Paul Diamond, barrister: The Rise and Fall of Family Life

"In contemporary Britain the family takes an almost infinite variety of forms. Many marry according to the rites of non-Christian faiths. People live together as couples, married or not, and with partners who may not always be of the other sex. Children live in households where their parents may be married or unmarried. They may be brought up by a single parent, by two parents or even by three parents. Their parents may or may not be their natural parents. They may be children of parents with very different religious, ethnic or national backgrounds. They may be the children of polygamous marriages. Their siblings may be only half-siblings or step-siblings. Some children are brought up by two parents of the same sex. Some children are conceived by artificial donor insemination. Some are the result of surrogacy arrangements. The fact is that many adults and children, whether through choice or circumstance, live in families more or less removed from what, until comparatively recently, would have been recognised as the typical nuclear family. This, I stress, is not merely the reality; it is, I believe, a reality which we should welcome and applaud."

Lord Justice Munby 30th May 2018

Munby LJ’s comments on the current status of family life, and the need for the Courts to address the ‘complexity’ (or in other words, reality) of family life, illustrates an end of any societal consensus on the nature of the (ideal) family.

It further represents the end of the Judeo-Christian concept of natural family life; namely of one man and one woman in a relationship of fidelity for the upbringing of children. The merits of the biblical system have been repeatedly endorsed by secular reasoning; as children from such unions tend to have better educational, health, and employment prospects and wellbeing.

Munby LJ welcomes this new complexity and lack of normalcy for the most basic of family units; indeed - he believes it should be applauded. It is not clear just why he believes that the breakdown of family should be welcomed or applauded. Lack of relational stability is hardly something a civilised society should aspire to.  It is well known that children do best with their biological parents in a stable relationship.

In future, on current trends, Christian marriages will be seen as nothing other than a voluntary endorsement of a particular lifestyle by a ‘husband’ and a ‘wife’; simply one of a number of multiple forms of permissible unions.  Additionally, in the future, such relationships will be increasingly viewed with deep suspicion; the very terms ‘husband’ and ‘wife’ to become a form of hate speech, unless decoupled from their traditional meaning and applicable to all.

Is this a case of law reflecting society (and the reality of the ‘complexities’ of family life); or is it a case of law manifesting animus to the traditional family?  As Lord Justice Munby recognised, this is a complex question and the answer will encompass both postulations.

Societal norms have been rapidly changing since the Second World War as traditional religious belief has faded; and new multifarious religious (and spiritual) beliefs have grown. The number of individuals living together has rapidly grown; whilst divorce now affects almost 50% of marriages, although divorce was a social stigma as recently as the 1960s.  Divorce has crippling social and financial costs; in terms of ruined lives of children and a cost to the Exchequer estimated at £47 billion.

Family life, in particular, has been subject to an extreme form of social engineering in the United Kingdom since 1997; a social engineering which has sought to widen sexual norms and normalise new forms of relationships.  This social engineering has been so forceful - by use of governmental benefit; and detriment; by the media; by dismissals from employment; by criminal law; and by vilification and exclusion - that it has seen many leaders of the Church itself abandon the historic teaching of the Bible in a manner unthinkable a mere 20 years ago. Many Church leaders refuse to recognise a moral weakness; but portray such evolution of morality as one of moral imperative (albeit only realised recently). 

A widening of a structural institution (namely, the family) to a concept of love and mutual appreciation between individuals of potentially unlimited variation is both meaningless and no business of the State.  The consequence is the weakening of the family. Saying so is not to minimise the struggles and needs of persons. I recognise it has always been a difficult balance between the fall and the ideal.

However, the law has penalised and has not assisted in the retention and protection of the traditional family.  Again, the law cannot keep a husband and wife together who are bitterly unhappy in each other’s company.  However, the family is a concept without legal principle. 

Originally, the European Court’s recognition of family specifically required the existence of a formal marriage or child: Marckx v Belgium (1979), Johnson v Ireland (1986).  Thus, unmarried couples with children were families within Article 8: Elsholz v Germany (2000).  In Kroon v Netherlands (1994), an unmarried couple with children needed not to live together.

In recent years, there have been radical changes.  In Goodwin v United Kingdom (2000) marriage was decoupled not just from its association with having children, but even from biological sex (and ability to reproduce) by the recognition of transgenderism. In Schalk & Kopf v Austria (2010) stable same-sex relationships were recognised (without children and by civil partnerships); and in Vallianator v Greece (2013) there was no need for marriage, co-habitation or children - just the concept of a ‘stable relationship’ – for recognition of family.

The chaos of the law is there for all to see; as the number of partners, age of consent to marriage and sex are all subject to the developing evolution of morals.  No measures are or can be taken to protect the family.  In fact, any measures to protect the traditional family are likely to be seen as irrational and discriminatory (despite the fact that it has been held to be a legitimate aim: Karner v Austria (2003)).

This is because the conflict is ideological.  Underlying many of these legal decisions is the radical ideology that the traditional family is a patriarchal bourgeois institution that lacks moral legitimacy.  And, of course, traditional marriage is biblical, and the Bible is similarly seen as lacking moral legitimacy.

In turn, men and women have followed the direction established by the Courts, and the prophesy has become self-fulfilling.  Men - by becoming feckless and irresponsible both fathering children and abandoning families; women - by becoming men. 

The result: embittered men, victimised women (the ‘Me Too’ movement), and a generation of children known in many circles as the fatherless generation with deep insecurities.  The ‘father’ has become one of the most disadvantaged and disrespected groups in our society (with few rights). 

However, we have a choice as a society; and many social trends have been reversed by sensible and intelligent public policy initiatives.  Nothing is lost and there is all to play for.

The time has come to repeal a meaningless and increasingly dangerous statutory provision, namely Section 1(1) of the Children’s Act 1989 that every decision should be in the best interests of the child.  This provision sounds sensible and reasonable, but in a society where there is no longer any concept of a public good, the term is simply a tool for the Courts to engage in social engineering contrary to parental rights.

In years to come, there will be no shortage of Judges, experts, Social Workers and professors of famous academic institutions informing the Court that it is in the best interests of the child to have 3, 4, 5 and more parents of multiple sexual identities and (I venture to predict) that it is positively harmful to have a narrow-minded upbringing by a traditional family with fixed religious beliefs.

In Johns v Derby City Council (2011) a married Christian couple were unable to foster a 5 year -old child, unless they affirmed homosexual practice.  In that case, Munby LJ presided over the trial; and he was informed by the taxpayer funded Equality and Human Rights Commission that Christians could “infect” children with their concepts of sexual morality.  The Christian faith and its moral view of marriage is singled out for special disapproval. 

The time-honoured, biblical alternative to marriage and the natural family is celibacy, as lived by Jesus, coupled to the structure of the church community as notional parents, brothers and sisters, as taught by Jesus (Matthew 12:49-50). This is the celebrated Christian context for both those who are married, including biological children, and those who are celibate.

It is important that we do not lose hope, nor our nerve and verve.  Much of the Church cannot be relied upon, but there are still enough voices of reason that can (and must) speak out.  We must speak up for the upholding of the traditional family unit; we must not be cowed into silence - and we must do this for the best interests of the child.