It is nearly twenty years since I wrote about families and the European Union (EU).Footnote ¹ My aim then was to address two related debates: first, the concept of ‘family’, as it was developing across a range of fields of European law; and, second, what could be characterised as an emerging European ‘family law’. What was surprising at that time was that while family law reforms at the national, Member State, level were usually the subject of heated political debate, legislative measures and judicial interpretations were progressing within the EU with comparatively little discussion. Indeed, the dominant impulse was towards a bureaucratic, harmonising, ‘tidying’ of disparate laws, with the risk of the lowest common denominator of what might constitute a ‘family’ becoming entrenched in Union laws, policies, and practices. Such approaches spanned many areas of activity, including international family law and codification of private law, with the danger being a concept of ‘family’ based on heterosexual marriage, biological children, and a gendered division of family and workplace labour.

It was in this light that I argued for a human rights foundation for any harmonisation or greater integration in the field of family law, with pluralism and diversity characterising any conceptualisation of what might constitute families and family life. This approach was, therefore, sceptical of further European integration of substantive family law, partly due to a sense that the real needs of families remained a vague and distant concern in the EU context, with economic and supra-political concerns dominating. I was also concerned at any potential ‘erasure of difference’, arguing that pluralism must shape not only the European polity generally but development of family concepts and family law particularly. These concerns were not particularly original, and indeed drew on long-standing historical, political, and theoretical debates. Nonetheless, applying them to this particular context would, I hoped, generate debate and further analysis.

A further key driver was to examine what current law and future developments in this field might mean for the freedom, liberty, and equality of women and girls. I had come to the topic of ‘families and the European Union’ from examining the Union’s equality and discrimination laws, concerned at the time to see a dominant ideology of motherhood running through equality law.Footnote ² Such hegemonic ideologies of motherhood, and by implication of fatherhood and parenthood, constrained women and men’s freedom and opportunities to choose how to live their lives. Conventional categories of ‘family’ acted in a similarly exclusionary and reductionist way, most particularly discriminating against same-sex relationships and marriage.

Reflecting now on the passage of nearly twenty years, as Jens Scherpe writes in his Epilogue to this book, over this time much has changed, but much has not.Footnote ³ This is most clear in relation to women’s freedom and equality, where much has changed, but so much has not. While it is undoubtedly the case that the lives of some women and girls have become freer and more equal, there remains so much entrenched and structural inequality, including in relation to conventional familial roles and expectations. And for some women, particularly marginalised and minoritised communities, such as women identifying as LGBTQI, women with disabilities, and women from black and minoritised communities, equality is a veneer hiding the reality of their lives.

In fact, in the European context, we are arguably in a more dangerous place than twenty years ago, a place where freedoms once thought embedded are under serious challenge. The conservative ideology of some European countries, particularly though certainly not exclusively across eastern Europe, has resulted in women’s freedom to live and choose their own lives, paths, and destinies, including creating their families at times of their own choosing and method, being seriously restricted and this is infecting much European discourse and legal developments. Populism and the resurgence online of hegemonic masculinities proliferates in all countries. These active forces, including Member State governments, are constraining EU action on women’s human rights, and the elimination of violence against women, as well as on wider issues of family rights. Such forces are also enabling a generation of incels and the proliferation of online misogyny that itself challenges fundamental rights such as women’s freedom of expression, and threatens democracy by pushing women, and other vulnerable or marginalised communities, out of public life.

The same ‘gender ideology’ also has considerable adverse impacts on the rights of same-sex couples in a family context and LGBTQI rights in general. There was a strong feeling of inevitable progress, even if glacial, on these issues in previous decades. Any such optimism has been shattered. Discussion of concepts and ideals of ‘family’ in the European context must now be considered not just against a backdrop of apathy, which might once have characterised some cross-national debates, but one of real, active, antipathy, with proactive steps being taken to undermine any progress to date.

Similar antipathy is also evident in the legal and policy arenas of nationalism, immigration, and the connected questions of family and family life. While earlier debates may, in some respects, be characterised as moving progressively towards a more plural and liberal concept of family, this was partly due to the absence of any substantial debate in this field of the impacts and connections with law, policies, and practices on immigration, nationalism, and colonialism. My own writing, for example, lacked a sufficiently distinct and attentive discussion of intersectionality and the differing impacts of norms, judgments, and proposals on different communities.

It is in this climate that this new book edited by Marja-Liisa Öberg and Alina Tryfonidou is seeking to advance understanding and debate. It is a climate that is, on a scholarly level, more welcoming of debates on family and family law, in light of the sheer volume of EU law that now impacts on families. It is not possible for the institutions of the EU to avoid making institutional and legal decisions on definitions of family, and on the scope of laws and policies. There is, therefore, much to analyse and discuss, and this volume provides a thorough and thought-provoking engagement with so many of the key issues. It is an excellent example of scholarly inquiry which ensures we reflect on underlying principles, as well as analyse the detailed application of laws, policies, and practices. Across the chapters, we gain a clear sense of the significance of the EU engaging in this field, the depth of potential harms, and indications of a better way forward.

However, it is also a climate that, on a political level, as noted above, is polarised and toxic, with little apparent scope for compromise or debate. Many people in many Member States are not free to exercise their human rights to choose to live freely in their families of choice or to create the family they desire. Many are in fear of their families being separated; many are unable to live with their families.

In reflecting on developments over recent decades, it may also be worth considering what we would wish for in the next few years. What would we like our reflections to be in a further twenty years? While I would like to envision a pluralistic approach to families, family life, and family law, underpinned by human rights and a deep understanding and recognition of the vulnerabilities and structural inequalities facing some communities, I am not convinced that this is the current path. For many, the current path is one paved with fear, with inequality as integral to everyday life, and with high political stakes set on resisting progressive advancements. In such a supranational political climate, there are great risks in developing any common idea of a EU family law. Thus, while we analyse and debate the incremental changes, the often necessary decisions and choices, we must retain an eye and overarching review of the bigger picture of what more substantive changes and legislation might mean into the future. Perhaps greater competence and coherence in the field is not to be welcomed if it might be used to greater entrench discrimination against some communities.

Albert Camus wrote about ‘unity and diversity, and never one without the other’, being the core and ‘secret’ of European political communities.Footnote ⁴ It may be that in this field we need to focus more on preserving diversity, than in creating unity: the risk is that unity, at the level of concepts of family and family law, is at the expense of many marginalised and vulnerable communities.

Clare McGlynn