About ReValuing Care

What does it mean to be a carer?

Professor Ann Stewart, University of Warwick, UK.

Book Cover for ReValuing Care in Theory, Law and Policy

ReValuing Care in Theory, Law and Policy: Cycles and Connections

Why would anyone want to call themselves a carer?  Are not all of us carers in one way or another?  As feminists have long argued we all give and receive care to a greater or lesser extent throughout our lives, as friends, lovers, family or community members. Privileging ‘a carer’ is to isolate a particular form of autonomous actor when we need to recognise that all are involved in relationships that are fundamental to the functioning of any society (Herring 2013).

Yet caring is often not recognised, as a number of international organisations, academics and activists have argued in the debates over the Sustainable Development Goals (SDG) (Razavi 2007, Sepuldeva 2014, Budlender and Moussié 2013). They have called for policy development to take account of the 3 Rs – recognise, reduce and redistribute the burden of care (Elson 2008), with some success.  Target 5: 4 of the SDG equality goal requires all to: recognize and value unpaid care and domestic work through the provision of public services, infrastructure and social protection policies, and the promotion of shared responsibility within the household and the family as nationally appropriate.

While raising the political profile of unpaid care is important, framing the ‘problem’ in this way can obscure the wider implications of what feminist political economists term social reproduction (SR). Rai and Hoskyns describe it as:

biological reproduction; unpaid production in the home (both goods and services); social provisioning (by this we mean voluntary work directed at meeting needs in the community); the reproduction of culture and ideology; and the provision of sexual, emotional and affective services (such as are required to maintain family and intimate relationships) (2007, p. 300).

SR captures the crucial relationship with ‘productive’ activities while recognising the range of ‘tasks’ involved. It encourages us not to focus only on specific groups who are seen as in need of care or who provide particular forms of care.  It avoids the language of ‘burden’ while requiring us to address what feminist political economists call ‘depletion’.  Rai, Hoskyns and Thomas define depletion in SR as ‘the gap between the outflows – domestic, affective and reproductive – and the inflows that sustain health and well-being’ (2014, p. 86). Depleted social reproduction (DSR) is the level at which ‘the resource outflows exceed resource inflows in carrying out social reproductive work over a threshold of sustainability, making it harmful for those engaged in this unvalued work’ (ibid., p. 88–9). They argue that there are ‘three strategies to reverse DSR – mitigation, replenishment and trans-formation’ (ibid., p. 98). DSR is mitigated ‘when individuals attempt to lessen the consequences by, for example, paying for help’. It is replenished when ‘states or private bodies contribute to inflows’ ….). Restructuring of gender relations and the recognition and valuation of SR are necessary for its transformation (ibid., 2014, p. 99).

Thus for policy makers to recognise SR it is essential to develop appropriate ways of measuring the net cost of SR. It has to be quantified in some way.  In legal terms it has to be ‘claimable’ but on what remedial basis?  Is an individual being ‘compensated’, ‘rewarded’ or ‘remunerated’ (Sloan 2013: 24)? Each remedy points to a different way of valuing the activities associated with caring and mitigating the consequences. Compensation focuses ‘on the loss or detriment suffered by the carer as a result of taking on caring responsibilities’ (ibid.). Or is ‘the true value of the services performed by the carer as a benefit conferred on the care recipient […] recognised only if we are prepared to speak of “remuneration” or “reward”’ (ibid.)?

My chapter in the ReValuing Care edited collection (Stewart 2017) focuses on the way in which carers in the UK are understood in the domain of paid work, within recent social welfare legislation, notably the Care Act 2014 and in private law. What do we learn from the way in which carers appear in these different areas of law? What form of value is associated with these different locations? Is there any coherence in the way in which carers are valued for their activities? If so, is carer status associated with a reward for altruism, compensation for the social and economic costs associated with caring, or recompense for labour expended? Are carers valued as workers, as citizens, or as community or family members? Are they valued for doing something ‘out of the ordinary’? Through the development of this legal identity are we seeing a value being given to caring as a form of socially reproductive labour more generally?

I am presently developing these ideas further with the benefit of a Leverhulme Fellowship. My focus shifts to Kenya where I am considering the contribution of community-based ‘woman to woman’ marriage practices to the provision of care, particularly for the elderly, when there is little social protection available for the elderly. Ojwang and Kinama describe the practice:

‘Woman-to-woman marriage is the traditionally recognised union between two women, one of whom pays the dowry in order to marry the other woman. ….. [I]t is usually a union aimed at promoting the social or economic status of the women who participate in it. … The purpose of the union is the continuation of the family line and the enjoyment of a family life’. (2014, p 416)

The research seeks to explore the extent to which and the way in which such arrangements provide support and/or security for the parties involved and their dependants.  The aim is to understand whether the everyday practices of caring for older people particularly women, traditionally woven into communal relations, are changing in the socio-economic and political circumstances of contemporary Kenya. Are woman to woman marriages evolving into a way of recognising and ‘rewarding’ caring labour undertaken by younger woman for some older women who have access to some assets? How are claims for recognition particularly made by the younger woman understood in the ‘formal’ courts and within community dispute resolution practices?

References

Budlender Deborah and Moussié Rachel (2013) Making care visible Women’s unpaid care work in Nepal, Nigeria, Uganda and Kenya Action Aid Available: http://www.actionaid.org/sites/files/actionaid/making_care_visible.pdf

Elson, Diane 2008 ‘The Three R’s of Unpaid Work: Recognition, Reduction and Redistribution’, Expert Group Meeting on Unpaid Work, Economic Development and Human Well-Being, UNDP, New York, November

Herring, Jonathan (2013) Caring and the Law Oxford and Portland, Oregon: Hart Publishing

Hoskyns, Catherine and Rai, Shirin M. (2007) ‘Recasting the Global Political Economy: Counting Women’s Unpaid Work’, New Political Economy, 12(3): 297–317.

Ojwang, Jackton, B and Kinama, Emily, N (2014) ‘Woman-to-Woman Marriage: A Cultural Paradox in Contemporary Africa’s Constitutional Profile’ Verfassung und Recht in Übersee VRÜ 47: 412-433.

Rai, Shirin M, Hoskyns Catherine and Thomas Dania (2014) ‘Depletion’ International Feminist Journal of Politics 16(1): 86–105.

Razavi, S. 2007. ‘The Political and Social Economy of Care in a Development Context’. United Nations Research Institute for Social Development, Gender and Development Programme, Paper Number 3.

Sepulveda Magdalena Carmona (2014) Report of the Special Rapporteur on Extreme Poverty and Human Rights A/HRC/26/28 Geneva: United Nations

Sloan, Brian (2013) Informal Carers and Private Law Oxford and Portland, Oregon: Hart Publishing

Stewart, Ann (2017) ‘Carers as Legal Subjects’ in eds Rosie Harding, Ruth Fletcher, Chris Beasley ReValuing Care in Theory, Law and Policy: Cycles and Connections 148-164.

Caring for a Parent living with Dementia and changes in Family Relationships

Prof Elizabeth Peel, Loughborough University, UK

Elizabeth Peel is a Professor of Communication and Social Interaction in the Department of Social Sciences, Loughborough University, UK @profpeel

Book Cover for ReValuing Care in Theory, Law and Policy

ReValuing Care in Theory, Law and Policy: Cycles and Connections

Caring for a parent living with dementia is a stressful thing to do. We know quite a lot about spouses or partners who are cast in a caring role because their loved one develops dementia, but we know much less about the experiences of adult children of parents with dementia. Recent Australian research [1] has found that sixteen per cent of their sample of over 500 family carers had contemplated suicide in the previous year. We also know that dementia care disproportionately impacts women [2].

In my book chapter called ‘“It has had quite a lot of reverberations through the family”: Reconfiguring relationships through parent with dementia care’ in the Revaluing Care edited collection, I consider parent care by examining the accounts of eleven people who had cared for their mother or father. These people participated in the focus groups in the ‘Duties to Care’ project or the interviews in the ‘Dementia Talking’ project (see http://www.dementiaproject.net/).

Some of the behaviour changes in their parent had a big impact on these participants. For example Derek* said ‘it’s terrible to think your own mother doesn’t know you’, and he found it very difficult to cope when his mother thought that he was his father. Another man, James, pretended to be his father in order to keep his mother calm and content. These two examples show how parent dementia care can change how relationships in families usually are – those normative ‘rules’ about roles in families – into something new and reconfigured by the illness.

These participants also talked about how disagreement between themselves and their brothers or sisters also made parent care difficult. All but one of the people I interviewed emphasised conflicts with their sibling rather than a more collaborative approach – working in partnership to care for, and support their parent. Victoria was the lone voice, in this study, who said about her sister, ‘we keep each other sane’.

The tensions that they discussed with their siblings included having different views about the state of their parent’s health, money, and how they communicated with their parent. For instance, as Jan said ‘the worst thing was trying to communicate to my siblings how bad mum was’. In some cases, like Jan’s, relationships between siblings had ‘totally broken down’. In other cases, families had divided roles between them as a way of managing potential disagreement as well as the tasks and responsibilities involved in caring for a parent living with dementia. For example, Sue said that her sister has ‘the cash card but I keep my eye on the bank account’.

Caring for a parent living with dementia can include managing and coping with behavioural and psychological symptoms, managing finances, dealing with health and welfare decisions, incontinence, and making difficult decisions towards the end of life.  Understanding the perspectives of those providing care to a parent with dementia – a relatively common, if not anticipated experience – may offer a lens on families and the business of caring more broadly. Damien Riggs and I have written a book about kinship that further examines these, and other, issues [3]. Our book Critical Kinship Studies was recently published by Palgrave Macmillan.

* These are not participants’ real names.

References

[1] O’Dwyer, S.T., Moyle, W., Zimmer-Gembeck, M. et al. (2016) Suicidal ideation in family carers of people with dementia. Aging & Mental Health, 20(2), 222-230.

[2] Erol, R., Brooker, D. & Peel, E.  (2016) The impact of dementia on women internationally: An integrative review. Health Care for Women International, 37(12), 1320-1341. Available: http://www.tandfonline.com/doi/full/10.1080/07399332.2016.1219357

[3] Riggs, D.W. & Peel, E. (2016) Critical Kinship Studies: An introduction to the field. London: Palgrave Macmillan. Available: http://www.palgrave.com/it/book/9781137505040

Residence Rights for Carers of Union Citizen Children before the Court of Justice of the European Union

Residence Rights for Carers of Union Citizen Children before the Court of Justice of the European Union: Some Reflections on the Pending Case of Chavez-Vilchez and Others

by Dr. Fulvia Staiano
Postdoctoral Researcher, School of Law, UCC Cork
fulvia.staiano@ucc.ie

In the currently pending case of Chavez-Vilchez and Others [1] , the Court of Justice of the European Union (CJEU) was presented with two questions on the limits and scope of the principles established in its landmark Zambrano [2] judgment. These question, in particular, aimed to ascertain the scope of the principle established in Zambrano (and subsequently clarified in Dereci [3] ), whereby a third-country national parent of a child who is a citizen of a Member State enjoys a right of residence on its territory only when it can be said that the child would be forced to leave the Union in case of expulsion of the parent.

The Chavez-Vilchez case concerns a group of third-country national mothers who are the primary carers of their Dutch citizen children. The involved women opposed the Dutch authorities’ refusal to grant them with residence rights, motivated by the view that in case of their expulsion, the Dutch fathers of their children could still provide them with the necessary care. They submitted that they have sole parental authority and custody over their children, while the respective fathers are unwilling or unable to take care of them. In this light, the referring court has asked the CJEU to assess two main issues, both related to the interpretation of Art. 20 TFEU. First, it seeks to determine whether a Member State must grant the right to reside on its territory to a third-country national parent who carries out the primary care of his or her minor child, when the latter is a citizen of that Member State. Second, it asks whether for this purpose it is relevant that the legal, financial and/or emotional burdens do not weigh entirely on the primary carer, and whether it must be proved that the other parent is unable to assume responsibility for the care of the child.

These questions offer the CJEU with an opportunity to provide important insights into its understanding of care, particularly in relation to the quality and intensity of the carers’ involvement in their children’s upbringing for the purpose of qualifying them as indispensable. As is known, the CJEU has consistently granted residence rights to third-country national parents of Union citizen children on the grounds of the care provided by the former to the latter. In a first group of cases, this recognition was linked to the possibility for Union citizen family members to exercise their freedom of movement within the territory of the Union . Starting from the Zambrano judgment, residence rights for carers were also detached from the exercise of free movement and linked to the enjoyment of the substance of the rights attached to EU citizenship.

With the sole exception of its Carpenter judgment, in this case law the CJEU has so far consistently used the expression “primary carer” in respect to third-country national women involved. It was precisely this role of primary carer that prompted the conclusion that such care was essential for their children’s enjoyment of the rights either connected to their own Union citizenship or stemming from their father’s Union citizenship. The CJEU has not so far clarified the meaning of the notion of primary carer . However, this expression has arguably been used to refer to the essential and indispensable character of the care provided by a parent, and to the consequent dependence of Union citizen children from said parent.

On the other hand, in more recent judgments concerning third-country national fathers, i.e. in Zambrano and Dereci, the expression “primary carer” cannot be found. In the case of Zambrano, the dependence of the involved children from their father’s right to reside in Belgium was not assessed in terms of care at all, but rather inferred from the fact that both Mr. and Mrs. Zambrano – being irregularly resident third-country nationals – would be forced to leave the Union territory in case of denial of residence rights. In Dereci, the CJEU also overlooked the degree of involvement of Mr. Dereci in his children’s care, since his wife’s Austrian citizenship – and related right to reside in Austria – meant that their children would not be forced to leave the Union territory in case of his expulsion.

In this light, parental care does not appear to play a crucial role in the test carried out by the CJEU concerning the possibility for Union citizen children to fully enjoy the substance of the rights recognised by virtue of their status. The citizenship of both of their parents, in particular, can play an overriding role in this assessment.

Precisely for this reason, the outcome of the Chavez-Vilchez case will deserve specific attention. The presence of Union citizen fathers in the present case may indeed not be considered as a decisive factor to determine that the involved children would still be able to enjoy the substance of rights related to their Union citizenship in case of expulsion of their mothers. The lack of involvement of such fathers in their children’s care and upbringing, and their unwillingness or inability to ensure such an involvement in the future, will necessarily play a role in the CJEU’s assessment. This case, therefore, has the potential to foster key judicial clarifications on the meaning of primary care, on the degree and type of involvement necessary to consider parental care as indispensable and irreplaceable, as well as on the type and degree of fatherly involvement in childcare that may be reasonably expected and required in this context. A finding of the CJEU in the sense of recognising third-country national parents with residence rights on the grounds of the primary character of the care provided to their children would constitute a crucial development, bringing reproductive work to the fore and opening new perspectives for those devoted to it.

[1] C-133/15, Chavez-Vilchez and Others v. Raad van bestuur van de Sociale verzekeringsbank (Svb) and Others, lodged on 18 march 2015 [pending]. For an account of the factual grounds of the case, see Anouk Biesteker, Lukasz Dziedzic, Lorena Navia-Rodriguez, Gareth T. Davies and Janneke De Lange, Expert Opinion on Issues arising from the Pending Case of Chavez-Vilchez and Others (C-133/15), 30 June 2015, summary in English available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2641773 [last accessed on 28 October 2015].

[2] C-34/09, Gerardo Ruiz Zambrano v. Office National de l’Emploi, judgment of 8 March 2011.

[3] C-256/11, Murat Dereci and Others v. Bundesministerium für Inneres, judgment of15 November 2011.

Caring about P in the Court of Protection: the Re X scenario

by Jaime Lindsey, PhD Candidate and Teaching Associate at the University of Birmingham ( j.t.lindsey@bham.ac.uk)

In the recent Court of Appeal case, Re X [1], the judges’ obiter comments were certainly timely. The case concerned Deprivation of Liberty Safeguards (DOLS) cases under the Mental Capacity Act 2005 (MCA). The case itself turned on the question of whether P (the subject of the court proceedings) had to be a party to the proceedings in which they would potentially be deprived of their liberty. Whilst the Court of Appeal held that they did not have jurisdiction to hear the appeal, they made their feelings clear that P should always be a party to DOLS proceedings.[2]

Under the MCA, individuals can, in certain circumstances, be deprived of their liberty in a care home or hospital for the purpose of being given care or treatment.[3] Further, a person who may be deprived of their liberty outside of a hospital or care home, but still with sufficient degree of State involvement, would also require Court authorisation for the deprivation of liberty.[4] Many of us would expect that depriving a person of something so fundamental as their liberty should, at the very least, require them to have some input into the discussion. In fact, the ECtHR jurisprudence requires that a person who is to be deprived of their liberty should have access to a court and the opportunity to be heard.[5] This is not only important on an academic level; if a person who does not wish to be deprived of their liberty forcefully resists it, then the measures which need to be taken against them are surely an important factor for any court to consider before making an authorisation.

Yet this should not only be the case for removing somebody’s liberty. In my view, a more compassionate and inclusive approach should apply more broadly to the Court of Protection’s entire jurisdiction. In fact, new Court of Protection rules require the court to, at the very least, consider whether P should be required to participate in the proceedings and this is certainly a step in the right direction.

Involving P in the capacity question

As of 1st July 2015, the new Court of Protection (Amendment) Rules 2015 came into force. They require, amongst other things, that the Court considers whether it should make one of a number of directions relating to P’s participation in the proceedings (new Rule 3A Court of Protection Rules 2007). The possible directions it can make include: (1) joining P as a party (2) appointing a legal (or otherwise) representative for P (3) requiring P to address the judge (4) any alternative direction meeting the overriding objective. Whilst these rules certainly could have gone further, they show the Court’s increasing awareness of the greater need for P’s involvement.

Rule 3A is certainly an important step forward. It should ensure that judges and the parties are alive to the question of P’s involvement. Actually, involving P should be seen as a positive way to assist the Court in deciding whether he or she has capacity; a large part of the Court’s jurisdiction in health and welfare cases is about determining whether or not a person has the capacity to make a decision in the first place and this should not be forgotten. Clearly there will be cases where the capacity question is clear from the outset, for example consider the brain damaged adult on life support, but many more cases will be borderline and sometimes will involve adults who have no mental or learning disability at all.[6] Either way, to the extent that it is possible to do so and for capacity determinations at least, P should always be involved with proceedings.

A more inclusive approach?

The new rules should certainly go some way in achieving a more inclusive approach to decision making in the Court of Protection and are to be welcomed. However, the extent to which, and in what way, the options open to the Court will be used will need to be examined following implementation. A major factor in the increased involvement of P in proceedings will be the lawyers, social workers and carers who are involved in the case; if they see the benefit of involving P and argue in favour of this in court then is a judge really likely to refuse? Particularly in light of the obiter comments of the Court of Appeal in Re X, albeit that was in a slightly different context. In fact, the onus is not only on the judge in the case to consider this but it is also on the parties who can make an application to request such a direction. Those who know and work with P, and the lawyers on all sides, should be encouraged and feel empowered by recent developments to request P’s involvement.

The power of the Court of Protection in affecting the lives of individuals who fall under the MCA regime, both for the positive and negative, is enormous. In some ways, whether or not the outcome of the cases is any different as a result of the involvement of P is not the measure of success; what is vital is that people feel that their voice is heard, particularly in relation to decisions affecting their own lives. This empowers people to “buy in” to the ultimate decision that might be made on their behalf. That said, involving P in the decision making process will hopefully lead to better and more context sensitive decisions being made and the new rule 3A is a first step in achieving this.

[1] Re X [2015] EWCA Civ 599

[2]Ibid per Black LJ at para 108

[3] Pt1 s.1(2) MCA

[4]Under s.16(2)(a) MCA

[5]Winterwerp v The Netherlands [1979] 2 EHRR 387

[6] See for example IM v LM and AB [2014] EWCA Civ 37

Inheritance System and Care – Part 2

by Dr Antu Sorainen, Title of Docent, Academy of Finland Research Fellow, University of Helsinki, Gender Studies (antu.sorainen@helsinki.fi)

“It’s almost more important for a gay person to write a will than almost any other group in society. When writing a will, an LGBT person will have been able to give consideration to people and organisations that have had a positive effect on their life: they are not simply choosing their blood relatives to inherit with no regard to whether they deserve it”, responded the UK lawyer Siôn Hudson – who regularly drafts wills for people from all around Cambridge – to my first blog from 31 May.[1]

In this second blog I am discussing why it matters for queer people how governments seek to reform inheritance tax laws. In my view, sexuality is deeply implicated in the distribution of wealth through inheritance system. Inheritance taxation is under scrutiny in Europe: and an urgent matter when we think about inheritance from the point of view of queer relationships. The trend to abolish inheritance taxes has direct bearings on the organization of queer care, both structurally and at personal level, as the decline of public welfare puts more ideological, political and managerial stress on private care.

If queers do not write wills to support financially their friends, lovers and community (a fact derived from by my research data and practicing lawyers’ experiences), the queer community will depend more than before on the co-incidences of blood ties and will be exposed to familial and social homophobia.

***

My case study is the Nordic welfare countries where finance economics and political populism are currently feeding on social injustice in terms of inheritance taxation. Sweden abolished inheritance tax in 2005 in favour of capital gains tax, meaning that property is taxed not when inherited but only when realized.[2] Norway abolished inheritance tax in 2014, though it remains in Denmark and Finland. The latter country, however, seeks to follow the lead of Sweden and Norway; a new government has declared that intergenerational transmission in family firms will be advanced through reducing inheritance tax, and that capital gains tax and “other options” will be evaluated.

Finland risks a lot. Even in the equality “paradise” of Sweden, family background (status, education level, surname) correlates with the individual’s wealth path in society. This social factor arguably only heightened when capital gains tax was introduced. As one consequence of the cutting of inheritance tax, flats now circulate within families even for generations because the capital gains tax is rather high (30%) in Sweden. Rich families do not sell their flats but pass them on as tax-free legacies. This influences on the gentrification process in the biggest cities, and also the continuing difficulty of class travel in society.

As an example of how capital gains tax leads to socio-economic stagnation and creates a class glass ceiling for queers, we might take the example of Finnish immigrants to Sweden. Many Finns moved to Stockholm, Gothenburg or Norrköping suburbs in the 1960s to live on factory jobs. This mass migration was one consequence of the rapid urbanization of the Finnish society, which left small farmers without a future in their own country. These rural migrants were accompanied by a significant number of Finnish lesbians and gays who moved to Sweden in the 1970s as the sexual atmosphere was much more liberal there.[3] These immigration generational cohorts are now getting elderly, and if they had children these are now properly ‘swedizised’. Even if some of them are economically well-off, they are often without any hope of ever buying a flat in city centres since valuable flats are circulated through the inheritance system in a number of wealthy Swedish families.

Marriage would open a route to this circle of inherited flats – but marriage was not a legal option when Finnish queer immigrants were younger. These flats are not on the open market for other immigrants or Sweden’s own nouveau rich, either. It is clear that this does not help to overcome social inequalities or to maintain big Swedish cities as a buzz of trade and liberal life supported by mobility and difference.

***

Capital gains tax thus impacts on social minorities in negative ways. It will lead to increasing accumulation of wealth in the hands of a few. This “weather forecast” could be given to all societies with a big ratio of social inequalities, such as the UK.

John Stuart Mill advocated, for one, high inheritance taxes. For Keynes, inheritance was inherently unequal and not to be defended albeit he valued the right for economic gain – but the conservative agenda thrives and we lack critical voices based on proper socio-legal impact analysis. A shift in the direction of capital gains tax would result in an increase in socio-economic homogamy, the effects of which would impact the stability of minorities in society – those whose intimate relations, reproductive choices and support relations do not accord with the law’s categorizations. Queer sexualities have relevance for the inheritance institution’s categories in that the inheritance system distributes wealth mainly in small heterosexual family circles and potentially neglects “other” relationship categories than those based on blood and heterosexual marriage.

Adopting the capital gains tax may benefit some lucky queers born in wealthy and liberal families but keeping the inheritance tax and adjusting the system of inheritance taxation could benefit many if not all. What I would suggest is to have a better look at inheritance tax categories to make them sensitive to difference outside of conjugal norm and to better hinder tax avoidance of the rich through family firms.

[1] http://www.millersands.com/the-importance-of-having-a-will-the-lgbt-perspective/

[2] Magnus Henrekson and Daniel Waldenström. 2014. ”Inheritance Taxation in Sweden, 1885–2004: The Role of Ideology, Family Firms and Tax Avoidance.” http://www.ifn.se/wfiles/wp/wp1032.pdf

[3]Sorainen, Antu. 2014. “Two Cities of Helsinki: One Practically Queer and One Liberally Gay.” In Matt Cook and Jennifer Evans (eds.) Queer Cities, Queer Cultures: Europe Post 1945. London: Bloomsbury, 211-239.

Inheritance System and Care: Queer will-writing

by Dr Antu Sorainen, Title of Docent, Academy of Finland Research Fellow, University of Helsinki, Gender Studies (antu.sorainen@helsinki.fi)

Laurie Anderson, in a recent interview with the Guardian, was asked: “What song would you like played at your funeral?”
Answer:
“Not my problem.” [1] [2]

Even though it is a witty remark, I beg to disagree. Arranging one’s after-life could be of a great benefit for those one cares about. Kinship, care and inheritance belong to the same package. The wealthy always knew this and took care of their economic interests through marriage and bloodline based inheritance arrangements. Not many of those at the margins of the society think that they need to write wills, seek to arrange their financial aftermaths, or indeed, funeral rituals to make sure that their kinship tradition lives. However, those few queer funerals that I have attended, carefully following the wishes of the deceased person, have been really important for the queer community, including at a symbolic and performative level, building and passing on the tradition, history, encouragement and memories of many important aspects of the past and present queer struggles.

In my view, we should actively advocate will-writing among those social groups who traditionally have not “owned” this tradition as theirs, especially under the current neoliberal and conservative political and economic currencies targeting the inheritance system that I will discuss in my next blog post. Activists in the legal field should encourage people to take care of their inheritance arrangements as far as they can, as an important and oft-neglected form of care; in particular, queer care. By this, I mean that inheritance could be conceptualised and re-imagined as not only transformation of property but also as taking care of those who actually matter in one’s life: directed towards friends, lovers, and community. Will-writing offers a pathway to new identifications: we could re-imagine new concepts for care practices that the society tries to hide from the people who do not follow its dominant norms.

Daniel Monk (2013) [3] argues that will-writing potentially offers a site for queer acts. He suggested that they as well as being the scene for an ultimate declaration of one’s final will, provide possibilities for not only to pass on property but also for passing of other kinds of “goods” such as coming-outs, supporting the queer community and/or the chosen family, friends or lovers, disinheriting the possibly homophobic blood relatives, or publicly recognising the “real” care and support relations in one’s life.

Will-writing is a reflection of an ideal of autonomity of the modern individual. If sexually or otherwise marginalised people would look at will-writing as their right to define the posthumous destiny of not only their wealth but also of the well-being of people who they really care for, also outside of the blood relatives circle, they might more often come to think to write wills for supporting their lovers, friends, community, and other real life-carers. In this way, as a mechanism for transmitting property from one person to another, and from one generation to another over time, lesbian and gay wills could have a considerable social and economic significance.

There is a particular purchase to bringing in legal thinking in the study on inheritance and socially marginalised groups since as a discipline and practice it has to deal with different kinds of relationships. The law is the classic locus for situations where categorical and interpersonal relations confront each other: the law deals with persons in relation to categories [4] . When it comes to inheritance, often even a small inheritance has made it possible for many ordinary as well as many famous people to create uncommon, radical, world-changing lives outside the pressure of the normative legal and social understanding of parenting and relationships (Sorainen 2015). [5]

Coming up  in my second blog post:
“I worry about putting my friends in a difficult economic position if I’ll add them into my will”, one of my lesbian interviewees told me. This is a legitimate concern because, in her country, Finland, her queer care and support network members would be subjected for a much higher inheritance tax than her emotionally distant siblings would be.

My next blog-post will consider how, in this way, legal categorizations privileging bloodline and/or marriage often fail to recognize the actualities of non-normative personal lives and the ”chosen heirs”. This is especially prudent as on 27 May 2015, Finland decided to seek to change its inheritance laws. At the moment, if a close blood relative or a friend inherits property in Finland, the inheritance tax is from 8- 36%. But in case of inter-generational family business inheritance, the tax is, on average, only 2,8% of the market value of the company. I discuss the effect of this on the queer community and on the dissemination of wealth throughout society.

References:

[1] http://www.theguardian.com/lifeandstyle/2015/may/16/laurie-anderson-interview

[2] When I told the anecdote at the opening of this blog to one of my gay male interviewees, he said: “In my funeral, they should play Laurie Anderson’s song Same Time Tomorrow.” The song goes like this: “And so when they say things like “We’re gonna do this by the book”, you have to ask “What book?”, because it would make a big difference if it was Dostoyevsky or just, you know, Ivanhoe.” – https://www.youtube.com/watch?v=ePMwwa436ug

[3] Monk, Daniel. 2013. “EM Forster’s will: an overlooked posthumous publication.” Legal Studies, Volume 33, Issue 4 December 2013, 572–597.

[4] Strathern, Marilyn (2005). Kinship, law and the unexpected: Relatives are always a surprise. Cambridge: Cambridge University Press

[5] Sorainen, Antu. 2015. “Queer Personal Lives, Inheritance Perspectives, and Small Places.” Nordic Journal for Queer Studies – Lambda Nordica, a special volume on Kinship and Reproduction, 3-4/2015 vol. 19.

Care Paid and Unpaid: Social, Economic and Human Rights Concerns

by Dr Joan Garvanwww.maternalhealthandwellbeing.com

Attempts to achieve gender equity have reached a new high water mark and the recognition and redistribution of care, both paid and unpaid, stands at the centre of this arena. The Australian secretariat – Economic Security 4 Women – have produced landmark reports, both scoping and quantifying the value of the ‘care economy’ and, more recently, Professor Marilyn Waring addressed the topic of care and dignity in the annual Pamela Denoon Lecture Series. Here below are key points from these papers and central messages made by Waring.

Two significant Australian reports on the care economy have been produced over recent years: Scoping the Australian Care Economy A Gender Perspective (2010) and Counting on Care Work in Australia (2012). These projects are concerned with the lifelong economic well-being of women. Though they are particular to Australia and reference local government policies, programs and strategies, they draw from an international body of research and deal with common concerns.

The first report references the importance of data collection and brings attention to landmark work in the Massachusetts case study that used United States Census and Time Use data to measure both paid and unpaid care work [1]. The author Valerie Adams notes tensions between unpaid work, voluntary work and paid work. She draws attention to the ‘relational’ nature of care work, and references the concept of ‘provisioning’ for human need. The report used the notion of ‘care work’ to depict both the paid and unpaid sectors. Adams considers definitions and current issues in the Australian care economy. She surveys relevant government policy and makes numerous recommendations for further research and data collection.

Counting on Care Work in Australia (2012) further develops this arena by quantifying the value of the paid and unpaid care sectors to the Australian economy. In 2009-10 twenty per cent of all paid employment in Australia was in the care sector. Care workers receive 96 cents for every dollar earned by the average Australian worker, and female workers earn on average 84 cents in the dollar to male care workers. The report valued the unpaid care sector at $650 billion with sixty per cent of this contribution being made by women aged 25 to 64. The report furthermore outlined and quantified government investment in the care sector. The authors make recommendations for further work in light of: demographic change; inter-generational concerns; and the continuing economic and life course implications for women.

Marilyn Waring prefaced her recent lecture Care and Dignity: Major challenges to economics and human rights (transcript and video available online: http://pameladenoonlecture.net/) with the proposition that over millennia care has been the primary responsibility of women. She has changed her emphasis since the publication of Counting for Nothing: What men value and what women are worth (1988) [2] and now frames these concerns within a Human Rights perspective.

Waring raised problems for the use of ‘care’ as an analytical category, arguing that most often carers are responsible for a myriad of associated tasks that could be lost through a continuing association with unpaid work. Nevertheless, drawing from studies from British Colombia, New Zealand, Papua New Guinea and the United Kingdom, she sets out a strident case whereby the human rights of care givers are being flouted. She and others set up a questionnaire for a Commonwealth report drawing from Amartya Sen’s capability approach to human rights which references choice, rest, health, meals, work and political involvement, and found multiple breeches.

With governments around the world withdrawing from social and welfare programs these kind of arguments are critical if we aren’t going to ‘throw the baby out with the bathwater’. Care, both paid and unpaid, are clearly significant to the health and well-being of the community, but further to this gender equality will remain allusive if we don’t see transformational change. Unfortunately the issues are complex and though there is increasing reference to the work of unpaid care in terms of achieving gender equity, there is a need to bolster and popularize the debates.

References

[1] Albelda, R., Duffy, M., Folbre, N. (2009), Counting on Care Work: Human Infrastructure in Massachusetts, University of Massachusetts, MA, Massachusetts

[2] In a recent anthology, Counting on Marilyn Waring: New Advances in Feminist Economics, edited by Margunn Bjornholt and Ailsa McKay, 31 authors from nine countries outline the wide ranging impact and resonance of Professor Waring’s work as well as the current frontiers of feminist economics.

 

 

Veterinary Negligence: Ethical and Legal Perspectives on Formulating a Duty of Care

by Samantha Schnobel

Describing a veterinarian’s professional duty, Bernard Rollin dichotomised the role placing at one end a garage mechanic and and at the other, a paediatrician. Simplistic in design, this analogy gives us pause to consider the ethical and legal duties of care stemming from the triangular relationship created between animal, veterinarian, and owner. Within this triangular relationship, deeply meaningful, bi-directional relationships can occur between animal and owner. An integral part of the veterinarian’s role, therefore, is not simply about animal health (though this is certainly a primary concern), it is also about preserving and fostering the animal-owner bond. In a very important way, then, veterinarians are the final arbiters not only of animal health, but also the caring relationship shared between owner and animal. Expanding briefly on caring relationships within the triangular relationship just discussed there will almost always be a relationship of care between owner and animal. In the first place, the owner, by the act of bringing the animal to the veterinarian in the first place, is exhibiting caring behaviour. Beyond this, the animal is almost wholly dependent on its owner for the basics of life (ie. food, water, shelter, etc.) and the fostering of basic capabilities, which animals experience (ie. emotion, imagination, etc.). Also, by virtue of the veterinarian’s aesculapian position, caring relationships can also be said to exist between owner and veterinarian and veterinarian and animal. Having said that, complications can arise where, for example, the veterinarian is engaged in alleviating the suffering of the animal only to obtain payment of fees. The existence of this incongruous model of veterinary care is arguably what led Rollin to describe a veterinarian either in terms of a paediatrician or a mechanic. Unfortunately, as the below will discuss, the law has played a significant role in forwarding a framework which restricts the development of a more care-based model and rather supports an instrumental view of the veterinarian’s role. The position I take throughout this discussion is that the law should seek to promote a construction of the veterinarian’s duty which supports a much stronger, relational approach.

Currently, then, from a legal perspective, the Cartesian example analogised by the garage mechanic is most accurate. Here, the duty of care is owed solely to the owner and the veterinarian is charged with repairing a mere, commodified “thing.” In essence, the law treats the animal patient no differently than a car, or a table, or any other piece of property. No weight is placed on the relationship shared between animal and owner or the animal’s individual sentience. Instead, the focus is placed on the commercial relationship between veterinarian and owner. Thus, if the treatment is negligently completed, monetary damages can be awarded which would allow the claimant-owner to buy a brand new “thing” of equal value. Because many animals lack a sufficiently high market value to make a professional negligence claim viable, very little attention has been paid to the legal duties of care owed by veterinarians [1]. If, however, courts could be persuaded to make the evolutionary step and acknowledge that an accurate characterisation of the legal relationship between owner and animal is not to be found in the base conception of owner and disposable/replaceable property, but rather more accurately as something far more complex and meaningful, veterinarians could face a considerably higher level of professional scrutiny, particularly at the duty of care stage. In light of several recent stories involving potentially criminal and negligent conduct in the execution of veterinary services, discussion of legal duties of care becomes increasingly important [2].

Current veterinary negligence case law⎯ of which there is admittedly very little in comparison to other analogous professions⎯ disregards an in-depth duty of care assessment, focusing instead on the economic loss sustained by the owner and the breach of duty analysis, which relies heavily on specific factual analyses. The duty aspect is largely forgotten, finding simply that a duty to act reasonably in the given circumstance existed. Such an approach is consistent with an economic theory of negligence which focuses on liability costs, an entrepreneurial economy based on freedom of action, and efficient settlements. What this theory leaves out, however, is the relational aspect both between owner and veterinarian, but also owner and animal, and owner-claimant and judge. According to West and Oliphant, it is adherence to the pursuit of legal certainty and economic efficiency which leads not only to injustice and incoherence, but also a time-frozen, rigid body of jurisprudence, out of touch with prevailing social standards. West’s work in particular focuses strongly on the often-neglected role of feminist and caring theory in tort law and advocates a strongly relational approach not only for judging cases, but importantly in understanding the relationship between all concerned parties.   Lastly, by neglecting the duty of care assessment we lose out on discussion related to how a veterinarian ought to act, as opposed to simply how one did act; thus, much of the normative force behind negligence jurisprudence is lost.

To be preferred is an in-depth analysis at the duty of care stage which focuses on the relationship between the owner and the veterinarian. According to Goldberg and Zipursky and McBride, the duty of care analysis is inherently relational with more onerous and affirmative duties (i.e. the duty to protect against emotional harm and the duty to rescue) attributed to those instances where a strong, pre-tort relationship exists [3]. Importantly for veterinarians, this type of analysis more effectively guides human contact, better preserves respect for the law and better integrates law into a variety of professional settings (Goldberg & Zipursky, 1998). Further, adopting the relational perspective for duty causes individuals to focus on particular aspects of others‘ well-being and to develop an ‘internalised normative pull towards certain sets of actions’ (Goldberg & Zipursky, 1998: p.1831). It is this type of discourse which is sorely missing in veterinary negligence case law and literature.

Building from the above, I would argue that similar to human medicine, veterinarians owe many duties of care stemming from positive acts and omissions. More specifically, duties could stem from treatment and diagnosis, disclosure of risk and duties to warn. Where there is a strong pre-tort relationship, there may be duties to rescue and duties to protect against the infliction of emotional harm. When this is combined with concerns with for the animal patient, difficult situations arise for which veterinarians have either very little guidance [4], or inaccurate guidance.

In order to effect meaningful change in this area and provide veterinarians with a more clear sense of their legal duties, I would argue, following Oliphant and West, that the mechanical application of rules and insistence on institutional consistency⎯ especially those relating to a law and economics perspective⎯ should be rejected. In its place, the judiciary should adopt a duty of care analysis based on the identification of relevant factors derived from a holistic, compassionate assessment of individual cases, paying particular attention to the nature of the relationships between veterinarian, owner, and animal. It is only through this type of high-level analysis based on underlying values and fundamental principles relating to our duties to others that conduct can be shaped and the interests of all parties can be given more meaningful consideration. To what extent the ethic of care could inform development in this area is thus a legitimate and thought-provoking question warranting greater attention.

Samantha Schnobel, Birmingham Law School
sxs987@bham.ac.uk

Samantha is a doctoral candidate and teaching assistant at the University of Birmingham. Her primary research interests lie in the fields of professional negligence and ethics, specifically in the areas of human and nonhuman medicine. Her doctoral research focuses on the legal and ethical considerations pertaining to the duty of care in human and non-human health-related negligence claims. Additional research interests lie in animal welfare and property theory, in particular sentient property and the interaction between property and personhood found in the work of Margaret Radin

http://www.birmingham.ac.uk/schools/law/staff/profile.aspx?ReferenceId=46994

[1]  In a negligence claim, it must be established that the defendant owed the claimant a duty of care. This is in addition to damage (ie. property or personal injury), fault, and causation. Essentially, the duty of care question asks whether the defendant owed the claimant a duty to take reasonable care to avoid or protect her from the type of harm suffered.

[2]  Campbell, E and Boyd, D 2014 Fort Worth Vet Accused of Keeping Dog Alive for Blood Transfusions Star-Telegram, viewed 10 August 2014 <http://www.star-telegram.com/2014/04/29/5776574/fort-worth-vet-accused-of-keeping.html> accessed 10 August 2014. and Taylor, S 2014 Family’s Dog was Put Down by Mistake at Worcester Vets Practice DJB Denny Worcester News, viewed 10 August 2014 <http://www.worcesternews.co.uk/news/11308972.Family_s_dog_was_put_down_by_mistake/>

[3]  This type of relationship could be said to exist where, for example, the veterinarian has served as the animal’s veterinarian for a specific condition for some time prior to the alleged tortious incident.

[4]  Evidence of this can be seen in the high number of practice standards enquiries at the Royal College of Veterinary Surgeons. See: Royal College of Veterinary Surgeons 2013, The Annual Report of the Royal College of Veterinary Surgeons: Part 2 RCVS, viewed 15 August 2014 < http://www.rcvs.org.uk/publications/rcvs-facts-2013/?destination=%2Fpublications%2F>; Royal College of Veterinary Surgeons 2012, The Annual Report of the Royal College of Veterinary Surgeons: Part 2 Royal College of Veterinary Surgeons, viewed 15 August 2014 <http://www.rcvs.org.uk/publications/rcvs-facts-2012/?destination=%2Fpublications%2F%3F%26p%3D2>. See also: Batchelor C.E.M. and McKeegan D.E.F. 2012, ‘Survey of the Frequency and Perceived Stressfulness of Ethical Dilemmas Encountered in UK Veterinary Practice,’ Veterinary Record vol. 170 p.19.

References

Batchelor C.E.M. and McKeegan D.E.F. 2012, ‘Survey of the Frequency and Perceived Stressfulness of Ethical Dilemmas Encountered in UK Veterinary Practice,’ Veterinary Record vol. 170 p.19.

Engster, D 2005, ‘Rethinking Care Theory: The Practice of Caring and the Obligation to Care’ Hypatia vol. 20 no. 3.

Goldberg, J and Zipursky, B 1998, ‘Moral of MacPherson’ Pennsylvania Law Review vol. 146 p. 1733.

Goldberg, J and Zipursky, B 2001, ‘The Restatement (Third) and the Place of Duty in Negligence Law’ Vanderbilt Law Review vol. 54 no. 3 p. 657.

McBride, N.J, 2004, ‘Duties of Care ⎯ Do they Really Exist?‘Oxford Journal of Legal Studies vol. 24 no. 3 p. 417.

Oliphant, K 2013 ‘Against Certainty in Tort Law’, in S Pitel et al. (eds), Tort Law: Challenging Orthodoxy Hart Publishing, Oxford pp. 1-18.

Rollin, B.E 2006, An Introduction to Veterinary Medical Ethics Blackwell, Ames.

West, R 1997, Caring for Justice, New York University Press, New York.

Peripheral Thinking and Abortion Care

By Ruth Fletcher

‘Peripheral thinking’ seems to me to be one useful framework for identifying what states do when they respond to residents’ practices of travelling away for care.   States take a variety of actions when their residents cross borders for care; actions which produce, stigmatise, ease, regulate and represent that flow all at the same time pulling it in different directions. If we want to understand better the effects of those actions and perhaps even how to steer them, we need a way to differentiate between them while acknowledging the transnational space they occupy. Here I want to distinguish between three different kinds of peripheral thinking that inform such state actions – inverted, tangential and circular – in order to consider further how best to respond to the spaces for engagement that they open up. My reflections work out from the example of state actions and transnational care flow with which I’m most familiar, that of Irish state practices as they contribute to women’s outward flow for abortion care (Fletcher, 2013).

Inverted peripheral thinking

When states adopt law and policy that support travel for care whose provision is restricted at home, one kind of peripheral thinking they use to justify their actions takes an inverted form. They claim that the failure to provide the particular care at issue is actually evidence of a central role in international care provision and not a peripheral role.   In arguing that Ireland is an international leader in care for the ‘unborn’ and in maternity care more generally, the state has often represented its failure to care for pregnant women as a success. This is a familiar if crude form of thinking, which Barrett (1992), drawing on Marx, called the ‘camera obscura’ version of ideology.   The periphery represents itself as central to the delivery of care (to the ‘unborn’), with the effect of negating a peripheral role and obscuring failures in care delivery (to pregnant women).

Tangential peripheral thinking

But inverted peripheral thinking is not the only rationality that states use when they play a role in generating outward flows for abortion care. They may turn authoritarian in restricting or punishing travel for abortion care (Fletcher, 1998), but that is relatively rare. It is more usual for states that are peripheral to the provision of abortion care to end up accommodating use of that care to some extent because their residents compel them to. In the 1990s the Irish state famously compromised on its anti-abortion position by constitutionally recognizing freedoms to travel to and receive information about abortion care abroad. Since then the Crisis Pregnancy Programme has developed a network of predominantly pro-choice counselling agencies throughout the Republic of Ireland which provide free pregnancy counselling and post abortion check ups.

In a two-tier health system where many people pay fees to attend a general practitioner, the provision of free pre- and post- abortion care, with all its limits, is significant. In using regulatory techniques such as public funding, training and communication to normalize travel for abortion care, the Irish state demonstrates tangential peripheral thinking. Here the peripheral thinker does not want to become core as care provider, but instead approaches the core provision of abortion care sideways.   Peripheral thinking develops tangential connections with the core provider of abortion care by taking on activities which are a key part of abortion care, but are themselves on the periphery of that care, namely the provision of information, counseling and check ups. Tangential peripheral thinking then is conscious of being at a distance from core care provision, and does not want to become core. Rather tangential thinking connects periphery and core care providers by taking peripheral care activities, which are needed for the provision of core care, as the object of its attention and facilitation.

So far, civil society critics of Irish abortion policy have focused on the discriminatory and hypocritical aspects of this kind of tangential thinking (e.g. ARC, CRR, DfC, ICCL, IFPA, WHRA). Travel policy has discriminatory effects and is not an adequate means of the state meeting its public responsibilities, because the less mobile will be less well served. Abortion travel policy is hypocritical because it cedes its domestic anti-abortion moral stance and supports access to abortion on grounds that would not be legal within the territory. But these critiques can retain their truth while we also recognize that travel policy has some positive effects from a feminist perspective.

We can welcome the way that this public recognition of women’s use of abortion care has likely contributed in some way to increased tolerance of abortion.   Opinion polls now regularly reveal greater levels of support for abortion than the state is willing to entertain in domestic provision. Although, as in many other countries (e.g. Sanger, 2014), Irish women are far from feeling free to speak openly at will about their abortion experiences, there have been several initiatives which tackle the association of abortion with stigma in the public sphere (Enright, 2014). The state’s tangential peripheral thinking has opened up (and indeed arguably resulted from) spaces for feminists and pro-choice advocates to engage and push the state further towards recognizing and serving women’s needs.

Circular peripheral thinking

A third kind of peripheral thinking that we see in Irish abortion travel policy takes a circular form and argues that there is nothing the state can do to change its own practices. Here the state argues that its own rules, or the views of the people, prevent it from acting to cure some harm or wrong that it cedes is in contravention of international human rights norms. There was a particularly spectacular example of this kind of peripheral thinking evident in the state’s response to the UNHRC during Ireland’s review under the ICCPR in July 2014. The Minister for Justice and her staff faced hard-hitting criticism by the HRC members for the failure to protect women’s civil and political rights in relation to abortion but also more generally (e.g. Cahill, 2014).

Representatives of the Department of Justice responded by relying on Article 25 and the right to vote to say that past abortion referendums meant it could not do any more legally to bring Irish abortion law into conformity with the Covenant. As Enright tweeted during the hearings (I’m paraphrasing), “to recap, the Department of Justice has just argued that Parliament can vote to inflict inhuman and degrading treatment on women”. Much was made at the time of this failure of the state to recognize that this ‘tyranny of the majority’ type argument contradicted the whole premises of the state’s claimed commitment to human rights, and indeed HRC member Mr Shany asked the state party to withdraw the relevant statement.

But here the point I want to make is that this way of thinking is a circular denial of sovereign power to make and interpret law. This state is so embedded in the periphery of abortion care that it can’t even imagine the possibility of proposing a referendum which would liberalise abortion provision, rather than restrict it (see further Flinterman’s comments). A state which refuses to act in legislating for abortion care (except when forced to by the ECtHR in ABC) on the grounds that its own legal rules so prevent, or that the people would not tolerate such action, has a strange understanding of its own legal power and moral responsibility.

In representing itself as a passive effect of its own legal authority, the state adopts a circular form of peripheral thinking which renders it eternally peripheral to its own power in a spectacular act of legal misrecognition. Of course, the state could introduce a Bill to remove Article 40 3 3. It could decriminalize abortion. It could promote an interpretation of Article 40 3 3 that recognizes substantive differences between pregnant women and fetuses, and permits domestic abortion in a way that would likely reduce the outward flow. But it chooses not to.

Conclusion

States, particularly the Irish state, have actually been quite creative in responding to their residents’ practices of travelling abroad for care that is restricted at home. They have used a range of regulatory techniques that have effects on cross border care flows. In the case of law and policy on abortion-related flows, these different techniques present challenges and resources to those of us who wish to make abortion access easier. First of all, we need to throw our net more widely when we try to capture legal tools that have an effect on women’s abortion practices. The legal instruments which restrict women’s access on the territory of the nation-state are significant. Inverted peripheral thinking, which denies harms to women while celebrating care of the ‘unborn’ as a marker of international leadership, arguably takes care and international norms seriously, but requires redirection.

But as women’s cross-border abortion practices illustrate, norms of domestic restriction are not the only legal instruments that are significant. Regulatory measures that promote non-judgmental information and counselling and provide public funding do acknowledge extra-territorial abortion use and attempt to reduce harms to travelling women. Working with such tangential peripheral thinking may provide further opportunities to destigmatise abortion and promote a harm reduction framework. And finally, the kind of circular peripheral thinking, which sees the state deny its own power to have an impact on care flows, provides welcome opportunities for reminding the state that women are not the only ones who bear public responsibilities for care provision.

PS I wrote this before the news of the recent abortion refusal case broke.  My initial thoughts on that failure in abortion care are here: http://humanrights.ie/constitution-of-ireland/contesting-cruel-treatment-ruth-fletcher/

If you would like more information about civil society’s campaigning responses to this case and more generally please see: http://www.abortionrightscampaign.ie and https://www.facebook.com/pages/Speaking-of-Imelda/571659212932533

Comments welcome.

Crisis Compounded? Legal Aid, Feminist Advocacy, and the Budget Cuts in British Columbia, Canada

By Agnieszka Doll

Since 2002, the successive governments of the Canadian province of British Columbia (BC) have enacted large-scale budget cuts to state-funded legal aid. The Canadian Centre for Policy Alternatives researchers reported that in 2002 provincial funding for legal aid has been cut by 40 percent (Brewin & Stephens, 2004; Govender & Milne, April 9, 2013) The most severe reductions were implemented in areas of family law, poverty law, and immigration legal aid. In fact, by the 2010 the legal aid representation in poverty and immigration cases was completely eliminated, while in family law, such representation has been limited to high risk cases (Brewin & Govender, 2010; Brewin & Stephens, 2004). In addition to difficulties in receiving legal representation, access to legal information has been also limited by changing eligibility threshold, substituting direct contact with lawyers with online and telephone service, and reducing the number of legal clinics. While legal aid in BC was considered insufficient even before the reductions, the cuts further deepened the crisis by limiting access to justice for the most marginalized populations (Morrow, Hankivsky, & Varcoe, 2004).

Feminist scholars (Morrow et al., 2004) have specifically argued that the cuts have a clear gender dimension. Firstly, prevalence of poverty among women, including those who experience intimate violence, renders women particularly disadvantaged by legal aid cuts as they often rely on state-resources for their access to justice (Sarophim, 2010). Secondly, the implemented cuts predominately targeted services related to family, civil or poverty law, which women tend to use more often that, for instance, services related to criminal law that received no similar cuts and that tend to be more frequently utilized by men. Third, concurrent implementation of changes limiting state funding for women’s organizations and subjecting funding to competitive distribution model, shattered existing infrastructure of research and advocacy-based organizations that are often unable to compete with for-profit organizations for service provision (Knight & Rodgers, 2012).

In the midst of those changes, I conducted (between 2008-2009) a qualitative study in one B.C women’s organization through which I explored how the organization’s staff experience delivering law-related services to women or helping these women access justice in the context of the budget cuts. I was also interested in learning about the extent to which existing legal services meet specific needs of immigrant women who experience intimate violence.

My interviews with the organization’s frontline staff and its administrators, as well as a focus group and hours of observations revealed three major findings regarding the consequences of government cuts on service offered by the organization:

1)      The organization went through severe employment shifts. For example, at the time of my research, the Victim Assistance Program – designed to assist women who experience abuse in navigating their criminal cases through the criminal justice system – lost all of its previous employees and was run by a new staff. Such shifts in the staff composition complicate the organization’s court presence; the previously established relations with the court personnel often need to be rebuilt, which takes significant amount of time and effort. Thus, the cuts contributed to shattering the organization’s credibility as legal advocates by affecting its ability to remain visible to justice and police administration.

2)      The organization became dependent on volunteer work. For example, the women’s center, which is often the first contact point for women seeking legal services, was forced to substitute the loss of three fourth of its professional staff with work of volunteers. This restructuring has consequences on the quality of information received by women who come for legal guidance. Since volunteers provide their help occasionally, their skills are mostly used to support the basic functioning of the center not to provide information about legal aid service to women in need. Often, they do not have the related professional training.

3)      Given changes in priority areas funded by the government, the organization adjusted their own services accordingly. Previous focus on feminist political awareness raising about the nature of gender inequalities or feminist advocacy gave way to emphasis on short-term relief services provided to the victims of gender violence. As organizations became forced to compete with each other for resources, they started to internalize the idea of self-sufficiency as their key for survival. Thus, instead of sharing resources such as translation services, etc. with other organizations, applying for own funding came to be regarded as a strategy of ensuing inflow of additional money to the organization.

One important implication of my study I would like to highlight is the impact of budget cuts on feminist organizations’ potential to pursue advocacy for women in the courts, in the police, and in other law enforcing institutions. While the budget cuts to legal services evidently degenerated the position of women experiencing violence who need to represent themselves in courts and often surround their rights, truly successful legal representation amounts to more then just having a lawyer. It would not be novel to say that the gender stereotypes still prevail in the criminal justice system; the domestic violence cases are considered of a lower importance to other criminal cases, and the knowledge of intimate violence by court, police authorities, but also by lawyers is often not sufficient. Thus, survivors-centered advocacy shall be considered as complementary to prosecution or to other legal procedures resulting from or linked to gender violence so the needs of women are addressed by judicial decisions (Nichols, 2013). I would like to also suggest that individual-level advocacy pursued on the ground by feminist advocates is instrumental for fair and equal access to justice for women, similar, as it is to the needs-based access to legal aid. The structural –level feminist advocacy needs to continue to expose the link between the gendered socio-structural inequalities and gender violence. Those important dimensions of women’s and anti-violence movements have been seriously jeopardized by the discussed budget cuts. The quest for funding had the effect of pushing women’s organizations to depoliticize and subvert feminist ideas about the relationship between gender, violence, and structural inequalities and, instead, adopt “a Band-Aid” solution to gender violence and channel their advocacy efforts. This way, by undermining the potential for feminist advocacy through budgets cuts, the B.C. governments made effective steps towards reinforcing gender order through legal means and within legal system.

Bibliography:

Brewin, A., & Govender, K. (2010). Rights-Based Legal Aid: Rebuilding BC’s Broken System. Retrieved from Canadian Centre for Policy Alternatives website: http://www.policyalternatives.ca/sites/default/files/uploads/publications/BC Office/2010/11/CCPA_Legal_Aid_web.pdf

Brewin, A., & Stephens, L. (2004). Legal Aid Denied: Women and the Cuts to Legal Services in B.C. BC Office: Canadian Centre for Policy Alternatives and West Coast LEAF.

Govender, K., & Milne, K. (April 9, 2013). BC’s Publicly Funded Legal Aid is in Crisis. Retrieved from Canadian Centre for Policy Alternatives website: http://www.policyalternatives.ca/publications/commentary/bc%E2%80%99s-publicly-funded-legal-aid-crisis

Knight, M., & Rodgers, K. (2012). “The Government Is Operationalizing Neo-liberalism”: Women’s Organizations, Status of Women Canada, and the Struggle for Progressive Social Change in Canada. NORA – Nordic Journal of Feminist and Gender Research, 20(4), 266-282. doi: 10.1080/08038740.2012.747786

Morrow, M., Hankivsky, O., & Varcoe, C. (2004). Women and Violence: The Effects of Dismantling the Welfare State. Critical Social Policy, 24(3), 358-384. doi: 10.1177/0261018304044364

Nichols, A. J. (2013). Meaning-Making and Domestic Violence Victim Advocacy: An Examination of Feminist Identities, Ideologies, and Practices. Feminist Criminology, 8(3), 177-201. doi: 10.1177/1557085113482727

Sarophim, J. (2010). Access Barred: The Effects of the Cuts and Restructuring of Legal Aid in B.C. on Women Attempting to Navigate the Provincial Family Court System. Canadian Journal of Family Law, 26(2), 451-472.