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FEMINIST PERSPECTIVES
ON CHILD LAW
CP
Cavendish
Publishing
Limited
London • Sydney
Titles in the Feminist Perspectives in Law series
Child Law
Criminal Law
Employment Law
Equity and Trusts
Evidence
Foundational Subjects of Law
Health Care Law
Law and Theory
Literary Jurisprudence
Public Law
ON CHILD LAW
Edited by
Jo Bridgeman, LLB
Lecturer in Law, University of Sussex
and
Daniel Monk, LLB, LLM
Lecturer in Law, Keele University
CP
Cavendish
Publishing
Limited
London • Sydney
First published in Great Britain 2000 by Cavendish Publishing Limited,
The Glass House, Wharton Street, London WC1X 9PX, United Kingdom
Telephone: + 44 (0) 171 278 8000 Facsimile: + 44 (0) 171 278 8080
Email: [email protected]
Website: www.cavendishpublishing.com
© Cavendish Publishing 2000
All rights reserved. No part of this publication may be reproduced, stored in a

retrieval system, or transmitted, in any form or by any means, electronic,
mechanical, photocopying, recording, scanning or otherwise, except under the
terms of the Copyright Designs and Patents Act 1988 or under the terms of a
licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road,
London W1P 9HE, UK, without the permission in writing of the publisher.
British Library Cataloguing in Publication Data
Feminist perspectives on child law

1 Children – Legal status, laws, etc – England
2 Children – Legal status, laws, etc – Wales
I Title II Monk, Daniel
344.4'2'0327
ISBN 1 85941 525 3
Printed and bound in Great Britain

SERIES EDITORS’ PREFACE
Child law, as the editors of this collection point out, has emerged over the last
decade as an area of vibrant study and very much an area in its own right,
having struggled out of its origins as a mere child held within the parental
concern of family law. Giving the focus to the child, becoming child-centred,
has allowed for and required a huge amount of scholarship, uncovering issues
and concerns which before had remained hidden or were at best
marginalised. But, as child law has come of age, it is now important to keep
open issues of how the subject may be constituted and to keep the boundaries
of the area in contention. It would be too easy to allow the subject to become
‘set’ into an agreed agenda, a neat book with neat chapter headings.
Feminist perspectives, along with related critical perspectives, refuse to
accept closure of this area of law. Child law remains an area of contention, in
which it is recognised that ‘the child’ appears (and is sometimes there but is
made to disappear) in many areas of law and policy which refuse an easy
boundary exercise of delineating the subject. This collection does not try to
cover all topics which might be brought under the heading of ‘child law’, but
is does introduce some which have not been readily recognised as part of the
subject area, as well as bringing to bear tools of analysis to issues which the
collection insists are fundamental but which more traditional approaches to
the subject might find uncomfortable.
This is an innovative and exciting volume, representing the many
strengths of the work which have developed from a critical perspective in this
area, as well as new and emerging trends. We are very pleased to have it as
part of our series. We have no doubt that it will be a major contribution to the
scholarship of child law and a major challenge to those who view the subject
as settled and whose main task is now simply to describe the relevant law.
Our thanks to the contributors to the volume, to the editors and to all who
have worked on the volume, and the series, at Cavendish. At a conference on
women and law, held in June 2000 at Westminster University, Jo Reddy
organised a session to discuss the progress of this series. We were pleased to
receive very positive feedback from the participants at that conference. So, we
take the opportunity here to say that we would both like to thank all those
who have read, used and recommended books in the series, as well as to
invite potential editors to contact us. In the next year we will be publishing
more volumes in the series, but, interestingly, no one to date has put forward
a proposal for a family law volume, which is interesting. There must be many
factors involved, many contingencies, but we do find it rather intriguing.
Meanwhile, we are very pleased to add to the Feminist Perspectives series this
volume on Child Law.
Anne Bottomley and Sally Sheldon
v
CONTRIBUTORS
Adrienne Barnett works in full time practice as a barrister, specialising in

family law. She also teaches at Brunel University, where she is a member of
the Centre for the Study of Law, the Child and the Family. Her particular
areas of specialist research are child contact and domestic violence.
Jo Bridgeman is Lecturer at the University of Sussex, where she teaches health

care law and ethics, law and body politics and tort. Her research interest is
feminist perspectives on law, in particular concerning the health of children.
Her chapter in this volume is influenced by her research interests and by her
children, George and Arthur.
Doris E Buss is Lecturer in Law at Keele University. She has published in the
area of feminist international legal theory, women’s human rights and war
crimes against women. She is currently researching and writing a book (with
Didi Herman) on the global politics of the Christian Right.
Richard Collier is Professor of Law at Newcastle University. He has

published extensively in the area of law and gender, and is the author of
Masculinity, Law and the Family (1995) and Masculinities, Crime and Criminology
(1998).
Alison Diduck researches and teaches law at Brunel University and is a

member of the Centre for the Study of Law, the Child and the Family there.
She has practised and taught law in Canada and has published articles in both
Canadian and British journals. She is co-author (with Felicity Kaganas) of
Family Law, State and Gender (1999).
Michael Freeman is Professor of English Law at University College London.

He is the author of The Rights and Wrongs of Children (1983), The Moral Status of
Children (1997), Children, their Families and the Law (1992) and the editor of
Lloyd’s Introduction to Jurisprudence. He is also editor of Current Legal
Problems and the International Journal of Children’s Rights, and is the
General Editor of the International Library of Medicine, Ethics and Law.
vii
Feminist Perspectives on Child Law
Hilary Lim teaches child law and equity and trusts at the University of East
London. She is co-editor (with Susan Scott-Hunt) of Feminist Perspectives on
Equity and Trusts (2000, Cavendish Publishing) and her publications include
‘Caesareans and cyborgs’ (1999).
Daniel Monk is Lecturer in Law at Keele University. He teaches child,

education and social work law and is currently writing a book about
education, law and childhood. He is co-editor (with Les Moran and Sarah
Beresford) of Legal Queeries (1998) and co-author (with David Ruebain) of
‘Education’, in Atkin’s Court Forms Encyclopedia of Civil Proceedings
(forthcoming, 2001).
Katherine O’Donovan comes from Dublin, and teaches law at Queen Mary
College in the University of London. Her experiences as a child and as a
mother, and of legal research in France, ground her paper in this collection.
Other work on children’s identity rights is in progress.
Helen Reece is Lecturer in Law at Birkbeck College, University of London.

Her research interests include the regulation of the family. Previous
publications in this area have focused on children’s welfare (‘The
paramountcy principle: consensus or construct?’ (1996)), lesbian and gay
parenting (‘Subverting the stigmatization argument’ (1996)) and divorce
(‘Divorcing responsibly’ (2000)). ‘Divorcing responsibly’ and her chapter in
this collection are part of an ongoing research project into changing notions of
personhood within divorce law.
Melanie Roberts is Lecturer in Law at the School for Legal Studies, University
of Sussex. Her teaching areas are family law and public law. Her primary
research interests are children and family law and the new reproductive
technologies.
Jeremy Roche is Lecturer in the School of Health and Social Welfare at the
Open University. He writes and researches in the field of children’s rights and
the law and is co-editor (with Stanley Tucker) of Youth in Society (1997) and
Children in Society (2001) (with Stanley Tucker and P Foley).
viii
Contributors
Rachel Thomson is Senior Research Fellow in the Social Sciences Research

Centre at South Bank University, London. Between 1990–95, she directed the
work of the Sex Education Forum and is a member of the feminist research
collective responsible for the Women, Risk and AIDS Project and the Men,
Risk and AIDS Project. She is currently involved in three major studies on
young people (Youth Values: Identity, Diversity and Social Change; Inventing
Adulthood – Young People’s Strategies For Transition; and Consumption, Identity
and Values: An Ethnography of Young People in Brazil).
Anne Worrall is Reader in the Department of Criminology at Keele University

and is also Honorary Research Fellow at the University of Western Australia,
Perth, where she researched community corrections for six months in 1998.
She is author of Offending Women (1990); Have You Got a Minute? The Changing
Role of Prison Boards of Visitors (1994); Punishment in the Community (1997); and
is co-editor (with Pat Carlen) of Gender, Crime and Justice (1987).
ix
ACKNOWLEDGMENTS
We are delighted that this book forms part of Cavendish Publishing’s Feminist
Perspectives on Law series. We wish to thank the series editors, Anne Bottomley
and Sally Sheldon, for recognising the space and need for new feminist
engagements with child law and for inviting us to edit this collection. We are
also very grateful to Jo Reddy and Ruth Massey at Cavendish for their
support, patience and assistance in the production of the collection.
Most of the chapters in this volume were originally presented as papers in
June 1999 at a one day workshop at Birkbeck College. We thank Les Moran for
his assistance in finding a location for the workshop, and all the people who
attended, participated and helped to make it a supportive environment for the
exchange of new ideas. Finally, we thank all the contributors to this collection
for their enthusiastic engagement with the project and for providing such
interesting and challenging ideas.
Jo Bridgeman and Daniel Monk

November 2000
xi
CONTENTS
Series Editors’ Preface v

Contributors vii
Acknowledgments xi
Table of Cases xv
Table of Statutes xxi
Table of Abbreviations xxiii
1 INTRODUCTION: REFLECTIONS ON THE RELATIONSHIP

BETWEEN FEMINISM AND CHILD LAW 1
by Jo Bridgeman and Daniel Monk
2 FEMINISM AND CHILD LAW 19
by Michael Freeman
3 CHILDREN BY DONATION: DO THEY HAVE A CLAIM TO

THEIR GENETIC PARENTAGE? 47
by Melanie Roberts
4 CONSTRUCTIONS OF MATERNITY AND MOTHERHOOD

IN STORIES OF LOST CHILDREN 67
by Katherine O’Donovan
5 DIVORCING THE CHILDREN 85
by Helen Reece
6 ANXIOUS PARENTHOOD, THE VULNERABLE CHILD AND

THE ‘GOOD FATHER’: REFLECTIONS ON THE LEGAL
REGULATION OF THE RELATIONSHIP BETWEEN
MEN AND CHILDREN 107
by Richard Collier
7 CONTACT AND DOMESTIC VIOLENCE: THE

IDEOLOGICAL DIVIDE 129
by Adrienne Barnett
xiii
8 GOVERNING BAD GIRLS: CHANGING CONSTRUCTIONS

OF FEMALE JUVENILE DELINQUENCY 151
by Anne Worrall
9 LEGAL, PROTECTED AND TIMELY: YOUNG PEOPLE’S

PERSPECTIVES ON THE HETEROSEXUAL
AGE OF CONSENT 169
by Rachel Thomson
10 EDUCATION LAW/EDUCATING GENDER 187
by Daniel Monk
11 EMBODYING OUR HOPES AND FEARS? 207
by Jo Bridgeman
12 FEMINISM AND CHILDREN’S RIGHTS 227
by Hilary Lim and Jeremy Roche
13 SOLICITORS AND LEGAL SUBJECTS 251
by Alison Diduck
14 ‘HOW THE UN STOLE CHILDHOOD’: THE CHRISTIAN

RIGHT AND THE INTERNATIONAL
RIGHTS OF THE CHILD 271
by Doris E Buss
Bibliography 295
Index 325
xiv
TABLE OF CASES
A, Re [1991] 2 FLR 388 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

A (Contact: Domestic Violence), Re [1998] 2 Fam LR 171 . . . . . . . . . . . . . . . . . . . . . . . . .143
Agar-Ellis, Re, Agar-Ellis v Lascelles
(1883) 24 Ch D 317 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27, 216
A v N (Committal: Refusal of Contact)
[1997] 1 Fam LR 533 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .142
A v UK [1998] FLR 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
A Metropolitan Borough Council v DB
See Wolverhampton BC v DB (A Minor)—
B, Re [1962] 1 All ER 872 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29

B (A Minor) (Access), Re [1984] Fam LR 648 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .140
B (Wardship: Abortion), Re [1991] 2 FLR 426 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .215
BC (A Minor) (Access), Re [1985] Fam LR 639 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .142
Birmingham CC v H [1994] 1 FLR 224 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
Burrell v Harmer [1967] Crim LR 169 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .208
C, Re [1994] 1 FLR 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37, 39

C, Re [1997] 2 FLR 180 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
C (A), Re [1970] 1 All ER 309 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
C (MA), Re [1966] 1 All ER 838 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
C v C [1991] 1 FLR 223 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
Churchyard v Churchyard [1984] Fam LR 635 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .142
D, Re [1976] Fam 185 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39

D (A Minor) (Contact: Mother’s Hostility), Re
[1993] 2 Fam LR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .141
D (Contact: Reasons for Refusal), Re [1997] 2 ECR 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . .143
D v D (Application for Contact)
[1994] 1 FCR 694; (1994) 158 JPN 138 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .142
D v N (Contact Order: Conditions) [1997] 2 Fam LR 797 . . . . . . . . . . . . . . . . . . . . . . . . .142
E, Re [1993] 1 FLR 386 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37, 38

E (A Minor) (Wardship: Medical Treatment), Re
[1993] 1 FLR 386 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .208, 215, 218, 220,
221, 223, 224
F (A Minor) (Blood Tests: Parental Rights), Re [1993] Fam 314 . . . . . . . . . . . . . . . . . . . .76

F (Contact: Restraint Order), Re [1995] 1 Fam LR 956 . . . . . . . . . . . . . . . . . . . . . . . . . . .142
xv
F (Minors) (Contact: Appeal), Re [1997] 1 FCR 523 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .142

F v F (Contact: Committal) [1998] 2 Fam LR 237 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .143
Fitzpatrick v Sterling Housing Association Ltd
(1999) The Times, 2 November . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .122
G (Parentage: Blood Sample), Re [1997] 1 FLR 360 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64

Gillick v West Norfolk and Wisbech AHA
[1985] 3 WLR 830, [1986] AC 112 . . . . . . . . . . . . . . . . . . . . .35–40, 43, 208, 209, 215, 216
H, Re [1996] AC 563 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44

H (A Minor) (Blood Tests: Parental Rights), Re
[1996] 2 FLR 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76
H (A Minor) (Contact), Re [1994] 2 Fam LR 776 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .142
H (Contact) (Principles), Re [1994] 2 Fam LR 969 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .141
H (Contact: Domestic Violence), Re [1998] 2 Fam LR 42 . . . . . . . . . . . . . . . . . . . . .143, 150
H (Paternity: Blood Test), Re [1996] 2 FLR 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64
H v UK (1984) 38 DR 105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .189
Hewer v Bryant [1969] 3 All ER 578 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .216
Home Office v Robb [1995] 1 FLR 412 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39
J v C [1970] AC 668 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
K, Re [1999] 1 FLR 583 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

K (Contact: Mother’s Anxiety), Re [1999] 2 Fam LR 703 . . . . . . . . . . . . . . . . . . . . . . . . .143
K (Contact: Psychiatric Report), Re [1995] 2 Fam LR 432 . . . . . . . . . . . . . . . . . . . . . . . . .142
K, W and H (Minors) (Medical Treatment), Re
[1993] 1 FLR 854 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .208, 224
L, Re [1962] 3 All ER 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29

L (Contact: Domestic Violence), Re
[2000] 30 Fam Law 576 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150
L (Medical Treatment: Gillick Competency), Re
[1998] 2 FLR 810 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .208, 215, 218, 221, 223
L (Patient: Non-Consensual Treatment), Re
[1997] 2 FLR 837 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .224
M, Re [1996] 2 FLR 441 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28

M, Re [1999] 2 FLR 321 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35, 37
M (A Minor) (Contact: Conditions), Re [1994] 1 Fam LR 272 . . . . . . . . . . . . . . . . . . . . .142
xvi
Table of Cases
M (Contact: Domestic Violence), Re

[2000] 30 Fam Law 576 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150
M (Contact: Welfare Test), Re [1995] 1 Fam LR 274 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .141
M (Medical Treatment: Consent), Re [1999] 2 FLR 1097 . . . . .208, 211, 215, 218, 220, 224
M (Minors) (Access: Contempt: Committal), Re
[1991] 1 Fam LR 355 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .142
M v M (Parental Responsibility) [1999] 2 Fam LR 737 . . . . . . . . . . . . . . . . . . . . . . . . . . .143
M v M [1973] 2 All ER 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
M v M [1978] 1 FLR 77 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
MB, Re [1997] Fam Law 542 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .224
Mitchell v Wright (1905) 7 F 568 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68
Norfolk v Norwich Healthcare (NHS) Trust v W

[1996] 2 FLR 613 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .224
O, Re [1971] Ch 748 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29

O, Re [1995] 2 FLR 124 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
O’Connor v A and B [1971] 2 All ER 1230 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
P, Re [1996] 2 FLR 314 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35

P (A Minor) (Contact), Re [1994] 2 Fam LR 372 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .142
P (A Minor), Re [1986] 1 FLR 272 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .215
P (Contact: Discretion), Re [1998] 2 Fam LR 696 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .143
P (Contact: Supervision), Re [1996] 2 Fam LR 314 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .142
R, Re [1992] Fam 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36, 37, 39

R (A Minor) (Contact), Re [1993] 2 Fam LR 762 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .141
R (A Minor) (Wardship: Medical Treatment), Re
[1991] 4 All ER 177; [1992] 3 WLR 758 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .208, 215, 224
R (Blood Test: Constraint), Re [1998] 1 FLR 745 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76
R (Minors) (Access), Re [1992] Fam Law 67 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .140
R v Cooper (1849) 1 Den 459 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72
R v De Manneville (1804) 5 East 221 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
R v Dilks (1964) 4 Med, Sci & the Law 209 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .208
R v Falkingham [1870] LR 1 CCR 222 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72
R v Gray (1857) 169 ER 1017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72
R v Greenhill (1836) 4 Ad & El 624 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
R v Gyngall [1893] 2 QB 232 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
xvii
R v Hogan (1851) 2 Den 277; (1851) 169 ER 504 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72

R v Hopley (1860) 2 F & F 202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
R v Howes ex p Barford (1860) 3 E & E 332 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
R v March (1844) 1 Car & Kir 496 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72
R v Philpot (1853) 169 ER 504 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72
R v R [1991] 4 All ER 481 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
R v Renshaw (1847) 2 Cox CC 285 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72
R v Secretary of State for the Home Department
and Others ex p Flood [1997] Independent LR, 2 October . . . . . . . . . . . . . . . . . . . .164
R v Secretary of State for the Home Department
ex p Venables and Thompson (1998) 10 CFLQ 77 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
R v Tyrell [1894] 1 QB 710 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .208
Riverside Mental Health NHS Trust v Fox
[1994] 1 FLR 614 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .224
Rochdale Healthcare NHS Trust v C [1997] 1 FLR 274 . . . . . . . . . . . . . . . . . . . . . . . . . .224
S, Re [1958] 1 All ER 783 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29

S, Re [1991] 2 FLR 388 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
S, Re [1994] 2 FLR 1065 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37, 38
S (A Minor) (Medical Treatment), Re [1994] 2 FLR 1065 . . . . . .207, 208, 215, 219, 221–24
S (Contact: Grandparents), Re [1996] 1 Fam LR 158 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .142
S (Minors) (Access Appeal), Re [1990] Fam Law 336 . . . . . . . . . . . . . . . . . . . . . . . . . . . .142
S (Parental Responsibility), Re (1996) 8 CFLQ 165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .255
S v Mc [1972] AC 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
S v S and P [1962] 2 All ER 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
Sheppard v Miller (1982) 3 Fam LR 124 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .142
South Glamorgan CC v W and B [1993] 1 FLR 574 . . . . . . . . . . . . . . . . . . . .9, 208, 215, 224
South West Hertfordshire HA v KB [1994] 2 FCR 1051 . . . . . . . . . . . . . . . . . . . . . . . . . .224
St George’s Healthcare NHS Trust v S, R
v Collins and Others ex p S (No 1) [1998] 3 All ER 673 . . . . . . . . . . . . . . . . . . . . . . .224
St George’s Healthcare NHS Trust v S, R v Collins and
Others ex p S (No 2) [1999] Fam 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36, 39
Sutton LBC v Davis [1994] 1 FLR 737 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .191
T, Re [1992] 2 FLR 458 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37, 39

Tameside and Glossop Acute Services Trust v CH
[1996] 1 FLR 762 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .224
Thain, Re [1926] Ch 676 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
Thomason v Thomason [1985] Fam LR 214 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .142
xviii
Table of Cases
W, Re [1971] AC 682 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28

W, Re [1993] Fam 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36, 38–40
W, Re [1997] 2 FLR 406 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
W, Re [1999] FLR 869 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
W (A Minor), Re (1993) 56 MLR 865 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .211
W (A Minor) (Medical Treatment: Court’s Jurisdiction), Re
[1992] 3 WLR 758 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .215, 217, 219, 221,
222, 224
Wolverhampton BC v DB (A Minor)
sub nom B (A Minor) (Treatment and Secure
Accommodation), Re; A Metropolitan Borough
Council v DB [1997] 1 FLR 767 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
Z, Re [1996] 1 FLR 191 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
xix
TABLE OF STATUTES
Abduction Act 1557 . . . . . . . . . . . . . . . . .27 Crime and Disorder

Abortion Act 1967 . . . . . . . . . . . . . . . . . . .83 Act 1998 . . . . . . . . . . . .112, 113, 159, 165
Adoption Act 1976— s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49 Criminal Justice Act 1991 . . . . . . . . . . .158
s 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53 s 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . .158
s 51 . . . . . . . . . . . . . . . . . . . . . . .53, 60, 76 Criminal Justice and Public
s 51A . . . . . . . . . . . . . . . . . . . . . . . . . . . .76 Order Act 1994 . . . . . . . . . . . . . .171, 208
Criminal Law Amendment
Child Support Act 1991 . . . . . . . . . . . . .120 Act 1885 . . . . . . . . . . . . . . . . . . . . . . . .171
Children Act 1975 . . . . . . . . . . . . . . . . . . .53 Custody of Infants Act 1873 . . . . . . . . . .27
s 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60 Custody of Infants Act
Children Act 1989 . . . . . . . . . .5, 32, 33, 36, 1839 (Talfourd’s Act) . . . . . . . . . . . . . .27
37, 86, 96, 140, 141,
148, 150, 166, 189, Domestic Violence and Matrimonial
191–93, 248, 256, Proceedings Act 1976 . . . . . . . . . . . .136
257, 259, 265
s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . .30, 49 Education Act 1996—
s 1(3) . . . . . . . . . . . . . . . .32, 137, 148, 259 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .193
s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .140 ss 7, 8 . . . . . . . . . . . . . . . . . . . . . . . . . .189
s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .259 ss 14(1), (4), 17 . . . . . . . . . . . . . . . . . .189
s 10(8) . . . . . . . . . . . . . . . . . . . . . . . . . .209 ss 19, 156 . . . . . . . . . . . . . . . . . . . . . . .199
s 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 s 312(2)(c) . . . . . . . . . . . . . . . . . . . . . .190
s 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . .191 ss 316, 444, 527A . . . . . . . . . . . . . . . . .199
s 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Education Act 1997—
s 31(2) . . . . . . . . . . . . . . . . . . . . . . . . . . .43
s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .199
ss 38(6), 43(8), 44(7) . . . . . . . . . . . . . . .36
Sched 3, paras 4(4)(a), 5(5)(a) . . . . . . .36
Sched 10, para 21 . . . . . . . . . . . . . . . . .76 Family Law Act 1996 . . . . . .85, 87, 90, 102,
105, 113, 137
Children Act 1991 . . . . . . . . . . . . . . . . . .140
s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . .86, 95
Children and Young Persons
s 7(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . .92
Act 1933 . . . . . . . . . . . . . . . . . . . . . . . . .67
s 7(11)–(14) . . . . . . . . . . . . . . . . . . . . . .86
ss 5, 7 . . . . . . . . . . . . . . . . . . . . . . . . . .208
s 8(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . .93
s 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
s 8(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . .92
s 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . .158
s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .96
Sched 1 . . . . . . . . . . . . . . . . . . . . . . . . .164
ss 10, 11 . . . . . . . . . . . . . . . . . . . . . . . . .86
Children and Young Persons s 13(1) . . . . . . . . . . . . . . . . . . . . . . . . . . .94
(Protection from Tobacco) s 14(2) . . . . . . . . . . . . . . . . . . . . . . . . . . .86
Act 1991 . . . . . . . . . . . . . . . . . . . . . . . .208 Sched 1 . . . . . . . . . . . . . . . . . . . . . . .86, 96
Congenital Disabilities (Civil Family Law Reform Act 1969—
Liability) Act 1976 . . . . . . . . . . . . . . . .53 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
s 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53 s 8 . . . . . . . . . . . . . . . . . . . . . . . . . .37, 208
xxi
Family Law Reform Act Licensing Act 1964—

1969 (Contd)— s 169 . . . . . . . . . . . . . . . . . . . . . . . . . . .208
s 8(1) . . . . . . . . . . . . . . . . . . . . . . . . .38, 39 Local Government Act 1988—
s 8(2) . . . . . . . . . . . . . . . . . . . . . . . . . . .209 s 28 . . . . . . . . . . . . . . . . . . . . . . . . .173–75
Fatal Accidents Act 1976 . . . . . . . . . . . .136
Matrimonial Causes Act 1857 . . . . . . . . .27
Guardianship Act 1973 . . . . . . . . . . . . .136 Matrimonial Causes Act 1973—
Guardianship of Infants s 41 . . . . . . . . . . . . . . . . . . . . . . . .260, 262
Act 1886 . . . . . . . . . . . . . . . . . . . . . . . . .27
s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 Offences Against the Person
Guardianship of Infants Act 1861—
Act 1925 . . . . . . . . . . . . . . . . . . . . . . . . .28 s 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72
Guardianship of Minors
Act 1971 . . . . . . . . . . . . . . . . . . . . . . . .136 Prohibition of Female
Circumcision Act 1985 . . . . . . . . . . . .43
Human Fertilisation and
Embryology Act 1990 . . . . . . . . . .48, 49, School Standards and
56–58, 76 Framework Act 1998 . . . . . . . . .189, 192
s 12(e) . . . . . . . . . . . . . . . . . . . . . . . . . . .58 s 118 . . . . . . . . . . . . . . . . . . . . . . .189, 192
s 13(5) . . . . . . . . . . . . . . . . . . . . . . . . . . .49 Sexual Offences Act 1956—
s 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .73 ss 5, 6 . . . . . . . . . . . . . . . . . . . . . .208, 215
ss 27–29 . . . . . . . . . . . . . . . . . . . . . .48, 65 ss 12–16 . . . . . . . . . . . . . . . . . . . . . . . .208
ss 31(1)–(7), 33 . . . . . . . . . . . . . . . . . . .51
Sexual Offences Act 1967—
s 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53
s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .208
Inheritance (Provisions for Families

Tattooing of Minors Act 1969—
and Dependents) Act 1975 . . . . . . . .136
ss 1, 3 . . . . . . . . . . . . . . . . . . . . . . . . . .208
Learning Skills Act 2000 . . . . . . . . . . . . .89

s 148 . . . . . . . . . . . . . . . . . . . . . . . . . . . .89
xxii
TABLE OF ABBREVIATIONS
AC Appeal Cases
AJIL American Journal of International Law
All ER All England Reports
Anglo-Am L Rev Anglo-American Law Review
BMJ British Medical Journal

Br J Crim British Journal of Criminology
Br J Soc British Journal of Sociology
CEDAW Convention on the Elimination of All Forms

of Discrimination against Women
CFLQ Child and Family Law Quarterly
CJFL Canadian Journal of Family Law
CJLS Canadian Journal of Law and Society
CLJ Cambridge Law Journal
CLP Current Legal Problems
CLS Critical Legal Studies (movement)
CMLR Common Market Law Reports
CSP Critical Social Policy
CWA Concerned Women for America
EHRR European Human Rights Reports

EJST European Journal of Social Theory
EL Rev European Law Review
FCR Family Court Reporter

FGC Family group conferencing
FLQ Family Law Quarterly
FLR Family Law Reports
FLS Feminist Legal Studies
FR Feminist Review
Harv L Rev Harvard Law Review

HFEA Human Fertilisation and Embryology
Authority
xxiii
HLR Housing Law Reports

HRQ Human Rights Quarterly
ICLQ International and Comparative Law Quarterly

ICR Industrial Compensation Reports
IJCR International Journal of Children’s Rights
IJLF International Journal of Law and the Family
IJLPF International Journal of Law, Policy and
the Family
IJSL International Journal of the Sociology of Law
JCL Journal of Child Law

JLE Journal of Legal Education
JLS Journal of Law and Society
JSWFL Journal of Social Welfare and Family Law
LGR Local Government Reports

LRB London Review of Books
LS Legal Studies
LQR Law Quarterly Review
MLR Modern Law Review
NGO Non-governmental organisation

NLJ New Law Journal
NSPCC National Society for the Prevention of Cruelty
to Children
OJLS Oxford Journal of Legal Studies
PL Public Law
QB Queen’s Bench
QCA Qualifications and Curriculum Authority
RP Radical Philosophy
xxiv
Table of Abbreviations
SLS Social and Legal Studies

Stan L Rev Stanford Law Review
UNCRC United Nations Convention on the Rights of

the Child
Web JCLI Web Journal of Current Legal Issues
WLR Weekly Law Reports
YBEL Yearbook of European Law
xxv
CHAPTER 1
INTRODUCTION: REFLECTIONS ON
THE RELATIONSHIP BETWEEN
FEMINISM AND CHILD LAW
Jo Bridgeman and Daniel Monk
WHAT IS CHILD LAW?
Over the past decade, child law has become a discrete category of legal
practice and academic study, notably distinct from family law. This
development can be understood as a simple process of consolidation of issues
relating to children across a number of more established legal categories and,
in addition, as a reflection of increased specialisation and juridification. More
broadly, and perhaps optimistically, this development can also be understood
as a reflection of the influence of children’s rights and feminist engagements
with law which, albeit in different ways, have to a limited extent encouraged a
‘child-centred’ focus wherein children are seen as individuals and not simply
as family members or passive ‘objects of concern’. Yet, more critically, the
development of child law can be understood as a reflection not simply of
heightened social and political concern for children, but, less tangibly and more
problematically, as a reflection of an increase in the importance of childhood as
a category of cultural and governmental significance for society as a whole.
These various explanations indicate that child law is more than a ‘common
sense’ category. Significantly, it is far more than simply the law relating to
children, which is to say that ‘law’ is not merely functional and descriptive
and that the ‘child’ is not always easily identifiable; rather, it is a complex and
frequently contested and continually shifting discursive construction.
We wish to make clear from the outset that this collection of essays does
not claim to represent a comprehensive coverage of the many topics and
issues which are currently understood to be part of child law.1 However, by
1 The enormous breadth of these issues can be seen from a survey of the contents lists of
textbooks devoted to the subject (eg, Bainham, A, Children: The Modern Law, 1998,
Bristol: Jordan; Fortin, J, Children’s Rights and the Developing Law, 1998, London:
Butterworths; Hayes, M and Williams, C, Family Law: Principles, Policy and Practice, 1999,
London: Buterworths; Freeman, M, Child Welfare and the Law, 1998, London: Sweet &
Maxwell), the articles published in journals which include child law within their remit
(eg, CFLQ; JSWFL; Family Law; IJLPF; IJCR) and by the research projects undertaken by
centres for the study of the law relating to the child (eg, Centre for the Study of Law, the
Child and the Family, Brunel University; Centre for the Study of the Child, the Family
and the Law, University of Liverpool; Children’s Legal Centre, Essex University).
1
giving prominence to questions about the coherency and genealogy of child

law, and by recognising the contingency and complexity of terms such as
‘children’ and ‘childhood’, this collection of essays seeks to enable familiar
issues to be examined and analysed in new ways and for overlooked or
silenced voices and perspectives to be explored.
As mentioned above, child law is no longer perceived as being merely one
aspect of family law, but traverses the boundaries of established academic
categories. This is reflected within this collection, which contains chapters
relating to human rights,2 health care law,3 education law,4 criminal justice5
and tort.6 Furthermore, those chapters that do explore issues contained within
the traditional boundaries of family law do so from original perspectives, for
example, by questioning the meanings and uses of ‘fatherhood’ 7 and
‘motherhood’, 8 and by exploring how law is produced not only in its
traditional texts,9 but also in legal practice.10 In order to explore these issues, a
broad range of methodologies are utilised. Consequently, alongside a variety
of feminist and critical theoretical perspectives such as discourse analysis,
autopoiesis and poststructural and comparative approaches are chapters
which draw on empirical research. And, while many of the chapters take
traditional legal sources such as cases and statutes as their starting point,
others draw on legal practice, literature and popular media. Notwithstanding
this breadth, all of the chapters, albeit in distinct ways, are informed by
feminism and raise a number of questions about the relationship between
feminism and childhood, some of which we highlight and explore in this
introduction.
WHAT IS A CHILD?
‘Expensive nuisance, slave and super-pet’?11
The question ‘what is a child?’ is an extremely important one, but one that is
rarely asked. Our experiences, as children or as adults surrounded by or
2 See Lim and Roche, Chapter 12 and Buss, Chapter 14, in this volume.
3 See Roberts, Chapter 3, in this volume.
4 See Monk, Chapter 10, in this volume.
5 See O’Donovan, Chapter 4, Worrall, Chapter 8 and Thomson, Chapter 9, in this volume.
6 See Bridgeman, Chapter 11, in this volume.
7 See Collier, Chapter 6, in this volume.
8 See O’Donovan, Chapter 4, in this volume.
9 See Reece, Chapter 5, in this volume.
10 See Diduck, Chapter 13 and Barnett, Chapter 7, in this volume.
11 Holt, J, Escape from Childhood, 1975, Harmondsworth: Penguin, p 15, quoted in James, A,
Jenks, C and Prout, A, Theorizing Childhood, 1998, Cambridge: Polity, p 210.
2
Reflections on the Relationship between Feminism and Child Law
coming into contact with children, appear to render the question

unnecessary. 12 As Chris Jenks, one of the leading ‘new’ sociologists of
childhood, explains, the category of child has been, and continues to be, seen
as natural. From this perspective, childhood is viewed as a perfectly ordinary,
and expected, period through which we all go prior to becoming adults.13
Consequently, the sociology of the child has long been dominated by theories
of development and socialisation from a state of biological and psychological
immaturity to adult maturity.14 And childhood has accordingly, and without
question, been perceived simply as a period of acquiring the skills,
characteristics and behaviour of adulthood.
But attitudes towards children, expectations of them and understandings
of their capacities are not unitary, fixed or static. Rather, they are contingent,
negotiable and contested and the understandings of and meanings given to
childhood are culturally and historically specific; which is to say that
childhood is socially constructed.15 What is understood by childhood – the
activities of its members, the spaces they are permitted to occupy, the
characteristics they are believed to possess – differ, depending upon the point
in time and the culture of the childhood being considered;16 and, furthermore,
at any point in time, a number of discourses may present understandings of
childhood which may be conflicting or contradictory.17 While one of the
competing discourses will often come to be the dominant understanding,18
legal, spatial and temporal boundaries enable alternative and conflicting
constructions to coexist.19 The way in which discourses construct childhood
has an impact upon the lives of children as they and adults change their
behaviour in response. This does not mean that there is a universal experience
for children. Children actively shape their own lives and have different
experiences which may depend upon, for example, their sex, race, ethnicity,
religion or class. A social constructionist analysis of childhood should not lose
sight of the reality of children’s embodied lives, identities and subjectivities.
12 Jenks, C, Childhood, 1996, London: Routledge and Kegan Paul, p 6.

13 Ibid.
14 The most influential exponent of this approach is Piaget; see, eg, Piaget, J, The Language
and Thought of the Child, 1924, London: Routledge; Piaget, J, The Moral Judgment of the
Child, 1932 (4th reprint 1965), London: Routledge.
15 Ibid, Jenks; James, A and Prout, A (eds), Constructing and Reconstructing Childhood:
Contemporary Issues in the Sociological Study of Childhood, 1997, London: Falmer; op cit,
James et al, fn 11; Buss, Chapter 14, in this volume.
16 For a critical perspective, see op cit, James et al, fn 11.
17 Trinder, L, ‘Competing constructions of childhood: children’s rights and children’s
wishes in divorce’ (1997) 19 JSWFL 219.
18 Ibid, Jenks, p 69.
19 See O’Donovan, K, ‘The child as legal object’, in Family Law Matters, 1993, London:
Pluto. Compare, eg, the girl child as constructed by education law, in criminal justice
and in laws concerning the heterosexual age of consent in Monk, Chapter 10, Worrall,
Chapter 8 and Thomson, Chapter 9, respectively, in this volume.
3
Additionally, Chris Jenks argues that a social constructionist analysis of

childhood provides further insights, in that the position afforded to children
within society is revealing of the nature of the society in which the child is
situated:
[T]heories of the child are ... pointers towards the social construction of reality.
Just as I have argued that the child is neither simply ‘natural’ nor merely
‘normal’, we may claim to have established, in addition, that the child is not
neutral but rather always moral and political. Thus the way that we treat our
children is indicative of the state of our social structure, a measure of the
achievement of our civilisation or even an index of the degree to which
humanism has outstripped the economic motive in everyday life. Similarly, the
way that we control our children reflects, perhaps as a continuous microcosm,
the strategies through which we exercise power and constraint in the wider
society.20
Chris Jenks argues that the child has been repositioned to a central place in
meeting the needs of adults. He terms this ‘nostalgia’, in that the child appears
to offer all that adults want but which adults lack: dependency, love, care,
stability and security. And the particular concern for childhood evident in our
society demonstrates, he suggests, adult concern for stability and security,
embodied by the child, in an otherwise disrupted world:
As we need children we watch them and we develop institutions and
programmes to watch them and oversee the maintenance of that which they,
and they only, now protect. We have always watched children, once as
guardians of their/our future and now because they have become the
guardians.21
The law is one of the institutions which performs this task.
Law and childhood
The law does not intervene simply by regulating a pre-existing child but,
rather, legal discourse is heavily implicated in the production of the category
childhood. At a very basic level, the law sets the boundaries of childhood by
defining the legal age of majority, an age which differs across time and across
cultures.22 Yet the age of majority, currently 18 in the UK, is one of many
temporal boundaries found in law. The separate age limits relating to, for
example, smoking, drinking alcohol, driving, compulsory schooling,
employment, consent to medical treatment and criminal justice sentencing
challenge the notion that there is an absolute, temporal, binary distinction
20 Op cit, Jenks, fn 12, p 69.

22 The Family Law Reform Act 1969, s 1, reduced the age of majority from 21 to 18.
4
Reflections On The Relationship Between Feminism And Child Law
between adulthood and childhood.23 To this extent, law admits to and enables
a degree of fluidity in the construction of childhood. More significantly,
however, these incremental temporal and legal boundaries reflect and uphold
an understanding of childhood as a series of developmental stages on the road
to becoming an adult. That this characterisation of childhood is generally
perceived as ‘common sense’ attests to the overriding influence of the
scientific discipline of developmental psychology in contemporary
understandings of childhood. Within this discipline, child development is
conceptualised as a natural process in which children acquire cognitive
competencies according to universal and stratified sequences based largely on
age. Critical analyses have highlighted how this ‘ideology of development’24
or ‘developmentalism’25 imposes rigid boundaries between adulthood and
childhood and between children of different ages.26 As Chris Jenks comments,
‘real children are subjected to the violence of a contemporary mode of
scientific rationality which reproduces itself at the expense of their
difference’.27 While these critiques have provided, and continue to provide,
insights into contemporary understandings, they have had notably little
impact on professional and political discourse and practises. The law, as a
legitimising discourse, arguably contributes to the silencing of alternative
perspectives.
One of the implications of the dominance of the discourse of
developmental psychology and its construction of childhood as a process
which ends when a child becomes an adult is that children are perceived in
terms of lack and, consequently, as vulnerable and in need of protection. Once
again, law and legal discourse reflects and upholds this image. This is
particularly the case in the context of those aspects of child law contained
within the Children Act 1989. The Children Act, which consolidated much of
the law relating to children and was consequently perceived and heralded as
representing a ‘child focused’ approach in its structure and application, makes
a clear distinction between private law and public law. The former deals with
changes in familial structure through divorce and separation and issues of
parental responsibility such as change of name, and the latter with
circumstances where State intervention is justified or required. In both
locations, the image of the child as vulnerable and in need of protection
prevails. Alison Diduck demonstrates how, in the context of divorce
23 For a clear summary of these provisions and others, see Children’s Legal Centre, ‘At
what age can I ...?’ (1999) Information Sheet, University of Essex.
25 Stainton Rogers, W and Stainton Rogers, R, ‘Word children’, in Lesnik-Oberstein, K (ed),
Children in Culture: Approaches to Childhood, 1998, London: Macmillan.
26 Op cit, Jenks, fn 12; ibid, Stainton Rogers and Stainton Rogers; Burman, E, Deconstructing
Developmental Psychology, 1994, London: Routledge.
5
proceedings, the child is objectified as a ‘passive potential trauma victim’.28

More explicitly, in public law proceedings, the threshold for intervention is
determined by assessments of ‘need’29 and ‘harm’.30
We are not in any way suggesting that children do not suffer harm or are
not in need of protection; rather, we seek to highlight the significance of the
dominance of the image of the child as vulnerable and passive, which serves
to restrict and silence children’s involvement and obscures the extent to which
assessments of children’s harm uphold normative constructions, not only for
children,31 but for fathers and, in particular, mothers.32
What these insights into the construction of the child as passive,
vulnerable and needy demonstrates is the extent to which child law is
dominated by adult perceptions of the child, as a non-adult or future adult.
The protection afforded to the child is consequently motivated not simply by
the present reality of children’s lives, but in more complex ways, by a desire to
safeguard the personal and political potential which the child embodies.33
This critical approach towards childhood and the work of the ‘new’
sociologists of childhood is explicitly referred to by many of the contributors
to this volume. However, while the child as ‘victim’ can be identified in
chapters dealing with domestic violence,34 the broad focus of the collection as
a whole moves away from a child protection perspective. Once again, it is
important to stress that this does not represent a lack of concern for the real
harms that are inflicted on real children. The perspectives adopted by these
essays represent recognition of a need in legal scholarship relating to children
for alternative approaches which reveal the disciplinary role of law implicit in
the construction of the child, as opposed to an emphasis upon the saving role
of law. For example, Doris Buss explores how the discourse of children’s rights
is perceived as dangerous by Christian rights organisations; Rachel Thomson
explores how children themselves perceive law’s protectionism in the context
of sexual activity; Melanie Roberts implicitly questions who is protected by
laws relating to new reproductive technologies; and Helen Reece
demonstrates how it is not just children but adults who are increasingly
objectified and infantilised by law’s ‘protective’ role.
28 See Diduck, Chapter 13, in this volume.

29 Children Act 1989, s 17.
30 Ibid, s 31.
31 See Freeman, Chapter 2, Worrall, Chapter 8, Thomson, Chapter 9 and Bridgeman,
Chapter 11, in this volume.
32 See Freeman, Chapter 2, Collier, Chapter 6, O’Donovan, Chapter 4, Barnett, Chapter 7,
Diduck, Chapter 13 and Buss, Chapter 14, in this volume.
33 Oakley, A, ‘Woman and children first and last: parallels and differences between
children’s and women’s studies’, in Mayall, B (ed), Children’s Childhoods: Observed and
Experienced, 1994, London: Falmer, p 23.
34 See Diduck, Chapter 13 and Barnett, Chapter 7, in this volume.
6
Feminist thought encompasses a rich and wide ranging variety of

perspectives, characterised by a concern with the social, political and legal
position of women. In all forms, feminism adopts a critical stance upon the
subject of its gaze, seeking to reveal and develop an understanding of the
conditions of women’s lives and, by undertaking this critique or, more
specifically, in advocating reform, suggest how it might be otherwise. A
central theme of this collection is to question the stability of the child as the
subject or object of child law.35 In our view, feminist perspectives and the
chapters in this volume provide insights into this issue in two distinct ways.36
First, the tools of feminist analysis can be employed to question the
centrality of the child, that is, whether the law is more effective in protecting
the interests of others, principally the adults who care for the child, than in
safeguarding the child.37 Secondly, feminist perspectives challenge the gender
neutrality of law. Liberal feminism accepted the existence of natural or
essential differences between the sexes but sought equal treatment of the sexes
within the law. Radical feminism located the explanation for the oppression of
women within the differences between the sexes. A constructivist approach
sees differences as socially constructed and seeks, by exposing the way in
which discourses construct subjects differently, to create the space for
alternative understandings to emerge. Consequently, feminist perspectives
may expose treatment of the child within the law as pre-gender or gender
neutral, masking the extent to which the identity and experiences of the male
and female child are distinct.
The law as a cause of harm?
The requirement imposed by legislation to consider, and in the determination

of cases to give effect to, the welfare or best interests of the child reflects a
desire on the part of adults to protect children. Yet, as the perspectives and
experiences of children remain excluded, it might be that the law is ineffective
in protecting children from harm as felt, understood, experienced and defined
by children as distinct from adults.
35 Op cit, O’Donovan, fn 19.

36 Freeman, Chapter 2, in this volume, specifically addresses the lack of a feminist analysis
of child law and suggests ways in which feminism could provide useful insights.
37 Op cit, O’Donovan, fn 19, p 90; Herring, J, ‘The welfare principle and the rights of
parents’, in Bainham, A, Day-Sclater, S and Richards, M (eds), What is a Parent? A Socio-
Legal Analysis, 1999, Oxford: Hart; Freeman, Chapter 2, Roberts, Chapter 3 and
O’Donovan, Chapter 4, in this volume.
7
What is harmful is not ‘a transcendental notion which is automatically

knowable and recognisable at any moment in history by any member of a
culture’;38 rather, conceptions of harm change over time and between cultures.
Carol Smart,39 for example, discusses the lack of response within law to the
sexual abuse of children in the early part of the 20th century. She argues that
the failure to recognise the abuse of children as harmful at that time (and not
until the 1970s) arose from a belief that children were not affected by events
which occurred to them as children: children, by their nature, could not be
harmed. Furthermore, the subsequent behaviour of children who had been
exposed to sexual conduct, rather than being seen as caused by the abuse they
had experienced, was attributed to their evil nature, which permitted the
responsibility for the abuse to be placed upon the child. Whilst her analysis
supports an understanding of harm as contingent and contestable, what is
further notable is the resistance which Carol Smart identifies amongst the
participants within the criminal justice system at that time to challenges to the
exclusion of abuse of children from conceptions of harm. Harm may, therefore,
be experienced differently by members within society but is legally recognised
as such, depending upon the scope given to the concept of harm by those
possessing the power to give harm definition.
In her work, Robin West has explored the failure of the law to recognise
the gender specific harms suffered by women.40 She argues that the law
recognises and provides protection where women suffer the same harms as
are suffered by men, that is, the invasion of the boundaries of the separate self,
but fails to extend protection to harms specifically experienced by women.
These harms, she argues, are different in cause, consequence and effect from
those harms which are suffered by men and in respect of which the law does
provide redress.41 West argues that the consequences of the failure of the law
to recognise the specific harms experienced by women are twofold. First, the
silence of the law is legitimating. That is, the failure of the law to acknowledge
the harm signals that no harm has been done, thereby legitimising the
conduct. Secondly, women are thus doubly harmed: once by the harm itself,
then by the failure of the law to respond. She concludes: ‘... we need to
articulate what harms us, and how, and by how much, and what the law
could do to minimise those harms.’42 This feminist analysis raises pertinent
and important questions about the harms suffered by children.
38 Smart, C, ‘A history of ambivalence and conflict in the discursive construction of the

“child victim” of sexual abuse’ (1999) 8 SLS 392; see, also, Freeman, Chapter 2, in this
volume.
39 Ibid, Smart.
40 West, R, ‘Jurisprudence and gender’ (1988) 55 Chicago UL Rev 1; West, R, Caring for
Justice, 1997, New York: New York UP, particularly ‘The concept of harm’.
41 Ibid, West, 1997, p 98, identifying ‘harms of invasion’ (sexual assault and unwanted
pregnancy), ‘private altruistic harm’ (including dependency leading to a fear of
abandonment), ‘harms of separation’ (arising from the connections with others).
42 Ibid, West, 1997, p 176.
8
First, laws which are aimed at the protection of children or their interests
may not only fail to achieve this aim, but may be positively damaging to
children. One obvious example is provided by the Cleveland Inquiry, which
identified that children were additionally harmed by examinations
undertaken to detect abuse and, thereby, by systems aimed at protecting them.
Caroline Sawyer emphasises the importance of being aware of this possibility
and the need to change the ‘protective’ processes of the law:
[T]he legal process should not, in the course of collecting evidence as to what
had happened in the past, do further damage to the child. Ignoring the child
might mean the court reaching the ‘wrong’ decision through lack of
information, but, separately, it might mean that the child’s experience of the
process was a damaging one, confirming to the child a sense of powerlessness
and unimportance.43
A further example is provided by Adrienne Barnett’s analysis of contact
orders where there has been domestic violence.44 Her argument is that the law
takes from scientific discourses ideas about the welfare of the child and
employs them in an effort to reproduce the nuclear family. Consequently,
fathers are permitted contact with their children even where they have in the
past been violent. In doing so, the law adopts one perspective from contested,
contradictory and confusing scientific evidence, silencing the accounts of
others, in particular the accounts of women and children about abusive men.
Secondly, children may be harmed in ways that are not so manifestly
obvious as the harm caused by physical, emotional or sexual abuse. Richard
Collier, for example, discusses the concerns that the efforts undertaken by
parents who are ‘anxious’ to protect their children may in themselves cause
harm.45
A better understanding of the nature of the harm arising from the
specificities of children’s lives can only be achieved if we listen to children.46
Participatory models are premised upon hearing the voices of children,
involving them by empowering them and supporting them in the extent to
which they wish to become involved in issues affecting them. Participatory
models present a challenge to the perception that adults know what is best for
children and provide the means to best accommodate the interests and wishes
of children in issues affecting their lives.
43 Sawyer, C, ‘Conflicting rights for children: implementing welfare, autonomy and justice
within family proceedings’ (1999) 21 JSWFL 99, p 103. Christina Lyon comments on
South Glamorgan CC v W and B [1993] 1 FLR 574 that we are confronted with the ‘spectre
of further potential abuse perpetrated this time by the very system which is supposed to
protect children’: Lyon, C, ‘What’s happened to the child’s “right” to refuse? South
Glamorgan County Council v W and B’ (1994) 6 JCL 84, p 87.
44 See Barnett, Chapter 7, in this volume.
45 See Collier, Chapter 6, in this volume.
46 See Freeman, Chapter 2, Lim and Roche, Chapter 12, Diduck, Chapter 13 and
Bridgeman, Chapter 11, in this volume.
9
Dependent/interdependent?
The perspective of the child as immature, dependent and in need of protection

distinguishes the child as ‘other’ to the adult. This dichotomy ignores the
extent to which adults are likewise dependent upon others, including their
children, practically, emotionally and when, for example, sick or old. It further
hides the capacities and agency of children.47 Children are treated as if they
are not thinking, active, determining beings, but non-subjects awaiting
adulthood.48 However, we only need to look to the children who themselves
care for dependent adults or siblings, or to children whose earnings are an
essential contribution to the family income, or to consider the extent to which
children themselves play a formative role in what is culturally valued, to
begin to understand children differently.49
Judith Ennew’s discussion of the structured activities of children leads her
to the conclusion that children do not spend endless hours in ‘idle play’; they
work in school, doing jobs around the home and participating in organised
activities:
The artificial split between children and adults is based on a mystification, or
fetishisation, of ‘play’ as the core of childhood, being opposed to work as the
‘hub of the adult world’. By trivialising childhood activities, marginalising and
economically devalorising children, adults in industrial societies reproduce the
power relations that enable them to take hold of children’s time, organise it,
curricularise it and simultaneously control the next generation on behalf of an
economic system that depends for its very existence on the subdivision of
human energy into units of labour time.50
Here, there is a clear parallel, exposed by feminists, with the failure to
recognise or reward the work which women do in the home; cooking,
cleaning, washing and emotionally supporting men and children. Work which
is essential for the functioning of the economy and nurturing of the future
workforce. Contrary to the view of the dependent and, hence, ‘unproductive’
child, James, Jenks and Prout identify three major facets of the employment of
children in industrialised societies:51 first, that children contribute to the
economy when they are able to care for themselves, as opposed to relying
47 See Diduck, Chapter 13, in this volume, for a discussion of the ways in which children
of divorce are denied agency.
48 Qvortrup, J, ‘Childhood matters: an introduction’, in Qvortrup, J, Bardy, M, Sgritta, G
and Wintersberger, H (eds), Childhood Matters: Social Theory, Practice and Politics, 1994,
Aldershot: Averbury, p 4.
49 A point made by Lim and Roche, Chapter 12, in this volume.
50 Ennew, J, ‘Time for children or time for adults’, in ibid, Qvortrup et al, p 143.
51 Op cit, James et al, fn 11, pp 112–14. They also discuss the place of work in the lives of
children in developing countries.
10
upon an adult to provide that care; secondly, that children do undertake the
care of sick or disabled adults;52 thirdly, that legislation which seeks to limit
the participation of children in renumerated employment is widely flouted.53
Recognition of the productivity and contribution made by children disrupts
the perception of children as only and always dependent, and provides the
possibility of reconceptualising the relationship between adults and children
as one of interdependency.54
Talking with children
Questioning the reality of the perception of children as mere dependents

should not lead to the conclusion that children should be treated in law as if
they were adults by extending to them equal rights with adults.55 A claim to
equal treatment begs the question of ‘equal to what?’ and feminists have
exposed the legal norm as one which is framed by male characteristics,
behaviours and values. The societal disadvantages faced by women are not
overcome by treating women as if they were men. Likewise, the appropriate
response to the social conditions of children is not to treat them as if they are
adults. Children should not have to fit into adult categories when their values,
priorities, interests and desires may be different. However, concern about the
interests of children does not ensure that the terms in which those interests are
considered are any different. Ann Oakley suggests that the focus upon
children in the children’s rights movement, and, similarly, in child law, often
adopts the same perspective of the child as endangered, dependent and
vulnerable:
Women’s studies grew directly out of the political movement for women’s
liberation; it emerged out of the politics of experience. But children’s studies
are not rooted in the same way in the movement of children to claim their own
liberation. Although there are some instances of children acting politically to
secure their rights, the children’s rights movement is not a political movement
initiated primarily by children themselves. By and large, it is adults who are
making representations on behalf of children – in their ‘best interests’ to re-use
the traditional phrase. Children are coming to the fore in adult’s minds, but the
danger is that adults may continue to be the protectors of children, the
52 See, also, Dearden, C and Becker, S, ‘The needs and experiences of young carers in the
UK’ (1998) 148 Childright 15; Dearden, C and Becker, S, ‘Protecting young carers:
legislative tensions and opportunities in Britain’ (1997) 19 JSWFL 123.
53 Children and Young Persons Act 1933, s 18, as amended by the Children (Protection at
Work) Regulations 1998 (SI 1998/276).
54 See Lim and Roche, Chapter 12, in this volume.
55 Or treating children as if they were adults, eg, in criminal justice policy. See Fionda, J, ‘R
v Secretary of State for the Home Department ex p Venables and Thompson: the age of
innocence? The concept of childhood in the punishment of young offenders’ (1998) 10
CFLQ 77.
11
representers of their interests, rather than facilitators or active seekers out of

children’s own perspectives and voices.56
A view that adults know where the best interests of the child lie and can best
represent the interests of children by speaking for them coexists with a sense
that, because we have all been children, as adults we have experiences which
give us a privileged position from which to speak. However, as adults, our
understanding of childhood derives from memories which have been
reinterpreted in the light of adult experience and influenced by contemporary
ideas about childhood.57 To challenge the adult view and allow different
understandings to emerge, it is necessary, first, to enable children to express
their views and detail their experiences of, for example, the law; and,
secondly, to ensure that analysis of what they have to say is not framed by
understandings and expectations of children held by adults.58
Ann Oakley argues that it is necessary to effect a shift from children as the
objects of study to children as subjects of study: to ‘study the world from the
standpoints of children both as knowers and as actors’. 59 This requires
imagination on the part of researchers to formulate research projects which
permit children to express (and not necessarily orally) their understandings
and experiences.60 It demands sensitivity on the part of researchers to their
own perspectives of childhood to ensure that their findings are not
reinterpreted through adult understandings of children’s lack of capacity.61
Further, Ann Oakley suggests that it is necessary to undertake not only those
studies which dip into particular points in the lives of children taking a
snapshot of an age, but also longitudinal studies which map the changing
views and experiences of children over time.62 Rachel Thomson’s research
study, in which children spoke about the age of consent to heterosexual
intercourse, identifies tensions within what the children had to say in relation
to the gendered differences upon which the law is premised, that is, of male
agency (out of control) and female passivity (in need of protection), with the
ways in which they thought about themselves and their sexual identities.63
56 Op cit, Oakley, fn 33, p 20.

58 Op cit, Qvortrup, fn 48, p 2.
59 Op cit, Oakley, fn 33, pp 24–25; see, also, Alanen, L, ‘Gender and generation: feminism
and the “child question”’, in op cit, Qvortrup et al, fn 48, pp 35–36. See, eg, Smart, C,
Wade, A and Neale, B, ‘Objects of concern? – children and divorce’ (1999) 11 CFLQ 365;
James, AL and Richards, MPM, ‘Sociological perspectives, family policy, family law and
children: adult thinking and sociological tinkering’ (1999) 21 JSWFL 23.
60 See the examples given by Oakley in op cit, fn 33, pp 25–26.
61 Alderson, P, ‘Researching children’s rights to integrity’, in op cit, Mayall, fn 33.
63 See Thomson, Chapter 9, in this volume.
12
Whilst expressing doubts about the ability of the law to accommodate the
individuality encapsulated by the way in which the children whom she spoke
with talked about sex, she argues that this understanding is important for
discussion about sexual conduct and sexual health policy and practice.64
Women and children – a relationship of conflict or care?
The focus of feminism has been upon the experiences of women. Where
feminism has considered children, it is often in relation to the implications for
women of their ‘mothering’ role of begetting, bearing, birthing, caring and
nurturing children. This has resulted in perceptible tensions between, on the
one hand, the importance and value to women of their caring relationships
with children and, on the other, feelings of constraint through confinement to
the domestic sphere whilst desiring alternative roles. In its liberal form,
feminism sought equality for women through, for example, legal rights,
reproductive autonomy and self-determination. Challenging the perception
that women’s natural role was in the domestic sphere, liberal feminism
claimed access for women to the public sphere. Rather than be confined to the
roles of wife, mother and carer, equal access was sought to participation in the
public realm of education, the professions, industry and politics. To be freed
from the shackles of the domestic realm and have the choice to pursue other
activities required the provision of contraception, access to abortion and
alternative childcare. In its radical form, feminists, such as Shulamith
Firestone in The Dialectic of Sex,65 argued that the oppression of women was
located in their reproductive role. Others argued that it is not the reproductive
abilities of women as such which result in oppression, but male control over
female reproductive abilities.66
Both liberal and radical feminism thus appear to be premised upon a
perception of the child as an obstacle to the social positioning of women.67
This approach can similarly be seen in feminist legal scholarship, which, for
example, identified the disciplinary and restrictive implications for women of
interpretations of the child’s best interests in custody/residence disputes.
From such perspectives, children remained an object of feminist thought,
whilst action was directed at improving the position of the female subject. Yet,
64 The importance of children’s perspectives in developing responsive legal approaches is

also acknowledged by Lim and Roche, Chapter 12 and Bridgeman, Chapter 11, in this
volume.
65 Firestone, S, The Dialectic of Sex, 1970, New York: Bantam.
66 Rich, A, Of Woman Born: Motherhood as Experience and Institution, 1976, New York: WW
Norton. As the title of her book suggests, Rich makes a distinction between the
institution of motherhood, which, in her view, is oppressive, and the experience, which
need not be; O’Brien, M, The Politics of Reproduction, 1981, Boston: Routledge and Kegan
Paul.
67 Op cit, Oakley, fn 33, p 22; op cit, Alanen, fn 59, pp 32–34.
13
despite the tensions within feminism about the relationships between women
and children, there are similarities between the social conditions of women
and children which mean that feminism can provide insights into the position
of children in society, including in law. These include being denied equal
rights, being constructed as lacking capacity, having decisions made on their
behalf in their best interests and being treated as a social problem.68
What seems to us to be particularly instructive is the ways in which
feminist thought, rather than being limited to attempts to reconcile the
perceived conflict between women and children in the favour of one or the
other, has insisted upon the need to challenge the terms of the debate. One
method is the constructionist turn within feminism which explores the way in
which the subject is constituted by discourses as, for example, the ‘good’
mother69 or the ‘self-sacrificing’ mother.70 This has been discussed above, but
it is worth repeating here to emphasise that one of the insights provided by
discourse analysis of the law is an acknowledgment that the law does not
benefit one subject all of the time but produces different subjects against
which the individual is judged.
Secondly, the perception of relationships between women and children as
characterised by conflict may not be consistent with the experience of the
relationships which many women have with children. Despite the resolution
in law of issues concerned with children in terms of their welfare, the
domination of adversarial approaches to legal problems means that the law is
instrumental in creating and sustaining a conflictual relationship. An
alternative which permits reconceptualisation of problems, decision making
processes and solutions is provided by the ethic of care theorised by Carol
Gilligan.71 A developmental psychologist, Carol Gilligan was concerned that
women achieved lower levels of moral development, as measured on the scale
determined by Harvard’s Lawrence Kohlberg. Moral maturity, in his
understanding, was represented by determinations in terms of universal
conceptions of justice, whereas women tended to focus upon positive
relationships with others, which he positioned halfway up his six point
scale.72 A further observation that the scale of moral maturity was derived
from studies exclusively upon men73 led to her own studies of moral decision
68 Op cit, Oakley, fn 33, pp 14–18; see, also, op cit, Alanen, fn 59, p 35.
69 Smart, C, ‘The woman of legal discourse’ (1992) 1 SLS 29.
70 Diduck, A, ‘Legislating ideologies of motherhood’ (1993) 2 SLS 462; for consideration of
the relevance of this for the study of children, see op cit, Alanen, fn 59, p 35.
71 Gilligan, C, In a Different Voice: Psychological Theory and Women’s Development, 2nd edn,
1993, Cambridge, Mass: Harvard UP.
72 Ibid, p 18.
73 Ibid. See Kohlberg, who studied 84 males over a period of 20 years (Kohlberg, L, The
Philosophy of Moral Development, 1981, San Francisco: Harper and Row); and, similarly,
Piaget before him (op cit, Piaget, 1932, fn 14).
14
making, which sought to redress this by listening to the approaches of

women, as well as men, to moral problems.74 From what she heard, she
identified an alternative trajectory or, as she called it, a ‘different voice’. In
contrast with abstract individualistic rationalisations, the different voice spoke
in terms of an ethic of care. This ethic:
[F]ocuses on the dynamics of relationships and dissipates the tension between
selfishness and responsibility through a new understanding of the
interconnection between other and self. Care becomes the self-chosen principle
of a judgment that remains psychological in its concern with relationships and
response but becomes universal in its condemnation of exploitation and hurt.
... This ethic [the ethic of care], which reflects a cumulative knowledge of
human relationships, evolves around a central insight, that self and other are
interdependent.75
A concern with relationships necessitates appreciation of attachment,
connection and interdependence. From the perspective of the ethic of care,
resolution of moral problems is dependent upon contextualisation in terms of
the responsibility of caring – both for others and for the self. Broadly stated,
the ethic of care approach, identified by Carol Gilligan, involves addressing
the consequences for all involved, seeking a resolution which avoids hurting
and taking responsibility for the decision.
Appreciating the centrality of conceptions of justice, premised upon
equality and rights in Western liberal democracies, Gilligan suggests
incorporation, not replacement – that the law should accommodate both
justice and care. What is of particular interest is the potential application of the
ethic of care in resolving issues concerning children: suggesting frameworks
for resolution of legal problems which are not centred around adversarial
battles between competing rights.76 Furthermore, it is important to recognise
that caring is both an emotional state and a physical activity. As Carol Smart et
al observe, this is particularly important where children are concerned, as they
can be actively caring whilst, because it is not expected of them, not in the act
of providing care.77 Recognition of the contribution made by children caring
74 A study of 25 college students, both male and female, which sought to explore the
relationship between ideas and attitudes to moral problems and the experience of
making decisions; the abortion decision study of women considering the termination of
a pregnancy; the rights and responsibility study of both sexes, across the ages, exploring
hypothetical and real moral problems. For a summary of the studies, see op cit, Gilligan,
fn 71, pp 2–3 .
75 Op cit, Gilligan, fn 71, p 74.
76 A great deal of feminist work has taken up this idea, particularly within feminist legal
theory. Eg, the implications for substantive law are explored by Martin, R, ‘A feminist
view of the reasonable man: an alternative approach to liability in negligence for
personal injury’ (1994) 23 Anglo-Am L Rev 334; the implications for lawyering are
considered by Menkel-Meadow, C, ‘Portia in a different voice: speculating on women’s
lawyering process’ (1987) 1 Berkeley Women’s LJ 39. See, also, Lim and Roche, Chapter
12, Diduck, Chapter 13 and Bridgeman, Chapter 11, in this volume.
77 See, eg, op cit, Smart et al, fn 59, p 369.
15
permits acknowledgement of children as active, determining subjects as

opposed to simply the ‘objects of concern’. And it brings into focus the
interdependency between adults – considering the needs of their children and
provide care – and children, thinking about the needs of their parents even if
they are not actively caring for them.78
Good girls and bad boys
Feminists have provided a critique of the understanding of law as a neutral

universally applicable set of rules. The constructionist approach reveals that,
in relation to different legal issues, different legal subjects are constructed,
against which the individual is measured. In the first place, the Woman of
Legal Discourse is produced, who stands in opposition to the male norm.
Secondly, the law constitutes different types of women, depending upon the
issue and who are measured against the Ideal Woman.79 The ideal woman
and the types of women that are constructed by legal discourse, however, bear
little relation to the lives of women.
Whilst the production by discourses, including law, of differently
gendered and sexed subjects has been at the centre of much feminist analysis
of the law, the gender or sex of the child subject has not received the same
scrutiny. Indeed, even in child and family law textbooks which adopt a broad
socio-legal approach, rarely, if at all, is there any mention of ‘boys’ or ‘girls’;
rather, the gender neutral construction of the child remains unchallenged. In
relation to many issues, the sex and gender of the child would appear to be
irrelevant in the understanding of the law. This arises from a primary
positioning of the child in contradistinction to the adult. In other words, what
characterises all children, both girls and boys, appearing before the law is a
perception of the child as immature, dependent and in need of protection. The
myth of the gender neutral child makes the law blind to the specific identities
of the individual boy or girl child. Feminist perspectives on child law raise the
same question as has been asked in relation to the impact of law upon women:
despite the appearance of neutrality in the application of universally
applicable rules, what impact does the sex/gender of the child have upon the
understanding of their welfare?
Analysis reveals that, in relation to some issues, differential treatment is
meted out not only because of a failure to address the specificities of
childhood identities, but because of an understanding of differences existing
between the boys and girls. The perception of boys as out of control and in
need of a firm hand appears to be the understanding of legislators and to be
reflected in practice, for example, in school exclusions. This perception,
78 James, A, ‘Parents: a children’s perspective’, in op cit, Bainham et al, fn 37.

79 Op cit, Smart, fn 69.
16
embodied by a few individuals such as ‘rat boy’,80 justifies more punitive

measures and obligations imposed upon parents. 81 One of the media’s
favourite shockers, concern with teenage pregnancy, seems to hold similar
influence in the treatment of the girl child in law.82 The girl child is subjected
to regulation, for example in criminal and education law,83 motivated by a
desire to prevent teenage pregnancy. Sex, rather than crime, violence or
disruptive behaviour is seen as the problem for girls. This does not, however,
mean that the girl is considered to be an agent, actively choosing to engage in
sexual activity or to enter into motherhood; rather, legal intervention is
necessary to protect girls from the sexuality of the male. As Rachel Thomson
discusses in this volume, the protective reach of the law is incompatible with
the sexual identity of girls, the ways in which girls experience and perceive
themselves.84 Recognising the different identities of boy and girl children may
present an effective challenge to the belief of the law as neutral and
universally applicable. Yet, even when the law does recognise sex differences,
there is no guarantee that they will bear any relation to the particularities of
girl and boy children.
A number of the chapters in this collection explore this issue. Anne Worrall
analyses changing constructions of female juvenile delinquency; Daniel Monk
looks at law’s role in the context of the moral panic regarding boys ‘failure’ in
education; Rachel Thomson explores the distinctions between boys’ and girls’
perceptions of the legal provisions relating to the heterosexual age of consent;
and Doris Buss comments on the significances of the girl child in the context
of international human rights law.
FEMINIST PERSPECTIVES ON CHILD LAW
The contributors to this volume have adopted a range of feminist

perspectives, showing the diversity and range of feminist thought. What they
share is a critical approach to substantive law and legal practice, presenting a
challenge to traditional approaches to child law.85
80 See Collier, Chapter 6 and Worrall, Chapter 8, in this volume.

81 Such as parenting orders: Crime and Disorder Act 1998, s 8.
82 Who automatically falls foul of the ideal mother of legal discourse, who is married,
financially and emotionally supported by her husband.
83 See Worrall, Chapter 8 and Monk, Chapter 10, in this volume.
84 See Thomson, Chapter 9, in this volume. See, also, Worrall, Chapter 8 and Buss, Chapter
14, in this volume.
85 The relationship between feminist thought and the sociology of childhood is considered
by Oakley, op cit, fn 33, and by Alanen, op cit, fn 59. Freeman, Chapter 2, in this volume,
specifically addresses the relationship between feminism and child law.
17
Through the different issues which are addressed in the chapters, a

number of themes can be identified, including: the entrenchment by the law of
the nuclear family;86 the perception of the child as fundamentally different
from the adult;87 children’s identities;88 dependency;89 the constitution of the
legal subject;90 and the adult/legal desire to protect.91 A number of influences
are apparent: the ‘new sociology of childhood’;92 the ‘ethic of care’;93 and the
participation of children in decisions affecting them.94
This collection is not, and could not be, comprehensive in its coverage of
issues of the law relating to children. What is clear from law – in both its
legislative and judicial forms, government policy, academic writing and the
media is that there is currently, within different sectors of society, much
concern about children. What we hope this volume does achieve is to
demonstrate the value of feminist perspectives in providing insights into the
nature of those concerns and suggesting alternative means of addressing
them.
86 See Roberts, Chapter 3, Diduck, Chapter 13, Barnett, Chapter 7, Buss, Chapter 14 and
Monk, Chapter 10, in this volume.
87 See Lim and Roche, Chapter 12, Thomson, Chapter 9, Buss, Chapter 14 and Bridgeman,
88 See Roberts, Chapter 3, O’Donovan, Chapter 4 and Thomson, Chapter 9, in this volume.
89 See Lim and Roche, Chapter 12, and Collier, Chapter 6, in this volume.
90 See Diduck, Chapter 13, Thomson, Chapter 9, Bridgeman, Chapter 11 and Monk,
91 See Freeman, Chapter 2, Lim and Roche, Chapter 12, Collier, Chapter 6, Thomson,
Chapter 9, Diduck, Chapter 13, Buss, Chapter 14 and Bridgeman, Chapter 11, in this
volume.
92 See Collier, Chapter 6, Buss, Chapter 14, Bridgeman, Chapter 11 and Monk, Chapter 10,
in this volume.
93 See Lim and Roche, Chapter 12, Diduck, Chapter 13 and Barnett, Chapter 7, in this
volume.
94 See Lim and Roche, Chapter 12, Diduck, Chapter 13, Thomson, Chapter 9 and
Bridgeman, Chapter 11, in this volume.
18
CHAPTER 2
FEMINISM AND CHILD LAW
Michael Freeman
INTRODUCTION
There are feminist accounts of most legal territories now, but, strikingly,
though perhaps not surprisingly, there is no feminist analysis as such of child
law. Feminists have looked at child abuse,1 at children’s rights2 and at
institutions like adoption,3 and some principles of child law have been
scrutinised – Helen Reece’s critical examination of the paramountcy principle
is an outstanding example.4 But none of this is surprising, for there are
obvious takes on ‘abuse’ and on ‘rights’, and the ways in which paramountcy
may have undermined the interests of parents, perhaps to the particular
detriment of mothers (or at least some mothers),5 is worthy of deconstruction.
This, then, is unsurprising. But we lack a feminist account of child law, in the
way that we now have an account (or accounts) of contract law,6 labour law,7
1 See Ashe, M and Cahn, NR, ‘Child abuse: a problem for feminist theory’ (1993) 2 Texas J
Women and the Law 75.
2 See Minow, M, ‘Rights for the next generation: a feminist approach to children’s rights’
(1986) 9 Harvard Women’s LJ 1; Olsen, F, ‘Children’s rights: some feminist approaches
with special reference to the Convention on the Rights of the Child’, in Alston, P, Parker,
S and Seymour, J (eds), Children, Rights and the Law, 1991, Oxford: OUP. See, also, Lim
and Roche, Chapter 12, in this volume.
3 Luker, K, Abortion and the Politics of Motherhood, 1984, Berkeley: California UP is the
classic source.
4 Reece, H, ‘The paramountcy principle – consensus or construct?’ (1996) 49 CLP 267.
5 In particular, lesbians.
6 See Frug, M, ‘Rescuing impossibility doctrine: a postmodern feminist analysis of
contract law’ (1992) 140 Pennsylvania UL Rev 1029; Brown, B, ‘Contracting
out/contracting in: some feminist considerations’, in Bottomley, A, Feminist Perspectives
on the Foundational Subjects of Law, 1996, London: Cavendish Publishing. On obligations
more generally, see (2000) 8 FLS 1, pp 1–131 (Special Issue).
7 See Morris, A and O’Donnell, T (eds), Feminist Perspectives on Employment Law, 1999,
London: Cavendish Publishing; Conaghan, J, ‘The invisibility of women in labour law:
gender-neutrality in model-building’ (1986) 14 IJSL 377.
19
the law of property, 8 tort law, 9 international law, 10 etc. 11 Why has the
discipline of child law escaped feminist scrutiny? The subject is, of course,
relatively new – indeed, of about the same vintage as feminist legal literature –
but this cannot explain why it has been overlooked. Have feminists avoided
exploring the area because the issues are too obvious? Or because, already
marginalised, they wished to avoid an obvious legal ghetto? Or because they
can translate the issues into broader concerns (patriarchy, mothering, marriage
and family law generally) or narrower ones (child abuse and children’s
rights)? Whatever the explanation, it cannot be because the subject is not
intrinsically interesting, for it has both a rhetoric and a silence with enormous
potential for feminist mining (and, need it be said, undermining).
SOME FEMINIST CONCERNS
Insofar as one cannot ignore the social constructions of ‘male’ and ‘female’,
any essay looking at the law relating to children and feminism would review
the feminist project. Although not my remit, some introductory comments
must be offered.
We are reminded by Pateman that the public/private dichotomy is what
feminism is all about.12 The dualism is, of course, problematic, even illusory.13
That the parent-child relationship has been regarded as quintessentially
private is beyond dispute.14 What, however, has been often overlooked is that
it is the State which determines what is private; as Deborah Rhode puts it,
what forms of intimacy deserve protection.15 So, for example, only those
forms of child abuse which the State wished to proscribe are categorised as
8 See Green, K, ‘Being here: what a woman can say about land law’, in op cit, Bottomley,
fn 6.
9 See Bender, L, ‘A lawyer’s primer on feminist theory and tort’ (1988) 38 JLE 3; Finley, L,
‘A break in the silence: including women’s issues in torts course’ (1989) 1 Yale J Law and
Feminism 41.
10 See Charlesworth, H, Chinkin, C and Wright, S, ‘Feminist approaches to international
law’ (1991) 85 AJIL 613; Engle, K, ‘Female subjects of public international law: human
rights and the exotic other female’ (1992) 26 New England L Rev 1509.
11 Eg, bankruptcy law (see Gross, K, ‘The debtor as modern day peon: a problem of
unconstitutional conditions’ (1990) 88 Michigan L Rev 1506); tax law (see Beck, RCE,
‘The innocent spouse problem’ (1990) 43 Vanderbilt L Rev 317); public law (see Millns, S
and Whitty, N, Feminist Perspectives on Public Law, 1999, London: Cavendish Publishing);
and, of course, of family law (a recent excellent example of which is Bartlett, KT,
‘Feminism and family law’ (1999) 33 FLQ 475).
12 Pateman, C, The Disorder of Women, 1989, Cambridge: Polity, p 118.
13 Boyd, SB (ed), Challenging The Public/Private Divide: Feminism, Law and Public Policy,
1997, Toronto: Toronto UP.
14 Fineman, MA, The Neutered Mother, the Sexual Family and Other Twentieth Century
Tragedies, 1995, New York: Routledge.
15 Rhode, D, ‘Feminist critical theories’ (1990) 42 Stan L Rev 617.
20
Feminism and Child Law
within the public arena: children are protected against physical abuse, but not
against so called reasonable corporal chastisement,16 though the line may be
difficult – even impossible – to draw, and often the label (or social
construction) is imposed retrospectively. Defining what amounts to sexual
abuse17 or emotional abuse18 is equally problematic. Nor, and this is often
forgotten, is categorising something as ‘public’ necessarily a guarantee that the
State will interfere and protect: labelling a nude photograph of a child as ‘art’
will protect as public freedom of expression an artefact that others will deem
child pornography and, thus, abuse.
Feminism is about inequalities. But inequality, which, as we will see, is
imbricated within child law (and not always to the disadvantage of women or
girl children), is not just a legal mistake. It is no more irrational than, for
example, violence against women is irrational. As Ann Scales observed, ‘the
injustice of sexism is not irrationality’, but ‘domination’.19 It is her view, which
I endorse, that law must embrace a version of equality that focuses on the real
issues – domination, disadvantage and disempowerment – instead of
differences between the sexes.
Heather Wishik suggests a number of questions posed by feminist
jurisprudence. For the purposes of this chapter, I would wish to emphasise her
second question: ‘What assumptions, descriptions, assertions and/or
definitions of experience – male, female or ostensibly gender neutral – does
the law make in this area?’20 It is clear that laws, norms and judgments often
reinforce patriarchal assumptions and sexual double standards. This is less so
now than in the past, even the recent past, but examples remain. The claim
that the law is patriarchal does not mean that women or their interests (and it
is difficult to avoid the essentialist trap)21 have been ignored by the law, but
rather that the law’s cognition of women is refracted through the male eye
(male legislators, male judges, male bureaucrats, or women who think as
men), rather than through women’s experiences and definitions.
The answer does not lie, I believe, in creating a new (legal) language, as
argued for by some French feminists.22 Rather, it requires, in the words of
16 R v Hopley (1860) 2 F & F 202.

17 The most commonly quoted definition is by Schechter and Roberge: ‘... the involvement
of dependent, developmentally immature children and adolescents in sexual activities
that they do not fully comprehend and to which they are unable to give informed
consent or that violate the social taboos of family roles.’ (In Helfer, R and Kempe, CH,
Child Abuse and Neglect, 1976, Cambridge, Mass: Ballinger, p 60.)
18 And all sexual abuse is also severe emotional abuse: Glaser, D and Frosh, S, Child Sexual
Abuse, 1988, Basingstoke: Macmillan.
19 Scales, A, ‘The emergence of feminist jurisprudence: an essay’ (1986) 95 Yale LJ 1373.
20 Wishik, H, ‘To question everything: the inquiries of feminist jurisprudence’ (1986) 1
Berkeley Women’s LJ 64.
21 See, eg, particularly in relation to Gilligan, Harris, A, ‘Race and essentialism in feminist
legal theory’ (1990) 42 Stan L Rev 581.
22 Eg, Luce Irigaray (see The Sex Which Is Not One, 1985, Ithaca: Cornell UP).
21
Lucinda Finley, ‘critical engagements with the nature of legal language’.23 As

she puts it, with cogency:
... The more we can find openings to argue from the perspective of those often
overlooked by legal language, such as the people upon whom the legal power
is being exercised, or those disempowered or silenced or indeed rendered
invisible by the traditional discourse, the more the opportunities to use the
engine of fairness and equity to expand the comprehension of legal
language.24
THE PAST – AND SOME OF ITS HANGOVERS
Child law has no beginning; no obvious single source. There is no one text,
statute, code, case or institutional source (as Hale’s Pleas of the Crown could be
pointed to by those examining the marital rape immunity).25 For some of our
concepts and practices we can detect biblical origins. Thus, both Hebrew
scriptures in the Old Testament and passages from the New Testament have
sustained for centuries the defence of physical punishment.26 And what is one
to make of one of the most famous stories in the Bible (or anywhere): the
attempted sacrifice of Isaac by his father, Abraham? Alice Miller’s response
repays consideration: ‘Our awareness of the child’s victimisation is so deeply
rooted in us that we scarcely seem to have reacted at all to the monstrousness
of the story ...’27 Sons’ obedience to fathers is a recurrent biblical theme.28 As
Philip Greven points out, God’s punishments provided ‘the paradigm for
parental discipline of children, a model that became most explicit in the
proverbs attributed to Solomon, the king of Israel’.29 Ironically, the proverbial
‘Spare the rod and spoil the child’ is 17th century English30 and not biblical at
all, but there are plenty of substitutes in the Bible.31 Jesus felt a deep love and
compassionate concern for children,32 and nowhere in the New Testament
does he approve of the infliction of pain upon children in order to correct
23 Finley, L, ‘Breaking women’s silence in law: the dilemma of the gendered nature of legal
reasoning’ (1989) 64 Notre Dame L Rev 886.
24 Ibid, p 898.
25 See Freeman, MDA, ‘Doing his best to sustain the sanctity of marriage’, in Johnson, N
(ed), Marital Violence, 1985, London: Routledge, p 124.
26 Greven, P, Spare The Child, 1991, New York: Alfred A Knopf.
27 The Untouched Key: Tracing Childhood Trauma in Creativity and Destructiveness, 1990, New
York: Doubleday, p 141.
28 Eg, Deuteronomy 8:5–6 or II Samuel 7:14–15.
29 Ibid, Greven, p 47.
30 It comes from Samuel Butler’s poem ‘Hudibras’, published in 1664 (see Gibson, I, The
English Vice: Beating, Sex and Shame in Victorian England and After, 1978, London:
Duckworth, p 49).
31 Eg, in Proverbs 29:17; 3:11–12; 10:13; 19:18.
32 See Matthew 18:10–11, 14.
22
Feminism and Child Law
them, but arguments for corporal punishment as the Christian method of

discipline can be found in New Testament texts other than the Gospels. There
are few, 33 but, with Greven, we must wonder ‘if it is likely that the
chastisement and scourging of Jesus before his Crucifixion would become the
model for Christian parents to follow with their children in the centuries to
come’.34 The relationship between God and man is clearly reflected in that
between parent and child: obedience and submission are expected and are to
be enforced by the rigours of punishment. God’s punishments for
disobedience, graphically described in the Old Testament,35 are matched by
those which fathers and mothers can inflict upon disobedient sons:
If a man have a stubborn and rebellious son, which will not obey the voice of
the father, or the voice of the mother, and that, when they have chastened him,
will not hearken unto them: Then shall his father and mother lay hold on him,
and bring him out unto the elders of the city, and unto the gate of his place;
And they shall say unto the elders of the city, This our son is stubborn and
rebellious, he will not obey our voice; he is a glutton, and a drunkard. And all
the men of his city shall stone him with stones, that he shall die: so shalt thou
put evil from among you; and all Israel shall hear, and fear.36
Despite references to mothers37 and the seeming limitation to ‘sons’, what is
constructed here is a metaphor for patriarchy, with the relationship between
parent and child having many of the characteristics with which we associate
the social constructions of male and female: domination, disadvantage,
disempowerment. The child has no voice. He is expected to submit, to
conform, to obey. We are told that this law was never once carried out,38 but in
terms of constructing a relationship that is unimportant. Children belong to
their parents.39 And this, we find from other texts, is the more so with female
children. So, for example, in Deuteronomy we read:
If a man find a damsel that is a virgin, which is not betrothed, and lay hold on
her, and lie with her and they be found; then the man that lay with her shall
give unto the damsel’s father fifty shekels of silver, and she shall be his wife.40
This law is presented as an advancement, a humane step beyond the culture
of heathen society. The text prohibits the man divorcing a wife he so marries.
And yet, it is clear that it was designed to protect a man’s property rights in
his daughters. Are not the origins of all rape laws thus?
33 Hoyles, JA, Punishment in the Bible, 1986, London: Epworth.

34 Op cit, Greven, fn 26, p 50.
35 Eg, Deuteronomy 8:5–6; or 8:20.
36 Deuteronomy 21:18–21.
37 Following the Fifth Commandment.
38 This is certainly traditional Jewish teaching.
39 As in the disgraceful episode described in Judges 19.
40 Deuteronomy 22:28–29.
23
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III
“...Of course, my dear nephew, you must stay with us until you have
found a comfortable and suitable home for yourself in the city....”
So had David’s aunt, Lauretta Deane, written to him and made him
somehow doubt the amiability of the lady, despite the fact of her welcome.
He had never met the family of his uncle. He felt a significance in this. His
mother used at times to talk of Aunt Lauretta as of a fortunately distant fact.
“Your father and Uncle Anthony never did seem to get along,” she said.
That perhaps disposed for her of Anthony’s wife.
Mr. Deane answered the bell.... David stepped into a naked hall, hanging
in camphored drapery. The varnished floor swept away in parabolic
shadows; the bannisters of the stair were a red lacquered flourish, a sort of
scrolled battalion along red, lacquered steps. There was his uncle, rather
hot, coatless, diminished.
“Well—glad to see you, my boy.... Have a good journey?”
David was looking for more glory. It struck him that the house was
bigger, brighter than this man. The traditional Uncle Anthony seemed to
require the setting of his visits to the little town. He mumbled amenably.
“Your aunt and your cousins are in the mountains.... I’m alone, as you
see. Come in.”
He went before David up the stairs. They sounded hollow and yet they
were bright.
“The parlor’s closed up for the summer. Step in here. Have a drink of
something cool?”
“Just vichy, thank you.” His uncle moved toward the decanter beside the
paper-littered chair where he had evidently sat.
David stood still, holding his cool glass and aware, though he looked
beyond, of vagrant feathery bubbles in the water. Mr. Deane leaned over the
decanter.
In the center of David’s mind was the scurry of papers—Sunday papers
—on the floor, on the table, on the chairs. Chairs protruded flamboyant
scrollery from under the drab gray of their summer dress, like little old
coquettes. Massive pictures heaved on the walls, and these were covered
also and betrayed glimpses of finery of gilded frames. The family
photographs were bare. David found himself sharply looking at a stentorian
lady and two pretty girls with down-turned mouths. He drew his body
toward his questioning uncle.
Mr. Deane found questions hard. Three times he asked if David had
enjoyed his vacation: three times if he was ready for work. Then, with a
sudden sympathy, it came to him that such solicitude was perhaps wearying.
“Better sit down,” he said. Gently. At last, “Well—I guess you’re tired.
You can go to bed if you wish to. All ready for you, my boy, you see.”
There was a certain pride in his remark. David caught this. He did not
understand. He was in a mood where what he did not understand he could
not like.
He found his two legs not quite enough to stand on. He was
uncomfortable, shifting, now he had gotten up. He followed his uncle to the
fourth and topmost floor of the empty echoing house. In each narrow hall as
they passed through, a gas-jet trembled in a red rugose globe.
“Here we are, my boy. Bathroom below.” Mr. Deane smiled. “I’ll have
you waked in the morning. Sleep tight.”
David heard him stamp heavily down to his easy-chair, his chaos of
papers, his whiskey. As he had turned, he seemed to wink at David. Was he
trying to be kind? A door slammed outer silence. The room was alive....
The Vice-president of the Railroad had an estate three miles beyond the
limits of David’s town. The Vice-president had a somewhat remote sister
who used to visit David’s mother. Although Mrs. Markand always tried to
stop her and to change the subject—it shamed her—this lady would talk of
the glories of that estate and of the pride of its owner. So now this room was
talking of the Deanes. A remote room it was, thrust out in limbo—an
obviously spare room. But it was full and stridulous with observations.
David sat on the broad bed. Two dormer windows were open, and the
street came in. A low ponderous murmur welling and declining. Fogged and
blue. With sudden periodic flashes of near commotion: a passing cab, a car
clanking. The pervasive sense of low hard pavement drenched with the beat
of life swung up to him in flat strokes.
The room had the same fogginess, the same color as this new world: the
same dull compression of incessant life. It, too, was a scabbard for some
lancing emotion. Doubtless his glimpse of the family photographs had
determined David’s mind more than he knew: the muffled finery of the
house.
David had the sense of a prison; or was it a church? There were hearts
here that beat against this place, and yet they were worshipful voices. He
had never thought of the arrogant consistence of walls and of an aunt. He
was not sure of his cousins.
Unknown to himself, with the naïve prescience of the wild caught thing,
David found the spirit of the house: its angular and mournful fixity, its
irrelevance of finery and comfort. He had been shocked to find that he
knew these sorts of furniture and ornaments: there had been sporadic visits
to stately country parlors. The City’s contribution seemed mostly the house
itself, perhaps its work upon what was in it.... A City of somber houses
sentineled like conquerors on sodden streets.
David settled back in the wide bed and drifted away; a cloud of porcelain
fans and gilt settees and majolica statuettes swept in his mind with a
mingling of soft girls, and beat on the frown of gray walls....
It was night when he awoke. A numbness was over David. He thought:
“Why don’t all these things thrill me more?” He felt the plethoric breathing
of New York. Night had always meant to him the freedom of dreams, play
of stars. Here was a night that stirred with stifled pain. David jumped out of
the bed and went to the window.
An unbroken flank of houses rose from the mist of the street. They were
lightless and sleeping. They were not dreaming like most houses he had
known that went musing by night. They were heavy and hurt. It was as if
the day had struck them and blinded them; left them there in a coma. David
saw the quavering glow of the sky. The air came to his naked throat with
moist fingers that trembled. David crept away to bed....
“Your bath is ready, Sir.”
He heard this, he recalled the several knocks that had preceded. A sun
slanted into the dormer windows, lay bright there in the corner of his room.
But the shadows were everywhere—hostile hangers-on.
At table below he found his uncle, still coatless, moist, full also of
night’s shadows. His uncle looked worn and tired. A drawing weariness in
his own body, over his own face, told him the same shadows clung to
himself. City morning lacked the resilience of new birth. It must be the
usual thing: for Mr. Deane had answered his question with “Yes, I slept
fine,” and David looking back over the swift night could see in it no cause
for this new agedness that waked in his veins.
“A cool night,” said Mr. Deane. “You were lucky, lad, not to be
introduced to the city in one of our broilers.”
The swinging door widened, the maid brought David his breakfast. A
melon, eggs daintily propped in porcelain funnels: he must split them, he
guessed, with a sharp stroke of the knife without taking them out: coffee
that cut mental mists.... What curious impressions he was having! He sat so
long in this room, he noticed the shadows on his uncle’s face, the shadows
in his own blood: he had not seen the room. He felt now as if he had
thought the room was dark, and there was no use trying to see in the dark.
The door swung wide: it was as if himself had just come in. Yellow
woodwork in the pantry, an entering maid. He saw the heavy panelings in
oak and the resplendent chandelier in the air and the straight-back, red-
plush chairs and that the maid was like himself from the country. She was a
heavy solid girl moving in grace. Chestnut hair about the sweet round eyes.
Her smile was sweet, he did not feel like smiling; she was the sort that
smelt of warm milk; David thought to himself what a shame she had lost
two of her teeth.
He liked her standing close to him, serving him: her arm touched his
shoulder. He saw that the ceiling was painted: it sagged down in a verdant
circle of flowers: obese angels cavorted about very green garlands.
“We’re friends,” his senses spoke, “we are both strangers.”
Mr. Deane rustled his papers: he dipped toast in his coffee, noisily
lapped it up, sucked his mustache. It was droll how his red tongue shot out
and caught the brown drip of his mustache. Mr. Deane was talking.
“We’ll go down together, my boy—for the first day.” He consulted his
watch. “It’s eight-twenty now. As a rule, I think Mr. McGill will want you
at the office at eight. It takes forty minutes from here to the office. Fifteen
minutes for breakfast.” He reckoned and rang the bell. To the entering girl:
“Anne, Mr. David’s regular breakfast time will be ten past seven.”
His face had been long, looking away. It turned again toward David, and
broadened. He winked. Yes: he was trying to be kind.
“Does your watch keep good time?” he asked. Why should this question
seem to bring him relief? “See to that, my boy. The City is run on schedule.
On schedule. That’s why it’s a great City. That’s what makes a great City
out of a piece of country. Manhattan once had fields in it. And a few hills.
Oh, yes—Central Park was a squatter’s marsh. Wait till you see it with its
new asphalt roads! Some day there’ll be asphalt roads all over the country.”
“It’ll be hard on the horses,” David felt he must inform his uncle.
“Hard on the horses? Maybe. Maybe it will. That’s the rule of
civilization. It is hard on us all. Hard on the workers and hard on the bosses.
It’s worth it. Progress must have her dividends. When Captains of Industry
die of overwork, should we spare horses? We’ll do without them!”
Mr. Deane made a long strip of his napkin and ran it horizontally,
methodically over his mouth. “You see,” he went on, “you’ll have to change
your outlook on life, now that you are to become a part of the great City—a
part of the great Machine. You’ll be proud of it, soon enough. The New
Yorker is a man of service. He serves Business. He serves Country. He
don’t think of himself. Look at me. Your Aunt Lauretta is away vacationing.
I stay here and work. I don’t think of myself. I’ve not taken three weeks off
in twenty years’ time. I stick to my guns. They can trust me in the City.
They know I am faithful: I am always on the spot. The easy jolly ways of
the country don’t go far in the Metropolis. We’re a beehive, we are. Work!
Service! And the ambition of each man is to die in harness. Of course, I
mean the men who succeed. That is the one way to earn real money in New
York. To think of absolutely nothing else: to give time to absolutely nothing
else. There’s the American Ideal of Service for you.” He paused and glowed
upon his nephew who sat, stiffly erect, trying to believe, in order that he
might like this talk.... “And, my boy, what’s the result? Don’t you know?...
America is the result!” He flourished his white hands. “The great
Democracy. The land of three and a half million square miles. We’ve made
it. The American Ideal made it. I’ve been out West. I’ve seen our country.
The Rockies that you could drop the Alps into—lose them. The Grand
Canyon that’s a mile from top to bottom. The geysers in Yellowstone Park.
The greatest, most populous, the biggest country on Earth! And we’ve made
it. We’re making it, my boy. American Ideals.”
Mr. Deane stopped again. He reached for his climax. He found it. “I
presume,” he said, “I presume no sane man will deny that William
McKinley is the greatest statesman to-day in the world.”
He said this with a new impressive quiet. He had heard a speech of
Senator Black: he had shaken hands with him. He recalled his gesture.
David nodded. He felt he must do something. He felt a strange
discomfort. Why should he resent these patriotic words? why want to doubt
them? Should he not have found glory in believing? His mind dropped back
to Thomas Rennard and he knew that Rennard would have contrived to
scout these boasts. He found himself relieved. He wanted Rennard as a
companion in the guilt of his mood. He was quite sure it was guilt to doubt
a word of his uncle’s. No question of that.
He sat beside him in the car: his uncle was reading his third morning
paper. They spurted and clanked, they swayed down the great iron street.
David was swung in the wonders of this clanging cable that tossed them
headlong, while the wheels groaned to be free of their rails, that dropped
them rocking and sighing to a halt. What he saw was himself surrounded by
mournful men—clottings of men under straps—and all devoured by the
news they sucked from their papers, all immersed by the same strange
shadows—angular shadows—he felt in his own veins. Beyond the maze of
men ran out the mazes of traffic. Capering strides of horses with yearnful
nostrils; interminable houses, motley, jagged, restless, broken off into
squares and corners like herded wild things before the assault of other wild
things more volatile than they. So it seemed to David: these buildings
grouped in panic were of one stuff and soul with the scurrying, arrogant
throngs that pressed about them and clambered through them.
In its startled rhythm David’s mind wandered aimlessly. He forgot about
the car: when it moved with any respite it loped like a weary and whipped
horse. The broken rhythm made openings for his mind: patches of his past
came through the interstices of moving, came torn and poignant. He saw
himself in his easy greasy clothes at work at home: he felt the shoulders of
plain men beside his shoulders: eyes of brothers looked into his eyes and his
hands, black with oil, clasped other hands that were warm. His hands and
theirs were near each other—far, equally far from himself now moving
through a city. He saw not patches of his past but of himself, as if he had
been looking through this clot of men at a man beyond them. He had a
vision, harried by the car’s toss, of a young man alive with many others.
They marched along a hooded way into a shadowy house. Their loose
clothes, the grease of their hands, the smile of their eyes was going to be
cleansed away. He saw his hands clasping, so far from his hands now, hands
of men who were brothers and who were losing hold of a warmth held in
the clasp of hands.... His drifting mind touched a book he had loved: The
Tale of Two Cities. He saw a tumbril with its sodden burden moving
through the Terror of Paris. He saw the death-claimed gaze of men moving
through crowded streets. He heard the groan of wheels. Seeing these far
things, when his uncle jerked his sleeve—“Here we are”—he was not far
away....
“That’s the East River yonder.”
David’s mood changed.... They walked down a narrow street whose
name was a legend. David was walking on Wall Street. Glass casements
fronting heavy buildings, huge masonry pillared by slender stone—the
grace and loom, the hypocrisy of Power. Spawn of the buildings: men with
naked singing nerves like wires in storm, and women with dead eyes,
women with soft breasts against a hard tiding world. Furious streets. A
street wide and delirious with men shouting and waving their straw-hats
like banners. Streets narrow and somber that curled like smoke across his
feet. Streets eaten with secret moods. Streets cluttered and twisting with
pent power. Streets pulsant like hose. Streets slumberous like pythons.
Streets writhing and locked.
A wide gash of sky. The sun was a stranger. The blue was a burn.
They went toward the River. Black houses were lost among masts of
ships. Black herded houses crawled towards the wharves. Men were
nervous like rats feeding on grain.
David walked on Wall Street. Walked toward his uncle’s office that was
to swallow him up. Walked down to where it waited him, a block from Wall
Street. Life was sea-yearning. Shops sold sails and compasses and
binnacles. In the smart of the salt a scent and a sense of spices. Coffee and
wines were at home here in the grime of the North, had brought with them
the linger of their homes. Tobacco. Musty housings for jagged yellow
leaves. A brooding, reeking, murmurous street.
David fell down the funnel of a world. The waters touched him that
touched far lands. Pregnant waters. He had been like a virgin whose lips
trembled with fear. He was like a virgin whose lips tremble with desire.
He stepped into a doorway, behind his uncle....
The Deanes returned from the mountains in a body. Mr. Deane, despite
his virtues, was taking a vacation. A few days after David’s mustering into
service, he had gone to join his wife and daughters. David was alone in the
barren house, with Anne to cook his breakfasts and make his bed.
David was alone with Anne in the house. But in the house was the spirit
of its owners and more really David was alone with that.
He moved uneasy through the City, he lay uneasy in this house that was
his only home. He tried to win a certain temporary comfort. He was
helpless against the press of the Deanes, thwarting his rest as he sat eating
his food; against the press of the City as he worked at his desk downtown,
earning his food. It was beyond his reason. The days were fire. The nights
were fume of heated stone and brick. And, within the stone and brick,
restless spirits marring his own. The City gasped out the heat of the day by
night. David was seared between alternate fires.
The heat of business dulled his will, depleted his body, aroused his
nerves. A new equation. At the hour of closing, he was tired and yet only
partly tired. The discrepancy gave accent to his fatigue. The rounded, gentle
weariness that he had often known, which took him whole in encompassing
arms and lowered him to sleep, was not this. The City worked on him with
an uneven spite. There he was, with the low sun hot in the west above the
lurid Hudson: limp and moist and spirit-dead, but with senses leaping and a
hunger ranging his veins.
In this state, David took his supper—trying to stifle the heat with iced
tea and iced coffee. In this state he tried to sleep.
He lay naked in bed. The sheets clung to his flesh. His skin prickled with
irritation.
So far as work emptied him work was good. A new experience was a
new vessel—what David needed to pour of himself. But the season was
dull. Mr. McGill was gone, and already his first task, to sort and enter bills
of lading, was a tedious habit. It seemed not work to David but the kind of
punishment that was occasionally meted out in school: like copying the
commandment one hundred times: “I must not talk during hours.” There
was nothing more or else to do, until the Manager’s return.
The office was a haphazard, a languorous, loose beast functioning dully
through the inertia of its past and the prod of its future. Clusters of girls
formed like flies on a kitchen table. They chatted and laughed and wiped
the clotted powder from their cheeks. They took long hours for lunch,
buying cakes and cream-puffs and olives from the store and eating in the
office. The boys hovered about like greedy dogs, barking and sniffing and
showing a tendency to rear on their hind legs. The girls, loving the sense of
their desire, kept them unsated. Most of the occupants of the inner offices
were absent. On the other floors, above, below, the rumble of the packers
and the crash of boxes made a dusty murmur. David had seen these infernos
of industry, caught the acerb flavor of wet tobacco and sweat and heat,
observed men moving in the mist of their hands and women serried at filthy
tables, with haggard arms that were forever plying and hot eyes that were
still. He preferred his purgatory. He hated the hour of lunch when he must
step down into the flaming stream of the canyon and be part of it, hunting
his food. He was glad when the hour of closing came like a silent charm,
stilled the drone of the work. No clock was needed to announce this hour. It
went over the cluttered room like an invisible hand: its tenuous sweet
fingers touched every one and everything. The girls at the writing machines
clicked more slowly, their eyes wandered more and more, their hands
brushed back their hair with a new hope.... A last spurt puckered their brows
and their lips: then the power died. The boys at the tall ledger tables twisted
legs about their chairs and stopped sharpening pencils. They whistled
sudden snatches of a tune. Wide ranges of conversation sprang up. Talk
wreathed forth until girls in the new silence of their machines addressed
each other clear across the room: the men in the ledger alcoves laughed at
jokes given forth from the front windows....
Sudden, like the last spin of a top, a tremor ran through the office, work
toppled dead on its side.
Girls were in hats: cigarettes sprouted on the lips of the boys. Overhead
in the sudden noise of stillness, the new mood of the machines. Life was out
of the window. In groups of two and three the girls were sucked away to it:
the boys followed, with noses forward and dragging limbs.
The streets were cauldrons that had overflowed. The sluices of pent life
emptied upon them. Work had banked these fires: routine had stifled them
to smoke. Now, the coals were strewn low and long. A draft of release
whipped down the channeling gutters. There was flame. The houses
brooded like disused ovens, storing their heat and their rust.
The vision of this was a searing stripe on David’s mind as he lay within
the night: was a dark band as he awoke upon the morning. He was naked in
bed. His strong arms were thrown up like an infant’s. His open palms
pillowed his neck. As he breathed, the muscles in his abdomen rolled
gently. He was a powerful boy, with white skin and a wave of golden hair
upon his body. He had pulled his bed directly beneath a dormer window.
The sun bronzed his head. The clear soft strength of his face came out in
this sleepy light. David dozed and prodded his senses into getting up. He
was strong and refreshed in the morning. He thought of work as a contest
and knew he would win. The Hell of labor was upstairs where the men
sweated in open shirts rolling cigars, and he had seen the women fold back
their waists till the tawny dust grimed the skin of their breasts. He was in
this world’s Purgatory. In the quiet offices beyond, the inner ones bound by
invisible threads of gold to the ease of high houses in the winter and the
distant smile of the mountains, was Paradise and was the goal. David
thought that he had given up the free fields of his home and that now,
already he was set on winning them back. This, it seemed to him, was droll.
He wondered why he had thrown the fields away, when so evidently the
promise of the City was to be able to revisit them. He wondered why he had
done so. He thought of Anne, who perhaps was forgetting the scent of the
clover. He recalled that if he hurried with his bath, he would have more
time at breakfast—more time to be with Anne. His long legs were out of the
bed.
It was hard to pierce to Anne. Both he and she were embarrassed with
their desire to speak freely. They were shy. One morning she said to him:
“Mr. David, if you would want to, why don’t you come back and I’ll
cook you your dinner.”
He thanked her and refused.
“You’ve worked enough, I think.”
“Oh, I don’t mind.”
She had not pressed her offer. He had commanded his pleasure. So it
must be her pleasure. She was that sort of woman.
“What do you do in the evenings?” he asked her.
“Oh, not much. I’m always to bed early. It’s too hot for dancing, ain’t
it?” She hurried through her answer.
David suddenly knew that when his sickened will and stinging senses
came to the house at night, she was there also! While he lay awake in his
bed, a wall was between his nakedness and hers. It was both painful and
sweet to think of this.
The black heat rolled with enforcement through the City. Life was wet
fire. A murmur of anguish was the breath of the night. He lay wide-eyed,
dreaming. The air was a prison. His senses yearned toward the quiet of
death as release from this breath of the world—from these fumes of a dead
sun. He was under surprise when it knocked at the door.
“Mr. David, I’ve brought you a cool drink. May I come in?”
He did not move. He did not reach for his sheet. Anne came through the
blackness and gave him a glass. He gulped wet coolth.
“Thank you—Anne.”
She took the glass. She bent down, her hair was a wonder over his eyes.
A wonder, since her hair was hot and still it was good. He felt her moist lips
on his chest.... There was the constant spirit of the house, the forbidding
intrusion of knowing that he was a guest and she a servant, that this was
evil.... Anne was gone.
No word at breakfast.... That night David found he was awaiting her and
she came. His sheet was over him. He took the glass she offered and placed
it on the chair; his arm drew her down till she sat beside him on the bed. He
felt her body burning under her cool gown: all the world was distant, so that
the house was distant too, and for once the Deanes were in the mountains.
“No, Mr. David....”
He laughed. He was scornful: the Deanes were in the mountains.
A hot black sea was the world, rolling away. His bed rolled upon it; only
his bed was above the sea. It was haven. It was haven for him and his
woman. He drew her down, and his mouth sought her lips, her neck. His
mouth felt the wide loveliness of her body. It was distant still, there was a
gown between them. The gown was wide as a world. Her body was
growing great, until it was another sea that would cool him. It was a sea of
fire, but the fire was white and would cool him. It was needful so.
She struggled.... Sudden she came of her own broken and sick will. Their
wills were healing each other. She was willfuller now than he. She held his
head in her arms, her flesh was all about him. Her gown was gone.
He found that she was lying beside him, crumpled: holding herself away.
He found she was a little bruised woman with bruised little breasts and hair
tangled, knotted in heat. He found he was moving away from her.
He found that the night was coming back. It was scornful and
triumphant. It waved onward, and upon its bitter burning waves came the
Deanes who were no longer in the mountains. There they were in the room.
A vast febrile room. Filled with the City and its desolate shadows, filled
with the Deanes. Huddling diminished in a corner a guest and a servant.
He spoke to her: “Anne.”
She answered: “Yes, Mr. David,” so he knew she knew this also.
At breakfast the sweet silence of restraint. A Puritan’s vow in the
withdrawn eyes of each other.
But the heat did not stop: nor the wearing away of will and the rebellion
of nerves. Anne came again. It had nothing to do with the wide remainder
of their lives. It was somnambular. She was the soul of the heat—the
gladness of it. So they got to be happy together and not to mind very much.
They got to laughing and to forgetting. There were never many words.
Breakfast was the break from a dream.
David deciphered her silence.
“I am wiser than you believe. I am wiser than you,” it said. “I am
thankful for you. You need not worry. Oh, I am very thankful.”
All one week, Anne’s step on the threshold of his room was gone. David
fumbled in bare feet along the tunneled hall. His flat palm felt her door. It
was locked. The end—sweet end of unreplenishment.
No word further: no glance toward the past to open it once more....
They were really there—the Deanes! A cool, bright night with stars
crushed above the crude wave of the city streets. They had traveled through
that night and those stars for this city. They were there in the early morning.
They came in discussiveness and noise, as a luxurious gift comes
wrapped in crackling paper. Once unbundled, they were rather silent. David
sensed an unease and discomfort in their coming—a token of what
happened in souls of their kind when they were taken even for a day from
the rounds of their habits. David observed with what swift recuperation they
merged into the imprint of their house; how their house seemed to sigh and
settle with the recapture of its soul. Sudden, there was David, completely
strange, dizzily away: with the memory of his amour an unbelievable,
discreditable dream.
He watched Anne with the other servants that had come sink swiftly into
the cloud of servience: lose her charm and her sex: dwindle in an instant to
be an appendage of her mistresses, an inflection of the wishes of these
reigning women. By the shock of this a sort of osmosis went on in David.
He found himself partly identified with Anne: had they not been one
together?—and, so, diminished, humbled. Another part of him flung her off
and merged with his cousins, his flesh and blood; become Anne’s remote
and indifferent master.
He stood there awkward while the process shredded and dazed him.
Between these warring halves of himself, he fell away from the sharp social
trial of the moment—the need of fronting these women. His aunt took note
of a vacancy about him.
“Well, David, it’s been a long time waiting to know you.” She added to
herself: “He’s stupid.”
Her second daughter, Lois, supplemented her aunt as one generation
should another: “I think he’s dear”; she looked at him keenly, “but what’s
bewildering him so?”
She came very close to him, and held out her hand. “I’m awfully glad to
know you, David.” He took her hand so patiently, that she held up her lips,
“We’re cousins,” she explained and she laughed.
With great seriousness, he kissed her and liked her.
Muriel, who was nineteen and three years older and wiser than Lois,
watched the little challenge of acquaintance, smiled sourly, busied herself
with her bags.
“Well,” she said, searching for her powder puff. “I suppose it has been
frightfully hot?”
Mr. Deane had been quarreling with the coachman about the fare: his
own carriage was not yet in service. He puffed into the room. David saw
and at length realized how changed he was, in the true setting of his wife
and daughters. He scarcely noticed David.
“Got everything?” he asked excitedly. “Nothing lost? My! it’s hot! That
robber robbed me. Lauretta—you have the keys? I must run along. Where’s
breakfast?” He mopped his brow, he paced; and David wondered whether
the executive task of shipping his family to New York—or some obscure
disturbance—was the thing too much for him.
David stood quietly apart. He unstrapped bags; untied boxes; stacked
rugs and tennis rackets into obtrusive corners. They let him work for them,
quite as they let Anne work. He found himself dwindling from them: he
wondered why he minded performing these casual tasks. He found he did
not care for this identity with Anne, although a part of him knew it existed
only in himself. He looked at her—not even in her. She was very moist and
humble and unattractive in her black skirt and her white apron tucked high
in her corsage. He could not separate her body from that apron—chiefly
from that attitude of serving. He wanted to say to himself “Well—she
served me!” He wanted to be high-handed, cynical, indifferent. He managed
to lose all sense of this toiling, nodding girl as one with the sweet woman
he had held in his arms and held with all his body. There he was,
scrutinizing Lois: her smart slimness; the perfect abandon of her body not
to him but to her own position. His cousin wore a bright blue satin dress,
simple and short and trim. Her corsage was caught up in white lace:—the
scheme was near enough to the livery of Anne to make the difference
crying. Her half-bare arms were white. Strangely white. David guessed
what pains she must have been to so to keep them. She had taken off her
hat; her golden hair fell daintily—unmoist, immaculate—upon her
forehead, and in crisp ringlets down her neck. She had a tender smile that
seemed to take one in and laugh one out. Her features were smiling, soft
and round, and were yet tinged with an astute concern that contradicted
their benevolence. The white-slippered feet and the white-stockinged legs
were an increased offsetting flirt of humor to her serious brown eyes. The
attentive quality in Lois was her grace, her tender aloofness, her sixteen
years full of pride. David found himself quite willing to deny his amour
with a servant.
Anne needed to come up to him and ask him:
“Will you be going downtown to-day, Mr. David? Or will you be here to
lunch?”
“I’m going downtown,” he said sharply. He looked in her face and found
the soft intimate sense of her offensive: a too cloying sweetness for his
stomach. On the heels of his discovery a great remorse and disgust at
himself. It drove him toward a demonstration of bravado: he needed almost
to make clear to this searing presence of the Deanes that he owed Anne
much, was more like Anne than like them, and was aware of it. This too was
checked, left him dangling.
Lois caught him looking her through, and came over to where he worked
at a stubborn bag: she said: “Let me help you, David.”
“No need,” he said with a tone studiedly similar to the one he had
addressed to Anne. There was balm in that. It seemed, however, not to
disturb Lois: and Anne was out of the room.
His cousin helped to the extent of loosing one strap. She sat on the
gladstone and was suddenly languid, and forgot....
With Lois cornering his eye, David found he had the whole group in his
mind. Mr. Deane was still at paces on the floor, calling for breakfast. David
was amazed at his insignificance in this concise room. His wife paid him no
attention. Twice she brushed against him, crossing the room: twice also she
brushed against a bag. Her reactions were one. Muriel went up to him and
said: “Father, let me have about twenty dollars more, will you?” Mr.
Deane’s pacing slowed against this new ordinance. He stopped, snapped the
bills from his wallet and handed them to his daughter. Muriel was at the
moment looking over her shoulder, giving an order to Anne. She did not
stop. Her eyes did not go with her receiving hand. Mr. Deane resumed his
pacing. His wife said, half in the air: “In a moment, Anthony, we shall be
able to spare Anne.” Lois, musing in her corner, suddenly flared forth:
“Father, you are making me nervous with your walking like a lion in his
cage!” But at once her face went soft, she forgot what she had said. Then
her father had left the room, following the bright discovery that Anne had
left before him.
David felt it was time to be off for downtown. He went to his aunt.
“Good-by.”
“I hope, David, you don’t squander your money at those expensive lunch
places.”
David said he did not. He did not add he was afraid of them. He went to
Lois.
“Good-by.”
“Good-by,” she smiled. “Come back soon.”
He went to Muriel. She looked up surprised.
“Oh,” she said. “Oh. Good-by.”
And the revelation came to David. These four persons were not a group:
in no true sense were they a group. The families that he had known were
strictly groups.... Even his own, though in his father’s days the rhyme of it
was pain. Some single rhythm, some common color composed them. Here
were four persons. Their spirits had nothing to do one with another. He was
quite sure their spirits were not aware one of another. They spent one man’s
money: they obeyed one woman’s orders: they lived at the behest of a sort
of mutual complacency together, sharing the pleasures that were in need of
union for support. But they were not united. David felt it, touching their
fingers, as he said:
“Good-by.”
It gave him a strange, even a sick feeling: as if he had seen a man
devouring his own hands.
IV
I T was voluptuous for Tom Rennard after the trees and the birds to give
himself once more into the bond of his profession. Through the free
woods he walked in manacled anarchy: through the City’s thralldom he
walked free. He plunged into work. He touched the tasks of the approaching
season, knew it would be his best, measured his dominion above success
and was glad like a bird perched on top of its cage. He prepared a brief for a
case months away from trial: he played with the strategy of an appeal in a
suit not yet argued. In the brash nights of the refilling City he sat in hotel
lobbies and let his mind cut clear through the flaccid provincial crowds. He
journeyed uptown to a baseball game: drank in the rawness of the joy of
others in a ball swiftly caught and clouted: let his heart fill with the tang of
the game’s intricate and lissome grace against the sprawling pleasure of the
mindless. Once more New York, an atmosphere, lay, swirled, clouded and
shone around him. Then he shut his desk, an early afternoon, and went to
see his sister.
Her studio was unfashionable in location. It was the top floor of a
crumbling red-brick house in the moiled middle East Side of the city. It was
east of Murray Hill, west of Stuyvesant Square: the elevated trains snorted
their cinders not far from her flowered window. Cornelia began to make
money and her habitation blossomed. Persian shawls appeared in
appropriate corners: new rash adventures in color out of Paris gladdened the
white walls: slender vases came from exile in Chatham Square. Tom called
the place his refuge from the city.
“Hello,” she said. “I am glad you came. I’m lazy this afternoon.” Tom
folded his coat away in the little bedroom. It had the air of a cell. The white
walls were bare, the white iron bed was narrow; a small pack of books
stood in the corner of the floor.
“You take it easy,” he said, already at the task, “and I’ll prepare you
some Turkish coffee. Have you any of that orange essence left?”
He was adept and he needed to ask no further questions.
They settled and sipped and talked. Cornelia was on the couch. Tom
squatted on the floor. Both of them had lighted cigarettes.
“Well, what adventure?” she asked.
She looked more than the three years older that she was. She wore an
unembroidered smock—a dull, muslin drab. Her feet were sandaled. Her
hair was drawn tight back over her head, where it could not interfere with
work. Her eyes were soft in the harsh angles of her face.
“I was on a vacation, Cornelia. You know that means that I took care
nothing should happen to me.”
She laughed. “That efficient you’re not, dear boy.”
“Well, there was no semblance of adventure. I tramped and drank a lot of
glorious milk and slept nine hours a night.”
“And——?”
“And swam and paddled.” Tom wagged his head with the catalogue.
“You met somebody interesting?”
He stopped. “How do you know?”
“You always do, don’t you? Who was it? The girl, at last?”
“No—not the girl. And you’re wrong. Really, I had a deliciously dull
time.”
She did not press the matter.
“Daydon says I ought to move now I’ve won that prize. He says no one
will visit a studio so near Third Avenue.”
“Are you going to?”
“I am not.”
“I am glad, Cornelia. Just because you have begun to have money is no
reason for spending it all on rents.”
“That’s just what most New Yorkers do, is it not?”
They both laughed, and were silent.
“What you said has a lot of truth in it,” Tom spoke at last. And his sister
knew he had pounced on her observation as a text. He was comfortable
now. He had been just a bit uneasy, questioned about his trip. There was the
sign of a release from nervousness in the brightening of his eyes and the
slower puff of his cigarette—the way he curled up his legs, limbered his
arms and began to talk. Cornelia watched him with a vague amusement and
a subtle reservation. She would let him have his speech; then she would pin
him back to his trip and the thing in it which made him nervous. In this
mood she listened.
“Really,” he said, “the true inwardness of New York’s rising sky-line has
been the passion of New Yorkers for high rents. Have you ever thought of
that? What a handy substitute for other, remoter standards they have found
in the price of housing? Of course the gullible talk of the fact that New York
is a crowded island. They forget the miles of dilapidated and discarded
masonry within hail of their stylish towers. Some day the historian will
understand. He will say this: ‘Money was so deep their worship that they
mis-prized all treasures of life which did not blatantly announce it. They left
their walls empty of beauty, their larders empty of health, their houses
empty of grace, in order to pay high rents to the lords of land. These
fabulous sums were the pride and the decoration of their lives. The height of
New York rentals and the high buildings that were their symbols became the
chief expression of Metropolitan Art!’ ”
He laughed. Cornelia kept silent.
“The historian will finish in this tone: ‘Surely these were a foolish
people, ripe for destruction.’ ”
“Give me another cigarette, Tom.” She was resolved not to help him
along. Tom came to silence. He felt her mood.
“Well, what is it?” he asked.
“You had better look out, brother mine. You could easily get to be a
typical New Yorker. I hate talk.”
“What I said wasn’t true?”
“Yes. But it was talk.”
“Oh, boo! Don’t be so serious.”
“Weren’t you?”
“Of course not. I was speaking the truth. Even, I was prophesying. To be
serious at such a game is to risk being a fool.”
“Most of your talk, Tom, is a side-stepping of something in you you
want to hide. I have noticed that.”
Cornelia was half up on her couch, facing him straight. Now, she was
ready to pin him. “It’s a bad convenience, dear,” she went on, “putting up
all these brittle outer observations when some one threatens to get under
your skin. You do it so well.”
She smiled; Tom straightened his legs and met her gaze. He knew her
direction. “You wouldn’t understand,” he said.
“Why? Just because you don’t?”
This was a true shot. He acknowledged it.
“Very well,” he spoke dryly. “There was a boy—a mere boy—up there.
From New England. For some curious reason he upset me. I don’t like to
talk about him. I do want to see him again. It’s all rather odd because he
was really quite dull. We had damn little to say.”
In a flash Cornelia’s mood changed. Her perceptions had controlled her
—the acute and angular and severe in her. Now she was seated toward him
on the couch; it was as if dominion had passed over to her eyes that were
large on her brother. She spoke tenderly:
“It’s not a girl yet, is it, Tom?”
“You know it never is. Girls can’t disturb me. I can master women. I am
cool and sure before them. But so I was with this—this fellow. Yet it seems,
as I look back—quite irrationally, mind you—it seems as if we had had a
contest and he had won.” He paused.
“You probably talked to him—flaming revolutionary talk.”
Tom shrugged.
“And he was shocked.”
“Precisely,” Tom burst in. “He was the shocked one—the dominated one,
the silenced. Then, why this foolish desire to see him again and throw him
on his back?”
“It has been troubling you?”
“I have imaginary conversations with him. I walk up and down
Broadway with him, and say: ‘See! what a Gehenna this country’s greatest
city is?’ I take him to theaters and gloat and declare ‘Trash, eh? They call it
art in New York.’ Even at my office. I show him through my papers. ‘All
chicanery,’ I announce. ‘That’s what you want to enter, is it?’ I shame
myself before him.”
“Think it over, Tom,” Cornelia followed his silence. “You should be able
to find out the thing that is troubling you.”
Tom sat a bit diminished on the floor. Sedulously he flicked the ash from
his cigarette, each vestige of the ash; his fingers close to the hot, red tip. He
looked up:
“This chap has something I lack and want: a sort of pure sincerity. He’ll
go far—and be miserable as the devil.”
“Look out! Aren’t you the one who is afraid of misery?”
“True. I want him to give me the saving treasure. I want to give him the
saving moderation. Then we could both be saved.”
Cornelia laughed. “What are you talking about now?”
But Tom was very sober. “He is all wings. He has no eyes. He’ll dash
himself against the sun. I am all eyes. I see everything. But where are my
wings? I’ll freeze to death from far away, seeing the sun.”
He got up. He paced the room.
“Oh, this is nonsense. You are right. I liked him because he was a naïve,
country lad. I was afraid I had hurt his innocence——”
“You are dying to kill it.”
Tom stopped and faced his sister. “That’s not quite fair, Cornelia. Not
kill it. Steal some of it, perhaps.”
He was talked out of his mood. He was light-hearted and full of interest
for a thousand things. It was a trifle after all.
So they played through the afternoon, they went arm in arm to dinner,
they spent an hour in a terrace with liqueurs before them. They talked of her
work and her triumphs and the quaint jealousies of artists. All this because
it was his greatest pride. And several times Tom broke out in admiration of
New York: in praise of her vast largesses. He was confident and proud.
Cornelia smiled again—her angular, critical self....
Before her door he kissed her good-night.
“We’ve made a pretty good start, from Dahlton, Ohio, haven’t we, sister?
Pretty good, pretty fair.”
She changed once more to the tender part of her nature: she ignored his
mood.
“Good-night. And Tom—that country boy—bring him up some late
afternoon?” Her eyes alone smiled. Tom startled, imperceptibly.
“Surely,” he hurried to say. “Surely ... if I see him.”
Nature cellared its profusion. The sap of life was sucked to the roots of
things. As the year died, the house of the Deanes came to life.
Chests gave forth finery and color. Curtains were up, barring the archaic
sun: dun colors were away from the florid chairs. The safe-vaults let go
their silver plate and their gold, and from the hot-houses came flowers.
Streets were chill, skies were mournful; in the narrow endless purlieus of
the disinherited, of the nine-tenths, began the hunger for coal.... But it was
summer in the City.
The position of David was straddling, but not too insecure. He was part
of the Deane household. How goodly a part devolved on his own discretion.
If he made himself liked, there was no comfortable share he might not win.
He was part of the Deane Company—the Deane machine of subsistence. A
small and trivial part with a distinction. This he did not feel until his fellow-
menials later had ceased feeling it for him. In his low place there was
always the seed of future sharing. He was the Boss’s nephew. In the low
places of the others, there was always the seed of permanence. These were
the Boss’s victims. The Boss would keep them victims if he could. He
would have all the pretty terms of a century of special pleading to hallow
his act. But surely the world was a smiling place for David Markand.
“My boy,” said Mr. Deane, “you are on probation. If you prove your
worth, as you may well imagine, I will be glad. American enterprise is the
home of the free, the contest of character and brains. The true man wins the
prize. And of course, I don’t forget who you are: that you are the only child
of my dear sister. Nor must you, my boy. I have no sons of my own.”
Uptown he was still somewhat the stranger. But he was the friend of
Lois and he grew confident. They liked each other. Different dispensations
from far separate sources had thrust them close. Now both of them stood
together at the gate of the brilliant world Muriel went to evening after
evening. They saw Muriel return, full of tokens of its splendor: full of
weariness and hidden joy, full of pride and hidden knowledge. David meant
to enter the gates with Lois. In the waiting it was natural that they talk, hold
hands.
She would have said that she found him interesting. There was her own
life, which in her mind lacked quality. It was an empty atmosphere
occasionally pierced by suns and falling stars. The light of these was her
sustenance and was rare. So Lois starved.
She would have said that he was easy to talk to.
In the conventional sense he understood nothing: in the sense in which
life was a ruled open page for Muriel and her mother. But in the outlaw
sense where these two were blind, he understood miraculously well. She
could skip the roted things of the world in talk with him, dwell on the
stirring and uncharted. They met in a sort of reticence about the obvious.
Not deliberately, but because he could not otherwise have understood. Two
persons speaking different tongues could live on elemental planes. They
could convey and satisfy the sense of hunger, they could fight, they could
make love. The difficulty might come when they attempted to dine together,
to quarrel civilly, or to get married. Here, a common set of words was
needed.
So between these two. Social engagements, family traditions, judgments
of the technique and manner of existence she could not broach with him.
She did not need to. Her school, her friends, her family webbed her in such
subjects. The wider ranges that Muriel would have cut through as vague
became their meeting place. They talked about life and beauty and the
future. She was sixteen and David twenty. In these vast fields they were one
fledgling age.
They were often alone together. The room on the third floor that faced
the street was the living-room of the sisters. And Muriel was usually out:
and the parents stayed in their own quarters below.
Dinner’s end was release. David sat there uncomfortable and Lois sat
there indifferent. Mr. Deane had few words. He was weary at night. What
energy he had poured into the business of eating. Mrs. Deane was voluble
enough, but she needed no attentive ears and she had none. She talked: her
husband ate: her daughters spoke low together: David made his shoulders
narrow and occasionally straightened with a shock when his aunt’s eyes
turned on him. The last sip of coffee meant the last moment at the table for
the girls, whether their mother was in the middle of a sentence or their
father was asking them a question. In this case, the question could be curtly
answered in the process of exit.
“Come, David,” from Lois, “you’re finished, aren’t you?”
If at first David was reluctant to leave so suddenly, he learned that
nothing different was expected of him. Mr. Deane lighted a cigar. Often he
was left alone to smoke it. He sat, his body folded and heavy in his chair,
his eyes folded and heavy behind smoke. Anne came and went, clearing the
table. He was unperturbed. His soft mouth wreathed and pouted:
occasionally he smacked his lips. He was the picture of attainment. In his
empty gaze, in the lack-reflex slumber of his muscles, in the dim
movements of the heavy smoke, there was a gross Buddhistic character. It
was clear that attainment in his American faith tended not toward heaven,
but toward a sort of flatulent Nirvana.
Meantime, Mrs. Deane was upstairs, under a lamp, reading a novel; and
when her husband did not eventually shake himself, with a slow and sleepy
evolution, to his club, he was in bed before she closed her book.
Often members of the plenteous family of Mrs. Deane came to dine. But
the atmosphere of the table was ample enough to embrace them. There was
the same dull air, charged with the vocal passion of Mrs. Deane and the
sharp reserves of her two daughters. Only one sister—a Miss Dikes—could
match the commanding Lauretta. They were profoundly sisters: when she
was at table, the currents of air were shifted rather than changed. Always,
Lois and David were willingly excused after dinner. And Muriel managed
often to be out when her relatives were there. Her mother scolded and
occasionally wept at this disloyalty in her child. But the child was already
stronger than the mother. Muriel seldom quarreled back. She sneered and
her eyes flashed: when she spoke, it told.
Upstairs David reached for a book.
“You have your homework to do, I s’pose?”
Lois smiled and nodded. “Oh, yes.... But I’m not going to do it.”
“You’ll not get your certificate if you don’t watch out.”
“And what good would it do me, if I did?... We’re going to talk.” She
snatched his book.... “Unless, of course, you are more interested in The
Banking System of the United States.”
“Lord, no!” David laughed.
They sat together on the broad, cushioned couch whose gay blue and
dull gold were a telling contrast to the dull blue and bright gold of the
mother’s room below.
“What are you going to do when you become rich?” she asked him.
He looked at her. She asked him this as once before he had said to her:
“When are you going to get married?” She had answered: “I am not going
to get married, perhaps.” He had laughed her denial away.
So now: “I am not going to get rich, perhaps.” And there was she,
scoffing at him, holding back her head and saying: “Please, do be serious,
David!”
He was. He began to think aloud.
“Not everybody gets rich.”
This had no effect on her. As his silence marked his words as her answer,
she shook her head with a faint impatience.
“I know. But what’s that to do with us? You’re my cousin, aren’t you?
You’re our sort. You’re in Daddie’s business.”
“What sort don’t get rich, Lois?”
“Oh, I don’t know.” She looked at him as if he were stupid. “You ought
to know, better than I. You see ’em all around you at Daddie’s business.”
She also had been set to thinking. “How are they different from us?” she
asked. Then: “Father says they simply aren’t as clever. Most of them drink
too much: and have packs of children: and don’t bathe very often. I guess
it’s all these things.”
“It must be. But you can’t really see much difference. Of course, you.
You’re different. You’re a—why, you’d die, you couldn’t have been born,
anywhere else. But I work with five other chaps in the shipping office, and
they’re just like me.”
Lois laughed. “What nonsense. They’re not! You’re much nicer.” She
was giggling in foretaste of the wicked truth she was about to utter, “you’re
—I’m sure you’re much, much cleaner.”
She was like a pricking rose under his face, laughing there on the couch.
David resolved to be angry.
“That’s rotten of you, Lo. You’re no democrat.”
“Of course, I’m not. I’m a Republican.”
David, enjoying his indignation and unconsciously aware of the excuse it
gave him, reached for her wrists.
“Don’t!” he commanded.
“You are!”
He pulled her to him, and put his arms around her waist. He said: “Stop
making fun of people.” Then he kissed her.
Lois stopped laughing. She was very still. Her eyes glistened.
“Do you think, if you hadn’t been nicer, and cleaner and everything, I’d
let you kiss me?” She jumped up and away.
He liked her intimacy. It flattered him. He did not wish to tell her of his
work at Mr. Devitt’s, and how easily he might have stayed there long and
forever. And she liked his reticence, feeling its power. She liked the veiled
promise of pleasure and strength that he suffused from all of his big being.
It frightened her.
She was seated as far away from him as she could manage. Her bare
elbows were on her knees and her chin was cupped in her hands. The
pressure upward faintly distorted her soft mouth: one corner was open and
two teeth bit white and hard against the lip. Her throat tremored with her
amusement; the rose mesh of her waist fell forward in suggestion of the
warm swell of her girlish bosom. David believed that she was purring. He
saw her teeth biting their hardness into the blush of her lips: he saw how
smooth and round her arm was. He said:
“You let me kiss you because I’ve a right to.” He was aware of the
retreat in his words. “...because we’re cousins.”
She merely lifted her face a bit, as if he were stirring away. “All right.
We’re going to play now that we are not cousins. We are just you and me,
do you hear? So you mayn’t kiss me anymore.”
Already he was forward. The game started. The goal was implicit with
them both. In a fortnight’s time, David had won his kiss. He was very sure
that Lois was very lovely: he was almost sure that she did not return his
kisses because he was unworthy....
David sat at his long table in the office, lost in a maze of figures which
gave a different answer each time he questioned them. He was languidly
certain the figures were laughing at him, held him in contempt. About him
yellow pine, hard human bustle. He looked up through the mist of his
discomfort; he saw above him a slender and sleek young man with a smile
on thick lips.
“My name is Duer Tibbetts. You’re Markand, aren’t you?”
David was not sure whether to keep his seat. He was twisted in
indecision.
“I am a cousin of your aunt, I work over there under Mr. Herding in the
Cashier’s Office. I have just come back from two weeks in Virginia. I was
told to look you up and make you feel at home.”
For the pause, he stood there a bit ill-at-ease himself.
“I’ll come round at noon, and we’ll go to lunch.” He was gone.
David had the sense, walking through the streets, of a young man
marvelously sure and hard and clever for his years. He gave forth the
slightest word as a pronouncement.
“The very hottest weather’s over,” he declared. “Greibeck’s is a great
café. You must go there often. I discovered it last year, one day I was
lunching with Mr. Farnam—H. L. Farnam of The Liberty Trust. Always go
downstairs. There are women upstairs. Downstairs is the place for talking
business.”
Duer Tibbetts thrust the long printed card under his nose and then told
him what to eat. He ordered as if he were in a great hurry. He drank beer
with his meat. “Don’t you want anything to drink?” he asked as if unwilling
to believe in any organic deficiency in his new friend. He called the waiter
by his Christian name—but never looked at him.
“We must get to be friends,” he announced. “Don’t bother about the boys
in your office. They’re not our sort. Stick to work.... Stick to work and stick
to your uncle. He’s a prince—a prince,” he chanted with emotion.
“I’ve been here three years. Since I was sixteen. No college nonsense for
me. I’m assistant cashier. You’ll find the old man is hard, but he is just. Yes,
he is that. But he has his silent little ways of pushing you along.”
For the first time, he raised his eyes and David met them. He liked him
better. So this Duer Tibbetts was to be his friend? As soon as he began again
to talk with his eyes once more down, David examined him.
He seemed engrossed in his own words. He paid them out, as if they
were coin. He talked with a certain muscular emphasis of his lips, a periodic
pointing of his left forefinger. His forefinger always was detached from the
others. The rest of him remained immobile. A gold chain fell straight from
his lapel to his coat pocket. His hair was so blond that near the temples and
behind the ears it imperceptibly faded into the color of his skin. His fingers
were wider at the tips than at their base. His voice was high pitched, coarse-
grained, mostly a monotone.... David met his eyes and liked him again.
Tibbetts’ gaze clinched his firmly; almost too fixedly: as if his eyes
lacked the pain of encounter. They were lashless blue. Tibbetts had the soft
eyes of a boy, the shallow eyes of a man who has not ventured where the
boy’s eyes yearned.
David turned his own deep uncertain gaze on him: in the retreat of his
glance and the veil of warmth that suffused from the contact it was
altogether clear which was in truth the older of these two. But neither David
felt this, nor Duer Tibbetts, steadfast and staring. What came from their
encounter was David’s sense of respect and wonderment for Duer Tibbetts,
and Duer Tibbetts’ thrill of respect and wonderment for himself. To this end
he talked. A gentleman can boast only before an equal. And Tibbetts was a
gentleman, if for no other reason because he felt the quality of David.
“A smart chap. You know: the sort who get on in the end,” he reported to
his father. The young protégé and the powerful attorney of Deane and
Company discussed the new arrival. They said many things. The paramount
detail that this was the nephew of Mr. Deane, they had no words for: but
this was what they were keenly thinking. The suppressed thought came out
in the rhythmic beat of Mr. Tibbetts’ thumb against the desk, in the over-
emphasis of his son when he said such common words as these: “I like him.
He is slow, but what is slowness? You never can tell what’s underneath. The
fact that he don’t know much now shows merely that he has lived in a little
town. Lots of good stuff has come from little towns.”
Now, he talked lavishly and with diligence to impress David who sat
passive, trying to learn, telling himself that he was learning. He talked of
projects and profits, of Mr. Deane’s subtle aggressiveness and of the
Company’s prosperity. He spoke of the great law-suit which his father had
won for the firm from the Feddlesby people. He spoke of a swinging figure
that had gone from Deane and Company to help elect McKinley.
“Measure it with our payroll, if you want to feel how much it was to
give.” He did not divulge the payroll. He said, “We” when he meant David
and himself; “We” when he meant the Company; “We” when he meant
America. There was a deep philosophy in this confusion. But David was
still far from grappling with it, and Tibbetts did not dwell in the sphere of
definition and reflection.
“Yes, sir,” he pointed and flushed with his prophecy. “We’ll be in Cuba
in less than a year. Don’t you forget it. We’ve got to kick the Spaniards out
and go in ourselves. Then, we’ll earn enough from our dormant Las
Daciendas plantations to buy up every relic factory in Key West. It’s a coup
that’s certain.”
All this puzzled David. He was not sure whether the “We” who must
kick Spain out of the West Indies was the payroll of Deane and Company:
or whether the “We” that was to grow subsequently rich in Las Daciendas
was the citizenry of America. It was all a bewilderment of lines.
The weeks of his residence in New York he had been sedulously reading
the papers that came daily to his uncle’s house. He knew that America’s
interest in Cuba was a humane one grudgingly forced on her. Her wrath at
Spain and her forming resolution to have Spain “out from her back yard”
were due to her Christian worry for starving natives. The impulse of
brotherhood was quite clear in the papers. Yet the effect upon Business
seemed equally clear in the mind of Duer Tibbetts. Brought together in
David’s mind, these two clarities precipitated fog.
He went away, respecting the more this young man who saw the light
while he walked in darkness.
Relief of Cuban sufferers and relief of ravaged tobacco plantations:
America’s crusade for love and a great Company’s contribution to the
coffers of the Republican Party: the free lists of business and the advantage
of being a nephew—it was too much for David’s untrained mind. For David
needed to “conform.” And David needed to admire.
It was a Sunday afternoon. The room where David sat, the room of his
talks with Lois, lay in the languor of a refracted sun. It faced north. David
could see the full rays beat in the flaming brick and the warm brown-stone
of across the street, be absorbed. Here was a low vibrancy—strayed
residues of sunlight that had lost their incandescence. The room had its
compensation. Lois’ gay hand was over it. The couch had a dappled
welcome in its cushions: “outrageous” her mother called them. A strip of
Japanese brocade laughed on the wall: and Lois’ desk, with its bright brass
knobs and its jolly fluted legs, hinted the tempo of the occasional letters and
the desultory homework of its owner.
David had emerged from Sunday dinner. Rather feebly he wrestled with
a Sunday paper. He was alone with it and it was winning. The article was
discursive and plethoric. It dealt with Tammany Hall and the imminent
Municipal Election. The City had just become the Greater City. Manhattan
had swallowed Brooklyn and Staten Island. Once more it served as the
shining symbol of the age: for it had gone through a merger, and it was
superlative in size. Now, Tammany was attempting to recapture the swollen
booty. It was, according to the writer, hopeless. “Richard Croker is back
from Ireland and his horse races. But he will find only a ruin and a name
where stood the corrupt organization that netted him his millions.” Later:
“Mayor Strong is beloved of the rank and file of the people. Under him,
under such of his competent servants as Street Commissioner Colonel
Waring, the people have learned the blessings of a Reform Administration.
They will never go back to Tammany. They have had high wages and clean
streets, better conditions in their tenements, less disease and a low death-
rate. They have understood. Tammany means misery and vice: Tammany
means the seduction of their daughters into the gutters of sin: Tammany
means all that crime and corruption mean. Leave it to the people of the
Greater City to choose a successor or an undoer of our Reform
Administration.”
This was all clear. But the general terms of the article bewildered David.
Why, in the face of the obvious conclusion, this note of frenzied worry, of
desperate pleading? The people surely could be left to choose between
happiness and squalor, between life and death. And why these paid
announcements of the Tammany candidates—these arguments in their favor
alongside indictments which made it probable to David that Tammany
would poll no single vote? The article was full of contradictions of the sort
that had twisted this last month of his life into a question-mark. Mr. Croker,
breathlessly returned from England, found his Tammany a ruin and a
dream: yet “efforts will be made to elect the Citizen’s Union ticket such as
have never been attempted in the century-old fight against Tammany, the
City’s incubus.” The people had enjoyed three years of almost paradisal
amelioration; yet “it must not be believed that Tammany’s old tricks of
getting the people—appealing to their hearts and stomachs—have been
forgotten.” Mayor Strong was the idol of the poor; yet “the old cry of
corporate control and a ‘rich men’s ticket’ has been raised.” The puzzles
spread out into the past. The article concluded with a brief historic sketch of
this Tammany-monster that in ways so foul brooded upon the people. “The
study of Tammany makes it clear,” one sentence went, “that it can never be
reformed. The Tiger can not change his stripes. Tammany means and has
ever meant a single, evil thing.” Yet, to David’s dumb amazement!—several
of the old crusaders who had ousted Tweed and killed Tammany in the
“sixties” were a year later officers in Tammany Hall! Here was a great
Reform Governor and Presidential nominee—in Tammany Hall; and the
present presiding financial genius of the City’s projected Subway system.
While there, in a corner of that very page, heading a committee of social

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British Library Cataloguing in Publication Data

Feminist perspectives on child law

ISBN 1 85941 525 3

Printed and bound in Great Britain

Anne Bottomley and Sally Sheldon

Adrienne Barnett works in full time practice as a barrister, specialising in

Jo Bridgeman is Lecturer at the University of Sussex, where she teaches health

Richard Collier is Professor of Law at Newcastle University. He has

Alison Diduck researches and teaches law at Brunel University and is a

Michael Freeman is Professor of English Law at University College London.

Daniel Monk is Lecturer in Law at Keele University. He teaches child,

Helen Reece is Lecturer in Law at Birkbeck College, University of London.

Rachel Thomson is Senior Research Fellow in the Social Sciences Research

Anne Worrall is Reader in the Department of Criminology at Keele University

Jo Bridgeman and Daniel Monk

Series Editors’ Preface v

1 INTRODUCTION: REFLECTIONS ON THE RELATIONSHIP

by Jo Bridgeman and Daniel Monk

2 FEMINISM AND CHILD LAW 19

3 CHILDREN BY DONATION: DO THEY HAVE A CLAIM TO

4 CONSTRUCTIONS OF MATERNITY AND MOTHERHOOD

5 DIVORCING THE CHILDREN 85

6 ANXIOUS PARENTHOOD, THE VULNERABLE CHILD AND

7 CONTACT AND DOMESTIC VIOLENCE: THE

8 GOVERNING BAD GIRLS: CHANGING CONSTRUCTIONS

9 LEGAL, PROTECTED AND TIMELY: YOUNG PEOPLE’S

10 EDUCATION LAW/EDUCATING GENDER 187

11 EMBODYING OUR HOPES AND FEARS? 207

12 FEMINISM AND CHILDREN’S RIGHTS 227

by Hilary Lim and Jeremy Roche

13 SOLICITORS AND LEGAL SUBJECTS 251

14 ‘HOW THE UN STOLE CHILDHOOD’: THE CHRISTIAN

A, Re [1991] 2 FLR 388 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

B, Re [1962] 1 All ER 872 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29

C, Re [1994] 1 FLR 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37, 39

D, Re [1976] Fam 185 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39

E, Re [1993] 1 FLR 386 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37, 38

F (A Minor) (Blood Tests: Parental Rights), Re [1993] Fam 314 . . . . . . . . . . . . . . . . . . . .76

F (Minors) (Contact: Appeal), Re [1997] 1 FCR 523 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .142

G (Parentage: Blood Sample), Re [1997] 1 FLR 360 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64

H, Re [1996] AC 563 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44

J v C [1970] AC 668 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28