The first issue which needs some clarification is the relevance here of the frame­work of the ethic of justice and the ethic of care, some twenty years after the work of Carol Gilligan was first published and after much has been published which further refines and develops these ideas.[439] It might be thought that enough has been said on these ideas, and indeed this point might have some validity. But I am not going to take these concepts forward as if they can throw yet more light on issues of gender and care; rather I want to treat them as narrative devices, which have themselves become part of the social relations which need to be analysed. So, from being a framework of analysis, I am suggesting that it is the deployment of the language of an ethic of justice or an ethic of care that now needs analysis. We need, for example, to understand the way in which a changing cultural and politi­cal context can transform the idea of an ethic of care from a potentially progres­sive concept into a new form of governance over family life. The unintended elision between the original feminist emphasis on the (unrecognised) care work and attentiveness of women (mothers in particular) and the rise of New Labour with its emphasis on ethical self-governance[440] and its requirement that parents must act ethically and responsibly towards their children has created a wholly new set of consequences for the articulation of an ethic of care. No longer can the ethic of care be seen as a feminist corrective to the influence of the ethic of justice (to simplify the argument somewhat), when the selfless pursuit of care and caring has become a governmental expectation within family policy. Feminist work on the ethic of care was never intended to be normative; rather, it was seen as a way to introduce values already held by individuals, but which were ignored or deni­grated, into the public and legal domain. However, the responsibility to care (and to care responsibly) has become a part of family policy, so that what was an attempt to introduce everyday values into policy has found itself co-existing alongside a top-down imposition of values which appear on the surface to be broadly similar. As Gillies argues, ‘reasonable, rational, moral citizens, by New Labour definition, seek to do the best for their children, and according to policy doctrine, government should play an active role in guiding and supporting them to do so’.[441] Issues about caring properly are therefore part of the mainstream political agenda, but this does not mean that the agenda is now a feminist one in the way that authors like Tronto or Sevenhuijsen would recognise it. Of course, this kind of distorted co-option is not a new phenomenon, but it does have the tendency to rob a potentially critical or radical set of concepts of their political purchase.

At a more commonplace level within family law, I am, of course, aware that there has been a long-term conflict between ideals of justice and the protection of vulnerable members of families. Thus the notion of welfare has challenged (throughout the twentieth century at least) the former strict doctrine of rights, ownership and entitlement in family matters. While this debate has been referred to in terms of rights v welfare,[442] it is now important to broaden this conceptualisa­tion away from a dualistic model (in which rights and welfare struggle against one another), in order to include the dimension of care, which is not reducible to welfare. We need to understand that there is now a three-cornered debate ongoing between ‘rights talk’, ‘welfare talk’ and ‘care talk’. I am emphasising these styles of narration rather than the actual people doing the talking because I want to make it clear that these structures are available to mothers or fathers or lawyers or mediators or the Children and Family Court Advisory and Support Service (CAFCASS) officers or even children. The extent to which any one of these actors may deploy these narratives will vary, but the point I wish to make is that it would be a mistake to assume, for example, that fathers speak only of rights and mothers only of care or welfare. Actors can deploy more than one of these narrative styles, or can slip and slide between them. However, the impact of the deployment will vary according to such factors as gender, status, generation and so on.

It is perhaps necessary to define what I mean by ‘rights talk’, ‘welfare talk’ and ‘care talk’ and to say a few words on why I think we need the third element, that is, ‘care talk’, rather than remaining with a rights v welfare formulation. By ‘rights talk’, I mean those claims which can be made in relation to the state or in relation to another individual for recognition of entitlement. To frame a demand in terms of rights is a way of seeking a legitimating response and follows fairly clear steps or procedures. ‘Welfare talk’, on the other hand, derives from the philanthropic concern for those who are more vulnerable or in need of protection – possibly against those who have rights but who do not exercise their responsi­bilities appropriately. Although welfare talk derives from philanthropic interven­tions, it has been taken up and used by individuals in disputes and is not the sole narrational prerogative of social workers, expert witnesses and others in formal or quasi-formal positions within family law. In other words, anyone may now deploy the terminology of ‘the welfare of the child’ in disputes in family law. Moreover, as is well established, what constitutes ‘welfare’ (or the best interests of the child) is a contested and constantly moving and redefinable notion.[443] ‘Care talk’ should not be confused with ‘welfare talk’. Following Tronto,[444] we can see that ‘care talk’ may involve speech about practical aspects of caring for others (in this context, chil­dren) or talk about how much parents care about their children. ‘Care talk’ may have virtually no overlap with ‘welfare talk’, while it may even, in some contexts, be deployed to support ‘rights talk’. So, for example, a father may base his rights claim (for example, to a 50:50 share of his child’s time) on the basis that he asserts how much he cares for and about his child. By comparison, a mother may resist the claims deriving from the father’s ‘rights talk’ and from the court’s ‘welfare talk’ by asserting her care for and about the child, which gives her a prior and superior understanding of the situation.

Thus it is important to recognise that the argument which follows is attempting to draw particular feminist insights into the current struggle between mother­hood and fatherhood, but I am not using the idea of an ethic of care uncritically, nor am I offering an essentialist argument, which suggests that only fathers use the register of ‘rights talk’ and only mothers engage in ‘care talk’. Rather, there is a subtle interplay of all these forms and what may be occurring is a shift in the balance of the influence of these claims. I shall argue that if fathers made claims solely in terms of rights they would make little headway, but because their rights claims are based on care talk and because, at this particular cultural moment, fathers are redefined as central to children’s welfare,[445] fathers’ definitions of gender relations in families are in the ascendant.