Family Law Exam Essay And Sample Answer

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Understand better what you’re learning in Family Law class and prepare effectively for exams by applying concepts as you learn them. This study guide includes over 210 multiple-choice and short-answer questions arranged topically for ease of use during the semester, plus an additional set of 28 questions comprising a comprehensive “practice exam.”

For each multiple-choice question, Professor Strasser provides a detailed answer that indicates which of four options is the best answer and explains thoroughly why that option is better than the other three options. Each short-answer question is designed to be answered in fifteen minutes or less. For these questions, Professor Strasser provides a thoughtful, comprehensive, yet brief model answer.

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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.

 

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