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Conceptualizing the child through an ethic of care : custody and access law reform in Canada Kelly, Fiona Jane

Abstract

Since the late 1970's there has been a major ideological and normative shift in the way in which "the child" is conceptualized throughout the western world. Children have gone from being understood as vulnerable and in need of protection, to being perceived as autonomous, rights-bearing individuals. Related to this shift has been a change in what is considered to be in a child's "best interests". Increasingly, it is assumed, at least in the context of family law, that children's best interests are met by maintaining ongoing contact with both parents following separation or divorce, and that this can best be achieved by introducing into family law a presumption in favour of "shared parenting". This thesis argues that such an approach to custody and access decision-making, and the particular conceptualization of the child upon which it is based, is flawed because it fails to take into account the individual circumstances of each child's life, ignores the relational nature of childhood, diminishes the importance of pre-separation caregiving relationships, and denies the child a voice. In light of these inadequacies, this thesis proposes an alternative way in which to conceptualize the child based on the "ethic of care". Unlike the protectionist and rights models, an ethic of care understands children in a relational context, grounds decision-making in the actual circumstances of children's lives, and emphasizes the actual activity of care. The family law reform proposals currently being discussed in Canada, most particularly Bill C-22 (the Bill that, if passed, would amend the custody and access provisions of the Divorce Act), largely fail to incorporate an ethic of care. While Bill C-22 could be amended so that it is more aligned with an ethic of care, the rhetoric of justice, rights and equality, and the pro-contact regime this rhetoric has produced, is so ingrained in the best interests test that it may be impossible for the Bill to ever adequately incorporate an ethic of care. It may therefore be necessary to replace the best interests of the child test with a new decision-making framework that derives from the ethic of care.

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