Carol Smart


In this chapter, I shall explore a number of themes which have come together to form the background to the re-ignition of a major gender struggle in the area of family life and family law. This struggle is ostensibly over children and, in particu­lar, over how children’s lives should be lived after the separation or divorce of their parents. However, I shall suggest that it is also a struggle to refashion and reposition fatherhood in the legal and cultural imaginary and that this has important implications for motherhood. My title, ‘the ethic of justice strikes back’, is, of course, a reference to the name of a relatively new fathers’ rights group called Fathers4Justice, who have attracted a lot of media attention in the UK and who are influencing the direction of policy on matters of residence, contact and the relative standing of mothers and fathers in family law. The fact that they have claimed the term ‘Justice’ is significant, because English family law is not much concerned with justice as such and this group clearly identifies this term as one that can both reveal the injustices in the system, while also using a powerful political and moral rhetoric. But my title is about the ethic of justice and not simply the terminology of justice itself. I have chosen this formulation (in a semi­ironic fashion) because I wanted to think about whether ethical claims framed around justice still have a more powerful impact and a stronger moral imperative than claims based on care. So I became interested in the ways in which the moral hierarchy of claims within family law might be being reversed by the renewed call for justice. By this I mean that, in recent decades, English family law has been more concerned about the welfare of children, and also the importance of caring rela­tionships, than it has been about justice or equality between spouses or adults. But clearly this can be reversed, and I began to speculate on whether the emergence of a group like Fathers4Justice could be the catalyst for just such a turnaround. However, the closer I looked at contemporary developments, the more I realised that, although the fathers’ movement uses claims to justice, it also situates itself (rhetorically at least) within moral claims based on care. Now, I am not concerned with whether they really do employ an ethic of justice or an ethic of care in their practice; rather I am interested in how, in a popularised form, claims based both on justice and on care are being used and interwoven to create a specific narrative of fatherhood.

The themes I shall draw upon therefore include the political purchase of claims based on the ethic of justice versus the ethic of care; the difficulty of giving voice to the experience of motherhood when mothers are assumed already to be over­privileged; and the influence of new narratives of fatherhood, which are being articulated in the sphere of family law. None of these interrelated issues are new, but they come together at an important social and cultural moment to ‘lock’

together to form the basis of a new inferential framework within which gender relations are being redefined. I shall first look briefly at the now-familiar debate about the ethic of justice and the ethic of care to indicate why it is important to revisit some of these issues. I shall then, even more briefly, refer to the silence surrounding motherhood in the current discursive struggle and the rise of narra­tives of fatherhood (particularly in form of justice and rights), before turning to the substance of the chapter, in which I seek to pursue and articulate these points through the analysis of a key case on paternity and parental responsibility and selected interview data.