Brave New Fathers for a Brave New World? Fathers as Caregivers in an Evolving European Union

• Published date: 01 January 2014
• Date: 01 January 2014
• Author: Eugenia Caracciolo di Torella
• DOI: http://doi.org/10.1111/eulj.12033

Brave New Fathers for a Brave New

World? Fathers as Caregivers in an

Evolving European Union

Eugenia Caracciolo di Torella*

Abstract: This article focuses on the role that fathers play when it comes to family

responsibility, in particular the care of young children, and how EU policy and legisla-

tion have contributed to it. This is important for several reasons. From a theoretical

perspective, access to care for fathers represents the other side of the access to paid

employment for mothers debate, and completes the deconstruction of the two-sphere

structure. From a more practical point of view, including fathers in the work/family life

reconciliation debate is essential for the achievement of important EU policies, such as

employment and gender equality.

Although society is ready for a change, the legislator has been slow to address it, thus

fathers are still missing from the EU’s reconciliation policy and legislation. Against this

background, the decision of the Court of Justice in Roca Álvarez has, potentially, laid

down the basis for a new model of fatherhood.

O wonder! How many goodly creatures are there here! How beauteous mankind is! O brave new

world! That has such people in it!1

I Introduction

In September 2010 in the case of Roca Álvarez, the Court of Justice of the European

Union (the Court of Justice or the Court)2held that ‘the position of a male and female

worker, father and mother of a young child, are comparable with regard to their

possible need (. . .) to look after the child.’3This represents an unprecedented U-turn

* Lecturer, School of Law, University of Leicester, Leicester, UK. Many thanks to A. Masselot, G.

James, N. Busby H. Sommerlad, R. Collier and A. Stewart who have read earlier drafts of this paper.

Thanks also to the participants of the workshop The European Family: New Challenges to Old Para-

digms, European University Institute, Florence, 17 June 2011, where the ideas leading to this article

were f‌irst discussed, and of the second Family and Work Network seminar (http://www.reading.ac.uk/

fawn) Work/Family Challenges: EU and Comparative Investigations, University of Reading, 11 Septem-

ber 2012, where a version of this article was presented.

1W. Shakespeare, The Tempest, Act V, Scene I.

2Before the entry into force of the Lisbon Treaty, the Court of Justice was referred to as the European

Court of Justice or ECJ. For clarity purposes Court of Justice or CoJ is used throughout this article.

3Case C-104/09, Roca Álvarez v Sesa Start Espanˇa ETT SA [2010] ECR I-08661, at para 24.

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from the previous reasoning of the Court—and EU legislation more generally—that

had de facto consistently construed the care of young children as the mother’s main,

if not sole, responsibility. This article focuses on the position of fathers as workers

and caregivers within the EU legal system, with a view to assessing the possible

consequences that this U-turn in the Court reasoning might have on this area of

law.

For this purpose, this article is organised as follows. Part II explores why fathers

have so far been ignored by the EU legislator and why this should change. Any

change, however, can only happen if supported by a clear theoretical framework

which underpins the role of fathers as caregivers; this is considered in Part III.

Against this background, in Part IV the (scant) relevant legislation as well as the

case-law of the Court of Justice is examined, in particular the decision in Roca

Álvarez. It concludes that, although there are encouraging signs of change, the status

quo remains unsatisfactory as a right-based approach is still lacking, and this

reiterates traditional parental models. This situation is further exacerbated by the

current economic climate, which makes it diff‌icult to introduce any changes in this

direction.

II Fathers and EU Law

The last decades have witnessed the rise of a signif‌icant change in the attitude that

fathers have towards caring responsibilities across Europe.4Although this is not

representative of the majority of fathers,5it is a signif‌icant minority. As such, it has

been the subject of intense sociological scrutiny.6To date, however, this change has

not been supported and promoted by a comprehensive legislative framework.

At EU level, the original lack of legislative intervention can be explained by the

fact that Community law was created to respond to an economic imperative; it was

market creating rather than market correcting. In this context, issues relating to

gender equality, such as caring responsibility and the role of parents, were only

contemplated in so far as they were ancillary to economic goals, for example the free

movement of persons.7In other words, although the importance of gender equality

was always acknowledged, arguably it was not intended to be the primary aim.

4See V. Miranda, ‘Cooking, Caring and Volunteering: Unpaid Work Around the World’, (2011) OECD

Social, Employment and Migration Working Papers, n 116; European Commission, Employment,

Social Affairs and Equal Opportunities, ‘Men and Gender Equality—Tackling Gender Segregated

Family Roles and Social Care Jobs’, 2010; EHRC, ‘Working Better: Fathers, Family and Work—

Contemporary Perspectives’, 2009; see also, ‘Decline of the Traditional Mum as Dads Take on More

Childcare’, The Times, 25 October 2011, March 2010.

5R. Crompton, M. Brokmann and R.D. Wiggings, ‘A Woman’s Place . . . Employment and Family Life

for Men and Women’, in A. Park, J. Curtice, K. Thomson, L. Jarvis and C. Bromley (eds), British

Social Attitudes: The 20th Report (Sage, 2009–2010), at 161–187.

6See inter alia E. Dermott, Intimate Fatherhood, a Sociological Analysis (Routledge, 2008); M. Kilkey,

‘New Labour and Reconciling Work and Family Life: Making it Fathers’ Business?’, (2006) 5(2) Social

Policy and Society 167–175; J. Scourf‌ield and M. Drakeford, ‘New Labour and the Problem of Men’,

(2002) 22 Critical Social Policy 619–640.

7See for example the decisions in Baumbast and R v Secretary of State for the Home Department [2002]

3 CMLR 23; Carpenter v Secretary of State for the Home Department [2002] 2 CMLR 64; Case

C-200/02, Chen and Zhu v Secretary of State for the Home Department [2004] 3 CMLR 48; Case C-34/09,

Gerardo Ruiz Zambrano v Off‌ice National de L’emploi (ONE) [2011] All ER 199. For a general

overview, see C. McGlynn, Families and the European Union (Cambridge University Press, 2006).

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