214 indirect discrimination 160 individual choice, and age 20–7 individual model of disability 30–1, 31–2 individualism 20–7, 127, 265, 266 and age 20–7 and the family status 208–9, 216, 223 vs interdependent responsibility 96 and maternal-fetal conflict 66 and own definition of death 182 see also self, nature of inequality see equality/inequality infantilization of adults 43, 77–8, 266 infertility 143–5 innocence (of childhood) 76–7, 105 institutionalized life course 11, 21–2 intellectual capabilities see cognitive ability/function

J Jackson J 249 Jackson, S. 77 James, Adrian 82 James, Allison 82 Jamieson, L. 206 Janssen, S. 43 Jaworska, A. 261 Jensen, A. 216

K Kaczor, C. 198 Kant, I. 62, 63, 109, 130, 132 Karpin, I. 68 Katz, S. 20 Keith, Lord 173 Keown, J. 238–9 King, N. 159 Kirkpatrick Johnson, M. 13 Kirkwood, T. 151 Kohlberg test for moral development 75 Kohli, M. 11, 21–2 Kuhse, H. 53

L labour-based model of parenthood 211–12 Lang, F. 202 Layne, L. 69–70 Lee, N. 127–8 legal age 25–6

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legal norm of the adult man 128–32, 266–7 challenges to 132–42 impact of the new norm 142–3 legal norms (general) 5 Leopardi 3 Lev, S. 40 Levy, S. 158 life course theory 2–3, 9–43, 265–6 age and the law 41–2 broad themes 12–15 and choice 20–7 and concept of age 19–27 critique of the approach 42–3 defining 9–12 and disability 30–2 and gender 27–9 and identity 32–3 and intergenerational fairness 33–8 and the law 4–5 life stages 15–19 and mental capacity 250–1 and race 29–30 and real life 269 time and the law 268 life expectancy 151 life stages 15–19 Lindemann, H. 261–2 Little, M. 67 living wills see advance directives Lizza, J. 178 Lomasky, L. 108 Lowe, S. 128

M MacDonald J 122 Macdonald, J. 158 MacIntyre, A. 38, 157 Mackenzie, C. 242, 244–5, 250–1 MacKinnon, C. 147 Maclean, A. 263 Maclean, M. 227 Macleod, C.M. 107, 111–12 Macmillan, R. 18–19 Macnicol, J. 154 Madden Dempsey, M. 146–7

marriage 222–31 different meanings of 223–4 and life course theory 12 rethinking 228–31 same-sex marriage 224–5 special privileges of 222 and state neutrality and autonomy 223–5 traditionalist view 225–8 maternal-fetal conflict 66–8 Matthews, G. 82, 90 maturity 90–1, 121 McCall Smith, A. 217 McKee, L. 216 McKerlie, D. 36 McLanahan, S. 219 McMahan, J. 52, 54, 55, 178, 180, 256, 257 McMath, Jahi 172–3 McQuillan, J. 144 media and ageism 39 career vs motherhood debate 145 and definition of death 172 portrayal of childhood 73, 86 portrayal of old age 39, 158, 266 medical profession and assisted dying 185–6, 192–3 and consent of children 121–3 and definition of death 173–6, 181, 182–3 see also medical treatment medical treatment advance directives 252–63 and assisted dying 185–6, 192–3 children’s consent to 121–3 consent/refusal 116, 121–3, 185–6, 235–6, 245–55, 258, 261, 268 decision-making capacity 268 legal test of decision-making capacity 246–8, 249–52 in pregnancy 67 mental capabilities and moral status 52–3, 57, 58, 60, 61–3 see also cognitive ability/function; mental capacity

278

INDEX

mental capacity 233–64 advance directives 252–63 assessing capacity 246–52 and autonomy 236–8 and bad decisions 238–9 challenges to autonomy 238–46 and competing decisions 240–1 continuum of capacity 252 full autonomy 243–6 legal test of 246–52 life course perspective 250–1 relational autonomy 241–3 risk-relative capacity 251–2 see also autonomy mental health, of children 79 Meyer, A. 85–6 Meyers, D. 130–1, 132–3 Miles, J. 226 miscarriage 48, 68–71 Miscarriage Association 68, 71 Mitchell, D. 149 modern child liberation 92, 95–6 Moen, T. 81 moral agency of children 109–10 moral panics 20 moral status see highest moral status (personhood) Morgan, D. 205 mothers/motherhood cult of motherhood 69 impact of on career 231, 145 and infertility 144–5 labour-based approach to parental status 211–12 see also fetus; parents/parenthood; women Mullin, A. 69, 90 Munby LJ 100–2, 235–6 Mustill, Lord 47–8

N Naffine, N. 130 Nagel, T. 35 narrative unity 157 necessity defence (assisted dying) 191 negative autonomy 194

Neuberger, Lord 189 norms, legal 18–19 see also legal norm of the adult man Norozi, S. 81 Norris, Colin 163 Nussbaum, M. 66, 129

O old age 149–69 advance directives 252–63 and assisted dying 187–91 assumptions around ageing 153 biology of 151 elder abuse 162–9 portrayals of 149–50, 154–6, 158–9 right to 150–1 as social construction 154–5 sociology of 150–3 successful ageing 155–7 see also ageism organ transplants 172

P paramountcy principle 86–7, 263 parents/parenthood causation model 214 child-centred parenting 216–18 child welfare model 212–13 and genetics 210–11 infertility 143–5 intentional parent model 213–14 and labour-based model 211–12 parent-centred rights 217 parental rights and responsibilities 215–22 parental status 210–15 pathologization of 221 poor parenting 220–1 and vulnerability 219–22 see also childhood Parliamentary Assembly of the Council of Europe’s Committee on Equal Opportunities for Women and Men 147 paternalism 86, 187, 234, 246 pathologization of parenting 221

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LAW THROUGH THE LIFE COURSE

patriarchy 146–7, 224 Penner, E. 90 persistent vegetative state (PVS) 176, 177 personal life concept 206–7 personhood see highest moral status (personhood) Peter Jackson J 235 Pew Center study 231 Phillipson, C. 165 Pickles, C. 58–9 play (children) 106–7 pornography, impact of 78–9 positive autonomy 194, 196 poverty, and gender 27, 28 pre-birth see fetus pre-birth harm/injuries 48–9, 68 pregnancy see fetus Priestley, J.B. 152 Principle of Time and Place 13 pro-choice views 45–6, 49 pro-life views 45, 63–4 protection of children 84–6, 112–13 see also children’s rights prudential lifespan approach 36 psychological changes 15–16 Purdy, D. 187 purity, and childhood 76–7

R race and life course 29–30 Rachels, J. 52 Räsänen, J. 25–7 Ratelband, Emile 25 rationality see cognitive ability/function; mental capacity Raz, J. 186–7, 196 reasoning see cognitive ability/function; mental capacity reflexivity 32–3 Reinders, H. 139 relational autonomy 241–3 relationships caring relationships 23, 24, 56, 59, 60, 96, 138–9, 143, 228–32 and children 100–2, 106, 118, 217–18 and choice and control 23

domestic violence 145–7 elder abuse 162–9 and highest moral status (personhood) 56, 58–9, 60, 70 and individualized norm 266–7 and legal norm of the adult man 129, 130, 132–42 and life course perspective 10, 14, 23, 24, 38, 66 marriage 222–31 and mental capacity 241–3, 257–8, 261–2, 264 and pregnancy 46, 58–9, 64–6, 66–8, 70 relational autonomy 241–3 relational self 140–1 relationship-based welfare 217–18 see also family law; sexual relations relationship-based welfare 217–18 religion and advance directives 262 and child welfare 100–1 and childhood as time of purity 76–7 and death 174, 180, 182, 183 and marriage 224 sanctity of life 198 residential care, elder abuse 166 resilience 136–7, 143 retirement age 5, 154–5, 161–2 Ribar, D. 225 Richardson, G. 237 right to die see assisted dying rights 7–8 basis for 115–16 functions of 111–12 see also children’s rights; highest moral status (personhood) risk-relative capacity 251–2 rituals 17, 18 Robertson, J. 258 Roesch, R. 90 Rogers, W. 244–5, 250–1 Rose, N. 85 Rosenfeld, A. 220 Rothman, B. 67 Rousseau, J.-J. 74

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INDEX

Rubin, D. 43 Rudman, L. 231 rule of law 6–7 Russell, B. 152–3

S Saad, T. 27 same-sex marriage 224–5 sanctity of life 197–200 Sanger, C. 64, 65 Savulescu, J. 178 Scanlon, T. 54 Scarman, Lord 215–16 Scott, S. 77 Seglow, J. 204 self-determination 245 self-government 245 self, nature of and caring 138–9 challenges to legal norm 133–41 legal norm of the adult man 128–32 relational self 140–1 uniting human values 141–2 and vulnerability 133–8, 142–3 Settersen, R. 33 seven ages of man (Shakespeare) 17 sex discrimination/sexism 27–9, 161, 166, 167 sexual assault/abuse 84, 86, 147 sexual innocence 105 sexual relations consent to 78, 84–5, 93, 119, 120, 121 and marriage and parenthood 213, 224–5, 228–9 and pornography 78–9 Shakespeare, W. 17 Shewmon, D. 177 Singer, P. 53, 54 Slevin, K. 159 Slynn, Lord 209 Smart, C. 206–7, 224 Smith, M. 226 social conditioning 83 social constructions age as 19–20

childhood as 19, 80–3 old age as 154–5 social model of disability 31–2 social relationships see relationships sociological changes and life stages 15–16 sociology of adulthood 126–8 of death 183 of old age 150–3 soul, and death 180 speciesism 54 Speck Sullivan, L. 178 stereotypes 39–40 see also ageism; discrimination stillbirths 68, 70–1 Strathern, M. 140 successful ageing 3, 153–7 successful childhood 103, 108, 268 suicide see assisted dying Sulmasy, D. 197–8 Sumption, Lord 185–6, 187–9, 194–5 surrogacy 212, 213 Swift, A. 105, 218, 219

T terror management theory 40 Tesch-Römer, C. 39 Thomas, D. 184–5 time and the law 268 Todres, J. 103 Tomlin, P. 111 Toronto Declaration on the Global Prevention of Elder Abuse (WHO) 162 traditional child liberation 93–5 Trump, Donald 1 trust (as good of childhood) 105–6

U ultrasound images 63–6 UN Independent Expert on the Enjoyment of All Human Rights by Older Persons 159–60 Union of Physically Impaired Against Segregation 31

281

LAW THROUGH THE LIFE COURSE

United Nations and children’s rights 81, 87, 117 and mental capacity 236–8, 247–8 and old age 159–60 and persons with disabilities 236–8, 247–8 Universal Declaration of Human Rights (UDHR) 159 universal vulnerability, theory of 133–8, 141–3 and life stages 134–6 unwanted/wanted pregnancies 59, 70

V Veatch, R. 178 Vehmas, S. 61–2, 135 Velleman, D. 208 Viljoen, J. 90 virtue and children 101, 109–10 and intelligence 62–3 and old age 156–7 and welfare 100 vulnerability and autonomy 95–6, 235–6 of children 85–6, 95–6, 106, 110 goods of 138 and life stages 134–7 of parents 219–22 and resilience 136–7, 143 and role of institutions 142–3 universal vulnerability 133–8, 141–3 use of 137–8

W Wall, J. 96, 244, 245, 248, 252 Walter, T. 183 wanted/unwanted pregnancies 59, 70 Wareham, C. 156–7 welfare of children 86–7, 99–113 child-centred parenting 216–18 and children’s rights 112–13 concept of welfare 100–2 goods of childhood 103–8 harms of childhood 108–11 paramountcy principle 86–7 and parents’ marital status 226

relationship-based welfare 217–18 rights vs welfare debate 112–13 West, D. 77–8 Westlund, A. 242–3 Whitehead, K. 145 Wild, J. 79 Wildemann Kane, L. 139 will theory of rights 115–16 Willett, C., 130–1, 132–3 Williams, Rowan 77 Winance, M. 32 Wise, N. 220 Witt, C. 208n18 women and ageism 159 career vs motherhood debate 145 changing attitudes towards 29 and childcare 230–1 and children’s rights 118 domestic abuse 146–8 elder abuse 166–7 and employment 27, 28, 35 and housework 230–1 impact of pornography on 78–9 and infertility 144–5 and intergenerational justice 35, 37 and labour-based model of parenthood 211–12 and legal norms 131, 132–3 and life course theory 27–9 and men’s autonomy 24 and patriarchy 146–7, 224 and poverty 27, 28 and relational autonomy 242 retirement age of 161 and self, nature of 131–2 see also fetus; parents/parenthood World Health Organization (WHO) active ageing 156 ageism 158 elder abuse 162, 165 life course theory 9 Wurm, S. 40

Y, Z Young, I. 66 Zaidi, A. 157

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