A Brave New World Order

Abstract

The scope and implications of Professor James G. Dwyer's The Relationship Rights of Children are both narrower and wider than one might expect from the title, or even from its Introduction. Works in this area of family law tend to focus on either a relatively sociological investigation of the definition of families or the operation of rules framed within the existing legal definition. Rather than discuss the relationships that individual children might wish to pursue and enforce, Dwyer proposes a new ordering of legal parenthood, excluding ab initio those biological procreators whom he identifies as likely to fail to provide decent care for their children. The practical changes in the distribution of parental status under his scheme would not be great, as its operation does favour birth parents, but the automatic link between biological procreation and legal parenthood is broken. The rationale is expressed as an implementation of children's rights, meaning not autonomy rights but rights to the implementation of their best interests. Dwyer provides a formal philosophical rationale for his scheme, based on the moral philosophy of John Rawls. He points out that adults do not have personal relationships foisted upon them and asserts that it is an unwarranted infringement of children's rights to equal consideration before the law to assign them inadequate legal parents who can mess their lives up for them. He goes on to provide draft legislation setting out those whose conduct or circumstances before the birth will effectively prohibit them from being parents. The project thus appears limited, but raises the very big issues.

Keywords: family law, parental status, children's rights,