Ancillary Relief Problem Question Essay

Essay and Problem Questions

Introduction

For examination practice you should be able to answer these essay or problem questions in no more than 45 minutes per question – in some examinations you have less time per question, so you might have to write even more quickly in the actual examination.  In some you have more e.g. if you have generous reading time before the timed period when the invigilator tells you that you may begin writing. However once you have mastered the technique you can more easily speed up.  Not practising in advance is what tends to make candidates panic in the examination room, provided, of course, that then necessary material has been properly studied during a course.

 A skeleton answer should be able to be produced in no more than 10 minutes, the rest being left for writing (30 minutes) and proof reading (5 minutes). Aim for (i) a keenly focussed answer to the question asked – no padding; (ii) brief detail, succinctly set out.  When writing you will always find it useful to have a statute book available to check the terms of the relevant statutes and sections: a clean copy may usually be taken into examinations or is sometimes provided.  If you take in your own, make sure you know your way about it. A statute book which you have never used before is significantly less use because of time constraints.

When drafting out your skeleton, read the question carefully, then work steadily through the issues raised, whether by an essay question or by the facts of a problem question, writing down the points that you will need to make in relation to each issue/fact (including all legislative points which you check in your statute book once you have completed the skeleton). Include case names as you are drafting out your skeleton, but if you cannot recall a case name note down some feature about the case which causes you to relate it to the subject matter and to include it in your skeleton answer – the correct name may come to you as you are writing the answer.  Then work through your plan, writing out the answer in full but not wasting words.

Leave yourself that last 5 minutes per question, and use it quickly to check over what you have written in case you have made some inadvertent mistake which might ruin the answer if not spotted.

Practice Questions

Chapters 2 and 3 - Marriage and Nullity

Nadia is 17 and has always wanted to go to university, preferably away from the Midlands where her family lives. However her parents wanted her to marry her cousin, Ahmed, whose family has also come to England from the country of their Middle Eastern origins.  On a holiday in Dubai they were married despite Nadia’s protests as her parents threatened her with complete abandonment – thrown out of the house penniless, or worse – if she did not comply with their wishes which they tell her are “only for your good”.  Once home in the UK Nadia found she was expected to live in Ahmed’s parents’ house in another part of the city where their families resided, and neither to go out alone nor to apply to university, but to do all the housework under the supervision of Ahmed’s mother.  She did not see her parents at all after returning to England despite requests that she should go to visit them or that they should be invited to her parents-in-law’s house, and has no money and nothing of value except her dowry, which is all in gold (most of which she normally wears, including some of it under her clothes, or keeps in her pockets as she is afraid her in-laws may steal it).  She is not at all happy.

Ahmed has started a business with capital and an allowance from his father and they are going to be given a house when the baby is born.  Nadia realises she is pregnant and is in despair until one day,  when her mother-in-law is too unwell to go out, she is overjoyed to meet her old boyfriend, Michael, 18, in a local supermarket where she has been sent to shop.  He has just left their former school and is going on to university, as they both planned to do before Nadia’s marriage. They decide to run away together, and to hide with some of Michael’s relatives in Cornwall until Nadia can obtain a divorce or annulment and they can be married as they had always intended.

Discuss whether Nadia’s marriage can be annulled or dissolved, whether if so she will have any right to financial provision (of either capital or income) so that she could still go to university,  and what will be the status and the rights of Ahmed or his family in relation to the unborn child. 

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Either divorce or nullity open to Nadia.

Nullity:  If only 17 now and married for over a year it is possible she was under 16 at the time of the marriage: in which case the marriage is void as she is resident and domiciled in UK: MCA 1973 s 11(a)(ii). Date of the marriage needs to be checked.

In any case, seems voidable for duress, no reality of consent, must show fear sufficient to vitiate consent, no need for actual violence provided consent overborne: considerable case law, eg Szechter v Szechter (1971), Hirani v Hirani (1982). Nullity petition can be filed at any time, the sooner the better.

Divorce: Seems the marriage has broken down irretrievably so could prove the sole ground: MCA s 1(1).  Must also show a Fact, behaviour the only obvious one: s 1(2)(b), she has been treated by  her husband and his family in a way not at all usual in any Western marriage.

Choice: Nullity probably best, very difficult for Ahmed to defend duress, no defence if she was under age. He might choose to defend divorce.  No longer necessary to have a hearing for undefended or divorce nullity: FPR 2010. If a hearing necessary and she is afraid to come out of hiding she could still keep her address secret: FPR 2010, and/or ask the court for special arrangements owing to the circumstances - appears to have been a forced marriage. Post marriage protection available under Part 4A of the Family Law Act 1996

Financial provision: Available after divorce or nullity: MCA s 25, including criteria in s 25(2)(a)-(g).  Marriage short but she is pregnant and will have little earning capacity, her dowry is relevant  but Ahmed has capital, assets of his wider family relevant as clearly he is funded by them including in relation to his marriage: Thomas v Thomas (1995).  A clean break desirable and capital payments more likely than periodical payments especially as she must disclose her remarriage plans: Livesey v Jenkins (1985). New DWP regime CSA/Child Maintenance Service or voluntary agreement with Ahmed equally possible for child maintenance.

Chapters 4 and 5 - Divorce

William and Suzette married after a whirlwind courtship two years ago.  Because they had met so recently and William, who has a job in the Foreign Office, had to go abroad immediately to a posting where he could not take his wife, they were apart for the first year of their marriage. In any case this seemed sensible as Suzette had a good job as a fashion buyer, so during the first year Suzette remained in England furnishing their new home ready for William’s return. While William was out of the country Suzette wrote to him that she was pregnant but then shortly afterwards that she had lost the baby.  On his return William was very suspicious of her account of this, has now heard from friends that Suzette might have already been pregnant when he married her and that she had in fact had a termination while he was away.  He now regrets his hasty marriage, having himself had an affair with his secretary while he was away on his recent posting, which made him realise that he and Suzette were not particularly well suited.  He also now thinks that Suzette’s baby was probably not his.

Advise William whether he could obtain a decree of nullity or divorce, whether there might be any bars to either of these, what he would need to prove and whether he is likely to succeed  

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Nullity:  A marriage contracted when the woman is pregnant by someone other than the husband is grounds for decree of nullity: MCA 1973 s12(f). It is a bar to such decree if the husband leads the wife reasonably to believe that he will not apply for such a decree: s 13 (1)(a) or it would be unjust for her to grant the decree: s 13(1)(b).  The husband must be ignorant of the pregnancy at the time of the marriage: s 13(3) and proceedings must be instituted, if at all, within 3 years of the date of the marriage: s 13(2)(a) though leave can be granted for later issue of proceedings, even if applied for after the 3 years has expired, if the husband has been suffering from mental illness and it is just that such leave should be given: s 13(4) and (5). William may well have adequate grounds for nullity if his suspicions are credible and there is some evidence from third parties mentioned or others.

Divorce: Sole ground for divorce is irretrievable breakdown of the marriage: MCA 1973 s 1(1). This must be proved by 1 of five Facts in s 1(2). Deception about a prior existing pregnancy at the time of the marriage, later pretending pregnancy by the husband and  then secretly having a termination and pretending to have a miscarriage is almost certainly “behaviour” under s 1(2)(b).  Bar to presenting a petition on any Fact within the first year of marriage: s 3, but this does not apply: parties married over a year, and conduct during the first year can be relied on in any petition presented after the expiry of one year.  William has good prospects and if Suzette were to defend he could rely on the friends evidence.

Financial provision: Available after decree of either nullity or divorce: s 25, and conduct not usually relevant: s 25 (2) (g) unless “inequitable to disregard”.  Deception is not usually regarded as good matrimonial behaviour but generally financial provision is conduct neutral unless really extreme.  However, short marriage, no children, wife’s earning capacity unaffected. Barely lived together. Perhaps small award, eg if Suzette gave up a flat, must now relocate etc. 

Chapters 6 and 7 – Financial Provision on Decree

Harold and Winifred have been married for nearly 20 years and have together built up a substantial business in educational publishing.  After 5 years Winifred gave up work in the office following the birth of their only child, Sally, who is now 16, but at Harold’s wish continued to work at home on the company’s marketing, budgeting and accounts, and was also responsible for their business entertaining. 

Harold, now 50, and Winifred, now 45, have decided to divorce as Harold wants to leave publishing, which is experiencing hard times and to retire to Spain; and Winfred, who is also fed up with their lacklustre business, wants to start a new life as a part time health and fitness consultant (for which she will require work experience and training since, although she has a keen interest in such matters, she has no professional background in that industry). She says she wants to “take some time out to enjoy herself for once after working hard for so many years”.   They realise that they have nothing in common but Sally who is, however, much more attached to Harold than to Winifred with whom she argues all the time, so says she will remain with Harold after the divorce and move with him to Spain where she has a boyfriend whom she met on the family’s last holiday there.  Harold is quite happy to maintain Sally and to put her through university, but considers that Winifred should support herself, particularly as all the initial capital which went into the publishing business (£200,000 when the business was started 20 years ago) came from his family as a wedding present from his father.  He says there was an informal oral agreement with Winifred that this money was ring fenced and would remain his alone.

The publishing business is worth about £2m if it can be sold which is uncertain at present. Despite the economic downturn Harold’s annual salary as Managing Director remains £100,000 and he has built up a pension of £250,000. Winifred has no assets at all in her own name. The former matrimonial home, which Harold wants to keep while he remains in England, is worth around £2.5m and has no mortgage.  Winifred will therefore require alternative accommodation.

Advise Winifred what she might expect to get by way of capital provision and spousal maintenance, whether she will really be expected to work to support herself instead of relying on Harold to maintain her as before, and how a financial settlement might best be achieved.

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Financial provision after a long marriage:  Winifred has been a fully contributing wife and mother and also business partner, continued to work for the business at home after leaving the office, in any case domestic homemaking work has equal value to that of the breadwinner: Lambert v Lambert (2002)

Henry may claim to have made a stellar contribution: Cowan v Cowan (2001) but the bar is set very high to establish this: Charman v Charman (No 4) (2007) Nothing particularly spectacular here.

It is possible to ring fence some assets e.g. of a hereditary nature including pre-acquired wealth: White v White (2001) but this less likely to happen if the assets have not been increased during the marriage, nor mingled with the marital property.  Recent approaches e.g. Robson v Robson (2011) suggest the inherited property should not be unnecessarily invaded unless required to meet needs when they should be treated strictly in accordance with the MCA 1973 s 25 factors (per Ward LJ)

The £200,000 sought to be ring fenced is (a) cash, not a family property as such, but (b) was a wedding present it seems to Harold alone, (c) but was the business seed corn, in which it seems Winifred has been in practice an equal partner.

The starting point the s 25 factors, the concepts of needs, compensation (for relationship generated disadvantage), and sharing : Miller v Miller, McFarlane v McFarlane (2006), these 3 strands developed from the s 25 criteria in the first place and tested initially against “the yardstick of equality: White v White, which Potter LJ, President of the Family Division, said in Charman v Charman (No 4)  had morphed into the “equal sharing principle”

Likely result: Winifred is expected to work: s 25 (2)(a) “…earning capacity …and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire”, she is only 45, plans to retrain

But may need to share Harold’s pension as only 15 years to build up her own, Harold will have built his for her to share if they had stayed married

Needs a home, though not perhaps as large as the FMH which Harold wants to retain

But of similar standard: s 25(2)(c) court must consider standard of living during the marriage

Should have a share of the business when sold

Other criteria: s 25 (1), general duty of the court, “first consideration being given  to the welfare while a minor of any child of the family who has not attained the age of eighteen”, Sally will need somewhere to stay when visiting her mother’s new home

Arithmetic: Total assets £4.75m, of which Harold wishes to ring fence £200,000. If Harold  supports Sally who will live primarily with him, perhaps half of £4.5m not unreasonable for Winifred, £1m for a new home including moving expenses, £125,000 pension sharing order, half the proceeds of the business when sold.  Limited term periodical payments order while she retrains and establishes new earning capacity? 3 years?

Affordability: Harold has a high salary, can raisea mortgage on the FMH and/or business to buy Winifred out of the FMH, pay her share of the business on sale. 

Chapter 8 - Civil Partnership

1.“Same-sex couples are now going to be allowed to marry under English law: opposite sex couples should be allowed to enter into civil partnerships”. Discuss with reference to the law on marriage and civil partnerships.

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Underlying principle:  the concept of family includes the blood tie as much as couple partnerships and their children: Professor Ruth Deech, Gresham Professor of Law, 2009 Gresham Lectures,  (2010) 40 Family Law “Sisters, sisters”, republished as an article, also at www.gresham.ac.uk, in which Baroness Deech challenged the logicality of the decision in Burden v UK [2008] ECHR 375, the ECtHR has not considered whether ordinary people might look for in a family context , i.e. the very essence of “the family” founded on blood relationships and often a common residence.

Illogicality that features of civil partnership require same sex, but not close blood relatives: The Burden sisters could not qualify for civil partnership as they were within the table of kindred and affinity on which civil partnership is based in the same way as marriage – also illogical since no sexual relationship required for registered civil partnership, CPA contains no adultery as a Fact evidencing irretrievable breakdown, CPA contains no ground of venereal disease or pregnancy per alium as ground for nullity

Why can opposite sex couples not therefore enter into civil partnerships? They can under the French PACS system (Pacte Civile de Solidarite)

There has been a lobby for opposite sex civil partnership in English law for some time. There is currently a private members Bill in the House of Lords, the Civil Partnership (Amendment) Bill.  It is probably unlikely to succeed as private members Bills usually do not unless supported by the government and there is no sign of government approval in this case.

2. Alan and Brenda originally met through Brenda’s mother, Catherine, who was Alan’s first wife.  Alan and Catherine divorced in 2006, when Brenda was 21 and had left home as Catherine was unable to come to terms with discovering that she had a gay daughter.  Soon after that Alan met Brenda again at a party where Brenda was amazed to find that Alan was now a male to female transsexual in the process of becoming Alana.  Brenda supported Alan/Alana through the necessary operations and treatments and when Alan finally became Alana in 2008 they then registered a civil partnership.  Alana has bad memories of the divorce from Catherine and does not want to marry again when the Marriage (Same-Sex Couples) Bill becomes law, especially as Brenda is pressing for this.  This is driving them further and further apart so that Alana is now determined on a dissolution of their civil partnership in which it appears they now have nothing in common, and would like to do this before the new statute is implemented. 

Advise Alana how this may be achieved and whether there will be any financial responsibilities towards Brenda.  Will the dissolution of the civil partnership be any different from divorce?

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Validity of the civil partnership: Parties to a civil partnership must be same sex: CPA 2004 ss 1(1) amd 3(1)(a).  Provided Alan/Alana had completed the transsexual process and had his/her gender recognition certificate this completes the process of obtaining the “acquired gender! for all purposes: Gender Recognition Act 2004 ss 1(1)(a), 2, 3 and 4.  Thus a valid civil partnership to dissolve provided the usual formalities all duly followed and no procedural irregularitiy.  Dissolution not nullity therefore applicable.

Dissolution of civil partnership: This follows the process for divorce in the MCA 1973 save that adultery is not a Fact which can be relied on: CPA 2004 s 44 (same irretrievable breakdown: s 44(1), only four Facts excluding adultery: s 44(5).

Financial provision on dissolution: Approached in the same way as for divorce under MCA 1973: s 72 (1).  The partnership has endured for 5 years, similar provision likely as for a spouse under the MCA, insufficient information to guess what that might be, but 5 years not a long marriage, no children, probably no change to earning capacity, perhaps small award to assist with relocation and reorientation of life unless there has been some significant contribution to the civil partnership acquest.

Chapter 9 - Cohabitation

Martin and Wendy have been living together for 12 years and have a daughter, Doreen, aged 11 and a son, Simon, aged 10.  They have lived in a large house bought by Martin in his sole name when they began to live together. He has always also paid all the major bills including the mortgage and Wendy, who worked intermittently and part time as a cinema and TV screenwriter, besides running the house and family, has paid only for small items, such as birthday and Christmas presents for Martin and treats on their annual summer holidays. However in “good” years she would pay for the whole holiday, sometimes a very lavish one, and also for the family’s clothes, new furniture and luxurious extras including the latest TVs, home cinema equipment, music centres and the very latest gadgets. However Martin always said this division of financial responsibility did not matter as they would “share” the house which would be their home. They have now separated as Martin has formed a relationship with their next door neighbour, Nelly, and moved into her house where she lives with her children. He next wants to sell the family home he shared with Wendy, Doreen and Simon - whom he wants to move into rented accommodation, so that he can renovate Nelly’s house, which is a near ruin, and buy his new family a weekend cottage in France.

Advise Wendy whether she has any right to remain in the former family home, whether she has entitlement to part ownership of it, how this might be established and whether she can obtain any maintenance for herself and/or the children.

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Status of parties: They are two single people, no status of cohabitants known to the law. Poperty disputes thus determined by usual rules of Equity and Trusts, TOLATA 1996. 

Property Disputes: In Kernott v Jones (2011) the most recent authority, which may be found on final appeal on the Supreme Court’s website as Jones v Kernott (2011),  the court indicated that the appropriate methodology for the resolution of disputes about the family home was the constructive trust.  The approach in this context is that the beneficial interests follow the legal interest and the party who alleges that those are different must show how the beneficial interest is not reflected in the registered legal title.  Constructive trusts can only be thus deduced from proof of common intention to share a property which is registered in one name only and to share it in proportions indicated in some other way if not equally.  It is thus probable that Wendy owns a half share of the home. Proceedings are taken under ss 14 and 15 of the Trusts of Land and Appointment of Trustees Act 1996 ss 14 and 15. If she has a beneficial share she has a right to occupy, but more usually will be bought out as both parties cannot realistically occupy, and in the meantime would, being entitled to domestic violence protection under s 33 of the Family Law Act 1996 although, as the parties not married, no home rights under ss 30 and 31 (as these are exclusively for married couples or registered civil partners) .

Maintenance: Cohabitants have no right to maintenance, but child maintenance may be obtained: voluntarily, through the CSA or Child Maintenance Service (see Chapter 21 below), the court ( Children Act 1989, Schedule 1 and s 15).

Chapter 10 - Financial Support Without Decree

Ali and Sunita have been married for 5 years and have 2 children aged 4 and 2.  Ali, an accountant, lost his job a couple of years ago and was apparently unable to obtain another, so went on to a retraining course to become a plumber. He has just completed the course to qualify and has a job offer which he could start immediately earning around £500 per week with significant extra bonuses.  Sunita had a good job with a department store but has just lost it in the recent retail downturn.  She is struggling with child care anyway and thinks it would be better not to work again until both children are at full time school.  They have argued so much recently that Ali has now left and gone to live with his brother in his brother’s bachelor flat and sends weekly voluntary payments for the children but nothing for Sunita, who supposes that they will have to divorce eventually but meanwhile wants some maintenance as she is also struggling to pay the rent out of savings which are practically exhausted.

Advise her how she could obtain some maintenance for herself and whether it is worthwhile trying to formalise the child maintenance she is currently receiving. 

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Sources of financial support without decree: Domestic Proceedings and Magistrates Courts Act 1978, ss 1,2,3,6 and 7, Matrimonial Causes Act 1973 s 27 and Children Act 1989 Schedule 1 and s 15. All, broadly, can make periodical payments and lump sum orders for both a spouse and the children (the 1973 Act more generously than the 1978 Act) while the CA 1989 can make property orders.  However the MCA 1973 divorce jurisdiction is likely to be considered the appropriate statute for property orders between married parties.

Child support maintenance: This can be voluntary, CSA/CMS or court based.  The new DWP based CSA.CMS systems are potentially more effective and reliable than the previous CSA track record, but essentially now they are encouraging DIY arrangements between parents, a voluntary “family based” arrangement is likely to be best.  The new CSA/CPS systems discourage application to the agency by charging a fee to apply (£20) and a percentage to each party for collecting (7% to the applicant, 20% of the sum collected from the payer).  This in line with the current government approach of self funding for services.

Probably not worth it if currently being paid something reasonable. (New CSA rates based on 12-19% of payer’s net income up to £2,000 p.w.)  The advantage of a court order is that if it is registered with the magistrates court the clerk will collect the amount for the applicant and such collection is very efficient as it includes attachment of earnings.  However if Ali is in reality self employed (likely for a  call out plumber) this is unlikely to assist and might antagonise him. Some fathers do not mind paying for children, but object to paying wives (as may be here). 

Outcome: Possibly apply for spousal maintenance but leave children’s payments voluntary as long as they continue. Amounts being paid can be checked for appropriatenes on the CSA website with their on line calculator.

Chapter 11 Domestic Violence and Forced Marriage

1. We believe that the best way to deter people from forcing individuals into marriage is through criminalising forced marriage”. (Keith Vaz, Chairman of the Home Affairs Committee, 2011).  Discuss, with reference to the changes made by the new legislation.

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Existing protection before new legislation: Family Law Act 1996 Part 4A added by the Forced Marriage (Civil Protection) Act 2007. Provided new s 63A to 63S to the Act, creating similar injunction provision to that of non-molestation domestic violence protection orders, including powers of arrest (which must be attached in appropriate circumstances), undertakings in lieu of orders, committal for breach, ex parte (without notice) orders, etc.  These may be made both in anticipation of forced marriage and when such a marriage has already occurred.

Criminalisation of forced marriage: effected by the Anti-Social Behaviour, Crime and Policing  Act 2014 and now in force since 16 June 2014, which the BBC and other campaigners claimed to ‘send a powerful message’. Unfortunately,  virtually all the charities and voluntary organisations working in the field of forced marriage and violence against women agreed that criminalising the syndrome was inadvisable, fearing that it would drive the practice underground because of the belief in the culture of arranged marriages, if necessary secured by pressure on young adult children,  of which the end result (of achieving such marriages)  is valued in certain minority ethnic groups, which would be likely to misunderstand the objective and see the legislation as targeting them and their distinct culture. Most people, it seems, even in the ethnic groups concerned, would have preferred to see higher sentences for existing crimes committed within the forced marriage context, including attempts to force into marriage.

There was an MOJ consultation in 2012, conducted by the Forced Marriage Unit of the Foreign & Commonwealth Office, which resulted in the decision to criminalise by creating one or more discrete offences.  The Centre for Child and Family Law Reform (a research committee sponsored by City University) responded with a paper arguing for the increased sentence option in respect of crimes committed in association with the forced marriage, and Judge Carlos Dazies also wrote an article ‘Forced Marriage’ on this topic, which was published by the online journal Family Law and Practice (2011) 2 FLP 1: 28 (no longer published, but the complete archive is obtainable at www.frburton.com). It is too early to tell whether this measure is working as intended or whether the predictions of the informed workers in the field will prove to be correct.

2.  Howard and Willa have been living together for 7 years and their marriage is now falling apart as Howard is stressed at work and Willa has been having trouble coping at home. They have two children, Gillian aged 6, who is a clever child doing well at school, and Frederick, aged 4, who is naughty and “difficult”.  Gillian is exhausted trying to look after her very bright daughter who is at an academic school which “pushes” her all the time, as well as, and at the same time, her hyperactive son who is always in trouble at his school.  Howard has taken to drink and drugs owing to his work problems and has become violent to Willa.  This frightens Gillian though Frederick thinks it is very funny and laughs uncontrollably each time there is an incident. Yesterday Howard attacked Willa with a bottle from which he was drinking and threatened her with a broken glass. She left at once with Gillian but Frederick would not come with them. Willa and Gillian are currently with Willa’s sister in her small flat a few miles away but are very cramped as it has only one small bedroom in which Willa’s sister sleeps in the only single bed, with Gillian having a sleeping bag on the floor, while Willa sleeps on the living room sofa.  Willa would like to go home as the flat is nowhere near Gillian’s school, but Howard refuses to leave as he says he needs to be there to care for Frederick who does not want to be with Gillian and Willa.

Advise Willa how to obtain orders to protect herself and the children from Howard’s attacks and if possible to secure occupation of the home.

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Domestic violence in the family: Most appropriate protection is under the Family Law Act 1996 Part IV, providing non molestation: s 42 and occupation orders: ss 33- 38. Operates around a concept of “associated persons”: ss 62 and 63 which define the family members and other associates who are qualified to make application under the Act (usual close relatives in the nuclear family plus extended family of in laws, from formal and informal – cohabitants’ - relationships). Certain other relevant definitions also in s 63.

Married parties have home rights: ss 30 and 31, as do entitled applicants, and these all apply under s 33. former married and unmarried parties must use the later sections, ss 35-38

Non-molestation: No definition of molestation, but covers most behaviour, certainly violence, but actual violence not necessary if conduct unacceptable, violence includes threats even if no damage. Granted to  secure “health, safety and wellbeing” of applicant and children: s 42(5) to prohibit certain acts or molestation in general for specified period or “further order”: s 42(6) and (7). Breach a criminal offence, arrestable at once, so no power of arrest needs attaching. Can be granted ex parte (without notice)

Occupation: Can exclude perpetrator from area as well as home, or regulate occupation of the home if large enough to divide. Application under s 33 (married parties, entitled to occupy as owners) provide strongest protection. Mandatory order if health, safety and wellbeing of applicant requires protection because of actions of respondent, unless balance of harm would impact more severely on respondent if order granted: s 33(7) (“balance of harm” test). Can impact negatively on applicant, eg as here the perpetrator may need to remain in the home as caring for naughty child of 4 (unlikely to be welcome in much rental accommodation) whereas woman with a 6 year old girl can probably find alternative accommodation; see  B v B (Occupation Order) (1999). Duration: s 33(10) if necessary till further order. Criteria on which court’s discretion exercised: s 33(10) (housing needs and resources of parties and any relevant child; financial resources of each party; likely effect of an order on health, safety or wellbeing of all parties, or of not granting an order; conduct of the parties in relation to each other and otherwise). 

Chapter 12 - The Children Act 1989

David and Edith have been married for 15 years and have 2 children (Felicity, 14, and John, 8).  They have now separated and Edith is being helped with child care by her unmarried sister, Gilda, who goes to the children’s school events, comes round to the family home often and takes the children to stay with her at her nearby house whenever Edith feels “under the weather” – which is fairly often, owing to her depression at the marriage breakdown. Fortunately Gilda is a successful authoress who is able to work from home and also to give up quite a lot of time for Edith and the children.  Meanwhile David has a new girlfriend, Susan, and they plan to marry once David gets a divorce from Edith, for which he has just petitioned, driving Edith into further depression. There are now ongoing family arguments about where the children should live as everyone but Edith thinks that she simply cannot manage the children.  David would like them to live with him, Gilda thinks they had much better live with her, and Edith says no one is going to take her children away from her.

Advise Edith who has or could obtain parental responsibility for the children and what the prospects are for the court ordering them to live elsewhere than with Edith herself. Will this change in any way if and when David marries Susan and in any case now CAFA 2014 is in force, creating CAOs, and having abolished individual  residence and contact orders as such?

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Parental responsibility: CA1989 s 1 Both married parents have PR. The father’s new girlfriend does not acquire parental responsibility unless and until they marry when she may obtain PR as a step-parent: s 4A, by agreement with the other parents: s 4A(1)(a) or order of the court: s 4A(1)(b).Any other relative who has occasional care of a child does not have PR for a child for whom s/he occasionally cares unless a residence order is obtained (when PR will last for the duration of the residence order): s 12(2) but may do whatever is reasonable in all the circumstances to safeguard or promote the child’s welfare s 3(4).

Residence and contact orders under CA 1989 s 8 have been abolished by CAFA 2014 and have been replaced by CAOs also under s 8 which can contain residence and contact elements, and also any other arrangements that are necessary to be made for children such as a Family Assistance Order under s 16 or a Prohibited Steps or Specific Issue order, also under s 8 like the CAO itself. Parents are however encouraged to work out Parental Agreements (‘PA’s as envisaged by the FJR) either between themselves or with the help of a mediator. No one can begin private law child proceedings without first attending a MIAM or obtaining a mediator’s certificate confirming that the case is not suitable for mediation or that the respondent(s) will not attend.  If proceedings are to be started the parents can both do so without leave but the aunt and girlfriend would need leave as neither has PR: s 10(4)(a), (aa) and (b),  and the children have not lived with either of them: s 10(5)(b) unless the parents consent: s 10(5)(c)(iii). When deciding on an application for a CAO with residence or contact content the court must have regard to s1(1), 1(2), 1(3) and 1(5) and the child’s interest is paramount.

All 7 of the paragraphs of s 1(3) (the  welfare checklist) are relevant here, in particular parenting capabilities of the various contenders,  and any harm the children might come to. If the aunt is really interested in helping the court might order some shared residence package, which is still possible under a CAO which permits a child to ‘live’, ‘spend time’ or ‘have contact’ with anyone named in the order. The courts do not always like shared residence, especially as the FJR and CAFA 2014 have effectively gone with more and better genuinely shared PR and practical shared parenting,  not necessarily articulated in equal amounts of time divided between the parents and various other  volunteering family members, but it seems there is an established pattern of sorts in this case, so the judge might be willing to work out a package, assuming the various family members can cope with cooperating.

CAOs are rather an unknown quantity as there is only a few months’ experience of them but in theory even an atypical family like this one could benefit from a formal CAO and since it is a situation which is a little complex, a CAO might be better than an informal arrangement brokered by a mediator, unless the mediator is very experienced and able to handle the warring factions in what is a voluntary agreement although any mediated agreement could be made the subject of a consent order of the court.

Chapter 13 - Parentage and Parental Responsibility Through Human Assisted Reproduction and DNA Testing

How does the Human Fertilisation and Embryology Act 2008 attempt to address the issue of balanced parenting of a child conceived by IVF, who under this legislation no longer needs in some circumstances to have a father at all?  Discuss with reference to the provisions of the Act in relation to “fatherhood” and “parenthood”.

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HFEA 2008:  Pathway (1).  The Act provides for those children born from IVF in licensed clinics to married parents to have a legal father through s 35 provided the husband has consent to the wife’s treatment: “If (a) at the time of the placing in her of the embryo or of the sperm and eggs or of her artificial insemination, W was a party to a marriage, and (b) the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage, then, subject to s 38(2) to (4) the other party to the marriage is to be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm or eggs or to her artificial insemination”.  The sub-sections of s 38 referred to refer to the law in Ireland and Scotland.  In this case the child is not significantly less the child of its legal mother and father than a child born naturally or adopted, having 2 opposite sex parents.

Pathway (2).   If the above does not apply the child may still have a father through the “agreed fatherhood conditions”: s 36. this situation is set out in s 36 as follows:

“Where “treatment is provided to a woman” and “no man is treated by virtue of s 35 as the father of the child” and (in the case of same sex couples receiving treatment)…

(b) “no woman is treated by virtue of s 42 as a parent of a child”  …”at the time that the embryo or the sperm and eggs were placed in W, or W was artificially inseminated, the agreed fatherhood conditions (as set out in section 37) were satisfied in relation to a man, in relation to treatment provided to W under the licence …

   (c ) the man remained alive at the time, and

   (d)t he creation of the embryo carried by the woman was not brought about by the man’s sperm, then subject to section 38(2) to (4) the man is to be treated as the father of the child”.  In this case the child may again not be significantly less the child of its legal mother and a man whom she chooses to be the child’s legal father than a child born naturally or adopted to 2 opposite sex parents who are not married but who have gone together to the licensed clinic

The agreed fatherhood conditions”: s37. These are set out in s 37 as follows: “

“(1) Where the agreed fatherhood conditions referred to in s 36(b) are met in relation to a man (“M”) in relation to treatment provided to W under a licence if, but only if -

   (a) M has given the person responsible a notice stating that he consents to  being treated as the father of any child resulting from treatment provided to W under the licence,

   (b) W has given the person responsible a notice stating that she consents to M being so treated

   (c ) neither M nor W has, since giving notice under paragraph (a) or (b) given the person responsible a notice of the withdrawal of M’s or W’s consent to M being so treated,

   (d)  W has not, since the giving of the notice under paragraph (b) given the person responsible  -

        (i) a further notice stating that she consents to another man being treated as the father of

             any resulting child, or

        (ii) a notice under section 44(1)(b) stating that she consents to a woman being treated as

             a parent of any resulting child, and

    (e) W and M are not within prohibited degrees of relationship in relation to each other”.

Pathway (3).   The third pathway addresses the situation where the potential legal parents of a child are of the same sex:  (i) either in a registered civil partnership (which mirrors Pathway (1) above in the case of a married couple) or (ii) are informally cohabiting which mirrors Pathway (2) in that the woman who is receiving treatment may nominate another woman through the notice procedure to be treated as the “other parent”: s 43.  Clearly in this case the “other parent~” is not a father, which is a masculine word, but does mirror the unmarried partnership’s opportunity to have the man in a cohabiting opposite sex partnership treated as the father of any resulting child, save that in the case of a same sex female partnership the other woman is clearly the “other parent” rather than the “father”  since she is a woman and not a man.  Like the male partner in an opposite sex partnership the “other parent” who is a woman must consent to the “agreed female parenthood conditions” which appear in this case in s 44 of the Act and mirror those in s 37. In this case the child will still have two parents – albeit both female – and no male parent who could be called “a father”.  However the Act goes into some detail to emphasise that, notwithstanding the differences of gender, the legal parents of the child born from human assisted reproduction are “parents” for all purposes: s 48 (1), and where a person is not to be treated as a parent that person will not be a parent for any purpose: s 48(2).  There is no requirement to achieve gender balance by involvement in the relationship of any specifically male influence (as is evident in residence decision cases under CA1989 s 8 up to the 1990s).  Thus the balance that is achieved by the HFEA 2008  in the Pathway 3 cases is that of 2 parents, a “mother” and the child’s other “parent”,  rather than a mother” and “father” and in fact, depending on the IVF method used, neither parent may be biologically related to the child, which is no different from most adoptions (where in fact the child may have only one parent since a single person is entitled to adopt).   

Chapter 14 Children’s Rights Autonomy and Medical Treatment

Has the Axon case really moved Gillick on at all, or even partially arrested the “retreat from Gillick”?

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Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7.  Established that a child under 16 of sufficient understanding can, and may in law, be competent to take decisions in relation to its own medical treatment without involvement of parents or others with PR, including in relation to contraception (which in theory should not be required by under 16 year olds since 16 is the age of consent to sexual intercourse).  Subsequent case law has established that the court will allow both such private medical consultation and autonomous general medical decisions by the child,   provided that decisions taken are not to refuse treatment where that would be life threatening: initial key cases Re R (A minor) (wardship: medical treatment)[1991] 4 All ER 477, Re W (A minor)(medical treatment) [1992] 4 All ER 627.

R (on the application of Axon) v Secretary of State for Health (Family Planning Association intervening) [2006] 1 FCR 175. (Sometimes colloquially called “Gillick Part2”!)  An application for judicial review of Department of Health guidance similar to that to which Mrs Gillick had objected some 20 years earlier, this time including advice on abortion. Silber J followed Gillick (an HL decision with reasoned judgments of leading Law Lords Scarman, Fraser, Brandon, Bridge and Templeman.  Axon added 5 explicit criteria on which a doctor is to be satisfied before treating the child:

            -           child must understand all elements of advice

            -           child must have declined to be persuaded to inform parents

            -           child must be likely to have sexual intercourse if the matter is one of

                          contraception

  • child’s physical or mental health might suffer if advice sought not given
  • must be in child’s best interest to receive the advice.

Has Axon moved Gillick on? Academic commentators have criticised the Gillick case for inconsistencies throughout the intervening years and have,  since Axon, considered that neither case answers all questions raised by the issues, e.g. Gillick is said to be uncertain (since it leaves the decision as to whether to provide treatment in the doctor’s hands with no guidelines – although Axon now provides some).  Both cases ignore the parent’s influence over the child.  There is no distinction between contraception – with which Gillick began the debate – and other medical treatment.  Sterilisation appears to fall somewhere between the two as there is academic disagreement as to whether this is contraception or other (invasive) treatment.  While in theory a mature minor can refuse medical treatment there are no cases in which such a child has been allowed to do so, although there are cases of severely damaged babies to die rather than to continue to suffer – these being clearly too young to participate in the decision.

There is also the issue of the ECHR Articles 8 and 10 which provide protection for adolescents from forced treatment (although Silber J rejected the claim that parents have the right under Article 8 to be informed of their children’s treatment). 

Some useful academic commentary: Taylor, R “Reversing the retreat from Gillick: R (Axon) v Secretary of State for Health (2007) 19 CFLQ 81; Huxtable, R “ReM: Medical Treatment: consent) - time to remove the flak jacket [2000] CFLQ 81; Mason J K and Laurie G T, Mason and McCall Smith’s  Law and Medical Ethics, Oxford, OUP, 2010.

Chapters 15 -18 The Child’s Welfare, s 8 Orders and Making Contact Orders Work

Thomas and Marina have been living together for 12 years. They have 2 daughters, Anna aged 11, and Rosina, aged 9. Thomas has moved out of the family home as the relationship has not been going well for some time and now has a flat a few miles away. He works part time and shares the care of the children with Marina who works very long hours in a lower paid job and has also taken over the mortgage of the family home where she and the 2 daughters have remained.  Both sets of grandparents help with child care as both are locally resident, retired and with large houses where there is space for the children. 

Thomas has commenced proceedings for a residence order as he is not happy for the children to be shuttled around as much as they are.  Marina opposes this, saying Thomas has generous contact already, including staying contact at weekends, although his flat is quite small and it is “a squash” at those weekends.  The grandparents are each anxious to take a child though neither really wants both: Thomas’ parents have Anna to stay 2-3 nights a week (usually the same ones as they take her to her acting, ballet and music classes every Tuesday to Thursday) and Marina’s have Rosina around the same amount of time (though are more flexible about which nights she should stay with them, as Rosina prefers to be more spontaneous than Anna, and they themselves have no other competing interests).  Marina is prepared to have a shared residence order with Thomas if he really wants one but is not willing for the existing arrangements to change in any way. Both sets of grandparents feel that the child whom they care for some days each week would benefit from being with them all the time.

Advise Thomas who says he will move to a bigger flat if necessary and that the present arrangements are chaotic and unsettling for his children. How is this situation likely to be affected by the CAFA 2014 approach to shared parenting?

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Any existing residence or contact order, or application for the same, was automatically converted into a CAO, or application for one, on 22 April 2014, by the transitional regulations when the new unified Family Court opened for business on that date. This family is in such a muddle that it is almost certain there will be a Cafcass officer assigned to make a report in connection with Thomas’ application and Marina’s resistance to it, not least as FJR criticisms of Cafcass and suggestion that they be taken over by the MOJ has now had that result.  There is no guarantee that there are sufficient resources to reduce the former backlog of Cafcass work, which has sometimes meant there were no Cafcass reports available even in the most difficult cases, but as the children are older in this family it may be that the judge can speak to them if there is no report so as to hear the ‘voice of the child’ in accordance with the international treaty obligations of the UNCRC monitored by our Children’s Commissioners, and in accordance with the provisions of the CA 1989 and English law’s concept of a child’s welfare and ascertaining his or her wishes and feelings according to age and understanding.

In any case such as this one, the child’s welfare is paramount: CA 1989 s 1(1), Re W (A Child)(Shared Residence Order) [2009] EWCA Civ 370. Under the Presidency of Lord Justice Wall, the Family Division of the High Court,  and the Family judges in the Court of Appeal, have been most recently in favour of shared residence,  and 5 years before Re W Wall J, as he then was,  was the judge in A v A (Shared Residence) [2004}EWCA Civ 142 where it was said that as the children had been dividing their time equally between the parents, that would ‘reflect the fact that the parents are equal in the eyes of the law and have equal duties and responsibilities towards their children’.  In another of Wall LJ’s judgments, Re M (Residence Order) [2008] EWCA Civ 66, the family situation was said to be ‘a paradigm case’ for a share residence order. The children needed to be kept together , which they wanted, and the parents lived sufficiently close to facilitate such an arrangement. In such situations there is no need for contact orders which would be contradictory if residence is shared and has obviously been found to be appropriate in many such cases.

The influence of the FJR, and CAFA 2014 which now encapsulates that influence, have not abolished shared residence as such, not even in the creation of the CAO to replace individual residence and contact orders, as the CAO can accommodate any reasonable residence element and contact arrangement, despite the FJR’s preference for encouraging what they identified  as enhanced PR and ‘making it work’.   It may be that getting agreement to the suggested orders for resolving the controversy in this family’s circumstances might be too much for a mediator or a self ordering ‘PA’ in the case of these parents and grandparents, so that the authority of a CAO, delivered by a practically minded judge,  may be necessary although out of court dispute resolution is preferred by the new systems. But shared parenting can be part of any CAO and the grandparents can contribute if they are willing and the court is willing to write them in and considers their input is for the children’s welfare.  There are strong indications that the present situation should stay as it is unless there is some compelling reason to change it and unless the judge thinks that it would be better for Thomas to have the children based with him with the same generous contact to their mother as he has enjoyed to date, because the situation is deteriorating further.

The grandparents will require leave for any application to the court in order to start their own proceedings for contact although as Thomas’ proceedings are already on foot,  neither he nor Marina will need to go through the MIAM procedure now required before any new proceedings, and neither would have needed any leave as both are parents who have the right to apply to the court for any s 8 order. Should they suddenly all manage to settle out of court, any mediated agreement could be turned into a CAO by consent provided that is better than no order being made: s 1(5).

Chapter 18 - International Abduction and Relocation

Anatole is an actor, of mixed French and British parentage, but an EU British citizen and Barbara is Australian. They are not married but have two children, Clarissa, who is 14 who wants to be an actor like her father, and Denzil, who is 9, and rather a quiet “Mummy’s boy”.  They were all going to Australia for an extended holiday over the summer school holidays  when Anatole obtained a very good part on the London stage and insisted on taking it and cancelling the holiday. Barbara decided to go anyway as she had realised that her parents were ageing and everyone but Anatole had been looking forward to the trip.  Once there, she decided not to return as the weather (even in the Southern hemisphere their winter) was so much better than England, her parents were so pleased to see the children and were proving such good grandparents despite their age. Upon reflection she realised that Anatole had become very unpleasant over the past 5 years when parts had been thin, his career had not gone well and he had been very bad tempered, introspective, intolerable to live with and even dismissive and sometimes overtly aggressive to the children. In September when school term was about to begin in England she notified Anatole that she would not be returning, and received in response a furious letter abusing her for going at all instead of remaining in London to support him in his summer season in the West End theatre.

Anatole has now taken out Hague Convention proceedings which Barbara is fiercely defending on the basis that the children have now settled in Australia, started school there and made new friends. They have also told her they are afraid of their father, hate the English weather, were both bullied at their English schools and now want to remain in Australia where “everything is much better”. Clarissa has enrolled in part time acting classes in a drama school in Sydney where she has linked up with a thriving Young Actors’ theatre group and Denzil has suddenly grown up, burst out of his previous “sissy” character and become a brawny “macho” beach boy. He has even taken up serious sport which he would never do in England where he disliked going out in the cold to play rugger.

Advise Barbara how Anatole’s application will be dealt with in the UK and whether she will have to return with the children.

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The Convention process: Detailed knowledge of the Hague Convention on the Civil Aspects of International Child Abduction (1980) required for these cases.  Basic legal requirements establishing “wrongful removal” or “wrongful retention will obtain a summary return order, so  children’s future can be decided by the courts of their habitual residence i.e.  England and Wales. This is wrongful retention, the family went to Australia with Anatole’s agreement.  Anatole has “rights of custody”, though not married to Barbara he may either have PR or be able to get it, by agreement with her or from the court as he appears to have been living with her and them for years, possibly since their birth, may even have registered the birth of Denzil (9) with Barbara thus obtaining PR then.

Defences to summary return: possibly “psychological harm”, objections to return of Clarissa(14).  Defences difficult to establish as contrary to Convention philosophy and underlying principle of jurisdiction of the child’s habitual residence, child’s welfare not paramount as presumed under judicial comity in signatory states. (such as Australia). Even if defence establish court does not automatically refuse a return order, uses own discretion (Articles 18 & 20)

Chapters 19 and 20 Child Protection: Wardship, the Inherent Jurisdiction, the Children Acts in Public and Private Law and Care, Supervision and Protection Orders

Matthew and Wendy have two children aged 5 and 3.  The family are very short of money as both parents are out of work and struggling to pay their council flat rent.  The elder child’s school has reported that he arrives late every morning, is dirty and inadequately clothed, and very hungry. His teacher has noted bruises on his legs.  There is a similar report from the nursery playgroup which the younger child attends.  Social workers have been to the house but although they think the parents are there, no one now answers the door and previously they were refused entry when they asked to see the children.

Advise the local authority what steps it can take to assist this family and (both short term and long term) to protect the children.  Does it make a difference if the children’s parents are intentionally neglecting them?

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Local authority obligations to the family and duties to protect the children: These set out in Part III, CA 1989, ss 17-20, they must provide support and services to facilitate the children in need living in their family home if possible. They have similar duties under Parts IV and V to protect children from harm (defined in s 31) whether by overt abuse or neglect.  It certainly does make a difference whether the parents are deliberately neglecting the children, in that case the authority can proceed immediately to Parts IV and V without wasting further time on Part III.  This is the tension between family autonomy and state intervention, spelled out by Lord Mackay in his 1989 Joseph Jackson memorial lecture and by Baroness Hale in such cases as Re S-B (Children) [2009] UKHL 17.

Child protection under Parts IV and V: For being excluded from the home and denied access to the children: Child Assessment Order s 43.  This provides a right to production of the child for 7 days’ medical and other assessment.  If more serious, and evidence that there is something seriously wrong: Emergency Protection Order ss 44 and 45. If found to be entirely justified an interim care order could follow on expiry of the EPO, and then a full care order, in which a care plan will be required which may recommend adoption if the children cannot be rehabilitated with the family. Threshold criteria must be  established first, s 31(2) then there is a welfare hearing to consider s 1(1), welfare principle s 1(3), welfare checklist s 1(2) no delay principle and s 1(5) no order principle.  The care order will have the effect set out in s 33.  The care plan is still required despite the FJR recommendation that consideration of it should be speeded up in order to meet where possible the goal of completing cases within 6 months unless over complicated.

Following the recommendations of the FJR CAFA 2014 has imposed a deadline of 26 weeks on all public law child protection cases which do not involve some complexity which would militate against that deadline being for the child’s welfare,  and the FPR 2010 as amended for use in the new Family Court has reflected this in all non complex cases.  Earliest research (in the first 6 months of the court’s operation) shows that many routine cases are now completing  within the deadline in 25 weeks.

Chapter 21 Financial Provision for Children

Critically appraise the new DWP Child Support Agency system and its potential for eradicating the bad name the agency previously earned for incompetence, ineffectiveness and inefficiency.   To what extent is self help in child maintenance now encouraged?

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New DWP website, http://www.gov.uk/child-maintenance: the DWP has taken over the administration of child support although the identity of the former Child Support Agency (CSA) has been preserved. The Child Maintenance Commission was abolished in August 2012.  The new system also creates a new Child Maintenance Service (CMS) which will administer the provisions of the Child Maintenance and Other Payments Act 2008 (CMOP 2008) which has further reformed the system under the CSA 1991-1995 as amended.  The Act began to come into force from October 2012 and has been progressively operational under it since December 2012.  It is thought that it will take 3 years fully to switch over to the new CMS. Old cases will continue under the CSA banner until full switchover and the new CMS will operate alongside for new cases. The website says that the staff will inform applicants which system will apply to their cases.  It is intended to charge an application fee (£20) and a percentage fee for collections and enforcement (7% to applicants and 20% to payers).  Otherwise applicants can use the website calculator to estimate likely levels of maintenance and make private agreements at no charge.   Payers will be assessed in future on the basis of 12% to 19% of their net income (as opposed to formerly their gross income). Private agreements are now actively encouraged.

Potential for improvement over the previous systems:  This is difficult to estimate in view of the previously enduring bad name attracted by the CSA,  although it is obviously a positive factor that within a relatively short time this notoriously unpopular agency name will disappear.  However this was projected before with CMEC, now abolished, and without the slightest significant improvement during CMEC’s life between 2008 and 2012 of the image of the statutory system. 

It is also a pity that there are apparently no plans to amend s 4(10(aa) where in the case of private agreements the parents wish that agreement to last more than one year before having to be remade.

However the website is attractive, better than previous versions in a variety of ways and clearly acknowledges the government’s current policy of promoting self ordering in family contexts.

The charging provisions are now in place although there has been criticism that the money collected for these charges could have been better used towards supporting the children concerned. There is as yet no indication of whether any change in the implementation of the charges, either as to intention to make them, or as to amount

Chapter 22 Adoption

Charlene is a single mother with two children, Jack, aged 4, and Jill, aged 3, who have two different fathers.  The two fathers are not involved in the children’s lives and disappeared before each was born.  Charlene herself used to be a drug abuser but has now apparently given that up although she is not the most capable mother and struggles with ill health, during which care of her children is often left to the local authority which provides fostering each time she goes to hospital. She now has a new boyfriend, Barry, who has a murky past (it is thought he first knew Charlene in her drug days) but appears to be supporting her in practical terms.  

Unfortunately Charlene is now much more seriously ill than before, has been diagnosed with a fast developing cancer and has once again gone into hospital, this time with a poor prognosis for recovery.  This time the local authority Social Services think that they have done all they can pursuant to their obligations under Part III of the Children Act 1989 and that they need urgently to obtain parental responsibility as they are not happy for Barry to care for the children even on an interim basis.  They are also concerned that a man claiming to be the father of Jill has reappeared and is demanding to take her to live with him.  The authority considers that  as a matter of urgency a care order with parental responsibility for the children is the only effective protection and is firmly of the view that the time has come for the long term plan to be adoption of both of them.

The local authority seeks your advice on its powers in this situation and on whether there is any likelihood that Barry or Jill’s father could thwart their ultimate intention, in particular if either applies to adopt the children as both men have apparently promised Charlene they will do if she dies.  

Advise the local authority of the law and practice.    

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PR for the children: Charlene is a single mother, she has PR, the fathers and Barry do not, though they could probably get it in time.  Either Barry or Jill’s father could probably get a CAO with residence element as Barry has lived with the children,  though Jill’s father, who could apply without leave if he is really her father as that makes him a parent, would have to explain his abandonment of Charlene and Jill since he would need to show the accepted Re H principles of commitment, attachment – though not sure if he has a relationship with Jill (if he ever had any but Keegan v UK would recognise a relationship -  and reason for applying (no particular difficulty in the present terminal illness circumstances).

Current emergency: Charlene being so  seriously ill means they will have to accommodate the children again if no one else is available: CA 1989 s 20. Nothing seems to have been heard of Jack’s father though Barry may be a possibility for Jill, but the authority may validly have real concerns about Barry if he offers despite the fact the children obviously know him.

If the authority wants a care order it must satisfy s 31, stage 1, are the children suffering or likely to suffer harm if they do not act? Stage 2 is the order for their welfare. Or an EPO s 44, which both Barry and Jill’s father could oppose. EPO only lasts 8 days +7 day extension, so maximum  15 days, an interim care order would be better as that can last 8 weeks: s 45.  The Court will require a care plan but do not have to scrutinise more than the immediately significant parts although the authority will still have to include an exit plan and that may be adoption in this case. 
Adoption: Jill’s father could prevent a plan to adopt her and could possibly adopt Jack as well (as Bob Geldof did in the case of his former wife’s daughter with  Michael Hutchence, when Paula Yates died leaving the child an orphan,  since Hutchence was already dead).  The court would perhaps not wish to do this as it severs Charlene’s birth mother’s rights,  but if she is dying anyway this might not matter much especially if she had asked Jill’s father to take on Jill, or possibly both  the children,  if she herself died.

The adoption would be under the Adoption and Children Act 2002, which now includes a new welfare test requiring the court to consider the child’s welfare throughout its life. Some effort may have to be made to find Jack’s father and serve him with the proceedings or at least give him notice,  but if he does not have PR, as is probably the case, this is not essential though it ‘should’ happen in the case of an unmarried father even without PR. A child must live with prospective adopters  for a probationary period, arguably 6 months for Jill and the adopter must give 3 months notice to adopt. The court can make a placement order without Charlene’s consent if the child is subject to a care order. However there has been much criticism of weak reasons given in judgments for allowing adoptions and current court decisions are looking much more closely at this: see [2014] 44 Family Law, which reprints  articles from the February 2014 Dartington Inter Disciplinary Family Conference,  by e.g. Alex Verdan QC suggesting that these fast adoptions with inadequate reasons ‘must stop’ despite the government’s policy to get children out of care and into a loving, permanent , family situation, and as soon as possible.

Meanwhile CAFA 2014 s 3 has legislated to amend the former requirement for matching of ethnicity which is no longer essential,  though indeed still may be desirable as some cultural mismatches have shown.

 

Chapter 1: Introduction

1.  To which decade of which century is modern Family Law traditionally traced, and why?

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The 1950s, or middle of the 20th century when the first academic textbooks appeared and Family Law began to be regarded as a serious subject for study in the academy.

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2.  Which Act has created “same-sex parenthood”?

3.  It is said that Family Law used to comprise mainly Divorce and some Child Protection. Name the leading academics who have attempted to identify the key factors which now define Family Law.

4.  When was the first Matrimonial Causes Act?

5.  Which Articles of the ECHR most impact on Family Law?

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Articles 6 (right to a fair trial), 8 (right to respect for family life), 9 (right to freedom of thought), 12 (right to marry0 and 14 (prohibition of discrimination).

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Chapter 2: Marriage

1. What do annual statistics on numbers of marriages contracted show?

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Numbers of marriages contracted are falling (latest figures approximately 117,000, lowest since 1977). This is in comparison with a steadily rising incidence of cohabitant headed families, currently 1 in 6, projected to rise to 1 in 4 by 2030. See the National Office of Statistics for more detailed figures, updated annually usually a couple of years behind the current year.

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2. What is the core difference between   “valid”, “void” and “voidable” marriages? What is a “non-marriage”?

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A valid marriage is contracted in English Law accordance with the Marriage Act 1949 as amended, or is one complying with the relevant law and practice in another jurisdiction so as to be recognised by English Law. It can only be dissolved by divorce or death, and the survivor is a widow or widower.

A void marriage is one with some incurable defect so that it can never be valid irrespective of the parties’ wishes.  Both parties will die single unless the union has meanwhile become a validly contracted marriage by means of a new valid ceremony.

A voidable marriage is one that is valid for all purposes unless and until “avoided” by the parties, who may instead affirm it if they wish, but no other person may attack its status.  Such a marriage is ended by annulment but if it has subsisted until death it will be dissolved by death and it will be too late for annulment decree. The survivor is a widow or widower.

A “non-marriage” is one which is so unlike a definable marriage that no such status has been acquired so as to be dissolved by divorce or nullity, resulting in no jurisdiction to make financial orders in ancillary relief.

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3. On what grounds will a marriage be void?

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Invalidity under the Marriage Act 1949 as amended (including now by the Marriage (Same-Sex Couples) Act 2013).  These are prohibited degrees, age less then 16, defective formalities where the parties nevertheless entered into the marriage knowingly and wilfully , marriage polygamous where either party domiciled in England and Wales.  These are all matters of capacity where the marriage will be void and can be treated as void under s 11 of the MCA 1973. It is no longer the case that a marriage is invalid if the parties are not respectively male and female.

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4. On what grounds will a marriage be voidable?

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Marriage not consummated owing to incapacity of either party or wilful refusal of the respondent; marriage contracted owing to duress, mistake, unsoundness of mind or mental disorder, or where either party has venereal disease or is pregnant by a third party.  These factors are governed by s 12 of the MCA 1973.

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5. What was the significance of Goodwin v UK ?

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A judgment of the European Court of Human Rights which required legislation in the Gender Recognition Act 2004 to recognise that the status of transsexuals for all purposes in their new gender permitted them to contract a valid marriage in English law.  This legislation displaced the previous authority of Corbett v Corbett [1970] 2 WLR 1306, in which it was held that a person’s biological sex was fixed at birth by chromosomes and that this could not be altered by subsequent surgery and/or medical treatment to change the external appearance (unlike in some other jurisdictions where such a change was recognised in law).

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Chapter 3: Nullity

1.  What is the effect of a nullity decree on a voidable marriage?

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The marriage is valid until a decree is granted: MCA 1973 s 16. The marriage is then annulled rather than dissolved and the parties revert to single status. Children remain legitimate.

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2.  For what reasons might it be necessary to obtain a declaration that a marriage is void?

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Marriage is a status which is important in other legal contexts since some statutes require this to be defined e.g. for the purposes of trusts and trustees, including pension funds, privileges in relation to criminal law, protection of the parties’ home rights and from domestic violence and harassment.

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3. What are the bars to a nullity decree?

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Approbation and the statutory bars in s 13(2) and (3) of the MCA 1973, which take effect after 3 years from the ceremony.

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4. Nullity was once quite recently considered an obsolete remedy owing to the decline of religious objections to divorce, but its use has revived in one particular social context. What is the most common social context for the use of nullity decrees today?

Show Answer

Forced marriage.  There are still occasional cases of religious objections to divorce which also often coincide with the desire to annul rather than dissolve a forced marriage.

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5. Is there any overlap between nullity and divorce?

Show Answer

The two remedies can be petitioned for in the alternative.  Pregnancy by a third party or venereal disease may equally be used for a petition for divorce under s 1 (2)(b of the MC 1973 (behaviour) or for a nullity decree, as may mental disorder at the time of the marriage.  This may be particularly suitable where either ground may be only a weak basis for a divorce decree.  The new Family Procedure Rules 2010 provide a summary procedure without court hearing for either remedy.

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Chapter 4: Divorce: Theoretical Background

1. Which statute(s) began the modern reform of Divorce?

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Divorce Reform Act 1969, later consolidated with the Matrimonial Proceedings and Property Act 1970 into the Matrimonial Causes Act 1973 as amended.

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2. Who are the leading protagonists in the contemporary debate on reform of the Law of Divorce?

3. Which statute has failed to reform the Law of Divorce despite being duly enacted?  Why was this?

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Family Law Act 1996.  The Act introduced a system of divorce over time in Part II of the statute, which has never been brought into force and which the government eventually announced would not be implemented in its enacted form.  Contemporary research showed that the provisions, and the new procedures which were to be introduced, were unpopular with the public.

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4. On what statutory basis is there jurisdiction to entertain Divorce petitions in English Law?

5. What is the impact of s 3 of the Matrimonial Causes Act 1973?

Show Answer

This effects an absolute bar on petitioning for divorce until one year and a day from the date of the ceremony of marriage. It does not preclude reliance on events which have occurred during the first year, only on petitioning until the time specified has elapsed.

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Chapter 5: Divorce: The Contemporary Process

1. What are the “Five Facts” and where in the 1973 Act can they be found?

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These are the Facts on proof of one or more of which irretrievable breakdown of marriage may be proved to obtain a divorce. They are in s 1(2)(a), (b), (c), (d) and (e) MCA 1973 in the case of an opposite-sex couple’s marriage. Where the couple is same-sex s 1(2)(a) is not applicable.

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2. What are the bars to a Divorce decree?

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The parties living together for more than 6 months following discovery of an act of adultery, and (possibly) living together for the same period after the last act of behaviour relied on in the petition (unless that behaviour is of a continuing nature); insufficient period(s) of separation, or of actual separation, immediately prior to the presentation of a petition on desertion or either of the separation Facts.

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3. What is constructive desertion?  Is it of any further practical use, and if not why not?

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Constructive desertion is behaviour which is such that it drives the petitioner to leave the respondent so that in practice the petitioner is not the party “deserting” the marriage because the respondent’s behaviour was such that it was intolerable for the petitioner to remain in the marriage. Constructive desertion is no longer of practical use since the same behaviour will be sufficient for a behaviour petition under s 1(2)(b) and there will be no need to prove any of the other complex criteria to establish desertion in law.

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4. What financial protection exists for respondents who are reluctant to be divorced? Where in the Act is this found?

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These provisions can permit either delay in finalising the divorce while specific financial protection is activated or can act as a complete defence to a petition, and are found respectively in  s 10 and s 5 of the MCA 1973. 

There are several possibilities under s 10, and some of these apply to both Fact D and Fact E petitions: s 10(1) enables a Respondent to withdraw consent to a decree under Fact D if s/he has been misled in any way which has induced consent to be given to the Fact D petition. 

By s 10(2) both Fact D and Fact E respondents can hold up decree absolute by applying to have their financial position specially considered before the divorce is finalised. 

By s 10(3) the court will consider any application under s 10(2) and if appropriate will not allow the decree to be made absolute until the judge is satisfied that either (i)the petitioner need not make any financial provision for the respondent or (ii) the provision made is reasonable or  the best that can be made in the circumstances. 

By s 10(4) the petitioner can obtain a speedier decree absolute only if s/he can persuade the court to relax the provisions of s 10(3).  This is effected by giving an undertaking to the court that such provision as the judge may approve will be made and showing that there are urgent circumstances (such as a pregnancy or terminal illness requiring an early remarriage of the petitioner or an intended new spouse) which justify making the decree absolute without delay.

Under s 5 a respondent to a Fact E petition can defend a petition successfully if it can be shown that to dissolve the marriage would result in grave financial or other hardship to the respondent.  This is unusual now that most pensions can be attached or split pursuant to reforming legislation in the Pensions Act 1995 and the Welfare Reform and Pension Act 1999.  However such a respondent can still use s 10 (2) to delay decree absolute until financial provision is satisfactory.

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5.  What are the legal and practical effects of judicial separation?

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Judicial separation is obtained under s 17(1) of the MCA 1973 on the basis of the same 5 Facts as are used for divorce.  The only difference is that the marriage is not ended but the parties are no longer obliged to live with each other.  Ancillary relief financial orders can be made in the same way as for divorce but there will be no need to prove irretrievable breakdown and no clean break will be considered or imposed as  the marriage will not be dissolved.

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Chapter 6: Divorce: Marital Agreements, Collaborative Law, Mediation and Family Arbitration

1. Which sections of the 1973 Act permit marital agreements?

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MCA 1973 ss 34-36 recognise marital agreements and the court can also vary them. 

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2. What are the aims of collaborative law? What conditions must the parties sign up to?

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Collaborative law is a worldwide movement which aims to resolve family disputes including divorce and consequent financial matters through multi-disciplinery round table meetings and without the parties resorting to the court.  It is a recognised dispute resolution method but does not attract public funding (unlike mediation).  The parties and their lawyers all agree that if the parties decide after all to go to court they will instruct new lawyers and their existing advisers will no longer act for them.

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3. What are the four principles of mediation? What are its advantages?

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The four principles are that mediation is voluntary, impartial, confidential and flexible,
Its advantages include that a mediation can resolve some matters which the court could not, this could be recorded in the agreed settlement and the entire process could be completed very quickly, without the delay of waiting for the uncertain outcome of a court hearing, and  much more cost effectively.  The parties are also able to choose their mediator, whereas they cannot choose their judge at court.

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4. What is Family Arbitration? How does this sit within the context of the ultimate discretion of the Court in Family proceedings?

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Family Arbitration is a new settlement methodology provided by a consortium known as the Institute of Family Arbitration (IFLA) whose members are the Chartered Institute of Arbitrators (CIArb), the Family Law Bar Association, Resolution (the Solicitors’ Family Law Association) and the Centre for Child and Family Law Reform, a research committee sponsored by City University.  Family Arbitrations operate under the IFLA Rules.  Family Arbitrators are trained by the Chartered Institute and determine disputes under financial provisions of various statutes including the Matrimonial Causes Act 1973, the Inheritance (Provision for Family and Dependents) Act 1975, TOLATA 1996 and similar legislation.   The process can be accessed as quickly as mediation avoiding the same court delays and also enables the parties to choose their own arbitrator and to receive their determination in private but has the advantage over settlements through collaborative law and mediation that there is a determination by a trained arbitrator which some parties might prefer, although all these forms of settlement can be formalised by an expedited order of the court under s 33A of the MCA 1973 where that is required.

Awards are not automatically binding because the MCA 1973 provides for the court’s discretion in making any financial order or approving an agreed settlement and this also applies to other financial statutes covered by the scheme. However as the parties sign an agreement to be bound by the trained arbitrators award this is strong evidence that the court is unlikely, under the Edgar principles not to enforce the agreement, and is likely to welcome the opportunity to make an expedited consent order embodying the terms of the arbitrator’s award as is available pursuant to s 33A in the case of mediated and collaborative law settlements.

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5. What is the impact of the MIAM (mediation information and assessment meeting) required by the Family Procedure Rules 2010?

Show Answer

Pursuant to r.3A and the associated protocol of the Family Procedure Rules 2010 a form must be signed by the mediator following a MIAM appointment, certifying that the matter is not suitable for settlement by mediation before the parties are then at liberty to commence Family proceedings.  There are few exceptions e.g. urgent child matters requiring a court determination, and the rule applies whether or not the parties are on public funding.

This rule is now statutory, having been included in s 10 of the Children and Families Act 2014 (CAFA 2014).  The form for the mediator has also been changed so that it is now impossible to by pass the requirement for a MIAM as the application form and mediator’s certificate are now merged into one form so that a missing mediator’s signature on the new form will disentitle the applicant to proceed until the matter is remedied.

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Chapter 7: Ancillary Relief

1. What is the difference between interim and final orders in ancillary relief?

Show Answer

The court’s jurisdiction to make financial orders on divorce or other decree arise upon making the decree. Thus “final” orders in favour of the parties will be made at that time, but if earlier orders are required these will be “interim” orders but become final on decree absolute.  Orders in favour of children are always interim as technically  they are never final and can always be varied at any time.

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2. What is a “clean break” and in which sections of the 1973 Act are the provisions affecting clean breaks found?

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The relevant provisions are found in s 25A and s 28 (!A). A clean break pursuant to s 25A of the MCA 1973 severs all financial connection between former spouses (though never between children and their parents who may still receive periodical payments even if their carer parent does not).  The clean break may be effected by final capital orders including property adjustment and pension orders.  There may be a deferred clean break  if periodical payments are made for a limited term only pursuant to s 25A(1)  but the true clean break includes a s 28 (1A) direction prohibiting renewal of the limited term.  Usually there will also be a direction that neither party may make an application against the other’s estate following the death of either.

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3. When, if at all, may conduct impact on an ancillary relief settlement? Under which provision(s) of the 1973 Act is this issue considered?

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Conduct now has very little effect on an ancillary relief settlement.  Adverse conduct if applicable is considered under s 25(2)(g) only if it is “inequitable to disregard” and must be very serious to qualify, e.g. murder, attempted murder, encouragement to commit suicide, very serious violence (usually with a financial impact on the applicant), misleading the court, other outrageous or socially unacceptable behaviour such as contracting a bigamous or other marriage which the perpetrator must have known could not be valid so that asking for ancillary relief is clearly inappropriate  In these sorts of circumstances orders have been refused.  In the case of lesser misconduct, such as being responsible for breaking up the marriage in a feckless manner, any order is more likely to be reduced to one at the lower end of the possible scale of orders rather than dismissed outright, and if resources are tight the party who has provided such negative contribution is likely to be expected to receive less of the available funds or property than the spouse who has been short changed by such behaviour.

Positive conduct can also have an impact as this is considered under s 25(2)(f) as “contributions” whether “past, present or future”, and this is the other side of the coin of “conduct” under s 25(2)(g) which is likely to see the blameless spouse  being well provided for even if it means that the other has a bit less.

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4. What provisions are available for variation of orders?

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Variation is dealt with under s 31 of the 1973 Act. There is nevertheless no power to vary some orders e.g. fixed term periodical payments where a s 28(!A) direction has been made, the amount of a lump sum order (though instalments can be varied), a property adjustment order under s 24(1)(a) or a settlement of property order under s 24(1)(b).or variation of settlement order under s 24(1)(c) or (d) except after judicial separation. An order for sale  under s 24A may be varied by changing the date of sale.

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5. What provision is available to prevent evasion of liability or orders?

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Evasion of liability is addressed by s 37 of the MCA 1973.  This may be used for either preserving the assets out of which orders might be made, by preventing a suspected disposal when it is feared that such assets might be put beyond the reach of the court’s orders, or for setting aside reviewable dispositions.  This only applies if the property in question is needed for the court to make an order, thus if the respondent is wealthy the section will not prevent disposals which are irrelevant to the orders the court might make.  A petition must have been filed claiming ancillary relief and the appropriate application made to start the relevant proceedings  in order to activate s 37.

There are also the standard freezing or search orders which operate as  injunctions over worldwide property in the ordinary way if the respondent is rich enough to have such property. However the use of s 37 is usually more appropriate as it does not attract the same expense and restrictions as the more general orders.

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Chapter 8: Civil Partnership

1. How and when is a civil partnership formed under the Civil Partnership Act 2004?

2. How is a civil partnership dissolved or annulled under the Act?

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A civil partnership may be dissolved or annulled in the same way as a marriage may be dissolved or annulled under the MCA 1973, except that there is no mirror in the 2004 Act of the Fact of adultery in divorce nor non consummation or venereal disease in annulment: ss 37 and 44. The same one year bar against petitioning is included in CPA 2004 s 41, and the same bars to annulment apply. The focus on nullity in civil partnership is on registration formalities, however: s 49 requires a valid registration document, due and valid notice, registration in the place detailed in the notice and if the parties are not eligible to register their partnership. The civil partnership is ended by “orders” not “decrees” although these also mirror divorce, with a conditional order first and a final order 6 weeks later: s 37.

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3. Is ancillary relief statutorily available following dissolution or annulment and if so by what provisions?

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The same financial orders can be made following the ending of a civil partnership as after decrees under the MCA 1973.  The CPA 2004 effects this under s 72 of that Act.

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4. What is the distinction between marriage under the 1949 Acts as amended and civil partnership under the 2004 Act?

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The distinction is between banns/notice for religious/civil marriage and notice for registration for civil partnership which, like civil marriages, may not be contracted for the purposes of English law in any form of religious service  though a service of blessing is usually obtainable in some Church of England parish churches for both civil marriage and civil partnerships. Other religions may of course contract marriages religiously however they wish but for the marriage/civil partnership to be valid in English law it must be in a register office, building licensed for such ceremonies or in the case of a marriage in a Church of England Church. There are exceptions for the Jewish religion and the Society of Friends (Quakers).

The same prohibited degrees of relationship apply to marriages and civil partnerships. Both opposite-sex and same-sex couples may now marry following the Marriage (Same-Sex Couples) Act 2013 but opposite-sex couples may not enter into a civil partnership except in France under the French PACS system, the Pacte Civile de Solidarite. Foreign same-sex marriages are now recognised in English Law by the 2013 Act, whereas formerly they were only recognised in England and Wales as the equivalent of English law civil partnerships, thus overruling Wilson v Kitzinger where this was denied to two women who had married in a province of Canada which permitted same-sex marriage.

Marriage and Civil Partnership are to remain distinct following the 2013 Act. From 10 December 2014, however, those civil partners who wish to convert to full marriage, may do so by registering at a Register Office. As this has been delayed from the implementation of the rest of the Act in March 2014, the government has announced that there will be no fee to upgrade existing civil partnerships in this way.
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5. Can sibling relationships qualify under the provisions of the Civil Partnership Act and if not why not?

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Siblings cannot qualify since they are within the prohibited degrees of relationship.  This will be the same if and when the government legislates for same sex legal marriage.  The case of the Burden sisters, criticised by Ruth Deech, has already considered this issue of sibling relationships.

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Chapter 9: Cohabitation

1. Under which statute (and which procedural rules of court) are cohabitants’ property ownership disputes determined?

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TOLATA 1996 and the Civil Procedure Rules 1998, in the Chancery Division of the High Court or the Chancery Lists of the County Courts. Schedule 1 of the Children Act 1989 is also possible if a transfer of property is applied for.

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2. Under which statutory provisions are their disputes in relation to occupation of the family home determined?

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Family Law Act 1996 Part IV, or Children Act 1989 Schedule 1 if there is a child or children.

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3. Under which statutes can support of a surviving unmarried partner be obtained after death of the other?

4. Are cohabitation contracts valid? For what purposes can they regulate legal relationships between the partners?

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Cohabitation contracts are valid as any other contract and there is no suggestion of illegality whether provisions deal with living together or separation of the parties. The parties are not married so that there is no promotion of separation affecting the status of marriage.  The only issues which would be unenforceable if not for the benefit of the children would be any provisions in respect of children which the court would only enforce if manifestly for their welfare.

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5. Which statutes can provide maintenance and/or capital or housing provision for cohabitants’ children?

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Child Support Acts 1991-95 as amended which calculates child support maintenance for children irrespective of the parents’ marital status. Children Act 1989 s 15 and Schedule 1. Domestic Proceedings and Magistrates Courts Act 1978.  Lump sums and periodical payments are available from the Family Proceedings Court up to £1,000 and lump sums of any amount and transfer of property from the High Court and County Court.

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Chapter 10: Financial Support Without Decree

1. What provision can be obtained from the Family Proceedings Court and under which statutory provisions for immediate financial assistance without taking proceedings affecting status?

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Domestic Proceedings and Magistrates Courts Act 1978, ss 2, 6 and 7. Grounds are required for a s 2 order (failure to provide maintenance for spouse or child, behaviour or desertion).  Agreement of the parties is sufficient for a s 6 order. Under s 7 existing payments can be formalised into an order after the parties have resided apart for 3 months and one is making payments to the other). Lump sums are also available up to £1,000 per spouse or child.

However, the Family Proceedings Court (FPC), as SUCH, no longer exists and has been abolished. Nevertheless the magistrates have not! They have simply transferred into the new Family Court where they may still deliver all their previously existing orders.  There is a single point of application and the staff will allocate the case at the correct level, magistrates or former County Court jurisdiction.

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2. What provision can be obtained from the County Court and under which statutory provisions in the same circumstances?

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Matrimonial Causes Act 1973 s 27.  Unlimited lump sums and periodical payments are available if by s 27(1) it is proved that the respondent has failed to provide reasonable maintenance or reasonable contribution to maintenance for a spouse or child. Periodical payments can be secured or unsecured.

However, the former Family County Court jurisdictions are now also transferred, like those of the former FPC, into the new Family Court: there are thus now no separate County Courts dispensing Family justice, but the relevant judges can still deliver their previous orders under the statutes applying to their level of jurisdiction but do so from the Family Court.

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3. What can separation or maintenance agreements provide in such circumstances?

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Separation or maintenance agreements can contain virtually any provisions which the parties wish to include, such as capital or maintenance provisions in any format. They are also likely to be quicker and more easily effected than an application to the court and will be a defence to applications under the DPMCA 1978 and the MCA 1973 s 27, as well as providing evidence of separation for future divorce or other decree. Such agreements can also be varied under ss 34-36 MCA 1973.

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4. What are the advantages and disadvantages of the different remedies?

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The most suitable remedy will depend on the parties’ circumstances.  Separation agreements are thought by some to combine most of the advantages and few of the drawbacks of the other remedies and will not adversely affect future proceedings provided it is carefully drafted.

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5. Is there any impact of taking such short term routes on future proceedings for ancillary relief following a decree of divorce, nullity or judicial separation?

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There is no impact of the DPMCA or s 27 of the MCA 1973 on future proceedings.  A separation agreement will only impact on ancillary relief if it falls into the Edgar trap, i.e. is a binding agreement not to apply to the court for further provision.  No ordinary agreement without such a clause can affect the court’s powers to make its usual orders as it is not possible to oust the jurisdiction of the court.  The court will however take into account an agreement for consideration, as in the case of Mrs Edgar, not to apply for further provision if it is clear that there was independent legal advice, no unfairness or duress, and the parties having carried out their agreement should be held to it.

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Chapter 11: Domestic Violence and Forced Marriage

1. Which is the preferred statute providing remedies for domestic violence affecting family members?

2. What is the impact of the key concept of “associated persons” in the legislation?

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Whether or not the parties before the court are associated persons within the provisions of s 62(3) which defines them will determine whether an application can be made for remedies under the 1996 Act.  If the parties do not fall within the definitions the alternative statute is the Protection of Harassment Act 1997.

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3. What are the two remedies provided by that statute and in which sections are the key provisions found?

4. What is the role of the Protection from Harassment Act 1997?

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The 1997 Act provides protection from harassment and other tortuous behaviour for those who cannot qualify as associated persons under the Family Law Act 1996 e.g. a girlfriend and boyfriend relationship where the parties have never lived together or been engaged and so have no family or quasi family relationship. It also provides a criminal sanction for a course of objectionable conduct.

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5. Where is the statutory provision for Forced Marriage Protection Orders to be found?

Chapter 12: The Children Act 1989

1. What are the 4 key principles which inform orders in family proceedings?

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Welfare of the child is paramount: s 1(1)
No delay principle: s 1(2)
Welfare checklist: s 1(3)
No order principle: s 1(5),

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2. What is the mechanism for defining “welfare” of a child?

3. What is parental responsibility and when, how and by whom can it be acquired?

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Parental responsibility (PR) is broadly defined in the Act in s 3(1) as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child had in relation to the child and his property”.

There is a list of agreed minimum responsibilities in the 9th edition of Bromley’s Family Law, which is updated in the 10th edition at p 377, which includes the obvious ones of providing a home, care and control: consent to marriage and medical treatment; to support the child financially, protect from physical and moral harm and determine the child’s religion; ensure the child receives education, agree to the issue of a passport or emigration; represent the child in legal proceedings and agre to change of surname; to bury or cremate a dead child and to appoint a guardian.

The concept of PR is that it is inalienable and may not be given up, though it may be delegated (e.g. to a school or local authority) or curtailed or taken away (if removed by order of the court).

If not held from birth (by married parents or the single mother at that time) PR can be obtained by registering the birth with the mother, formal agreement with the mother, by order of the court, by obtaining a residence order, or by the local authority with a care or emergency protection order, by being appointed a special guardian (in the case of all these orders for the duration of the order only), also by adopters who will keep PR forever as the child will become part of their family having left the birth family.

A father can always, without any special permission, obtain an order for PR subject to the court’s criteria, other applicants e.g. grandparents do require permission to apply.

PR will also be created through Human Assisted Reproduction. The mother will always have it, depending on who is the father (or “other parent”) and under which provision PR will be obtained by the parents of the child. In surrogacy a parental order will be required by the commissioning parents: HFEA 2008 s 54: see Chapter 13.

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4. How may parental responsibility be lost?

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PR will be lost if removed by the court from a person to whom it has been given by order or agreement who did not have it at the child’s birth. It can never be taken away from a parent who had automatic PR at the child’s birth no matter how badly such a parent behaves though it may be curtailed by a care order. It will expire automatically when the child reaches 18, the age of majority: s 91, or marries under that age. It will be lost to the adopters on adoption of the child.

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5. Can a child “divorce” its parents?

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A child cannot divorce its parents though it can apply for a residence order to be made in favour of some other person(s), relatives or not.

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Chapter 13: Parentage and Parental Responsibility Through Human Assisted Reproduction and DNA Testing

1. Who is the mother of a child born by Human Assisted Reproduction (“HAR”)? Which statutory provision(s) define this?

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The mother of a child born by HAR is always the legal mother, as in all cases where a child is born to a woman: see per Lord Simon in theThe Ampthill Peerage Case [1977] AC 547: “Motherhood, although also a legal relationship, is based on a fact, being provided demonstrably by parturition”. In HAR, provided the birth is as a result of treatment in a licensed clinic,  “the woman who is carrying or has carried a child as a result of the placing in her of an embryo or sperm and eggs, and no other woman” is the mother of the child: HFEA 1990 s 27(1), HFEA 2008 s 33, although simple egg donation is not sufficient to confer motherhood.  In Surrogacy the surrogate mother remains the mother and a parental order is necessary to give PR to the commissioning parents. 

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2. Who is the father in such circumstances? Which statutory provisions define this?

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At common law the father is the man supplying the sperm.  This is still the case if HAR is not carried out at a licensed clinic.
Where a licensed clinic is involved it depends how this is used.
Where a married couple is treated together by AID or IVF the husband will be the father unless he did not consent to his wife’s treatment: HFEA 2008 s 35(1).

Where a woman is treated with another man to whom she is not married he must accept the agreed fatherhood conditions: HFEA 2008 ss 36 and 37 (Under the 1990 Act the treatment would have made the couple the parents for all purposes except inherited peerages and settled estates).
Where a man donates sperm for “treatment services” i.e. in a licensed clinic he will not be the father of a resulting child: HFEA 2008 s 41(1). Otherwise the common law rule applies if the treatment is not in a licensed clinic.

In the case of treatment in a licensed clinic using this sperm there may be no father, and the woman so treated may use the HFEA 2008 to select a second woman to be a parent: HFEA 2008 s 2 (2A) so that the child has two parents but both are female. In this case the second woman must accept the agreed female parenthood conditions in s 44 (which are identical to the agreed fatherhood conditions in s 37. (She may also use the Act to select a man to be the second parent and the man in question can be completely unconnected with the woman or child provided he accepts the s 47 conditions – indeed his sperm must not have been used for conception)

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3. Is the position different under the common law?  If so how?

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The position is different because without the use of the licensed clinic regime there is no control of the statutory provisions.  The biological father will then be the legal father.

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4. Is it essential for a child to have a father if the child is born to one of a same-sex female partnership?

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It is not essential for a child to have a father in these circumstances.  A child may have two female parents if (i) the mother is in a registered civil partnership at the time of regulated treatement: s 2(1A) when the other civil partner will be the other parent: s 42. (ii) where the mother is not in a registered civil partnership she may agree that a second woman i.e. her informal partne, will be the second female parent: s 2(2A) provided she accepts the agreed female parenthood conditions in s 44: s 43,  so that no man will be a parent.

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5. By what statutory provision(s) do the commissioning couple become parents of a child born through surrogacy?

Chapter 14: Children’s Rights Autonomy and Medical Treatment

1. Which are the main rights protected by the UN Convention on the Rights of the Child, some of which are incorporated into the Children Act 1989?

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Right to life: Art 6
Freedom of expression: Art 13
Association and peaceful assembly: Art 15
Protection of privacy and family life: Art 16
Freedom of thought, conscience and religion: Art 14
Contact with parents: Art 9
Protection from drugs, exploitation and torture: Arts 33,34 and 37
Education, rest and leisure: Arts 28 and 30
An adequate standard of living, health and medical care and protection from work interfering with education or development: Arts 24, 27 and 33.

2. List Eekelaar’s triple concept of children’s rights?
Basic, developmental and autonomy
Basic:food, clothing etc, which the parent should provide and the state should take over this duty if the parent cannot meet it.
Developmental: education, maximising of resources available, which again the state should take over if the parent not provide sufficiently.
Auronomy: freedom for children to make their own decisions about their lives.

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3. Following the Gillick and Axon cases, what are the 5 criteria a doctor must be satisfied of before treating an under 16 year old confidentially?

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The child must understand all elements of the advice
The child must have declined to be persuaded to inform his/her parents
The child must be likely to have sexual intercourse if the matter was one of contraception
The child’s physical or mental health might suffer if the advice was not given
It must be in the child’s best interests to receive the advice

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4. Which cases are particularly suitable for determination under the inherent jurisdiction of the High Court?

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Complex medical cases with an element of urgency, where a one off decision needs to be made without delay

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5. In which areas other than medical treatment may children’s rights and autonomy be relevant?

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Religion, e.g. Per Baroness Hale and Lord Nicholls in R (On application of Begum) v Headteacher and Governors of Denbigh High School [2006]IKHL 15 (uniform policy and wearing of extreme Muslim dress) Free speech, e.g. per Munby J in Re Roddy (A Child)(Identification: Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 2 FLR 949.

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Chapter 15: The Child’s Welfare

1. What is the child’s prime channel for communicating his or her “ascertainable wishes and feelings”?

2. What is Cafcass?

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Cafcass is the Child and Family Advisory and Support Service set up by the Criminal Justice and Court Services Act 2000 to replace the previous social services which supported the courts, including the court welfare officers and guardians ad litem.

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3. What power does the court have under the 1989 Act to secure investigation of a child’s circumstances by the local authority?

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The court can direct that an investigation under s 37 of the CA 1989 be made by the local authority in any case where there is concern that public law orders might need to be made.

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4. What should the local authority do in such circumstances?

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The local authority should consider whether it should apply for a care or supervision order, provide any services or assistance to the child or its family and/or take any other action in respect of the child.  Where the authority decides not to do any of these it must inform the court within 8 weeks explaining why that decision has been made, and informing the court whether it intends to take any other action in respect of the child: s 37(3).  It must also consider whether there should be a review of the decision at a later date and if so when: s 37(6).

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5. What alternative powers might the court have within the meaning of s 1(3)(g) of the 1989 Act?

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The court can always make any suitable s 8 order in a case before it whether or not that has been applied for, e.g. an order in favour of some non party such as grandparents if they are willing. It can also use its powers under s 91 of the Act to end any long drawn out history of proceedings which may be inappropriate by prohibiting any further CA 1989 applications without leave: s 91(4). It may direct a s 37 investigation which may lead to care or supervision orders or other public law order.

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Chapter 16: Section 8 Orders

1. Now that CAFA 2014 has replaced separate residence and contact orders with the new Child Arrangements Order (CAO) what is the legal impact of a provision relating to residence being in place  in a CAO?

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Such a provision in a CAO determines with whom a child shall reside.  The CAO is likely to contain other provisions relating to contact with other persons with whom the child does not ordinarily  live, but  with whom s/he may “spend time” or “have contact”.  The normal operation of PR is unaffected as all significant decision must still be agreed with others with PR. The residence provision triggers the operation of s 13(1) of the CA 1989 so that no one may take the child out of the jurisdiction for more than a month without the consent of everyone with PR or the court, and the same restriction with regard to changing the child’s surname.

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2. What statutory provisions exist for the residence and contact elements of the new CAO to be enforced?

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Contact activity directions inserted into the CA 1989 as sections 11A to 11P inserted the Children and Adoption Act 2002 ( in force 2008) enable various orders to be made to encourage contact, including compensation for financial lost, training and contact activities, together with monitoring of contact.

The recently strengthened Family Assistance Order under s 16 of the CA 1989 can also be used to encourage contact. The final resort is to order change of residence of the child concerned  where all such conditions have failed to deliver the desired result.  The final alternative of changing residence of the child so as to encourage contact is not thought to be ideal (though at least 3 such orders were made after the new s11A-P came into force) as residence should be determined on the basis of different criteria observing the welfare principle rather than as a pragmatic attempt to enforce contact.
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3. What can a Prohibited Steps Order achieve?

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A PSO can stop a parent carrying out some act in pursuance of his/her PR which is undesirable for the child, e.g. to take the child from the jurisdiction without consent of the court or other parent, change its surname without the same permissions or to take an irrevocable step in medical treatment e.g. circumcision.

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4. What is the purpose and effect of a Specific Issue Order?

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An SIO enables the court to consider a specific issue such as education, change of religion, medical treatment etc and to give a direction as to whether a disputed step should be taken where those with PR cannot agree on it.

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5. What is a Family Assistance Order and how and when is it deployed?

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The FIO is an order originally intended to be short term help for families in crisis of matrimonial breakdown. It is  obtainable under s 16 of the CA 1969 when there is a s 8 order in force and which has recently been much strengthened, as by s 4A the court may direct “an officer of the Service” (i.e. Cafcass) or an officer of the local authority to give advice and assistance in “establishing, improving and maintaining contact” as well as on any other matter in relation to the child. By s 16(6) the officer is also to report to the court including on whether there ought to be any change in the s 8 order, such as variation or discharge.

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Chapter 17: Making Contact Orders Work

1. What contact enforcement orders are provided by the Children and Adoption Act 2006 (amending the Children Act 1989)?

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As the 2006 Act has added new sections 11A to 11P into the CA1989 to permit directions to be made by the court so as to encourage contact orders to be honoured, these can still be used to enforce the contact element of a new CAO.  These new sections include sanctions ranging from warning notices to compensation for financial loss to monitoring contact and requiring training activities to be undertaken.

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2. What is “implacable hostility” to contact and “parental alienation syndrome” and how has the judiciary approached these issues?

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These two situations exist where a primary carer parent (usually, but not always, the mother)  with a CAO with a residence element in respect of a child or children, is apparently irremediably averse to allowing contact between the children in her care and their other parent. Sometimes hostility to contact is so severe and protracted that it results in the child or children developing similar hostility expressed to be their own. This, however, usually has its roots in the hostility of the carer parent, rather than being the child’s own independent reaction, and is created either by the deliberate “brainwashing” of the child by the carer parent, or by persistent ly extended excuses to avoid contact. Judges have grappled with these problems for years but since the implementation in 2008 of the Children and Adoption Act 2006 it has been possible to use the contact activity directions mentioned in Question 1 above. There have been at least 3 reported change of residence orders as a last resort in such cases, but these are disapproved of as a child’s residence, now included in as an element of any CAO, have always been disapproved of except in the most extreme circumstances as such orders should be made on the basis of the welfare of the child only and not solely as a response to contact problems.  The judiciary’s inability to secure the cooperation of some carer parents in this respect , even by threatening change of residence ‘unless’,  has led to the formation of militant fathers’ groups, sometimes supported by Sir Bob Geldof.  However the s 11 amendments are now seen as possibly a better solution to this now identifiable ‘parental alienation syndrome’, as psychologists report that contact can, and has in their experience, been achieved once a first meeting has been set up between parent and child.

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3. Is there now any role for change of residence in enforcing contact?

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In theory there is no change since the implementation of the Children and Adoption Act 2006 seemed to have resulted in at least 3 robust change of residence orders by judges in extreme cases.  Also in theory and in practice such an extreme order is not regarded as a correct response to a contact problem as it is usually realistically incompatible with the judge’s duty to make the residence element of a CAO on the basis of the child’s welfare, using the welfare checklist in CA 1989 s 1(3). For change of residence to be in a child’s best interests the contact problem must therefore be really extreme with some unusual circumstances present.

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4. What are contact centres and what is their role in promoting contact?

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Contact centres are usually run by charities and voluntary organisations to permit parents who have difficulty in making and honouring contact arrangements to hand over their children to the other parent in a neutral venue, and in some cases to do so in a safe and monitored environment where the order is for supervised contact.

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5. What is the history of shared residence orders and what is their current role in facilitating shared parenting, given that, despite the Family Justice Review’s support for developing a better sense of parental responsibility in separated parents, there is no presumption of shared residence or shared parenting time?

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The fashion for shared residence orders has come and go over a number of years, having initially been made possible by the Children Act 1989 although at that stage the idea of a child having more than one settled home did not find favour with judges.  Later many orders were made on the basis that in practice the child or children in question (particularly middle class children with an urban and rural “cottage” for weekends and holidays) already had two homes and, in the case of all classes, time was often shared between the parents’ new homes after separation in a way which was working -  often when parents’ employment depended on shift work and their homes were not far apart. 

Later still it was suggested that shared residence was the solution to contact arguments as if it was in such cases accepted that a child’s time was shared between its parents there would be less dispute.  More recently it has been established that this can be achieved whether or not the time spent by the child in each home was equal or nearly so or not.  

However it now appears to be the case, following the adoption by the government of the recommendations of the Family Justice Review, that it is agreed that any presumption of shared residence should not be developed and that focus is more appropriate on shared parenting so that the residence arrangements should not be formalised by any approach depending on shared care.   This is odd since in A v A [2004] 1 FLR 1195 Wall J, (now Wall LJ,  President of the Family Division of the High Court) said that shared residence best reflected parents’ equal status in the eyes of the law and their responsibilities in the child’s life, whereas a sole residence order to one parent could be misinterpreted.

Now that the former  individual residence and contact orders have been abolished by CAFA 2014, and replaced by the new CAO detailing future arrangements for the child’s post parental separation lifestyle,  a formula for shared residence is nevertheless still available to parents and child as an integral part of the CAO, as this can form the residence element of the CAO which can contain any orders which the court realistically has power to make.  Therefore if parents are already in effect sharing the child’s upbringing in their respective new homes, this can be expressed to continue, perhaps because the parents are shift workers who have neatly dovetailed both their child care at work times and their respective time spent with the child. It is also possible that the court could order such an arrangement in contested proceedings, or that a mediator might broker such an arrangement in the new encouragement to private ordering occasioned by the loss of most private law Family legal aid; or indeed that the parties themselves might make such an arrangement by entering into one of the” Parental Agreements” (“PA”s) envisaged by the Family Justice Review.  Despite adverse reports of research in Australia, which influenced the government in changing the emphasis of their amendment to the CA 1989 towards shared parental involvement ‘in some way’ it seems shared residence is not dead.

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Chapter 18: International Abduction and Relocation

1. What offence does the Child Abduction Act 1984 create?

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The offence of child abduction where a parent or “person connected with a child” (defined in s 1) takes or sends a child under 16 out of the UK without the appropriate consent.

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2. What Convention protects children who are abducted and left behind parents and how does it work?

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The Hague Convention which establishes an international system of Central Authorities in each jurisdiction which is a signatory to cooperate to recover abducted children.

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3. What is the distinction between “wrongful removal” and “wrongful retention”?

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A child is wrongfully removed if taken out of the jurisdiction of its habitual residence without the appropriate consents and wrongfully retained if the exit was with consent but the child is not returned at the end of the period to which the consent applied.

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4. What defences may be raised to return of the child to the jurisdiction from which it was abducted?

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By Article 13 return can be refused if custody rights were not actually being exercised at the time by the person with care of the child at the time of the removal or retention, or if that person had consented to or acquiesced in the removal or retention. Return may also be refused under Article 13 if there is grave risk that the child’s return would expose that child to physical or psychological harm or otherwise place the child in an intolerable situation.

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5. What are the questions, articulated by the court in Payne v Payne, and endorsed in 2007 in Re G, that the court should ask when considering an application for relocation?

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  1. Is the application realistic, genuine, practical, well researched etc?
  2. Is the Respondent’s opposition motivated by genuine concern or ulterior motive?
  3. What would be the impact on the Applicant (as a single parent or new spouse) if the application were refused?
  4. How do answers to these questions sit with the child’s welfare informed by the welfare checklist?
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Chapter 19: Child Protection: Wardship, the Inherent Jurisdiction and the Children Acts in Public and Private Law

1. In what circumstances would wardship be of more practical use than a Children Act 1989 application?

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Where there would be significant delay in a CA 1989 application or where the court’s ongoing supervision is required.

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2. What are the legal and practical consequences of wardship?

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The court takes over as the child’s parent and takes all such decisions as a parent might normally make.  Care usually remains with the parent(s).  The child may not be removed from the jurisdiction without the court’s consent.

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3. When is the inherent jurisdiction more suitable?

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Complex medical cases not requiring ongoing supervision but where a difficult one off decision has to be made usually on an urgent basis.

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4. What were the 5 Every Child Matters intended outcomes?

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The child in care should

Be healthy
Be safe
Enjoy and achieve
Make a positive contribution
Achieve economic well being.

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5. Which provisions of the Children Act 2004 in theory strengthen the effectiveness of the role of the local authority in child protection?

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In theory the s 10 requirement for there to be cooperation between agencies was supposed to be a support to local authorities as was the appointment of Children’s Commissioners.  However there is little evidence on the outcomes in this respect and the Family Justice Review has once again articulated similar goals.

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Chapter 20: Care, Supervision and Protection Orders

1. What does Part III of the Children Act 1989 set out to do?

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The principal aim was to place the local authority under a duty to provide support and assistance for children in need and their families, thus obviating the need for proceedings for care or other protection orders..

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2. Which section of the Act deals with the threshold for a care order, what does it require to be evidenced for the case to qualify for the order to be made and what must then still be done before the court will so order?

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The relevant provision is s 31 which requires evidence that

“(a) the child is suffering or is likely to suffer significant harm, and(b) the harm, or the likelihood of harm, is attributable to:

  • the care being given to the child, or likely to be given to the child, if the order is not made, not being what it would be reasonable to expect a parent to give the child; or
  • the child’s being beyond parental control”.  This is stage 1 only of consideration as to whether there should be a care order

The court must then, having found the facts, consider in Stage 2 whether the order is for the child’s welfare.  This requires consideration of the following sections of the CA 1989: s 1(1), welfare, s 1(3) checklist, s 1(2) delay and s 1(5) non-interventionist policy.

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3. Which section deals with supervision orders and how do they differ from a care order?

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The relevant provision is s 35.  The same criteria must be satisfied as for a care order and the local authority must justify the imposition of the more draconian order if a supervision order would not suffice.  A supervision order does not give PR to the local authority and the child normally remains at home, receiving supervision and assistance from the supervisor during the 3 years of the order (which is non-renewable, and does not last until the child is 18 unlike a care order, although a new application can be made for a new order if still required.at the end of 3 years).

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