by Stephen Gilmore, Jonathan Herring and Rebecca Probert (eds.). Oxford: Hart Publishing, 2011. 330pp. Cloth $120.00/£60.00. ISBN-13: 978-1849461016. Reviewed by Robert Dingwall, Dingwall Enterprises, Nottingham, UK robert.dingwall [at] ntlworld.com.
pp.375-376
I should begin this review by apologizing to editors, authors and publishers for the unintended delays. I have experienced two bouts of health problems which prevented me sitting in front of a PC for any length of time. To compound the problem, my review copy was inside a briefcase that was stolen from a tapas bar in London recently. It brightened the day of the police officer who took the report to think that the thief had got a book on family law by a man called Herring (the only name I could recall on the spot) plus a few papers for review rather than the laptop he might have expected (I know it was ‘he’ because the bar had a good CCTV image). Fortunately, I had a reasonable set of notes stored separately. It was particularly irritating though, because I could see this as a book that I would keep wanting to refer to, or to encourage students to read. I am not saying that most books for review are read once and forgotten, but some do sit on the shelf unless there is a very specific reason to take them down, while others have an obvious and immediate use.
Landmark Cases is edited by three leading members of what I used to think of as the rising generation of English family lawyers but should probably now consider the new establishment! It is made up of thirteen chapters, each of which discusses a key case in family law, locating it within the specific historical context when the judgement was made and discussing subsequent developments in the specific field. Most of these cases deal with some aspect of divorce, but there are also leading cases on recognition of transsexuals, child welfare, children’s rights and marital rape. The contributing authors read like a who’s who of English family law scholars. The book, then, combines imagination and authority in its presentation and analysis. The contextualization of the legal analysis is a particular strength: while not a fully socio-legal approach, the chapters give as much weight to the policy implications of these decisions as to their legal consistency and demonstrate how they do indeed represent turning points in the relationship between law and families.
The main limitation of this book is the focus on cases, which are less specific drivers in family law – other than divorce – than in some of the other areas covered by the publisher’s series. This means that there is no place to discuss the successful British compromise on abortion, which came about through legislative action, or developments in child protection which were, again, legislative innovations driven by public inquiries into child deaths rather than by judicial decisions. The first of these could have been hung around R v Bourne [1938] where a gynaecologist was acquitted in a case involving the termination of pregnancy in a 14-year old girl who had been raped by five soldiers. This, however, was a criminal prosecution and technically outside the book’s scope. The Children Act [1989], however, owed only a limited amount to cases like J v C [1970], which is discussed by Nigel Lowe as a leading decision on the priority to be given to children’s welfare. Moreover, the whole push to introduce mediation into divorce cases has been largely the product of processes that have had little legislative involvement, particularly direct lobbying of civil servants and ministers by interested professional groups seeking a market shelter for their work. A vision of Landmarks rather than Landmark Cases might have reminded readers that there are other routes to law reform than those led by judges.
Who is likely to benefit from this book? Family law scholars outside England will find this a valuable source for understanding how England approaches issues that trouble most national family law systems, often because there are no wholly correct answers. They will be reminded how law and social context interact in ways that constrain the portability of innovations from one jurisdiction to another, even if stakeholder groups imagine that they can be. They will not necessarily be reminded that English family law is not British family law, although there are some scattered references to the differences in Scotland. Students looking for comparative projects are likely to find it useful as a source of ideas and as a stimulus to thought. The radicalism of the decision on children’s rights in Gillick [1986] is still not fully appreciated in England let alone in many other developed countries, for example. I used to be part of an interdisciplinary team teaching a course on family law and social policy, taken jointly by law and social science students. We always struggled for materials and this book would have been ideal as a main text, in a different format and price. It may not displace more conventional texts with English law students but few people interested in the field could fail to profit from reading it. The book is beautifully written, nicely produced and just full of intrinsically fascinating material.
CASES CITED
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, [1985] UKHL 7, [1986] 1 FLR 229.
J v C (An Infant) [1970] AC 668, [1969] 2 WLR 540, [1969] UKHL 4, [1969] 1 All ER 788.
R v Bourne [1939] 1 KB 687, [1938] 3 All ER 615.
Copyright by the author Robert Dingwall
