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Family Law

R. Jago
LLB 2660019
2008
This subject guide was prepared for the University of London External System by:
u Robert Jago, MPhil (Cantab), Lecturer in Law, School of Law, University of Surrey
This is one of a series of subject guides published by the University. We regret that owing
to pressure of work the authors are unable to enter into any correspondence relating to,
or arising from, the guide. If you have any comments on this subject guide, favourable or
unfavourable, please use the form at the back of this guide.
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Family Law page i
Contents
1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Reading and resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.2 Allocating your time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.3 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.4 Abbreviations used in this subject guide. . . . . . . . . . . . . . . . . . . . 7
2 Marriage and civil partnerships . . . . . . . . . . . . . . . . . . . . . . 9
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.1 The distinction between void and voidable marriages . . . . . . . . . . . . 11
2.2 The grounds for a void marriage. . . . . . . . . . . . . . . . . . . . . . . . 12
2.3 Voidable marriages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.4 Effects of a nullity decree . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.5 Civil partnerships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3 Divorce and dissolution . . . . . . . . . . . . . . . . . . . . . . . . . 31
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.1 The divorce process under the MCA 1973 . . . . . . . . . . . . . . . . . . . 33
3.2 The background to the modern law . . . . . . . . . . . . . . . . . . . . . . 34
3.3 The divorce ‘facts’ under the MCA 1973 . . . . . . . . . . . . . . . . . . . . 36
3.4 Conciliation and reconciliation . . . . . . . . . . . . . . . . . . . . . . . . 43
3.5 Dissolution of civil partnerships . . . . . . . . . . . . . . . . . . . . . . . . 47
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
4 Protection against domestic violence . . . . . . . . . . . . . . . . . . 51
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
4.1 The criminal law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
4.2 Injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
4.3 The Family Law Act 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
4.4 Enforcement of orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
4.5 The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
5 Family maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
5.1 Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
5.2 Financial support during marriage. . . . . . . . . . . . . . . . . . . . . . . 77
5.3 Other provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
page ii University of London External System
6 Financial provision upon divorce, dissolution, nullity
and separation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
6.1 Financial provision orders . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
6.2 The limits of the financial powers of the court . . . . . . . . . . . . . . . . 88
6.3 The exercise of the court’s powers. . . . . . . . . . . . . . . . . . . . . . . 89
6.4 The welfare of children . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
6.5 ‘All the circumstances’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
6.6 The ‘clean break’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
6.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
7 Child support and the Child Support Acts . . . . . . . . . . . . . . . . 107
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
7.1 Family maintenance outside the Child Support Acts . . . . . . . . . . . . . 109
7.2 Financial provision during marriage . . . . . . . . . . . . . . . . . . . . . 111
7.3 The Child Support Act 1991 . . . . . . . . . . . . . . . . . . . . . . . . . 113
7.4 The welfare of the child . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
7.5 Child support in action . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
7.6 Continued dissatisfaction and the road to further reform . . . . . . . . . . 123
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
8 Cohabitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
8.1 What is cohabitation? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
8.2 Legal differences between unmarried and married couples . . . . . . . . . 131
8.3 Same-sex couples: substance over form . . . . . . . . . . . . . . . . . . . 136
8.4 Discrimination or difference? . . . . . . . . . . . . . . . . . . . . . . . . 141
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
9 Status and parentage . . . . . . . . . . . . . . . . . . . . . . . . . . 147
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
9.1 Parentage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
9.2 Status: legitimacy and illegitimacy . . . . . . . . . . . . . . . . . . . . . 153
9.3 Those with parental responsibility. . . . . . . . . . . . . . . . . . . . . . 157
9.4 The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . . . 159
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
10 Wardship and the inherent jurisdiction . . . . . . . . . . . . . . . . . 165
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
10.1 Wardship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
10.2 The inherent jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . 169
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
11 The welfare of the child . . . . . . . . . . . . . . . . . . . . . . . . . 177
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
11.1 The nature of welfare . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
11.2 The meaning of the welfare principle . . . . . . . . . . . . . . . . . . . . 181
11.3 Criticisms of the welfare principle . . . . . . . . . . . . . . . . . . . . . . 185
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
Family Law page iii
12 The court’s powers in family proceedings . . . . . . . . . . . . . . . 191
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
12.1 Orders available . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
12.2 Restrictions on orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
12.3 Who may apply for orders? . . . . . . . . . . . . . . . . . . . . . . . . . 199
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
13 Children and local authorities . . . . . . . . . . . . . . . . . . . . . . 205
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
13.1 Philosophy of the Children Act . . . . . . . . . . . . . . . . . . . . . . . 207
13.2 Local authority duties to children looked after by them . . . . . . . . . . . 210
13.3 Orders available . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
13.4 The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . . . 219
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
14 Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
14.1 Adoption under the Adoption and Children Act 2002 . . . . . . . . . . . . 227
14.2 Adoption services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
14.3 The adoption order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
14.4 Placement and consent . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
14.5 Contact and the child’s right to know . . . . . . . . . . . . . . . . . . . . 234
14.6 Adoption and the Human Rights Act 1998 . . . . . . . . . . . . . . . . . . 235
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
Feedback to activities. . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
page iv University of London External System
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Reading and resources . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.2 Allocating your time . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.3 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.4 Abbreviations used in this subject guide . . . . . . . . . . . . . . . . . . 7
1 Introduction
page 2 University of London External System
Introduction
The law relating to the family is of crucial importance to every individual, whether
adult or child. It is family law that regulates interpersonal relationships. Family law
provides the legal framework for the establishment of marriage, the dissolution of
marriage, the legal consequences of marriage and cohabitation, civil partnerships and
the legal regulation of domestic violence. Much of family law nowadays is concerned
with the law relating to children. The status of a child, its parentage, the rights of the
child, the child’s welfare and the powers of the state in relation to children are all
central concerns of this subject.
Family Law 1 Introduction page 3
1.1 Reading and resources
Recommended texts

You are advised to purchase a collection of statutes concerning family and child law.
There are a number of collections which are appropriate. They include compilations
published by Sweet & Maxwell and by Blackstone. Your main objective must be to
secure an up-to-date statute book.
The most up-to-date and appropriate textbook

for this subject is:
¢ Herring, J. Family Law. (Harlow: Longman, 2007) third edition
[ISBN 9781405846806 (pbk)].
Other suitable texts include:
¢ Masson, J., R. Bailey-Harris and R. Probert, Cretney’s Principles of Family Law.
(London: Sweet and Maxwell, 2008) Eighth edition [ISBN 9780421960107]
¢ Diduck, A. and F. Kaganas. Family Law, Gender and the State: Text, Cases and
Materials. (Oxford: Hart Publishing, 2006) second edition [ISBN 9781841134192].
¢ Harris-Short, S. and J. Miles, Family Law: Text, Cases and Materials. (Oxford: Oxford
University Press 2007) [ISBN 9780199277162].
¢ Lowe, N. and G. Douglas, Bromley’s Family Law. (Oxford: Oxford University Press,
2006) tenth edition [ISBN 9780406959515].
¢ Probert, R. Cretney’s Family Law. (London: Sweet & Maxwell, 2006) sixth edition
[ISBN 9780421931008].
¢ Standley, K. Family Law. (Basingstoke: Palgrave, 2008) sixth edition
[ISBN 9780230537460].
¢ Welstead, M. and S. Edwards, Family Law. (Oxford: Oxford University Press, 2008)
second edition [ISBN 9780199231270].
Other ‘overview’ texts include:
¢ Diduck, A. Law’s Families. (Cambridge: Cambridge University Press, 2003)
[ISBN 9780406967336].
¢ O’Donovan, K. Family Law Matters. (London: Pluto Press, 1993)
[ISBN 9780745305073].
Casebook
If you wish to buy a casebook, you should purchase:
¢ Hale, B., D. Pearl, E. Cook and D. Monk, The Family, Law and Society: Cases
and Materials. (Oxford: Oxford University Press, 2008) sixth edition [ISBN
9780199204243].
Statute book
As mentioned above, you should also obtain an up-to-date statute book. Under the
Regulations you are allowed to take one authorised statute book into the examination
room.
Information about the statute books and other materials that you are permitted to use
in the examination is printed in the current Regulations, which you should refer to.
Please note that you are allowed to underline or highlight text in these documents –
but you are not allowed to write notes etc. on them. See also the Guide to Examination
Technique for further guidance on these matters.

It is very important that you
obtain the latest editions
of any books that you use,
whether textbooks or statute
books.

From now on, we will refer
to this text in an abbreviated
form using the author’s
name and page numbers, for
example: Herring pp.13–19.
page 4 University of London External System
The Regulations for the LLB state:
5.3 Students may underline and/or highlight passages with a coloured pen in the
materials, but all other forms of personal annotation on statues and other materials
permitted to be taken into the examination room are strictly forbidden.
Statute books are regularly updated: try to obtain the latest edition.
1.1.1 Other books and resources
There is now a wide collection of valuable literature dealing with specific areas
within the Family law syllabus. They will be referred to throughout this subject guide,
particularly in those sections concerning the law relating to children. You are not
advised to purchase these specialised texts but may find reference to them useful and
stimulating.
Journals
You may find it useful to refer regularly to journals that specialise in family law. The
two most useful journals are Family Law and Child and Family Law Quarterly.
Online resources
There are a number of useful websites for Family law students. For example:
¢ www.ariadne.ac.uk/issue2/sosig
The Social Science Information Gateway
¢ www.bailii.org
Statutes from 1998 and cases – HL, Court of Appeal and High Court – from 1996
¢ www.flba.co.uk/
Family Law Bar Association site
¢ www.cafcass.gov.uk
Children and Family Court Advisory and Support Service
¢ www.everychildmatters.gov.uk/strategy/childrenscommissioner
The Children’s Commissioner’s site
¢ www.csa.gov.uk
The Child Support Agency’s site
¢ www.familylaw.co.uk
Family Law Update Service
¢ www.resolution.org.uk
Resolution, which was formerly known as the Solicitors Family Law Association
(SFLA)
¢ www.opsi.gov.uk
Includes all Acts of Parliament and Statutory Instruments since 1988
¢ www.homeoffice.gov.uk
The Home Office web site.
¢ www.lawsociety.org.uk/areasoflaw.law
Follow the Law Society’s links to the family law panel and children panel from this
section
¢ www.kent.ac.uk/lawlinks/speciallegaltopics.html
Provides an index of family law sites once you click on the family law link
¢ www.dca.gov.uk/family/domviol.htm
DCA page on domestic violence for archive purposes only
¢ www.familyandparenting.org
The Family and Parenting Institute site
Family Law 1 Introduction page 5
¢ www.direct.gov.uk/en/Parents/FamilyIssuesAndTheLaw/index.htm
This Government Information Services web site gives you access to, for example,
information about divorce and relationship breakdown
¢ www.parliament.uk
The web site of the Houses of Parliament which includes the text of House of Lords
judgments within two hours of delivery and also Hansard
¢ www.statutelaw.gov.uk
The UK statute law database, giving revised versions of primary legislation.
1.2 Allocating your time
Family law has a wide and diverse syllabus and adequate time must be set aside in
order to master the details of the law. It is impossible to say precisely how much time
you should set aside for studying Family law because students have different learning
rates.
Some topics will require considerably more time than others. The formalities of
marriage, for example, although detailed and rather complex, should require much
less of your time than the law relating to divorce, financial provision and domestic
violence. The same is true of the law relating to children. This comprises 50 per cent
of the syllabus and the issue of the welfare of the child and the rights of the child, for
example, is likely to take considerably less time to study than the status of the child
will. Also, the law relating to the powers of local authorities in relation to children is a
large and complex subject and far more time will need to be devoted to it than to, for
example, the matter of wardship and the courts’ inherent jurisdiction.
You should set aside a specific amount of time each week to study this subject,
increasing the amount in the six weeks before the examination. Remember, though,
that individuals vary greatly in their needs; the time to stop studying is when you
know the topic thoroughly and not until then. It is very important to plan your time
carefully. Do not forget to leave time for revision every week and month in addition to
the period before the examination. Revision must be a continuous process.
1.2.1 How to use the subject guide
The guide closely follows the syllabus and has much the same pattern as the
textbooks. Chapters 2, 3 and 4 concern the formation of marriage, civil partnerships,
the law of nullity, the grounds for divorce and remedies available in the context
of domestic violence. Chapters 5, 6, 7 and 8 describe financial support for family
members during cohabitation and marriage and on divorce. The remainder of the
guide, chapters 9–14, deals with the law relating to children.
You are advised to read the relevant chapter of this subject guide before reading
the textbook(s) in order to get an overall view of the topic. Note, however, that this
subject guide is not a substitute for the textbook(s). When you have read both the
subject guide and the textbook(s), return to the subject guide in order to answer
the Activity questions that have been set for you. Do as many of the Activities as you
can: they will help you learn – and help you remember! Feedback to the Activities is
provided at the back of this guide.
page 6 University of London External System
1.2.2 Topics not included in the subject guide
Certain topics are expressly excluded from the Family law syllabus. They include:
u the law relating to inheritance and family provision on death
u recognition of foreign marriage and divorce
u family property (thereby excluding from the syllabus implied, resulting and
constructive trusts and the impact of the improvement legislation).
Topics which are within the syllabus but which are rarely examined are omitted from
the subject guide: these will become apparent as you work through the guide. We
presume that you are familiar with the courts involved in family law from your study of
the English legal system in Common law reasoning and institutions.
1.2.3 The Human Rights Act 1998
As with other areas of English law, in family law there is a growing body of case
law which deals with the incorporation into English law of most of the European
Convention of Human Rights and Fundamental Freedoms by virtue of the Human
Rights Act 1998. Rather than forming a single chapter in this guide, the application
of rights under the Act will be considered at relevant points throughout the subject
guide.
1.3 The examination
1.3.1 Format of the examination
Important: the information and advice given here is based on the examination
structure used at the time this subject guide was written (summer 2008). However,
the University may alter the format, style or requirements of an examination paper
without notice. Because of this, you must check the instructions on the paper you
actually sit.
The examination lasts three hours and you will be required to answer four out of the
eight questions set.
You may take your statute book into the examination with you, but please note the
rules stated above in section 1.1.
1.3.2 Examination techniques
Family law examination papers usually comprise both problem questions and essay
questions. These two types of question obviously require very different techniques.
To answer problem questions you need to be able to:
u identify the relevant area of law under discussion
u identify the relevant facts in the question
u apply both statute and case law to those facts.
It is important to remember that of all the areas of law you study, family law is
probably the most fluid and unpredictable as it has its own proceedings. Cases with
very similar facts can be decided differently. That said, you should attempt to use this
wide body of case law to reach sensible conclusions. If you are asked to ‘advise X’, for
example, you should make sure that you do so.
In family law, case law is obviously important. When studying this subject you should
make careful notes on each topic, including the most important cases, so that when
it is time for revision you have a good set of notes on which to base that revision. This
can be difficult in family law, as many of the cases are identifiable only by a letter and
a year, for example Re W (1999). Sometimes there is more than one case with the same
letter in the same year and so you need to look at the full title of the case. For example,
Family Law 1 Introduction page 7
in 1999 there were at least three cases entitled Re W. The first was Re W (Contact:
Parent’s Delusional Beliefs) [1999] 1 FLR 1263, the second Re W (Residence) [1999] 2 FLR
390 and the third Re W (Disclosure to Police) [1999] 1 WLR 205. You should note that in
one of the cases the sub-heading tells us it was a case concerning contact, another
case concerned residence whilst the last concerned disclosure. Be careful when taking
notes that you are clear which particular case you are citing. All too often Examiners
in this subject find that students have not mastered the case law to the point where
they can cite the relevant cases. It is only by allocating sufficient time to careful note-
taking throughout your course of study that you will be able to revise effectively and
successfully.
In many areas of family law there are detailed and comprehensive statutory provisions
which must be interpreted and applied to questions. You should avoid the temptation
to waste your time copying out these provisions in the examination. The Examiners
know that you have a statute book with you in the examination and they also know
the provisions. Rather than copying these out, you should be able to briefly cite the
relevant provision and then proceed to interpreting and applying the law.
If you are answering essay questions,

a different set of skills is required. The Examiners
are looking for good critical answers to often difficult questions and issues. Only by
being able to demonstrate a clear understanding of these issues, and the manner in
which they are reflected in the law, will your answer attain higher marks.
Good luck with your studies!
Robert Jago.
1.4 Abbreviations used in this subject guide
AA Adoption Act 1976
ACA Adoption and Children Act 2002
CA Children Act 1989
CA 2004 Children Act 2004
CBA Child Benefit Act 2005
CPA Civil Partnership Act 2004
CSA Child Support Act 1991, 1995
CSPSSA Child Support, Pensions and Social Security Act 2000
DPMCA Domestic Proceedings and Magistrates’ Court Act 1978
DVCVA Domestic Violence, Crime and Victims Act 2004
DVMPA Domestic Violence and Matrimonial Proceedings Act 1976
EA Equality Act 2006
ECHR European Convention on Human Rights and Fundamental Freedoms
EPO Emergency Protection Order
FLA Family Law Act 1996
FLRA 1969 Family Law Reform Act 1969
FLRA Family Law Reform Act 1987
FMA Forced Marriage Act 2007
FPR Family Proceedings Rules 1991
GRA Gender Recognition Act 2004
HA Housing Acts 1980, 1985, 1996
HFEA Human Fertilisation and Embryology Act 1990

For guidance on writing essays
in exam conditions see the
Learning skills for law subject
guide.
page 8 University of London External System
HFEDFA Human Fertilisation and Embryology (Deceased Fathers) Act 2003
HL House of Lords
HRA Human Rights Act 1998
MA Marriage Acts 1949, 1994
MCA Matrimonial Causes Act 1973
MHA Matrimonial Homes Act 1983
MRGLA Marriage (Registrar-General’s Licence) Act 1970
NSPCC National Society for the Prevention of Cruelty to Children
PHA Protection from Harassment Act 1997
WRPA Welfare Reform and Pensions Act 1999
YJCEA Youth Justice and Criminal Evidence Act 1999
The following abbreviations for journals cited are used in this guide:
CFLQ Child and Family Law Quarterly
CLJ Cambridge Law Journal
CLP Current Legal Problems
Fam Law Family Law
JCL Journal of Child Law
JSWFL Journal of Social Work and Family Law
LQR Law and Quarterly Review
LS Legal Studies
MLR Modern Law Review
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
2.1 The distinction between void and voidable marriages . . . . . . . . . . .11
2.2 The grounds for a void marriage . . . . . . . . . . . . . . . . . . . . . .12
2.3 Voidable marriages . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
2.4 Effects of a nullity decree . . . . . . . . . . . . . . . . . . . . . . . . .24
2.5 Civil partnerships . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
2 Marriage and civil partnerships
page 10 University of London External System
Introduction
By 2002 demographic evidence revealed that around 25 per cent of non-married
women under 60 and 26 per cent of non-married men under 60 were cohabiting in
England and Wales.

Statute has gone some way to acknowledging the growing legal
rights of cohabitees. Despite this shift, marriage remains the foundation of English
family law. The basic rule of English law is that a marriage can be created between any
man and woman who comply with the stipulated formal requirements of marriage
and who have the necessary legal capacity. Should these requirements be missing
then the law of nullity can be applied.
It is through the law of nullity that the definition of a valid marriage may be
understood, for nullity lays down the fundamental requirements for a valid marriage.
There are two ‘limbs’ to nullity: marriages that are void from their date of ceremony
and have no legal effect and marriages that, while defective, are treated as valid unless
and until they are annulled by the court.
Since 2004 it has also been possible for same-sex couples to register a civil
partnership. This takes place in accordance with the Civil Partnership Act 2004 (CPA).
The formalities for these partnerships do, in many instances, mirror those required for
a marriage. The formation of these partnerships will be discussed later in this chapter.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
u explain the relevant distinctions between void and voidable marriages
u list and give the principal details of the law relating to each of the particular
grounds for invalidating a marriage
u describe the powers of the court in relation to property distribution and
financial provision and the rules relating to the status of children born into void
or voidable marriages.
u acknowledge the similarities and differences between the formation of a
marriage and a civil partnership.
Essential reading
¢ Herring, Chapter 2, pp.33–92.
¢ Masson et al., Chapter 1, pp.13–41 and pp.43–84.
¢ Probert, Chapter 2, pp. 27–35; Chapter 3, pp.37–55.
¢ Standley, Chapter 2, pp. 23–51 (sections applying to marriages).

See Central Statistics
Office, Social Trends 32 (2002)
London, HMSO, pp. 42–43.
www.statistics.gov.uk
Family Law 2 Marriage and civil partnerships page 11
2.1 The distinction between void and voidable marriages
English law requires parties to a marriage, and now a civil partnership, to comply
with the correct formalities and to have the legal capacity to contract a marriage or
civil partnership. When there is some irregularity in the legal capacity, a party may
seek a decree of annulment. Here a distinction is drawn between those marriages or
civil partnerships that the law regards as void and those it regards as voidable. The
distinction between void and voidable marriages was explained by Lord Greene MR in
De Reneville v De Reneville [1948] P. 100, III:
A void marriage is one that will be regarded by every court in any case in which the
existence of the marriage is in issue as never having taken place and can be so treated by
both parties to it without the necessity of any decree annulling it; a voidable marriage is
one that will be regarded by every court as a valid subsisting marriage until a decree
annulling it has been pronounced by a court of competent jurisdiction.

There are three main differences between a void and voidable marriage (or civil
partnership).
1. A decree of nullity can be pronounced in relation to a void marriage or civil
partnership at any time, even after the death of the parties. In contrast, a decree
can only be granted annulling a voidable marriage or civil partnership during the
lifetime of both parties.
2. If the marriage or civil partnership is void, no valid marriage existed, whereas, if the
marriage or civil partnership is voidable, it is valid unless and until annulled.
3. If the marriage or civil partnership is void, any ‘interested person’ may take nullity
proceedings. If the marriage or civil partnership is voidable, only the parties to it
may take proceedings to have it annulled.
2.1.1 The distinction between a decree of nullity and divorce
A decree of nullity is a statement that a marriage or civil partnership never existed:
the decree always states that the marriage or civil partnership ‘is and has been,
null and void’. The conditions of annulment, with the exception of wilful refusal to
consummate the marriage (which does not apply to the civil partnership), relate
to conditions at the time of marriage. Divorce and dissolution, on the other hand,
concern marriages and civil partnerships that exist but which are now being brought
to an end. The grounds for divorce and dissolution – irretrievable breakdown – are
concerned with events that occur after the marriage takes place. Despite the fact
that nullity and divorce and dissolution have these different concerns, the law has
considerably assimilated the consequences of nullity and divorce and dissolution
decrees, especially in relation to the status of children born within an annulled
marriage and financial provision on the granting of a decree.
2.1.2 The significance of nullity
Historically, the law of nullity was an important remedy for marital breakdown
because, until 1857, judicial divorce was unavailable. In the absence of a private Act of
Parliament, nullity was the only way of bringing a marriage to an end. Until the advent
of ‘irretrievable breakdown’ as the grounds for divorce, introduced by the Divorce
Reform Act 1969, nullity remained important as it was the only way an ‘innocent’
spouse could be dispensed with. Since 1969, nullity has dwindled in importance. For
example, in 1998 there were only 474 nullity decrees, compared with 143,879 decrees
of divorce. Nonetheless, nullity is important because it clarifies the legal capacity
required for a marriage in English law and provides a remedy for those individuals
who, for cultural or religious reasons, are forced to eschew divorce.
It must be noted, however, that there is some support for the view that, given the
nature of nullity proceedings (which usually involve a full hearing and sometimes
unpleasant evidentiary disputes, at the very least), the concept of the voidable
marriage should be abolished (Cretney et al., p.68).

Author’s emphasis.
page 12 University of London External System
Summary
English law demands that some formalities are met before a couple may marry or form
a civil partnership. If these formalities are missing then a party to the marriage or civil
partnership may seek a decree of nullity to nullify the marriage or civil partnership,
thereby erasing its existence. The law of nullity is a useful device for those who, for
religious reasons, do not want to divorce. It may also be useful for those in a civil
partnership who do not want to proceed with dissolution of the partnership when
defective formalities would suggest there was no correctly formed partnership.
A marriage or civil partnership can be void or voidable. Void marriages and civil
partnerships are those which are deemed by a court never to have existed. A voidable
marriage or civil partnership is one which is deemed to have existed until one of the
parties has sought to annul it on one of the specified grounds. Calls for reform of the
law of nullity are usually based around the rules concerning voidable marriages being
abolished.
2.2 The grounds for a void marriage
The grounds for a void marriage are set out exhaustively in s.11 Matrimonial Causes Act
1973 (MCA). These grounds also apply to civil partnerships (See Section 2.5 for further
details).
2.2.1 Prohibited degrees
The Marriage Act 1949 Schedule 1 (as amended) sets out a list of relatives whom a
man may not marry. A corresponding list of prohibitions is set out for women. The
prohibited degrees include half-blood relationships.
The following points should be noted about the statutory list of the prohibited
degrees of marriage.
u If a child is adopted he or she remains within the same prohibited degrees in
relation to his or her natural parents and other relatives as if he or she had not
been adopted (Adoption Act 1976, ss.39(1), 47(1)). In addition, an adoptive parent
and the child he or she adopts are within the prohibited degrees (Adoption Act
1976, s.39(1)) but there is no other prohibition arising out of adoption. A man may
therefore marry his adoptive sister or any other female adoptive relation and vice
versa.
u The list of prohibited degrees includes not only relationships of consanguinity (i.e.
where there is a blood relationship between the parties) but also certain
relationships of affinity (i.e. relationships created by marriage). Since 1980 a
number of private Acts of Parliament have been promoted by couples who wanted
to marry within an in-law or step relationship. The policies underlying such
marriages were considered in a report ‘No Just Cause’ produced by a group set up
by the Archbishop of Canterbury. The group was divided as to the policy the law
should pursue in respect of marriages between affines

and the ensuing legislation,
the Marriage (Prohibited Degrees of Relationship) Act 1986, represents a
compromise between the majority and minority views expressed in the report.
The basic premise of the 1986 legislation is that marriage with relatives by affinity
is permitted. There were two cases of marriage to an affine which were permitted
only subject to conditions. Thus, where marriages within an in-law relationship are
concerned, a man was only able to marry his daughter-in-law (or a woman her son-in-
law) if both parties were over 21, or the child’s spouse (i.e. the father-in-law’s son or the
mother-in-law’s daughter) and that spouse’s mother or father were dead.
This legal impediment to in-law marriages was later considered by the European Court
of Human Rights in B & L v UK (Application No 36536/02), The Times, September 13, 2005.
The court ruled that the law which prohibited marriage between parents-in-law and
children-in-law was a breach of their rights under Article 12 of the Convention. The

Affines: people related by
marriage.
Family Law 2 Marriage and civil partnerships page 13
government argued before the court that the restriction was not absolute but once
B’s wife and L’s husband had died then marriage was possible. The court were not
convinced as the relationship between B & L was not prohibited, merely the marriage.
In response the government published the Marriage Act 1949 (Remedial) Order 2007
(SI 2007/438) and this amends the incompatibility between English law and that of the
Convention. The provisions of the 1949 Act, which prohibit the marriage of a person to
the parent of his former spouse and the marriage of a person to the former spouse of
his child, are repealed by Article 2(a) of this Order.
Marriage to a stepchild is only permitted if two conditions are satisfied: at the time of
the marriage both of the parties must be over 21 and the stepchild must not have been
a child of the stepparent’s family at any time when the stepchild was under 18.
You should note that the underlying policy of these complex provisions is to preclude
confusion in family relations and to discourage marriages between parties who have
enjoyed a parent/child relationship in the past.
Activity 2.1
What arguments can you think of that justify these restrictions?
2.2.2 Minimum age
A marriage is void if either party is under 16.
This is an absolute rule for a person domiciled in England and cannot be avoided by
marrying abroad in a country where marriages with those under 16 are permitted. In
Pugh v Pugh [1951] P 482, therefore, a domiciled Englishman who married a 15-year-old
Hungarian girl in Austria (so that the marriage would have been valid in both Austria
and Hungary, where the girl was domiciled) was regarded in England as party to a void
marriage. Pearce J held that this was an absolute rule for any English person: that they
may not marry when they are under 16, nor marry anyone under that age.
Activity 2.2
Why do you think 16 is the minimum age to get married?
2.2.3 Defective formalities
In order to understand the position of the law on defective formalities you need to
grasp what those formalities are. Legal regulation of the actual ceremony of marriage
began with the enactment of Lord Hardwicke’s Marriage Act 1753. Prior to this Act no
formalities were required for the formation of a valid marriage. Provided that there
was an agreement to marry, which could be implied from the fact of cohabitation, the
law would recognise the existence of marriage. The public policy of securing publicity
for a marriage remains one of the objectives of English law, together with the need to
ensure that consent to marriage has been freely given. The statute that sets out the
formalities of marriage is the Marriage Act 1949 as amended. The position is complex;
indeed, the Law Commission has said that it is:
‘not understood by members of the public or even by all those who have to administer it.’
(Law Com No. 53, Annex, paragraph 6)
Much of this complexity results from the fact that English law gives intending
spouses a wide choice of marriage ceremony: they can marry in accordance with the
prescriptions of the Church of England (Anglican Church) and, subject to conditions,
other religions or they can marry in a secular form in a Register Office (or by a Registrar
in a range of other approved venues).
page 14 University of London External System
Formalities of marriage
Parental consent (sometimes required)
If either party to an intended marriage is under 18 and not a widow or widower, MA
s.3 provides that the consent of each parent (if any) of the child who has parental
responsibility for the child or each guardian (if any) of the child is required. There are
four exceptional situations.
u Where a residence order

is in force with respect to the child, in which case the
consent of the person or persons with whom the child lives or is to live as a result
of the order is required.
u Where a care order

is in force with respect to the child, in which case the consent
of the local authority designated in the order, as well as the parents or guardians, is
required.
u If a residence order is in force with respect to the child immediately before he or
she reached the age of 16, the consent of the person or persons with whom the
child lived or was to live as a result of that order is required.
u If the child is a ward of court, the consent of the court is required in addition to
that of the parents and guardians.
If it is impossible to obtain the necessary consent, or if the consent is withheld, the
consent of the court may be obtained. However, any marriage solemnised without the
required consent will be valid.
Preliminaries to the marriage ceremony
Certain preliminary steps must be observed before a marriage can be celebrated. The
aims of these preliminaries are to provide a measure of publicity for the marriage
and to give time in which objections to the marriage (e.g. on the grounds that it is
bigamous) may be made. The form they take depends on whether a Church of England
ceremony or some other ceremony, civil or religious, is intended.
Church of England (Anglican ceremony): Anglican marriages (‘church weddings’) may
be preceded by banns,

which are read out on successive Sundays. The parties may
marry after the third reading. Alternatively, parties may obtain a common licence from
the church authorities or a special licence issued on behalf of the Archbishop of
Canterbury. The latter enables the wedding to take place in any venue and at any time.
Civil and non-Anglican religious ceremonies: These have now all been standardised by
the Immigration and Asylum Act 1999. The parties have to obtain a superintendent
registrar’s certificate. Both parties must give notice to the superintendent registrar of
their district of their intention to marry. Along with this, the parties have to give details
of their name, marital status, place of residence, occupation and nationality. This does
not need to be done as a couple but must be done in person. Once this information is
collected a waiting period of 15 days follows. This waiting time can be reduced if there
is a compelling reason. This procedure has been standardised to try and tackle the
problem of ‘sham’ marriages.

As the parties have to meet the superintendent
personally there is an opportunity for superintendents to raise any suspicions as to the
possibility of the marriage being a sham.
Further restrictions have been put in place by the Asylum and Immigration (Treatment
of Claimants etc.) Act 2004 but, as these only applied to civil and non-Anglican
religious ceremonies, they have been criticised as being incompatible with both
Articles 12 and 14 of the European Convention on Human Rights. (See R (Baiai and
others) v Secretary of State for the Home Department [2006] EWHC 823.)
The marriage ceremony
The principal categories of marriage ceremony in English law are the following.
Anglican marriages. Such marriages can take place after any of the ecclesiastical
preliminaries have been observed or after a superintendent registrar’s certificate has
been issued. The marriage must be celebrated by a member of the clergy. He or she is

A residence order is
‘an order settling the
arrangements to be made as
to the person with whom a
child is to live.’

A care order is an order
made to ensure a child’s
protection. It is usually
awarded by the courts upon
representations made by the
local authority.

Banns: a technical word
for the formal and public
declaration of an intention to
marry.

A ‘sham’ marriage is one
where a couple, perhaps
for immigration purposes,
marries in order that one
party gains residence in the
UK.
Family Law 2 Marriage and civil partnerships page 15
entitled to refuse to marry any person whose former marriage has been dissolved if
the former spouse is still living (Matrimonial Causes Act 1965 s(8)2).
Civil marriages.

Such marriages must be secular and take a simple form. The parties
declare that they know of no lawful impediment to the marriage and each must call
upon those present to witness that they take the other as their lawful wedded
husband or wife. The ceremony takes place in the Register Office or other place
‘licensed for marriage ceremonies’ (see below), with open doors and two or more
witnesses must be present.
Marriages in a registered place of religious worship. Parties to such marriages must
comply with civil preliminaries. The building in which the ceremony is to take place
must be registered for the solemnisation of marriages as ‘a place of meeting for
religious worship’. Courts have held that ‘religious worship’ within this formulation
does not extend to the practices of Scientologists (see ex parte Segerdal [1970] 2 QB
697), but it is clear that Sikh and Hindu temples and Islamic mosques are entitled
to be registered for the solemnisation of marriage. If a Registrar is not present, the
celebrant must be an ‘authorised person’ to carry out marriages. The form of the
ceremony is a matter for the parties and the religion controlling the building, although
the parties must at some stage declare, as in civil marriages, that they know of no
lawful impediment and each must state that they call upon those present to witness
that they take the other party to the marriage ‘to be my lawfully wedded wife (or
husband)’.
Quaker

and Jewish marriages. These were excepted from the provisions of Lord
Hardwicke’s Act. Although civil preliminaries must be completed, the celebration of
Quaker and Jewish marriages is governed solely by the rules of those religions.
Places licensed for marriage ceremonies
The Marriage Act 1994 amends the Marriage Act 1949 and provides that designated
public places may be licensed by local authorities for the ceremony of marriage. The
1994 Act also provides that marriages may be solemnised in registration districts in
which neither party resides. The Marriages (Approved Premises) Regulations 1995 state
that the ‘premises’ must be ‘a permanently immovable structure comprising at least
a room, or any boat or other vessel which is permanently moored’. The ceremony
cannot be religious.
All marriages, except Jewish and Quaker marriages and those that are conducted
under special or Registrar General’s licence, must take place between 8.00 am and
6.00 pm. However, failure to observe these requirements will not invalidate the
marriage.
Failure to observe formalities
The majority of defective formalities in a marriage do not affect the validity of a
marriage at all. In those cases where the form does have a bearing on the validity
of the marriage, the marriage will be void only if both parties contracted it with
knowledge of the defect. In effect, therefore, it is impossible for a person in England to
contract a marriage innocently which is void because of a formal defect.
It must be noted, however, that in R v Bham [1966] 1 QB 159 the court did suggest that
marriage in English law can only be created by something which can be described as
a ceremony in a form known to be, and recognised as capable of producing, a valid
marriage. In s.24 and s.48 the MA specifically enacts that certain defects, including
failure to acquire the necessary consents, will not invalidate a marriage. In s.25 and
s.49 it sets out those defects which will invalidate a marriage where both of the parties
are aware of the irregularity at the time of the ceremony. The Act speaks of the parties
‘knowingly and wilfully’ intermarrying in contravention of the requirements, thus
making it unclear whether both parties must know that, as a question of fact, the
formality has not been complied with or whether in addition they must know that, as a
question of law, the defect will invalidate the marriage. The Act is silent as to the effect
of other irregularities, but it may be confidently presumed that, unless the defect is

In a civil marriage, no
declarations or procedures
of a religious nature are
permitted.

Quakers are members of the
Religious Society of Friends,
a 350-year-old Protestant
Christian group distinguished
by ‘peaceful principles
and plainness of dress and
manners’.
page 16 University of London External System
one which the Act states may invalidate the marriage, such a defect will not affect its
validity. Some recent case law has assisted our interpretation of the legislation as to
the effect of irregularities.
u In Gereis v Yacoub [1997] 1 FLR 854 the court held that, even though the parties
had lived together as husband and wife after the ceremony, their knowledge of
the defective formalities (no notice to the superintendent registrar, marriage not
in a registered building and conducted by an unauthorised person) meant the
marriage was void.
u However, in CAO v Bath [2000] 1 FLR 8, the appellant had been refused a widow’s
pension on the grounds that her 37-year marriage was void as the Sikh temple in
which she had married was not a registered building for the purpose of celebrating
marriages. The Court of Appeal held that, as there was a common-law presumption
that a couple who claimed to be husband and wife, following long cohabitation,
had married (unless the contrary were proved), it would be wrong to place the
appellant, who had gone through a ceremony, in a worse position than someone
who could not point to any ceremony at all. Furthermore, as both she and her
husband had been unaware that the temple was not registered, they had not
‘knowingly and wilfully intermarried’ as provided by s.49 of the Marriage Act 1949.
Had they known, the court concluded, the marriage would have been void.
u For the status of a Hindu marriage in England see Gandhi v Patel [2002] 1 FLR 603 and
contrast the case with A-M v A-M [2001] 2 FLR 6. The status of foreign engagements,
marriage and divorce have also been considered in Abbassi v Abbassi [2006] EWCA
Civ 355 and Alfonso-Brown v Milwood [2006] EWHC 642 (Fam).
Time for reform?
In recent years there has been a review of the way in which marriages are celebrated,
publicised and registered. A series of papers have considered a new system of civil
registration and, at the same time, the Church of England Synod (the Church’s
deliberative and legislative body) has reviewed and endorsed a new system of
joint state and ecclesiastical preliminaries to marriage. The government has not
implemented any of these changes, recognising the need for primary legislation.
Full details can be found in the Church of England Synod paper, ‘Registration
Modernization: A position and consultation paper on the delivery of local registration
service in England and Wales’ (November 2005).
No significant changes have yet been actioned.
Activity 2.3
Why does the law concern itself so much with the ‘formalities’ of marriage?
One or more party already married
A marriage is void if at the time of marriage either party is lawfully married to another
party. The marriage remains void even if the parties believe on reasonable grounds
that the other party to the marriage was dead and if a defence to a charge of bigamy
was successfully pleaded. Parties who have reasonable grounds to believe that the
other party to the marriage is dead are advised to seek a decree of divorce or a decree
of presumption of death and dissolution of marriage within s.19 MCA (see Cretney et
al., pp.47–48).
Parties are not respectively male and female
Marriages between persons self-evidently of the same sex are void (see Talbot v Talbot
[1967] 111 SJ 213, where a marriage between two women was held to be void). Here it
is important not to confuse the newly-created civil partnership which is discussed in
Chapter 3. This is a different type of relationship between people of the same sex who
have registered their commitment to each other. It has many similarities with marriage
but it is not marriage!
Family Law 2 Marriage and civil partnerships page 17
Marriages between transsexuals – those who have had sex reassignment therapy – and
persons who, following the transsexual’s reassignment, are now of his or her opposite
sex have historically not been valid marriages. There have been recent legislative
changes here and so long as certain formalities, which involves the recognition of the
new gender by an appointed panel under the GRA 2004, are met then these marriages
may now be valid.
Transsexual couples
Until 2004 transsexuals were regarded as persons of their reassigned sex for many
legal purposes, including national insurance and passports. For the purposes of
marriage laws or any other laws which are based on a person’s sex rather than their
gender, a person’s sex was fixed for all time at birth and the only relevant tests of
sexual identity were biological. Thus, a person born with male genitalia and male
chromosomes was a man.
The leading case on the capacity of transsexuals to marry was Corbett v Corbett [1971]
P 83 where the respondent was born biologically a male. Experiencing psychological
difficulties as a male, he underwent a sex change operation and, being now known as
April Ashley, ‘she’ went through a marriage with the petitioner, a male. Ormrod J held
that the sex of a party to a marriage was a matter to be determined in accordance
with biological and not psychological criteria. Ormrod J is suggesting that sex is
determined by biology whereas gender, and the perception of oneself, is determined
by psychology and as he points out: ‘Marriage is a relationship which depends on
sex and not on gender’. On that basis the marriage between the petitioner and April
Ashley was void.
The decision in Corbett was based on the common law, under which the question was
whether the parties were a ‘man’ and a ‘woman’. The MCA uses the terms ‘male’ and
‘female’ and it may be possible to argue that these terms refer to a person’s gender
rather than sex and that the issue of whether a person is ‘male’ or ‘female’ takes
account of more than biology. However, the analysis in Corbett was applied in the
case of R v Tan and Greaves [1983] QB 1053 where the Court of Appeal concluded that
a male-to-female transsexual was a ‘man’ for the purposes of the offence of living off
the earnings of prostitution. There is at least one reported case of a decree of nullity in
respect of a marriage to a transsexual (Family Law [1990] 455).
That Corbett remains authoritative is supported by two decisions of the European
Court of Human Rights. The first of these was Rees v United Kingdom [1987] 2 FLR 111
which ruled that the failure of English law to recognise the right of transsexuals to
marry did not constitute a violation of the right to marry guaranteed by Article 12
of the European Convention on Human Rights. This was confirmed in 1990 in Cossey
v United Kingdom [1991] 2 FLR 492, although such a claim has been successful in the
context of French law (see B v France [1992] Fam Law 491).
These principles were further applied in Sheffield and Horsham v UK [1998] 2 FLR 928.
However, also see X, Y & Z v UK [1997] 2 FLR 892. Here the European Court held that a
refusal to allow a child born to a transsexual ‘man’s’ partner to have the ‘father’s’ name
was a breach of Article 8, but that there was no breach in English law in denying ‘him’
parental rights (parental responsibility).
In all of the UK cases, however, the court stressed the need for member states to
keep their law under review, suggesting a general relaxation in attitudes towards
transsexuals.
In light of this review there were a number of cases looking at the status of Corbett.
See W v W [2001] 1 FLR 324 and Bellinger v Bellinger [2001] 2 FLR 1048. Although in
Bellinger the House of Lords followed the position in Corbett they did declare, under
s.4 HRA 1998, that s.11(c) MCA was incompatible with Articles 8 and 12 of the European
Convention on Human Rights, in accordance with s.4 Human Rights Act 1998. They
felt it was up to Parliament to change the law. As a consequence of Bellinger, and also
Goodwin v UK (2002) 35 EHRR 18 and I v UK [2002] 2 FLR 518, the government introduced
the Gender Recognition Bill. This Bill was controversial in that it furthered the rights
page 18 University of London External System
of transsexuals to be recognised and some felt this was a development too far! The
Gender Recognition Act 2004 (GRA) allows someone to apply for a Gender Recognition
Certificate so that their legal sex becomes their ‘acquired gender’. This means that
the individual can be legally recognised as having the gender that they wish to have.
Section 2(1) GRA outlines the criteria for a person to meet. Note that transsexual
surgery is not necessary to acquire a gender recognition certificate but is clearly
evidence to support a claim that the individual wishes to live in their chosen sex.
Polygamous marriages
An actual or potentially polygamous marriage entered into after 31 July 1971 is void if
either party to the marriage was at the time domiciled in England and Wales. This topic
is outside the scope of the Family law syllabus.
Summary
The grounds for a void marriage are set out in s.11 MCA. If the parties have married
within the prohibited degrees of relationship or either party is under 16 the marriage
will be void. If there are defective formalities or one of the parties is already married
this will also void the marriage. For the marriage to be valid the parties must be
respectively male and female, which until recently had significant consequences for
transsexual couples. Finally, a marriage will be void if polygamous.
2.3 Voidable marriages
The grounds upon which a voidable marriage may be annulled are set out in s.12 of the
MCA.
2.3.1 Incapacity to consummate the marriage
A marriage is voidable if it has not been consummated owing to the incapacity of either
party to consummate it. This ground is available to either party to the marriage and
a person may petition on the grounds of his or her own incapacity. Consummation
requires intercourse that is ‘ordinary and complete’, rather than ‘partial and imperfect’
(Dr Lushington, in D v A [1845] 1 Rob Ecl 279 at 299). Compare the definition of adultery
and the criminal law of rape, where any penetration of the sexual organ suffices. Note
that sterility, as opposed to impotence, is not a ground for annulment. Consummation
will be held to have occurred even though contraceptives have been used throughout
the marriage. See Baxter v Baxter [1948] AC 274.
Activity 2.4
What is the difference between the definitions of adultery, rape and
consummation?
No feedback provided.
The incapacity may be physiologically or psychologically based, but it must be
permanent or incurable. Physiological incapacity will be considered incurable
if the respondent refuses to undergo any dangerous remedial operation. It will
not be regarded as incurable, however, if the condition could be resolved by a
straightforward, risk-free operation. See S v S [1963] P 37.
Psychological incapacity requires ‘invincible repugnance’ towards the other spouse
and will not be established where there is mere dislike or a rational decision not to
permit intercourse. See Singh v Singh [1971] P 226.
Family Law 2 Marriage and civil partnerships page 19
2.3.2 Wilful refusal to consummate the marriage
A marriage is voidable if it has not been consummated owing to the wilful refusal
of the respondent to consummate it. This ground is the only ground for annulment
directed to events which have occurred after the marriage. It is not open to a
petitioner to seek a nullity decree on the ground of their own refusal.
The ground requires a ‘settled and definite decision come to without just excuse’. See
Horton v Horton [1947] 2 All ER 871.
Such a decision can be found to exist even where the parties have not had the
opportunity of consummating the marriage. For example, in Ford v Ford [1987] Fam
Law 232 the marriage had taken place while the husband was serving a sentence of
five years’ imprisonment. When the wife visited the husband, they were left alone for
periods of up to two hours, during which time it was the practice of prisoners – though
against prison rules – to have sexual intercourse, but the husband refused. Further, he
showed no interest in living with the wife and, when granted a home visit, he insisted
she take him to the home of a former girlfriend. The wife was granted a decree of
nullity on the basis of his wilful refusal, such arising not out of his refusal to have sexual
intercourse, which would have been in breach of prison rules, but out of his general
behaviour which indicated that he had no intention of pursuing married life with the
wife at any point.
If a party can show ‘just excuse’ for refusal to consummate, the ground will not be
made out. In practice two distinct types of ‘just excuse’ have been considered by the
courts.
1. Religious reasons
If the parties have agreed that a civil marriage shall be followed by a religious
ceremony, it is a ‘just excuse’ for refusing to consummate the marriage that the
religious ceremony has not taken place.
In Kaur v Singh [1972] 1 All ER 292 the parties were Sikhs who went through an arranged
marriage at a Register Office. The husband refused to arrange the religious ceremony,
which he was bound to do by Sikh custom. The Court of Appeal held that the wife was
entitled to a decree of nullity on the grounds of his wilful refusal to consummate the
marriage.
It has been held, further, that if a party is prepared to arrange a religious ceremony, but
the other party refuses to proceed and insists that the ceremony be postponed, the
refusal, if sufficiently definite and uncompromising, will be held to constitute wilful
refusal to consummate. See: A v J [1989] 1 FLR 110.
2. By agreement
The second instance in which ‘just excuse’ has been established is where there is an
agreement between the parties not to consummate their marriage. In principle, such
an agreement is void as being contrary to public policy. See Brodie v Brodie [1917] P 271.
Where, however, an elderly couple has entered into a ‘companionate marriage’, then
one party insists on intercourse after the wedding, proof of the agreement will bar the
petitioner from claiming wilful refusal to consummate. See Morgan v Morgan [1959] P
92 and Scott v Scott [1959] P 103.
page 20 University of London External System
2.3.3 Lack of consent
A marriage is voidable if ‘either party did not validly consent to it, whether in
consequence of duress, mistake, unsoundness of mind or otherwise’.
Duress
If consent to marriage is obtained by force or duress, the marriage is voidable at the
request of the threatened party.
In order to make out this ground, there must be fear that overrides a party’s true
intent. This is the single most important aspect of duress and it underlies several of the
following points.
It is unclear whether the fear must be ‘reasonably entertained’. In Scott v Sebright
[1886] 12 PD 31 a subjective approach was favoured by the court. There the petitioner
had married the respondent because she had been told by him that this was the only
way she could avoid bankruptcy. She was granted a decree. Butt J concluded that
the crucial issue was whether she was actually in fear, not whether it was reasonably
entertained. This can be contrasted with Buckland v Buckland [1968] P 296 where
Scarman J suggested that fear overriding consent had to be objectively entertained.
Current judicial authority favours the subjective view, the Court of Appeal suggesting
in Hirani v Hirani [1982] 4 FLR 232 that the question is whether the threats or pressure
are such as to destroy the reality of the consent and to overbear the will of the
individual.
A related issue is whether an immediate ‘danger to life, limb or liberty’ is a prerequisite
to a successful petition. This requirement was suggested by Simon P in Szechter v
Szechter [1971] P 286. In Singh v Singh [1971] P 226 a petition was refused where the
petitioner went through a religious ceremony out of obedience to her parents’ wishes
and in deference to her Sikh religious faith. See also Singh v Kaur [1981] 11 Fam Law 152.
However, in Hirani v Hirani, on facts similar to those considered in Singh v Singh, the
Court of Appeal accepted that parental pressure could amount to duress, and Ormrod
LJ suggested that an immediate danger to life, limb or liberty was simply of evidential
value in demonstrating that the petitioner’s will had been overborne by fear.
The Scottish Court of Session have annulled two arranged marriages on the basis of
duress (see Mahmood v Mahmood [1993] SLT 589 and Mahmud v Mahmud [1994] SLT
599). In Mahmud the court held that sustained pressure from the family to marry,
including allegations that the petitioner’s obduracy was responsible for his father’s
suffering a stroke, was sufficient to invalidate consent.
The cases agree that the fear must arise from external circumstances, but not
necessarily from the acts of the other party. So in Buckland v Buckland the pressure
imposed by the Maltese police, rather than the respondent, led to the decree being
granted. Similarly, in Szechter v Szechter, the pressure was imposed by a combination
of external factors.
It has been argued that fear will only override consent to marriage if it has been
unjustly imposed, a suggestion derived from the judgment of Scarman J in Buckland
v Buckland in which he asserts that it would have been legitimate to coerce the
petitioner into marriage if in fact he had been guilty of the criminal charge of defiling
the respondent.
The notion of ‘justly imposed’ fear has not been explored in later cases on duress and
may be inconsistent with the basic question of whether the petitioner’s will has, in
fact, been overridden.
Activity 2.5
Should the courts formulate a more settled definition of what amounts to duress?
What advantages or disadvantages would flow from such a formulation?
Family Law 2 Marriage and civil partnerships page 21
2.3.4 The problem of forced marriage
Historically there have always been examples of family pressure being placed on
people to marry those whom the family would approve. It has also long been the case
that some families within some cultures are particularly keen to assist their children
in the finding of suitable spouses and have arranged marriages on this basis. Arranged
marriages are perfectly legal in the UK because the individuals have been assisted with
finding a spouse but have in no way been physically forced to marry that individual.
It is important that students do not confuse an arranged marriage with a forced one
for these purposes. Indeed Munby J draws a clear distinction in Sheffield City Council
v E and Another, The Times, 20 January 2005, when the wisdom of getting married is
distinguished from the capacity to marry.
There has been, in recent years, a growing concern at the incidence of forced marriage
and this is often linked to a person’s (usually a female’s) capacity to refuse. In Re SA
(Vulnerable Adult with Capacity: Marriage) [2006] 1 FLR 867 the possible removal of a
vulnerable adult from England for the purposes of marriage was considered by the
court. Here an 18-year-old girl was deaf and unable to speak. She was able to use
British sign language and was able to lip read English on a limited basis. Her parents
could not use British sign language and the girl was unable to lip read Punjabi. The
local authority assessed the girl had an intellectual level of 13-14 and a reading age
of 7-8. The local authority were concerned that the girl may be taken to Pakistan
to be married. Expert evidence noted that the daughter had the capacity to marry
and wanted to marry an English speaking man and to live in England. She did not
understand the consequences of immigration or the implications of a specific
marriage contract to a specific individual. The court held she was not to be removed
from the jurisdiction without her consent, which was to be obtained only following a
full explanation of all issues using British sign language.
Also in M v B, A and S (By the Official Solicitor) [2006] 1 FLR 117 S was 23 years old with
severe learning disabilities. Her father wished for her to undertake an arranged
marriage in Pakistan. Medical evidence suggested that she had a limited level of
comprehension and was unable to make an informed decision as to whether she
should undertake this marriage. Consequently Sumner J said that S did not understand
the nature of the marriage contract. In addition she did not understand the duties and
responsibilities that are attached to marriage. He used the useful summary by Munby J
in Sheffield City Council v E and S [2005] 1 FLR 965 that:
‘Marriage, whether civil or religious, is a contract, formally entered into. It confers in the
parties the status of husband and wife, the essence of the contract being an agreement
between a man and a woman to live together, and to love one another as husband and
wife, to the exclusion of all others. It creates a relationship of mutual and reciprocal
obligations, typically involving the sharing of a common home and a common domestic
life and the right to enjoy each others comfort and assistance.’
In light of continued concern about the incidence of forced marriages in September
2005 the Home Office and the Foreign and Commonwealth Office published a
consultation paper with a view to discussing the legal issues surrounding forced
marriages, including a discussion of potential criminal offences committed by the
perpetrators. See Forced Marriage: A Wrong Not a Right, September 2005, www.fco.gov.
uk. The abomination of forced marriage was further discussed in NS v MI [2006] EWHC
1646 (Fam).
The result has been the Forced Marriage (Civil Protection) Act 2007 (which received
Royal Assent on 26 July 2007). It makes provision for protecting individuals against
being forced to enter into marriage without their free and full consent. It also protects
individuals who have been forced to enter into a marriage without such consent. The
background to the Act was interesting as initially it was hoped that offenders would be
dealt with by criminal prosecution rather than civil restriction.
page 22 University of London External System
Mistake
Mistake will vitiate consent to a marriage in two situations:
1. Where there is a mistake as to the person as opposed to his or her attributes. This
was upheld in the Australian case of C and D [1979] FLC 90–636 where a woman who
married a hermaphrodite was granted an annulment on the ground that she had
made a mistake of identity because she believed she was marrying a man. It will
not be made out if, for example, a person marries an individual believing him or her
to be rich and he or she turns out to be a pauper. See C v C [1942] NZLR 356 and also
Militante v Ogunwomoju [1993] 2 FCR 355 in which the court annulled the marriage
where the petitioner believed the respondent to be Richard Ogunwomoju, whereas
in fact he was Anthony Osimen, an illegal immigrant.
2. Consent will also be vitiated if there is a mistake as to the nature of the ceremony.
If one party goes through a marriage ceremony believing it to be a betrothal
(engagement to marry) (see Valier v Valier [1925] 133 LT 830) or a religious
conversion (see Mehta v Mehta [1945] 2 All ER 690), the marriage will be voidable.
However, if a person is mistaken as to the legal consequences of marriage, the
marriage will be valid. See Way v Way [1950] P71 and Messina v Smith [1971] P 322.
Unsoundness of mind
Mental illness will only invalidate a marriage under s.12 MCA if either spouse, at the time
of the ceremony, was incapable of understanding the nature of marriage and the duties
and responsibilities it creates. See Singleton LJ In the Estate of Park [1954] P 112.
Few petitions are brought on this ground and a petition alleging insanity is more likely
to be based on the more broadly based s.12(d) MCA 1973 ground of mental disorder,
discussed below.
‘Or otherwise’
The words ‘or otherwise’ in s.12(c) MCA have not received significant judicial attention,
although consent given under the influence of alcohol or drugs are examples
sometimes given of situations that might be covered by these words. See Sullivan v
Sullivan [1812] 2 Hag Con 238 at p.246.
2.3.5 Other nullifying factors
Mental disorder
A decree of nullity may be granted if:
‘at the time of the marriage either party, though capable of giving a valid consent, was
suffering (whether continuously or intermittently) from mental disorder within the
meaning of the Mental Health Act 1983 of such a kind or to such an extent as to be unfitted
for marriage.’ (MCA s.12(d))
This ground, broader in scope than s.12(c), enables a petition to be brought, even
though a party was able to give a valid consent to marriage, if mental disorder
rendered him or her unfit for marriage. A petitioner may rely on his or her own mental
disorder on this ground. The law does have to balance its desire to protect vulnerable
people from being forced to marry when they do not have the capacity to resist and
opposing those with a minor learning disability from being prevented from marrying.
Venereal disease
A decree may be granted if ‘at the time of the marriage the respondent was suffering
from venereal disease in a communicable form’. It is unclear whether HIV is a venereal
disease for this purpose.
Family Law 2 Marriage and civil partnerships page 23
Pregnancy per alium


A decree may be granted if ‘at the time of the marriage the respondent was pregnant
by some person other than the petitioner’.
Activity 2.6
What would be the status of a ‘sham’ marriage?
2.3.6 Bars where the marriage is voidable
Where the marriage is voidable, the petition may fail if one of the bars contained in s.13
MCA is established. Note that there are no bars where the marriage is void.
Approbation
Section 13(1) provides that the court shall not grant a decree of nullity on the ground
that a marriage is voidable if the respondent satisfies the court:
1 that the petitioner, with knowledge that it was open to him to have the marriage
avoided, so conducted himself in relation to the respondent as to lead the
respondent reasonably to believe that he would not seek to do so, and
2 that it would be unjust to the respondent to grant the decree.
The respondent must thus establish that the petitioner conducted himself or herself
in some way as to result in the respondent’s belief that he or she would stand by the
marriage and that, at the time of this conduct, he or she knew that he or she could have
the marriage annulled. In addition, it must be established that some injustice would be
caused to the respondent were the marriage to be annulled.
Cases indicate that the bar is rarely applied, as it is difficult to establish injustice now
that financial provision is available on a decree of nullity. See D v D [1979] Fam 70.
Further, the bar is not one of public policy, but concerns the conduct of the parties
towards one another. Hence in D v D where the marriage had not been consummated
because the wife refused to undergo an operation which would have cured a physical
impediment to intercourse and the husband, although aware that he had a remedy
in nullity, agreed with his wife that they should adopt two children, the bar was not
applied. Although a previous case (see W v W [1952] P 152) had held that adoption of
children within an unconsummated marriage could amount to public policy reasons
for approbation, in D v D, Dunn J held that such public policy reasoning could not be
applied after the enactment of what is now s.13(1). It has been suggested (Cretney et al.,
pp.64–65) that the bar may operate in ‘companionate marriages’.
Time
Where proceedings are brought under s.12(c) (lack of consent), s.12(d) (mental
disorder), s.12(e) (venereal disease) and s.12(f) (pregnancy per alium), it is an absolute
bar if proceedings are not brought within three years of the marriage (see s.13(2)).
However, the court may give leave for the institution of proceedings after the
expiration of three years if the petitioner has suffered from mental disorder at some
time during the three year period, and it is in all the circumstances just to do so (see
s.13(4)).
You are advised to look closely at the dates of occurrence of relevant events when
answering examination problems on nullity.
Knowledge of defect
A petition founded on s.12(e) (venereal disease) or s.12(f) (pregnancy per alium) will fail
unless the petitioner can satisfy the court that, at the time of marriage, he or she was
ignorant of the facts alleged (see s.13(3)). The bar will not operate unless the petitioner
is aware of all the material facts. The fact that the husband knows that his wife is
pregnant at the time of the marriage ceremony is not sufficient; he must also know
that she was pregnant by another man.

Pregnancy ‘by another’.
page 24 University of London External System
Self-assessment questions
1. Define (a) a void marriage and (b) a voidable marriage.
2. What did the report ‘No Just Cause’ deal with?
3. Non-consummation can make a marriage voidable. In what circumstances would
non-consummation not do so?
4. In what circumstances can mental illness invalidate a marriage?
5. How would a forced marriage differ from an arranged marriage?
Activity 2.7
Look at the facts of a ‘marriage’ and decide whether a decree of nullity would be
granted on the basis of the ‘marriage’ being void or voidable.
Fact Void? Voidable?
a Peter marries Shelley, having already married Lucy.
b Lofty marries Michelle despite the fact that she is
pregnant by Dennis.
c Hayley marries Roy despite the fact she was born male
and has had gender reassignment surgery.
d Salma, a devout Muslim, marries Adi because her
parents suggest that they will kill her if she refuses.
Summary
To annul a marriage under s.12 MCA the petitioner will have to show that, although
the marriage took place, a particular factor makes the marriage voidable. The factors
to be relied upon include one party’s incapacity or wilful refusal to consummate the
marriage. Where there is a lack of consent – be it by duress, mistake, unsoundness of
mind or otherwise – this may also make the marriage voidable. A nullity decree may
also be sought if at the time of the marriage one of the parties was suffering from a
mental disorder, the respondent was suffering from a venereal disease or was pregnant
by another. There exist some bars to a nullity decree on the grounds of it being
voidable. These include approbation, time and knowledge of the defect.
2.4 Effects of a nullity decree
At one time the distinction between nullity and divorce was pursued to its logical
conclusion. A nullity decree, unlike a divorce decree, was based on the assumption
that there had never been a valid marriage. Thus any children of the relationship were
illegitimate, neither party was under an obligation to provide financial support for
the other and any property transactions undertaken on the faith that the marriage
was valid had to be retrospectively unscrambled. Over the last 30 years, statute has
resolved many of these difficulties, so that now the consequences of a nullity decree
are almost identical to those of a divorce decree.
Go to your study pack and
read ‘Marriage eligibility’ by
Stephen Cretney. This will
help you to consider the
historical development of the
current law of nullity and its
contemporary relevance.
Family Law 2 Marriage and civil partnerships page 25
2.4.1 Status of children of voidable marriages
This means that children of voidable marriages are legitimate, because the marriage
is treated as valid up until it is annulled (see s.16 MCA). Children of void marriages shall
be treated as legitimate children of their parents if, at the time of the insemination
resulting in birth (in cases of artificial insemination) or at the time of the child’s
conception (or at the time of marriage if later), both or either of the parties reasonably
believed that the marriage was valid. See Legitimacy Act 1976 s.1 as amended by Family
Law Reform Act 1987 (FLRA) s.28. It is immaterial whether the belief that the marriage
was valid is due to a mistake of law. It is to be presumed, unless the contrary is shown,
that one of the parties reasonably believed at the relevant time that the marriage was
valid. However, a child will only be treated as legitimate under these provisions if the
birth occurred after the void marriage. See Re Spence [1990] 2 FLR 278.
2.4.2 Financial provisions
It appeared for some time that a party to an annulled marriage had exactly the same
entitlement to financial provision from his or her partner as a party to a marriage
terminated by divorce (MCA ss.23, 24 as amended by the FLA 1996). See Whiston v
Whiston [1995] Fam 198 in which a woman knowingly entered a bigamous marriage in
1973. On the granting of a decree of nullity, the wife sought financial provision. On
appeal from a lump sum order, the Divisional Court held that the fact one party knew
of the illegality of the marriage did not bar claims for ancillary relief,

although in the
circumstances of the case and because of the severity of the wife’s conduct, the award
would be reduced from £25,000 to £20,000. If a void or voidable marriage is
terminated by the death of one of the partners the survivor may apply for financial
provision from the estate of the deceased partner (Inheritance (Provision for Family
and Dependants) Act 1975, ss.1(1), 25(4)).
However, in the same case the Court of Appeal held that public policy demanded
the denial of financial provision to the wife in the light of her criminal conduct in
bigamously marrying.
This uncertainty of position was clarified in Rampal v Rampal (No2) [2001] 2 FLR 1179.
It remains the case that a void marriage is deemed to be no marriage at all and that
transactions, for example property transactions, entered into on the assumption of
the marriage’s validity will be set aside. Where voidable marriages are concerned,
however, s.16 MCA provides that:
‘a decree of nullity... in respect of a voidable marriage shall operate to annul the marriage
only as respects any time after the decree has been made absolute, and the marriage shall,
notwithstanding the decree, be treated as if it had existed up to that time.’
Ward v Secretary of State for Social Services [1990] 1 FLR 119 illustrates the operation of
s.16. The applicant was entitled to an army widow’s pension. Under the terms of its
award the pension ceased to be payable if she remarried. In 1986 she went through
a ceremony of marriage with a man whom she discovered after the marriage was a
manic-depressive. The marriage was never consummated and the applicant obtained
an annulment. She applied to have her widow’s pension restored, but it was held
that the annulled marriage constituted a marriage for the purposes of the rule that
a widow’s pension is terminated upon remarriage. The effect of s.16 was to treat that
marriage as a valid marriage for all purposes up to the decree of annulment.
See also Re Roberts [1978] 3 All ER 225, where a voidable marriage revoked a prior will.

Ancillary relief is the term
given to the powers of
the Court to make orders
related to divorce or other
matrimonial proceedings.
page 26 University of London External System
2.5 Civil partnerships
Given that sexual relations between men had been outlawed in the UK until 1967 it is
astonishing to think that it has only taken 37 years for the law to formally recognise
the relationships between same-sex couples in the way that opposite-sex couples are
able to be recognised via marriage. For those generations of same-sex couples who
suffered significant discrimination as a consequence, these reforms could not have
come too soon. Due to extensive pressure from the gay community as a whole, and the
government’s commitment to equality and social justice, the law was finally changed
in 2004.
The Civil Partnership Act 2004 (CPA) has had a far-reaching legal effect. It creates a
new legal status of ‘civil registered partner’ (s.1 CPA) and brings English law into line
with that of The Netherlands, Belgium, parts of Canada, Denmark, Sweden, Portugal,
Spain and Germany. It grants various rights and responsibilities to those homosexual
partnerships which have been registered. Like marriage, it has certain formalities which
need to be in place.
In many ways the formation of the civil partnership is broadly similar in process to
that of the civil wedding. The registration cannot take place in a place of religious
worship and no religious service is permitted. A particular difference between a civil
marriage and a civil partnership is the form of words used: for a civil partnership, unlike
a civil wedding, no particular form of words need be used. Section 2(1) of the CPA only
requires that both civil partners have signed the civil partnership document. Once
this has happened the partnership has been registered. It is not as restrictive as a civil
wedding in this way and this is to recognise the fact that it is NOT a marriage.
For the purposes of nullity it is not surprising that much of the substance of the
existing law applies to civil partners. The form is, however, different and can be found
in ss.49−s.50 CPA. Here the same grounds of prohibited degrees, age limits, defective
formalities, already married or in a civil partnership and that the parties are of the
same sex apply (remember only people of the same sex can register a civil partnership)
and will result in the partnership being void. The grounds for the partnership being
voidable are a lack of valid consent (due to drunkenness or mistake), mental disorder
or pregnancy by a third party. The differences arise in the nullity provisions due to non-
consummation and venereal disease. This logically means that no civil partnership has
to be consummated.
Following the annulment of a civil partnership the same rules concerning financial
provision apply as for the annulment of a marriage.
Useful further reading
¢ Baker, M. ‘Nullity proceedings in the twenty-first century: a case for reform?’
(2002) NLJ 942.
¢ Barton, C. ‘White Paper Weddings – the beginnings, muddles and ends of
wedlock’ (2002) Fam Law 431.
¢ Bradney, A. ‘Duress and arranged marriages’ (1983) 46 MLR 499.
¢ Bradney, A. ‘Developing human rights? The Lords and transsexual marriages’
(2003) Fam Law 585.
¢ Brunner, K. ‘Nullity in unconsummated marriages’ (2001) Fam Law 837.
¢ Duckworth, P. ‘What is a family?’ (2002) Fam Law 367.
¢ Gaffney-Rhys, R. ‘M v B, A and S(By the Official Solicitor) – protecting vulnerable
adults from being forced into marriage’ [2006] CFLQ, 295.
¢ McCafferty, C. ‘Gays, transsexuals and the right to marry’ (2002) Fam Law 362.
¢ Poulter, S. ‘The definition of marriage in English law’ (1979) 42 MLR 409.
Family Law 2 Marriage and civil partnerships page 27
¢ Probert, R. ‘When are we married? Void, non-existent and presumed marriages’
LS, Vol. 22, No. 3 (September 2003).
¢ Probert, R. ‘How would Corbett v Corbett be decided today?’ [2005] Fam Law 382.
Sample examination questions
Question 1 ‘The law of nullity should be abolished as it serves no purpose not
achieved by divorce.’ Discuss.
Question 2 Alice and Bertram, aged 16 and 19 respectively, decided in 2008 that
they wished to marry. Alice’s parents are opposed to the idea and Alice knows that
they will not give their consent. As a result, Alice and Bertram travelled several
hundred miles to a town in which the Peace and the Purity Church is situated. The
Peace and the Purity Church is located on the tenth floor of an office block. The
self-styled head of the church agreed to marry Alice and Bertram at 8.00 pm. The
church requires no formalities, but uses the prescribed words of the marriage
ceremony and issues marriage certificates to those for whom it performs marriage
ceremonies.
Alice’s parents have just learned of their daughter’s marriage and wish to be
advised as to its legality. Advise Alice’s parents.
Question 3 Annie and her family all belong to a small religious group known as
the Minitheists. One of the tenets of the religion is that a Minitheist must marry
another Minitheist. Annie has been told by her parents that she must marry Bertie,
a promising Minitheist, widely regarded as a future high priest of the religion.
Annie, however, wanted to marry Cuthbert, who was not a Minitheist. In February
2007 Annie’s father announced that he would cut her out of his will unless she went
through a civil ceremony on 1 March 2007. After the ceremony Annie and Bertie
agreed not to have sexual intercourse for the time being. There were two reasons
for this agreement. First, both parties considered that a civil ceremony was not
‘respectable’ and that Bertie ought to arrange a Minitheist religious ceremony.
Secondly, Annie wanted time to overcome a psychological abhorrence to Bertie.
However, Annie declared her intention of ‘making the best of the marriage’.
Unknown to Bertie, Annie has been having an affair with Cuthbert since July 2007. In
January 2008 Bertie (who has still not arranged the religious ceremony) discovered
the existence of this affair. Divorce is forbidden to Minitheists.
Advise Annie, who wants to have the marriage annulled.
Question 4 Brian and Maurice registered their civil partnership in April 2008.
They signed the register in the local church and sang ‘The Lord is my Shepherd’
as a celebration of their union. Brian is married to Cara and Maurice was living
with Victor prior to the registration of the partnership. Brian and Maurice had
always had an active sex life prior to the registration but since the partnership was
registered Brian has refused to consummate the partnership believing that Maurice
has a venereal disease. Brian also begins to doubt Maurice’s commitment to the
partnership and contacts Maurice’s mother to discuss her son’s personality in a
bid to understand him further. Maurice’s mother disowned Maurice when he had
surgery to become a man, having previously been Monica. She missed her daughter
and refused to acknowledge Maurice as her ‘son’.
Advise Brian as to the validity of his civil partnership.
Advice on answering the questions
Question 1 This essay question demands a good knowledge of the law of nullity so
you must know the grounds for a void and a voidable marriage. The grounds for a
void marriage include prohibited degrees of relationship, being under 16, defective
formalities, bigamy, same-sex and polygamy (which is outside the syllabus). The
grounds for voidable marriages are non-consummation, lack of consent, mental
disorder, venereal disease or pregnancy by another. Remember to structure your
answer by introducing the law and documenting the fact that the petitions for nullity
are very few (only 657 petitions in 2001). This may add to calls for its abolition. But does
page 28 University of London External System
it serve a purpose? It does make clear the essential requirements of a legal marriage,
which distinguish the relationship from other types of relationships. Does it serve a
purpose now? This would lead into an interesting discussion of the justifications for
the grounds. Prohibited degrees of relationship is not as justified as it once was , in
light of recent genetic evidence. It may be justified on social and public policy grounds
but not on medical grounds; same-sex marriage also needs to be reconsidered in light
of the growth in the numbers of transsexuals. For voidable marriages fruitful areas of
debate would include non-consummation, when divorce would allow for this under
s.1(2)(b) MCA, and duress in a multi-ethnic world where different cultural traditions
coexist. If divorce can deal with these elements then why should the law of nullity not
be abolished?
It has its roots in the Christian faith where divorce was forbidden; some people are still
very against divorce and are pleased that nullity is a legal option. Some have suggested
that the void category should remain, arguing that there is no real need for a decree
because the marriage never existed, but that the voidable category should go. The Law
Commission recommended the retention of voidable marriage on religious grounds,
but Cretney et al. have argued that ‘voidable’ should be abolished and the church, for
which the law appears to exist, should govern its status. It is arguably outdated and
unnecessary today.
Question 2 This problem question requires a good grasp of how s.11 MCA works and
the case law which accompanies it. The issues you need to consider include the age of
Alice at the time of the wedding, the status of parental consent and the significance if
it is not obtained. What is the status of the Peace and the Purity Church? Is it licensed
under the Marriage Act 1994? It is on the tenth floor of an office block, so this is
unlikely. Even if it was licensed, should the wedding ceremony have been performed at
8.00 pm? It is not a Jewish or Quaker wedding. The church requires no formalities but
is this in accordance with English law? Are there open doors? And are there witnesses
to the wedding? The prescribed words of the marriage ceremony and the issuing
of a marriage certificate will not validate the marriage but may impact on whether
Alice and Bertram knew of the defect. Do the parties know they are contracting to a
marriage with knowledge of the defect? See R v Bham [1966], Gereis v Yacoub [1997] and
CAO v Bath [2000] to assist you in your advice to the parents as to the legality of the
union.
Question 3 This problem question requires a good grasp of how s.12 MCA works and
the case law which accompanies it. The issues for you to look at include the extent of
Annie’s parents’ insistence that Annie marry Bertie. Would the threat to cut her out
of her father’s will amount to duress? Look at Hirani v Hirani [1982], Szechter v Szechter
[1971] and Singh v Singh [1971]. If you go through a religious ceremony out of obedience
to your parents’ wishes and in deference to your religious faith, then the petition is
likely to be refused. It is important to ensure that this is not a ‘forced marriage’ (see
Forced Marriage Act 2007).
Then you must consider the status of a wilful refusal to consummate a marriage.
Remember it is Annie and Bertie who agree not to have sexual intercourse. In the first
instance Annie would have to show that Bertie’s wilful refusal to consummate the
wedding is her reason for petitioning the court. This is unlikely to succeed, because
while there is evidence that she has just excuse for her refusal to consummate,
whether it be for religious reasons or by agreement, the statute makes it clear that the
respondent must have wilfully refused to consummate. Annie is the petitioner and
Bertie is the respondent and he does not want the marriage annulled. As Bertie still
has not arranged the religious ceremony, she could argue that this is wilful refusal to
consummate. This may be successful under Kaur v Singh [1972]. Alternatively, Annie is
better off petitioning on the basis that she is incapable of consummating the marriage.
See Baxter v Baxter [1948]. Under this ground a marriage will be voidable if it has not
been consummated owing to the incapacity of either party. Annie could argue that
her incapacity is psychological, as in Singh v Singh [1971], since she has a ‘psychological
abhorrence’ to Bertie. This could amount to ‘invincible repugnance’ under G v G [1924].
The fact that she can have sexual intercourse with other men will not deny her under
this ground. Bertie could respond to the petition under s.13(1) and say there is a bar
Family Law 2 Marriage and civil partnerships page 29
under approbation. As Annie said she was going to ‘make the best of her marriage’
then Bertie may suggest Annie conducted herself in relation to Bertie so as to lead him
to believe that she would not try to annul the marriage. Of course, divorce is forbidden
to this religious group but should Bertie want grounds, then Annie’s adultery will
prove useful.
Question 4 It is important to realise that, given the relatively recent registration of
civil partnerships (it was not legally possible until December 2005) in this jurisdiction,
there is very little case law on this subject and so you will have to ensure you have
sufficient grasp of the statutory provisions.
Should Brian wish to seek an annulment of his civil partnership he must utilise ss.49–
50 CPA. Under s.49(iii) it could be argued that the registration of the partnership failed
to comply with the requisite formalities because a church is a place of worship and in a
civil ceremony you are not permitted to sing religious songs (‘The Lord is my shepherd’
is a popular hymn). There is also a question as to whether Brian and Maurice were ‘free’
to register their partnership in the first place? Brian lived with Victor but this places no
bar to registration. However under s.49(iv) it would appear that Maurice was already
married to Cara and so he was not legally allowed to register a civil partnership. The
fact that there has been no consummation of the partnership is irrelevant for these
purposes as this is not a ground, unlike in the MCA, for seeking an annulment. The final
concern which will invalidate both Brian’s partnership with Maurice and indeed his
marriage to Cara was that Maurice was born Monica and there is no suggestion that
he has obtained any form of gender recognition certificate under the GRA. This means
Maurice (being legally a woman) could NOT marry Cara (Corbett v Corbett) and without
any gender recognition certificate Maurice is unable to register a civil partnership with
Brian because the parties are not of the same sex for these purposes (see s.49(v) CPA).
page 30 University of London External System
Reflect and review
Look through the points listed below:
Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on
Need to
revise first
Need to
study again
I can explain the relevant distinctions between void
and voidable marriages.

¢

¢

¢
I can list and give the principal details of the law
relating to each of the particular grounds for
invalidating a marriage.


¢


¢


¢
I can describe the powers of the court in relation to
property distribution and financial provision and the
rules relating to the status of children born into void
or voidable marriages.



¢



¢



¢
I can acknowledge the similarities and differences
between the formation of a marriage and a civil
partnership.


¢


¢


¢
If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
2.1 The distinction between void and voidable marriages ¢ ¢
2.2 The grounds for a void marriage ¢ ¢
2.3 Voidable marriages ¢ ¢
2.4 Effects of a nullity decree ¢ ¢
2.5 Civil partnerships ¢ ¢
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
3.1 The divorce process under the MCA 1973 . . . . . . . . . . . . . . . . .33
3.2 The background to the modern law . . . . . . . . . . . . . . . . . . . .34
3.3 The divorce ‘facts’ under the MCA 1973 . . . . . . . . . . . . . . . . . .36
3.4 Conciliation and reconciliation . . . . . . . . . . . . . . . . . . . . . .43
3.5 Dissolution of civil partnerships . . . . . . . . . . . . . . . . . . . . . .47
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49
3 Divorce and dissolution
page 32 University of London External System
Introduction
This chapter analyses the development of divorce law, the modern ‘ground’ of
irretrievable breakdown of marriage and the five ‘facts’ which the law recognises as
proving the existence of irretrievable breakdown. A petition for divorce will often be
combined with applications for financial provision for the spouse and the children and
with orders relating to the children of the marriage. These matters – so often more
crucial than the award of the divorce decree itself – will be discussed in later chapters.
Although the greater part of this chapter will be taken up with a discussion of the facts
of divorce and judicial interpretation of these facts, it should be remembered that
nowadays very few petitions are defended (less than three per cent of all divorces) and
that consequently – since the 1970s – few divorce cases have been reported. Further,
the law of divorce has been dominated by the ‘special procedure’, introduced in 1973,
which dispenses with a court hearing in all undefended cases.
Dissatisfaction with the law of divorce culminated in a number of proposals for
reform, which are discussed below. The Family Law Act 1996, after a protracted and
contentious passage through Parliament, finally received the Royal Assent in July 1996.
The major provisions of this Act are discussed below.
Despite this, the law on divorce remains in a state of despondency. On 19 June 1999,
the Lord Chancellor announced that, in the light of the unsuccessful piloting of
the new divorce legislation in s.8 of the Family Law Act 1996 (as discussed below),
the implementation of the new divorce provisions was to be delayed. This delay
continues! In order to understand fully the movement for reform, and to evaluate
the advantages and disadvantages of the reforms, it remains necessary to study the
current law and to appreciate its defects as well as looking at what could have been.
For this reason, much of this chapter is concerned with an analysis of the law under
the Matrimonial Causes Act 1973 (MCA). Despite significant attempts at reform, this is
the current law.
Like marriage, it is possible to end a civil partnership. Rather than an order for divorce
this is termed a dissolution order and is granted on the basis of much of the same
criteria as the divorce with one notable exception, which we will discuss later.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
u explain the principles underlying the law of divorce, both under the MCA and
the FLA
u describe the grounds for divorce under the MCA and the relationship between
the grounds for divorce and the facts which raise the presumption of the ground
u state the actual requirements of each fact: each fact comprises more than one
element and you should be able to discuss every aspect of each fact as revealed
by the case law
u discuss whether the issue of fault should remain part of the law of divorce and
the reasons for this
u outline the perceived defects in the current law and the need for reform
u discuss whether the suggestions for reform would have answered the criticisms
levelled at the current law
u say whether the suggested law reform places too much control in the hands of
the parties to the divorce, as opposed to the court
u give an opinion on whether the reformed law would have, in fact, made divorce
‘easier’ or ‘more difficult’, and whether this is desirable
u assess whether the reformed law would have encouraged or discouraged
divorce
u identify how a civil partnership can be dissolved and any apparent differences
between this law and the law of divorce.
Family Law 3 Divorce and dissolution page 33
Essential reading
¢ Herring, Chapter 3, pp.93-138.
¢ Masson et al., Chapter 10, pp.277-316 and Chapter 11, pp.317-324.
¢ Probert, Chapter 4, pp.59–76.
¢ Standley, Chapter 7, pp.135-158.
Useful further reading
¢ Masson, S. ‘Marriage, divorce and the courts’ [2002] Fam Law 900.
¢ Day Sclater, S. and C. Piper (eds) Undercurrents of Divorce. (Aldershot: Ashgate
1999) [ISBN 9781840147339].
¢ Diduck, Chapter 3, pp. 44–70.
¢ Eekelaar, J. ‘Family law – keeping us ‘on message’’ [1999] CFLQ 387.
¢ Eekelaar, J., M. Maclean and S. Beinart Family Lawyers: the divorce work of
solicitors. (Oxford: Hart Publishing, 2000) [ISBN 9781841131856].
¢ Kay, ‘Whose divorce is it anyway? – the human rights aspect’ [2004] Fam Law 892.
¢ Reece, H. Divorcing Responsibly. (Oxford: Hart, 2003) [ISBN 9781841132150].
¢ Walker, J. [1991] ‘Divorce – Whose Fault? Is the Law Commission Getting it Right?’
Fam Law 234.
3.1 The divorce process under the MCA 1973
Although the Family law syllabus expressly states that a knowledge of divorce
procedure is not required, a knowledge of divorce is incomplete without some
understanding of these procedures.
The ‘special procedure’ (which, as Ormrod LJ pointed out in Day v Day [1980] Fam 29,
is the ordinary procedure in the majority of cases) requires the petitioner to lodge a
completed standard form of petition, together with an affidavit verifying the truth of
the answers to a standard form questionnaire. These documents are then considered
by a District Judge (formerly called a Registrar) in private and, if the District Judge is
satisfied that the petitioner has sufficiently proved the contents of the petition and
is entitled to a decree, he or she will make and file a certificate to that effect. The
presence of the parties and their representatives is unnecessary. There is no machinery
for investigating the truth of the allegations unless there are circumstances which give
rise to suspicion. District Judges have, furthermore, been urged not to take an overly
meticulous or overly technical approach. See ex parte Byers [1985] FLR 695.
The decree is then pronounced in open court, either by a Circuit Judge or a District
Judge.
A divorce petitioner must present the petition to the court, but this cannot be done
until the marriage has lasted for one year. The petition must allege that the marriage
has broken down irretrievably and the petitioner must satisfy the court of at least
one of the five facts evidencing breakdown. This is vital. See from Butterworth [1997]
2 FLR 336 that if a petition is defended, the judge still has an important role to play in
applying the law and should not grant a decree merely because the petitioner states
that the marriage has broken down. One of the five facts must be proved before a
decree can be granted.
If the petitioner proves such a fact then the court will grant the decree unless the
respondent satisfies the court that the marriage has not irretrievably broken down, or,
in the case of a petition based on the five-year living apart fact, that the decree should
be refused because it would produce hardship (as discussed later in this chapter).
Thereafter, matters of financial provision and with respect to any children will be
decided. In the first instance, a divorce decree will be a decree ‘nisi’

and the marriage

Nisi (Latin) = ‘unless’,
implying that the decree
will be made absolute (after
an interval) unless reason is
given why it should not be.
page 34 University of London External System
will not be dissolved until the court grants the decree absolute. In general, the
petitioner applies for the decree absolute six weeks after the decree nisi. The
respondent may also apply, but it is up to the discretion of the court whether the
decree shall be granted. See Smith v Smith [1990] 1 FLR 438.
Until the decree absolute, the marriage remains in being. See Dackham v Dackham
[1987] 2 FLR 358. However, once the decree is made absolute, the marriage is dissolved.
See Callaghan v Hanson-Fox [1991] 2 FLR 519.
The pervasiveness of the special procedure and the cost of litigation has meant that
few divorces are defended and, consequently, that few appeals reach the Court of
Appeal. Accordingly, many of the problems of statutory interpretation which have
been exposed by the extant case law do not, in practice, arise. Nevertheless, divorce
procedure is firmly set within the framework of substantive divorce law. However
informal the process by which a decree is obtained, one of the ‘facts’ laid down in the
MCA must be established.
Summary
Despite moves for reform, the current law on divorce is governed by the Matrimonial
Causes Act 1973. There exists a special procedure for divorce, which speeds up the
process, where the petitioner will lodge a completed standard form of petition with
an affidavit verifying the truth of the statements contained within the petition. You
cannot petition for divorce until one year has passed since the marriage. Once the
petitioner proves that the marriage has broken down irretrievably a decree nisi is
granted. The marriage remains in place until the decree absolute is granted, at least six
weeks after the nisi is issued. The marriage is then formally brought to an end.
3.2 The background to the modern law
It is advisable for all students to have some knowledge of the history of the law of
divorce (see Masson et al., pp.265–97). In brief, no judicial decree of divorce could be
obtained before the enactment of the Matrimonial Causes Act 1857. The ecclesiastical
courts possessed the jurisdiction to grant decrees of divorce ‘a mensa et thoro’,

but
this amounted to no more than a decree of judicial separation and did not entitle the
parties to marry again. The only way to obtain a divorce which conferred the power to
remarry was to procure a private Act of Parliament. The first such Act was the Duke of
Norfolk’s Act in 1700; between 1700 and 1856, when judicial divorce superseded
Parliamentary divorce, 317 private Acts were obtained. They were expensive to procure
and their passage was often accompanied by much unwanted publicity. Very few
wives, moreover, ever had private Acts of Parliament passed in their favour.
The Matrimonial Causes Act 1857 set up a court that was empowered to grant
judicial decrees of divorce. From the beginning, divorce was based on the idea of
matrimonial fault and men and women were treated differently in the application of
the matrimonial fault doctrine to their relationships. Whereas a wife’s adultery was
sufficient to entitle her husband to a decree, adultery by the husband was not by itself
a ground of divorce for the wife unless she could also prove some other misconduct
on his part.
3.2.1 Divorce reform
In the twentieth century, formal equality was established in the application of the
matrimonial offence doctrine: the Matrimonial Causes Act 1923 provided that wives as
well as husbands could sue solely on the basis of their partner’s infidelity. The grounds
for obtaining a divorce were also extended; the Matrimonial Causes Act 1937 added the
grounds of cruelty, desertion in excess of three years and incurable insanity (the last
of these grounds being significant in that it constituted the first example of ‘no fault’
divorce known to English law).

A kind of divorce which does
not dissolve the marriage
bond, but merely authorizes
a separate life of the husband
and wife.
Family Law 3 Divorce and dissolution page 35
In the post-war era some dissatisfaction was expressed with the matrimonial fault
doctrine. It was by no means self-evident that commission of a matrimonial offence
provided the most reliable evidence of the breakdown of marriage. At the time of
the debates leading up to the enactment of the Divorce Reform Act 1969, it was
often noted that committing a matrimonial offence was often a symptom, and not
the cause, of a failed marriage. Moreover, the court procedure required to prove the
existence of fault often exacerbated the bitterness of the marriage breakdown itself.
A Royal Commission, reporting in 1956, was divided as to what the proper basis of
divorce should be. A group set up by the Archbishop of Canterbury in 1967 produced
an influential report, ‘Putting Asunder’, which castigated the matrimonial offence as
being ‘quite simply, inept’. The report recommended that the sole ground of divorce
should be ‘breakdown of marriage’, to be ascertained by an inquisitorial, rather than
an adversarial, process. This report was referred to the Law Commission, which then
produced its own report on divorce, ‘The Field of Choice’. The Commission accepted
that divorce should be based upon the idea of ‘breakdown of marriage’, but felt
that, as formulated by the Archbishop of Canterbury’s group, it was not sufficiently
justiciable. Furthermore, to order an inquiry into all alleged cases of breakdown of
marriage might be too costly and time-consuming and could reopen the old wounds
of a failed marriage. The Law Commission stated that the objectives of good divorce
law were:
1 to buttress, rather than to undermine, the stability of marriage; and
2 when, regrettably, a marriage has irretrievably broken down, to enable the empty
legal shell to be destroyed with the maximum fairness, and the minimum
bitterness, distress and humiliation.
The Commission proposed a divorce law, which was enacted by the Divorce Reform
Act 1969, and which was widely regarded as a compromise. On the one hand, the sole
ground of divorce is (as the Archbishop of Canterbury’s group had recommended)
irretrievable breakdown of marriage. On the other hand, irretrievable breakdown
cannot be alleged generally and must be proved by establishing the existence of one
or more of five facts:
1. adultery, plus intolerability
2. behaviour with which it is unreasonable to expect the petitioner to live
3. desertion for a period of at least two years
4. two years’ separation where the respondent consents to the decree being granted
5. five years’ separation where he or she does not consent.
Appellate decisions, as we will see, have focused on the application of these facts
to the widely varying circumstances of marriage breakdown. The provisions of the
Divorce Reform Act 1969 were consolidated in the Matrimonial Causes Act 1973.
3.2.2 The Matrimonial Causes Act 1973
Bar on petitions within one year of marriage under the MCA 1973
Between 1937 and 1984, no petition for divorce could be presented before three years
had passed from the date of the marriage, unless it could be shown that the petitioner
would face exceptional hardship or the respondent was of exceptional depravity. The
Law Commission considered the operation of this restriction in 1982 and concluded
that it merely delayed, rather than deterred, inappropriate divorce and it encouraged
distressing and humiliating allegations. Nonetheless, it was thought desirable to
retain some restriction on the availability of divorce early in marriage. Accordingly,
s.3(1) MCA, introduced in 1984, provides that no petition for divorce shall be presented
to the court before the expiration of the period of one year from the date of the
marriage. Section 3(2) MCA 1973 specifically provides that the bar does not prevent the
presentation of a petition based on matters which occurred before the expiration of
that period.
page 36 University of London External System
The ground for divorce under the MCA 1973
The sole ground for divorce in English law was formulated in s.1(1) MCA, which
provides:
‘A petition for divorce may be presented to the court by either party to a marriage on the
ground that the marriage has broken down irretrievably.’
This provision was misleading, however, for two reasons.
1. The court may not dissolve a marriage, no matter how clear it is that it has broken
down irretrievably, unless the petitioner satisfies the court of one or more of five
‘facts’ as evidence of this breakdown. Three of these facts are reminiscent of the
fault grounds of adultery, cruelty and desertion.
2. The ground (being irretrievable breakdown), coupled with s.1(3) which directs the
court to inquire (so far as it reasonably can) into the facts alleged by the petitioner
and the facts alleged by the respondent, suggests that the court investigates
whether there has been such a breakdown. In practice, once a fact has been proven
a decree is almost inevitable, both because of the near-universal use of the ‘special
procedure’ (see Masson et al., 2003) and because of s.1(4), which puts the burden
on proving there has not been irretrievable breakdown on the respondent.
Activity 3.1
Look at the cases of Buffery v Buffery [1988] 2 FLR 365 and Richards v Richards [1972] 1
WLR 1073. What was the justification for these decisions?
Activity 3.2
What was the reason for the decision in the case Le Marchant v Le Marchant [1977] 1
WLR 559?
3.3 The divorce ‘facts’ under the MCA 1973
3.3.1 Adultery
‘The respondent has committed adultery and the petitioner finds it intolerable to live with
the respondent.’ (MCA s.1(2)(a))
Note the following features of the adultery fact.
u The respondent must be the party who has committed adultery; the petitioner
cannot found a petition upon his or her own adultery.
u Adultery consists of voluntary or consensual sexual intercourse between a married
person and a person (whether married or not) of the opposite sex, not being the
other’s spouse. Full and complete intercourse is not a prerequisite of adultery; it is
sufficient if the female sexual organ has been penetrated.
u There is no necessary link between adultery and intolerability in s.1(2)(a). After
some judicial wavering, the Court of Appeal established in Cleary v Cleary [1974] 1
WLR 73 that the ‘fact’ is established if the petitioner genuinely finds it intolerable to
live with the respondent, even if the adultery has not played any significant part in
the breakdown of the marriage. In other words, the Court refused to construe the
section as if it required proof that:
‘the respondent has committed adultery by reason of which the petitioner finds it
intolerable to live with the respondent.’
Family Law 3 Divorce and dissolution page 37
Activity 3.3
Look at the case of Roper v Roper [1972] 1 WLR 1314, 1317 for a discussion of the
bizarre results that the construction may lead to. What is the justification for such a
decision?
u The test of intolerability in s.1(2)(a) is subjective. The paragraph requires that
the petitioner finds it intolerable to live with the respondent, not whether it is
unreasonable for the petitioner to live with the respondent. In Cleary Lord Denning,
while recognising that the paragraph was couched in subjective terms, stated that:
‘a judge in such cases as these should not accept the man’s bare assertion that he finds
it intolerable. He should inquire what conduct on the part of the wife had made it
intolerable. It may be her previous adultery. It may be something else. But whatever it is,
the judge must be satisfied that the husband finds it intolerable to live with her.’
u Living together may bar an adultery petition. MCA s.2(1) provides that, if the parties
have lived with each other for a period or periods exceeding six months after it
became known to the petitioner that the respondent had committed adultery, the
petitioner cannot rely on that act of adultery. However, s.2(2) states that a period
or periods not exceeding six months during which the parties have lived together
after it became known to the petitioner that the respondent had committed
adultery shall be disregarded in determining whether the petitioner finds it
intolerable to live with the respondent.
3.3.2 Behaviour
‘The respondent has behaved in such a way that the petitioner cannot reasonably be
expected to live with the respondent.’ (MCA s.1(2)(b))
This ‘fact’, which is the basis of most petitions for divorce, requires the petitioner to
prove two distinct issues.
u That the respondent had behaved in a certain way.
u On the basis of such facts as are proved about the respondent’s behaviour, that
the petitioner could not reasonably be expected to live with him or her. It is to
be noted that it is not the behaviour that needs to be unreasonable, but the
expectation of cohabitation. See Bannister v Bannister [1980] 10 Fam Law 240.
A number of issues have concerned the courts in the context of this ‘fact’. In particular:
what is meant by ‘behaviour’, whether the petitioner can be expected to live with the
respondent and how the behaviour fact interrelates with the adultery and desertion
facts.
What is ‘behaviour’?
Several attempts have been made to define behaviour but the matter has remained
largely unresolved. In Katz v Katz [1972] 1 WLR 955, for example, the court considered
whether the activities of the respondent husband, who was mentally disturbed and
which had driven the wife to attempt suicide, could be categorised as behaviour. The
wife was granted a decree, the court indicating that behaviour must be ‘something
more than a mere state of affairs’. It had to be ‘action or conduct by the one which
affects the other’. In this context, the discussion of the ‘human vegetable’ respondent
and the difficulties faced by the petitioner in Thurlow v Thurlow [1976] Fam 32 by Rees
J should be considered. Behaviour can be positive or negative (Thurlow v Thurlow) and
need not be morally culpable. See White v White [1983] Fam 54.
It appears that a petitioner who is able to point to positive conduct may be in a better
position than a petitioner who seeks to rely on inactivity. See Carter Fea v Carter Fea
[1987] Fam Law 130.
Whether behaviour unconnected with the marriage is sufficient grounds for a petition
is questionable. See Katz v Katz.
page 38 University of London External System
Activity 3.4
Should the law permit divorce under this section where a respondent is quite
incapable of ‘behaving’?
Can the petitioner be expected to live with the respondent?
This is judged objectively. (Note, however, the unusual suggestion of Cazalet J in Birch
v Birch [1992] 1 FLR 564 that the test is subjective.) The question is can the petitioner
‘reasonably be expected’ to live with the respondent, not ‘has the respondent behaved
reasonably’. However, the court considers the particular parties before it, not ‘reasonable
spouses’ (as perceived by the law). See Pheasant v Pheasant [1972] Fam 202.
This suggests that it may be reasonable to expect parties with similar defects to live with
each other. See Ash v Ash [1972] Fam 135.
It also takes into account particular susceptibilities of individual spouses (see Archard
v Archard CM 109). The test that has been favoured by the courts in the determination
of whether the parties should reasonably be expected to live with each other is that of
Dunn J in Livingstone Stallard v Livingstone Stallard [1974] Fam 47, 54. This was endorsed by
the Court of Appeal in O’Neill v O’Neill [1975] 1 WLR 1118 and Buffery v Buffery, formulated in
terms of a direction to a jury:
‘Would any right-thinking person come to the conclusion that this husband has behaved in
such a way that his wife cannot reasonably be expected to live with him, taking into account
the whole of the circumstances and the characters and personalities of the parties?’
This test involves the court taking a view about the obligations and standards of
behaviour in marriage. See, for example, Thurlow v Thurlow for the obligations of a
petitioner to an ill respondent.
Activity 3.5
To what extent should the courts consider ‘marital obligations’ when deciding
whether to grant a divorce?
How does the behaviour fact interrelate with the adultery and desertion facts?
A petitioner cannot rely on the respondent’s desertion, whether or not it has exceeded
the two years required by the desertion fact, as the basis of a behaviour petition. See
Stringfellow v Stringfellow [1976] 1 WLR 645 and Dowden v Dowden (1978) Fam Law 106.
It is not clear from Stringfellow v Stringfellow whether adultery can constitute behaviour
for the purposes of a petition based on the behaviour fact, although the wife’s behaviour
with another man falling short of adultery has been held to constitute behaviour; see
Wachtel v Wachtel (1972) The Times, 1 August.
The fact that the petitioner cannot reasonably be expected to live with the respondent
does not mean that the petitioner must be living apart from the respondent at the time
of the petition. In Bradley v Bradley [1973] 1 WLR 1291 the husband had made a knife attack
on one of the children but the wife was still living with him and their seven children at
the time she presented her petition. The Court of Appeal held that she was not precluded
from petitioning by the fact that she continued to live in the same household as her
husband. As Lord Denning remarked:
‘it is not reasonable to expect her to live there, but albeit unreasonable, she has no option
but to be there’.
Section 2(3) provides that:
‘Where the petitioner alleges that the respondent has behaved in such a way that the
petitioner cannot reasonably be expected to live with him, but the parties to the marriage
have lived with each other for a period or periods after the date of the occurrence of the
final incident relied on by the petitioner and held by the court to support his allegations,
that fact shall be disregarded in determining for the purposes of s.1(2)(b) whether the
petitioner cannot reasonably be expected to live with the respondent if the length of that
period or those periods together was six months or less.’
Family Law 3 Divorce and dissolution page 39
Note that if the parties have lived together for more than six months the court is not
bound to dismiss the petition; it has a discretion whether or not to do so, which may
be exercised in the petitioner’s favour, as in Bradley v Bradley.
The drafting of s.2(3) is not entirely clear. It requires six months to be calculated from
the ‘occurrence of the final incident relied on by the petitioner’. We have already seen
that in some cases, for example Thurlow v Thurlow, what is complained of is not an
incident but a continuing condition suffered by the respondent. In such cases it may
be hard to identify a point from which the six-month period should run.
3.3.3 Desertion
‘The respondent has deserted the petitioner for a continuous period of two years
immediately preceding the presentation of the petition’ (MCA s.1(2)(e)).
Desertion is the least significant of the divorce facts in terms of the annual number
of petitions. Adultery and behaviour provide a quicker remedy for those looking for
an immediate divorce, but paragraph (d) (consensual two years’ separation) is the
fact most commonly relied upon by those unable or unwilling to allege adultery or
behaviour. In practice, it is only necessary to rely on the fact of desertion when the
couple have lived apart for two years and the respondent is unwilling to consent to a
divorce or where the petitioner wishes to avoid the five-year separation fact because it
may be opposed on the grounds of hardship.
The principal elements of desertion are as follows.
u There must be a separation of one spouse from the other. This is known as the
‘factum’ of desertion. The separation must be of the households and separation
may be held to exist even though the parties are living under the same roof.
u There must be an intention on the part of the deserting spouse of bringing
cohabitation permanently to an end. This is known as the animus deserendi.

In
essence, it means that the party in desertion must have formed the intention to
live permanently apart from the other spouse. If that party is incapable of forming
the intention (for example, by reason of mental illness), then the petition will fail.
See Perry v Perry [1964] 1 WLR 91.
The impact of supervening insanity upon the law of desertion has been mitigated by
MCA s.2(4) which provides that:
‘the court may treat a period of desertion as having continued at a time when the
deserting party was incapable of continuing the necessary intention if the evidence
before the court is such that, had that party not been so incapable, the court would have
inferred that his desertion continued at that time.’
Note that the section is concerned with supervening insanity; it does not affect a case
such as Perry v Perry where mental illness prevented the intention to desert from
arising.
u The separation must be without good cause. Desertion will not arise if there is a
good cause for the separation. Necessity, the commission of a matrimonial offence
by the petitioner or the physical or mental illness of either party may amount to
good cause for the respondent living apart from the petitioner: G v G [1964] P 133.
However, this defence to desertion will not avail the respondent if he or she has
indicated that he or she will never return to the petitioner even if a cure is found for
the illness.
A different type of good cause was considered by the Court of Appeal in Quoraishi v
Quoraishi [1985] FLR 780. The parties were married in Bangladesh under Islamic law. The
husband was permitted under Bangladeshi law to take a second wife. The wife firmly
opposed the husband taking another wife. Nevertheless, the husband contracted a
second marriage by proxy. The first wife left the husband. When the latter petitioned
for divorce on the ground of the first wife’s desertion, the Court of Appeal held that
the husband’s second marriage constituted good cause for his first wife to leave him.

Animus deserendi (Latin) =
intention to desert.
page 40 University of London External System
u The separation must occur without the consent of the other spouse. Consensual
separation cannot amount to desertion. Consent to separation may be withdrawn
at any time but the burden of proof that consent has been withdrawn rests upon
the party alleging it. See Fraser v Fraser [1969] 1 WLR 1787.
u Offer to return: desertion is an inchoate offence, incomplete until legal action
has commenced. It can be terminated at any time by the party in desertion,
demonstrating that his or her intention to desert has been superseded by making
an offer to return.
u Constructive desertion: before the Divorce Reform Act 1969 the courts had evolved
the doctrine of constructive desertion, whereby a party whose behaviour was so
unbearable that the other party left home is held guilty of constructive desertion.
The extent to which the doctrine of constructive desertion has survived the
enactment of the Divorce Reform Act is unclear. Most forms of expulsive conduct
will now constitute behaviour within s.1(2)(b). Where, however, one spouse orders
the other to leave and the other complies, it is possible that the case may still be
pleaded as one of constructive desertion. See Morgan v Morgan [1973] 117 SJ 223.
u The desertion must have elapsed for a continuous period of two years immediately
preceding the presentation of the petition. However, s.2(5) provides that, in
deciding this issue:
‘no account shall be taken of any one period (not exceeding six months) or of any two or
more periods (not exceeding six months in all) during which the parties resumed living
with each other, but no period during which the parties lived with each other shall count
as the period of desertion.’
Nonetheless, it was still necessary to show an aggregate of two years’ desertion and
any period or periods of resumed cohabitation is deducted.
Activity 3.6
Consider the case of Le Brocq v Le Brocq [1964] 1 WLR 1085. What is the basis for this
decision?
3.3.4 Living apart for two years
‘The parties to the marriage have lived apart for a continuous period of at least two years
immediately preceding the presentation of the petition and the respondent consents to a
decree being granted’ (MCA s.1(2)(d))
This was the first of the so-called ‘no fault’ divorce facts. Notice the following points
about this separation ground.
u The use of the verb ‘consent’: the original draft of the Divorce Reform Bill stated
that ‘the respondent does not object to a divorce’. The present wording requires
positive consent on the part of the respondent. Rules of the Court prescribe how
consent is to be obtained and the information that the respondent must be given
to enable him or her to reach his or her decision (see FPR 1991, Form M5, paragraph
5). A respondent may also consent conditionally (for example, on condition that he
does not have to pay the costs of the petition).
u Living apart involves both a physical and a mental element. Insofar as the former is
concerned, MCA s.2(6) provides a definition of living apart:
‘a husband and wife shall be treated as living apart unless they are living with each other in
the same household.’
This means that a husband and wife will be regarded as living apart, even if they live
under the one roof, unless it can be said they are living in the same household. The cases
indicate that the courts ask whether there is any community of life between the parties.
This can be made out, even if they are on the worst of terms, if they are sharing any form
of domestic life.
Family Law 3 Divorce and dissolution page 41
Activity 3.7
Compare the cases of Mouncer v Mouncer [1972] 1 WLR 321 and Fuller v Fuller [1973] 1
WLR 730. What valid distinction can be drawn between these two cases?
In order to fulfil the required mental element, any separation must be accompanied
by a recognition on the part of at least one of the parties that the marriage is at an end.
Until that time, the parties may be apart, but they are not ‘living apart’. See Santos v
Santos [1972] Fam 247. This intention need not be communicated to the other party.
MCA s.10(1) provides that:
‘the court may, on an application made by the respondent at any time before the
decree is made absolute, rescind the decree if it is satisfied that the petitioner misled
the respondent (whether intentionally or unintentionally) about any matter which the
respondent took into account in deciding to give his consent.’
The bar is discretionary; the court is not bound to rescind the decree if deception has
occurred. The court will ascertain whether this respondent was in fact misled, not
whether a reasonable respondent would have been deceived.
3.3.5 Living apart for five years
‘The parties to the marriage have lived apart for a continuous period of at least five years
immediately preceding the presentation of the petition’ (MCA s.1(2)(e)).
As with s.1(2)d this ‘fact’ requires consideration of whether the requisite five years’
physical and mental separation had been proven.
The differences between the living apart ‘facts’
There are two differences between the living apart facts:
u Where a decree is based on the two-year fact, the respondent must consent to the
decree being granted.
u Where a decree is founded solely on five years of living apart, the court may
withhold a decree in certain circumstances if it is satisfied that the dissolution of
the marriage would cause grave financial or other hardship to the respondent. This
bar, contained in s.5 MCA, was introduced essentially to protect the ‘innocent’ wife,
but restrictive drafting and judicial interpretation of the provision has made it a
sparingly used provision. Section 5 provides that the court may dismiss a petition
based solely on the five-year living apart fact if two conditions are met. They are:
u that dissolution will result in ‘grave financial or other hardship to the
respondent’, which is defined as including the loss of the chance of acquiring
any benefit which the respondent might acquire if the marriage were not
dissolved
u ‘that it would in all the circumstances be wrong to dissolve the marriage’.
This ‘hardship’ bar remains relevant under the Family Law Act 1996, where it will
operate to deny a divorce where hardship is established.
The following points have emerged from the case law on s.5 MCA.
u In considering financial hardship, for example loss of a pension upon divorce, the
court will consider whether alternative financial provision can be made for the
respondent. See Parker v Parker [1972] Fam 116 where the financial hardship which
would be incurred to the respondent wife by the loss of her pension entitlement
on divorce could be offset by the husband purchasing a deferred annuity or
insurance policy for the wife’s benefit. See also Le Marchant v Le Marchant [1977] 1
WLR 559.
u The court will weigh up any financial hardship arising upon divorce against the
public policy of dissolving a marriage that has clearly broken down. See Mathias v
Mathias [1972] Fam 287.
page 42 University of London External System
u Grave financial hardship may be offset by a consideration of social security
entitlements available to the respondent. See Reiterbund v Reiterbund [1975] Fam
99.
u The most commonly pleaded ‘grave other hardship’ (i.e. non-financial) has been a
religious objection to the granting of a divorce decree. There is no reported case
in which a divorce has been refused on account of such an objection. See Rukat v
Rukat [1975] Fam 63, Banik v Banik [1973] 1 WLR 860 and Banik v Banik (No.2) [1973] 117
SI 874.
Non-financial hardship of a non-religious nature was considered in Lee v Lee [1973] 616,
appeal allowed [1974] Fam Law 48.
u The hardship must be very important or very serious and it must result from
the divorce, not from the fact the marriage has broken down. See Reiterbund v
Reiterbund, but compare Jackson v Jackson [1993] Fam Law 675 in which a low-
income pensioner unsuccessfully attempted to rely on s.5.
See also Archer [1999] 1 FLR 327 where the Court of Appeal upheld the decision that the
loss to a wife of an income under the husband’s pension scheme of about £11,000 p.a.,
were he to predecease her, was not ‘grave’ in the light of the wife’s overall assets of
about £500,000. Even though the husband, when he retired, would no longer be able
to afford to make maintenance payments to the wife, it would not be unusual for a
former spouse, on the hypothesis that the other former spouse had died, to use capital
to support herself in her declining years.
u In considering whether it would be wrong in all the circumstances to dissolve the
marriage, the court is directed to a number of matters, including the conduct of
the parties to the marriage. See Brickell v Brickell [1974] Fam 31.
They may also consider the interests of the parties to the marriage, the interests of any
children and of any other persons concerned.
Protection for respondents applying to both the ‘living apart’ facts
Sections 10(2) and 10(3) apply where a divorce is sought under either of the separation
grounds. A respondent could apply to the court after the granting of a decree nisi
for consideration of his or her financial position after divorce. In such a case the
court must be satisfied that the financial provision made by the petitioner for the
respondent is reasonable and fair or the best that can be made in the circumstances.
The provision was enacted when the courts’ powers with respect to financial provision
on divorce were less extensive than they are now. The provision is now rarely invoked,
but may be useful in particular circumstances. See Garcia v Garcia [1992] 1 FLR 256.
Summary
The modern law of divorce is to be found in the Matrimonial Causes Act 1973. No
petition for divorce can be presented to the court within one year of marriage. The
sole ground for divorce is ‘irretrievable breakdown’ and to establish this the petitioner
must prove one of the five facts. They must show that: there has been adultery by the
respondent; the respondent has behaved in such a way that they cannot be reasonably
be expected to live with the respondent; they have been deserted by the respondent;
they have been living apart from the respondent for a continuous period of two years
with consent; or that they have lived apart from the respondent for five years and have
not been able to seek the consent of the respondent. It is only necessary for the
petitioner to prove one of these five facts, but without proof of one of these five facts
there can be no ‘irretrievable breakdown’ and therefore no divorce.
Go to your study pack
and read ‘Men and women
behaving badly: is fault dead
in English law’, by Andrew
Bainham.
This will help you consider
whether ‘fault’ is now dead in
family law.
Family Law 3 Divorce and dissolution page 43
3.4 Conciliation and reconciliation
Among its other objectives, the Divorce Reform Act 1969 signalled an attempt to place
marriage guidance within the framework of divorce and to acquaint solicitors with
the various agencies working in this field. In addition to the provisions contained in
MCA 1973 s.2, s.6 included measures designed to encourage reconciliation. Section 6(1)
provided that a petitioner’s solicitor must file a certificate as to whether he or she had
discussed with the petitioner the possibility of reconciliation and given him or her the
names and addresses of persons qualified to help in this regard. It will be apparent
from the drafting of s.6(1) that its utility is confined to those cases where the petitioner
employs a solicitor. Section 6(2) provides that, if at any stage of the proceedings for
divorce it appears to the court that there is a reasonable possibility of a reconciliation
between the parties to a marriage, the court may adjourn the proceedings for such
period as it thinks fit to enable attempts to be made to effect such a reconciliation.
Court welfare officers can provide assistance in such cases.
These provisions have had little impact on the operation of divorce law, despite their
benevolent intentions. The FLA 1996 incorporates ‘mediation’ into divorce procedure
(see below). The thrust of this Act was to facilitate agreements about the future to be
reached by the parties themselves during the period of ‘reflection and consideration’.
The courts will retain jurisdiction to approve agreements made and to make orders
where mediation has either failed or has been impossible to arrange.
A frequently voiced criticism of modern divorce law is that not only are provisions
for reconciliation ineffective, but there is no recognition of the important distinction
between conciliation and reconciliation. This distinction was articulated most clearly
by the 1974 Finer Committee report on one-parent families (Cmnd 5629) at paragraph
4.288:
‘By “reconciliation” we mean the reuniting of the spouses. By “conciliation” we mean
assisting the parties to deal with the consequences of the established breakdown of their
marriage, whether resulting in a divorce or a separation, by reaching agreements or giving
consent or reducing the area of conflict upon custody, support, access to and education
of the children, financial provision, the disposition of the matrimonial home, lawyer’s fees,
and every other matter arising from the breakdown which calls for a decision on future
arrangements.’
You are not expected to have more than an outline knowledge of conciliation and
reconciliation as it relates to the law under the MCA; if you want to know more, Masson
et al. discuss this extensively. However, the FLA places ‘mediation’ (or conciliation) at
the heart of the divorce process and you are encouraged – at least – to evaluate the
potential benefits, and any disadvantages, which mediation may have produced had
the new divorce process been implemented fully.
Self-assessment question
What is the distinction between reconciliation, conciliation and mediation?
3.4.1 The divorce reform proposals
In 1985 the Report of the Matrimonial Causes Procedure Committee (the Booth
Committee) stated that ‘the bitterness and unhappiness of divorcing couples is
frequently exacerbated and prolonged by the fault element in divorce’ (paragraph
2.10). Nevertheless, although it made many suggestions for improving divorce
procedures, the Committee was not empowered by its mandate to propose
substantive reform.
Comments such as those of the Booth Committee led the Law Commission to review
the substantive law of divorce. In 1988, the Commission published ‘Facing the Future,
a Discussion Paper on the Ground for Divorce’ (Law Com 170), which reviewed divorce
laws in various other jurisdictions and favoured, as the reform option, a ‘process
over time’ whereby a party files a notice of intention to divorce and after a period of
time the divorce will be granted without the need to establish any particular ‘fact’
page 44 University of London External System
(provided that all outstanding matters relating to financial provision and children have
been resolved).
The Discussion Paper was followed in 1990 by ‘Family Law: the Ground for Divorce’
(Law Com 192), which canvassed the discussions generated by the Discussion Paper
and attached a draft bill. In December 1993 the Lord Chancellor issued his response
in ‘Looking to the Future: Mediation and the Ground for Divorce’ and in 1995 issued
‘Looking to the Future: Mediation and the Ground for Divorce: the Government’s
Proposals’.
Activity 3.8
To what extent, if any, should ‘fault’ remain relevant to divorce law?
The Family Law Act 1996: the divorce reform that never was
After this prolonged period of gestation and considerable political opposition, the
Family Law Act 1996 (FLA) received the Royal Assent in July 1996. Parts II and III of the
reformed law were due to come into effect in 1999, and Part IV of the Act, relating to
domestic violence, came into effect in 1997. However, Parts II and III were never fully
implemented for the reasons discussed below. Part I of the FLA (General Principles
underlying Parts II and III) is, confusingly, in force.
Is it worth noting that, whilst Part II of the FLA 1996 was never brought into force, Parts
I and III were for the purposes of divorce. It is useful to consider the contents of Part
II as it provides an indication of what might have been, which helps us to understand
what is and what is not feasible in divorce reform.
Under the unimplemented reforms, irretrievable breakdown of the marriage would
have remained the sole ground for divorce. Part I states the principles of the Act
(which are in force) – namely that the institution of marriage is to be supported and
that parties to a marriage should take all steps ‘practicable’ to save a marriage – but
states that, where the marriage has irretrievably broken down, the marriage should be
ended:
u with the minimum distress to the parties and to the children affected
u with arrangements made in a manner which will promote a good continuing
relationship between the parties and any affected children
u without undue costs being incurred.
Courts are further directed by the Act to ‘remove’ or ‘diminish’ the risk of violence to
the parties to the marriage or affected children.
3.4.2 The procedure under the Family Law Act 1996
Either party, or both, may make a statement of breakdown which is proof of the
breakdown (s.5). The statement must conform to prescribed rules (ss.6 and 12).
Following the making of the statement, a period of reflection and consideration
must pass, that period being nine months following the 14th day of the receipt of
the statement by the court (s.7). The period of reflection and consideration may be
extended by the court, on the application of the other party, or may be stopped if both
of the parties give notice to the court that they require additional time in which to
attempt a reconciliation (s.7). Where there are children of the family under the age of
16, however, the period is extended to 15 months (s.7(11) and (13)).
The procedure to be followed and the time-scale for divorce is accordingly as follows.
Before the court may make a divorce order:

u the parties must have attended an information meeting or meetings
u a statement of marital breakdown must be made to the court. This may not be
made until three months after the information meeting.

Note that a divorce order
was previously known as a
divorce ‘decree’.
Family Law 3 Divorce and dissolution page 45
The statement is served on the other party by the court and, after a period of 14 days,
the period of reflection and consideration begins. This period lasts for nine months,
but is extended by another six months in two cases. First, where one party applies to
the court for time for further reflection and, secondly, where there is a child under the
age of 16 at the date of making the statement. (Note that there can be no extension
where a non-molestation order or occupation order exists.)
Accordingly, the minimum period of time from attending an information meeting to
a divorce order is 54 weeks (or 3 months plus 9 months plus 14 days) and this may be
extended to 80 weeks. No statement may be made before the first anniversary of the
marriage (s.7(6)), although an information meeting may be attended during the first
year of marriage (but this is pointless until 9 months of the marriage has elapsed, since
there is a minimum period of 3 months between attending the information meeting
and making the statement). As a result, the earliest a marriage without children can be
dissolved is after 93 weeks and, where children are involved, the marriage can only be
dissolved after 119 weeks (nearly 2 years and 4 months).
As stated above, where either party or both parties intend to make a statement,
they must attend an information meeting not less than three months before filing
the statement (s.8). Where a statement has been made by only one party, the other
party must attend an information meeting before making any application to the
court regarding children, property or finance (s.8(5)). Regulations have prescribed the
format of the meetings, the qualification of persons permitted to run the meetings
and the objectives being sought through the meetings (s.8(9)). After receiving the
statement of breakdown, the court may direct that each party attends a meeting
as per s.13(1) if the judge thinks that the parties should be given an explanation of
mediation.
Section 9 stipulates the requirements as to the parties’ future arrangements. The court
considering an application for divorce or separation must be provided with either
a court order dealing with financial arrangements or a negotiated agreement or a
declaration by both parties that arrangements have been made or that there are no
arrangements to be made (s.9). Under circumstances where no negotiated agreement
has been reached (defined in Schedule 1, paragraphs 1–4), the court may make an
order for divorce or separation without that agreement.
Where there are children
Under s.11 of the unimplemented 1996 Act, the court may direct that the divorce or
separation order is not to be made if there are children of the family and it appears to
the court that it is likely to be required to exercise its powers under the Children Act
1989.
This would be the case in the following circumstances.
u The applicant has tried but failed to reach an agreement and has made an
application to the court for financial relief and the other party has delayed or
obstructed the application, or that the court is unable to secure the relevant
information from the other party (Schedule 1, paragraph 1).
u The applicant has made all reasonable steps to reach an agreement but that,
through the ill health or disability of the other party, or through injury suffered
by the applicant or a child of the family, agreement has been impossible and is
unlikely to be reached in the foreseeable future (Schedule 1, paragraph 2).
u The requirements of s.9 may be exempted if the other party is unable to be
contacted.
u Where there is an occupation or non-molestation order in force against the other
party, the applicant has tried but failed to reach an agreement (and is unlikely to
be able to do so in the foreseeable future) and it would be detrimental to a child or
the applicant for the court not to grant the order, the court may do so (provided by
paragraph 4 of Schedule 1).
page 46 University of London External System
3.4.3 Substantial hardship
An order for divorce may be prevented on the basis of substantial financial or other
hardship when it would be wrong in all the circumstances to dissolve the marriage
(s.10). This is essentially a re-enactment of s.5 MCA, although the word ‘grave’ in
relation to the hardship was replaced with ‘substantial’. Where there are children
of the family, the court must consider these children and whether or not it should
exercise any of its powers to make orders under the Children Act 1989.
Schedule 2 of the FLA amends the MCA in relation to financial provision (s.15 FLA).
The principal change in the law relates to the making of financial provision orders
following the receipt of a statement of breakdown before the application for divorce
or separation has been made. The current law relating to financial provision, as
amended by the 1996 Act, would have therefore remained relevant and applicable in
the event that the parties are unable to reach an agreed settlement. Schedule 2 not
yet been brought into effect.
3.4.4 The failure of the 1996 Act
The reasons given for the failure to successfully implement these divorce reforms were
‘unsuccessful piloting of information meetings’. This was the essential part of the new
divorce legislation in s.8 FLA.
The research showed that, although those attending valued the provision of
information, the information meetings were not effective in helping most people to
save their marriages as these meetings came too late. The evidence showed that the
meetings tended to incline those who were uncertain about their marriage towards
divorce. The meetings were too inflexible to provide people with information tailored
to their personal needs. In addition, in the great majority of cases, only the person
petitioning for divorce attended the meeting but marriage counselling, conciliatory
divorce and mediation depend for their success on the willing involvement of both
parties.
Concerns did not only relate to information meetings. The complex procedures
in Part II would be likely to lead to significant delay and uncertainty in resolving
arrangements for the future. The government was concerned that this delay would
not be in the best interests of either couples or their children. The Act’s complexity
was likely to cause a great deal of uncertainty over the divorce process, which would
be unhelpful for families at what is always a difficult and emotional time. Part II would
not fulfil the principles of Part I, which focus on saving saveable marriages and, where
they do break down, bringing marriages to an end with the minimum distress to the
parties and children affected.
Lord Irvine said:
‘The government is committed to supporting marriage and to supporting families when
relationships fail, especially when there are children involved. But this very comprehensive
research, together with other recent valuable research in the field, has shown that Part II
of the Family Law Act is not the best way of achieving those aims. The government is not
therefore satisfied that it would be right to proceed with the implementation of Part II and
proposes to ask Parliament to repeal it once a suitable legislative opportunity occurs.’
The final evaluation report on information meetings can be found on the Lord
Chancellor’s web site www.dca.gov.uk.
The Human Rights Act 1998 and divorce law
It has been suggested that although the European Convention of Human Rights
recognises a right to marry it does not necessarily include a right to divorce (Johnston
v Ireland (1986) 9 EHRR 203 ECtHR). The Convention appears to allow the state to
restrict access to divorce, but not unduly restrict access to marriage or remarriage (F
v Switzerland (1987) 10 EHRR 411 ECtHR). It does appear that the divorce law under the
MCA could not be challenged under the Convention. The same would appear to be
true if the FLA 1996 had been fully implemented.
Family Law 3 Divorce and dissolution page 47
Summary
Since 1969 there have been statutory measures to encourage reconciliation. These
were further developed in the Family Law Act 1996 but the crucial part of the Act –
Part II – was never fully implemented. Pilot studies proved that the attempts to force
couples into mediation were at best unhelpful and at worse delayed the inevitable.
The proposed procedure is useful as a device to show us how mediation could have
been used to try and avoid divorce. This may have been especially important where
there were children involved. An order for divorce under the existing law may be
prevented on the grounds of substantial hardship. The Human Rights Act 1998 will
have little impact upon the existing law of divorce. While the convention enshrines a
right to marry, there exists no correlating right to divorce.
3.5 Dissolution of civil partnerships
As with divorce for heterosexual couples it is possible for homosexual couples to end
their civil partnership. This process is called dissolution and is governed by ss.37–64
CPA. Under these provisions the High Court and county courts have the jurisdiction to
grant a dissolution order in the way they had the power to grant a nullity order. The
provisions for dissolution mirror those for divorce and so the applicant must prove
that the partnership has irretrievably broken down. This must be proven under s.44(5)
CPA on the basis of one or more of the following facts: a) unreasonable behaviour,
b) two years separation with consent, c) five years separation and d) desertion for at
least two years. You should note that, unlike divorce, adultery is not one of the facts
for a dissolution order. This does not mean an applicant would not be able to cite their
partner’s unfaithful behaviour as part of the unreasonable behaviour fact but adultery
was omitted from the legislation on the basis that it ‘has a specific meaning within the
context of heterosexual relationships and it would not be possible nor desirable to
read this across to same-sex civil partnerships’. (Women and Equality Unit, 2003).
The process for dissolution mirrors that for divorce in that a one-year time lapse must
take place before dissolution can be sought (s.41 CPA). Dissolution can also be barred
on the same basis as divorce and a separation order under s.56 CPA mirrors that
available for heterosexual married couples. The special procedure can also be used to
hasten the dissolution. There is one final difference in that the terms decree nisi and
decree absolute do not apply to civil partnerships. The equivalent orders are instead
termed conditional order and final order.
Sample examination questions
Question 1 ‘The government’s decision not to implement the reformed divorce law
under the Family Law Act 1996 characterises official uncertainty as to the extent to
which law can and should control the dissolution of family units.’
Discuss. What is your preferred solution to the reform of divorce law?
Question 2 Brenda and Ken aged, respectively, 34 and 30, married in 2002, six
years ago. They have two children, Larry and Simon, now aged six and four. Ken
is an IT specialist who works for an international company. Following the birth of
Larry, Brenda, at Ken’s insistence, gave up her employment as a trainee solicitor. In
2005 Ken had a brief affair with Valerie, which he terminated in December 2005.
Brenda suspected that Ken had been unfaithful, and in September 2005 discovered
a hotel bill which confirmed it. Realising that her marriage was breaking down,
Brenda became depressed and started to drink excessively. Unfortunately, drink
made Brenda aggressive and on two occasions she hit Ken. Ken decided that he was
leaving Brenda, and arranged to travel on a two-year overseas work contract. He
did not consult Brenda. He left home in March 2006.
Brenda wishes to have her marriage dissolved. Advise Brenda as to whether she can
divorce Ken under the Matrimonial Causes Act 1973.
page 48 University of London External System
Advice on answering the questions
Question 1 This essay question requires a good understanding of the present law on
divorce, the Family Law Act 1996 and its failure to reform, a discussion on the extent to
which the law can and should control the dissolution of family units and, finally, your
preferred solution to reforming the present divorce law.
First, it is worth considering in some detail the present law on divorce and what
the criticisms are of it. The Law Commission Report No. 192, 1990 said the law was
confusing and misleading, discriminatory and unjust, it distorts the parties’ bargaining
power, provokes unnecessary hostility and bitterness, it can make things worse for the
children and it does nothing to save the marriage. With such a damning indictment it
is no wonder the law needs reform.
Then consider the Family Law Act 1996. Look at the objectives of divorce law under Part
I and then look at the controversial Part II which was never fully implemented. It tried
to support couples to seek help in an attempt to help them to realise the gravity of
their decision to divorce and to try to help them reconcile if at all possible. You should
have a good grasp of the timetable of mediation suggested. The whole process could
take up to 18 months. It was unpopular in pilot studies for a number of reasons. One
of the most compelling is that any couple who have decided to divorce have probably
engaged in enough thought and discussion about the consequences and there was a
slight feeling of delay for delay’s sake. The decision not to implement was due to high
expectations of mediation and a failed reduction in legal costs. The problem was the
uncertainty of the outcome and there was sufficient delay before announcing that Part
II would not be implemented. This was felt to demonstrate a general reluctance to get
further involved in the dissolution of family units.
When considering your own type of reform look at alternate systems. Should we have
a total fault system? A non-fault system? Do you think there is room for mediation
somewhere here? Prior to the FLA 1996 lip service was paid to the idea. Is it time for
the government to be assertive and make some change? After all, the present law
does not help anyone to resolve what is a very sad event: the breakdown of a very
close relationship.
Question 2 This problem question requires a good overview of the present law on
divorce. Brenda, the petitioner, will have to demonstrate irretrievable breakdown
and this will involve a discussion of the five facts. What is the status of Ken’s adultery?
Have they lived apart for two years? Or was Brenda deserted when Ken left to work
overseas? This question demands a good working knowledge of the MCA 1973, so read
through your statutes and see what the requirements are. Have they now lived apart
for five years? If so, does Brenda require any consent? Are there any special defences
to living apart for five years? The chances are that Brenda will have to rely on the living
apart provisions. Does this demonstrate the inherent problems with the present law
on divorce?
Family Law 3 Divorce and dissolution page 49
Reflect and review
Look through the points listed below:
Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on
Need to
revise first
Need to
study again
I can explain the principles underlying the law of
divorce, both under the MCA and the FLA.

¢

¢

¢
I can describe the grounds for divorce under the MCA
and the relationship between the grounds for divorce
and the facts which raise the presumption of the ground.


¢


¢


¢
I can state the actual requirements of each fact: each
fact comprises more than one element and I can discuss
every aspect of each fact as revealed by the case law.


¢


¢


¢
I can discuss whether the issue of fault should remain
part of the law of divorce and the reasons for this.

¢

¢

¢
I can outline the perceived defects in the current law
and the need for reform.

¢

¢

¢
I can discuss whether the suggestions for reform
would have answered the criticisms levelled at the
current law.


¢


¢


¢
I can say whether the suggested law reform places
too much control in the hands of the parties to the
divorce, as opposed to the court.


¢


¢


¢
I can give an opinion on whether the reformed law
would have, in fact, made divorce ‘easier’ or ‘more
difficult’, and whether this is desirable.


¢


¢


¢
I can assess whether the reformed law would have
encouraged or discouraged divorce.

¢

¢

¢
I can identify how a civil partnership can be dissolved
and any apparent differences between this law and
the law of divorce.


¢


¢


¢
If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
3.1 The divorce process under the MCA 1973 ¢ ¢
3.2 The background to the modern law ¢ ¢
3.3 The divorce ‘facts’ under the MCA 1973 ¢ ¢
3.4 Conciliation and reconciliation ¢ ¢
3.5 Dissolution of civil partnerships ¢ ¢
page 50 University of London External System
Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52
4.1 The criminal law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53
4.2 Injunctions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54
4.3 The Family Law Act 1996 . . . . . . . . . . . . . . . . . . . . . . . . . .60
4.4 Enforcement of orders . . . . . . . . . . . . . . . . . . . . . . . . . . .66
4.5 The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . .69
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72
4 Protection against domestic violence
page 52 University of London External System
Introduction
There has been, for the past 30 years, increased concern about violence in the family.
The legal procedures intended to provide a remedy in this context have proliferated
so that they have resulted in:
‘a hotchpotch of enactments of limited scope passed into law to meet specific situations
or to strengthen the powers of particular courts.’ Lord Scarman, Richards v Richards [1984]
AC 174, 206
The Law Commission attempted to meet this and other criticisms in ‘Domestic
Violence and the Occupation of the Matrimonial Home’ (Law Com No. 207, 1992),
where it proposed a single set of remedies to be available in all courts that have the
power to deal with family cases. The Law Commission’s proposals, and the subsequent
legislation contained in the FLA, were specifically confined to civil remedies. You
should be aware, however, of the criminal law in this context. You should also cross-
reference this topic with that of child protection, covered in later chapters.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
u discuss the role and effectiveness of the criminal law in domestic violence
u describe the differing jurisdictions under which court orders may be made
u explain the difference between the grounds for non-molestation orders and
ouster orders under the DVMPA and the DPMCA
u draw up a list of the persons who may apply under each of the Acts
u explain the duration of orders, particularly in relation to ouster orders
u state the definition of harassment under the DVMPA
u define the new tort of harassment under PHA
u consider the potential impact of the HRA on this area of law.
Essential reading
¢ Herring, Chapter 6, pp. 258–305.
¢ Masson et al., Chapter 9, pp.241–275.
¢ Probert, Chapter 6, pp. 111–127.
¢ Standley, Chapter 6, pp. 109–131.
Family law 4 Protection against domestic violence page 53
4.1 The criminal law
No spouse is entitled by reason of marriage to inflict violence on the other. See R v
Jackson [1891] 1 QB 671. In appropriate cases, therefore, a spouse may be prosecuted for
offences ranging from common assault to murder and a husband may also be
prosecuted for sexual offences against his wife. See R v R (Rape: Marital Exemption)
[1991] 4 All ER 481.


The criminal law, however, has proved ineffective in suppressing domestic violence.
There appear to be two main reasons for this:
u Procedural requirements which complicate the initiation of criminal proceedings,
but note DPP v Little [1992] Fam Law 377.
u The police are reluctant to bring charges in cases of domestic violence. There
appear to be a number of reasons for this. The battered woman may be unwilling
to go to court to give evidence against her aggressor. A wife may call in the police
for her immediate protection, but that does not necessarily mean that she will
provide evidence for further legal action against her husband. A wife can be
compelled to give evidence against her husband under s.80 of the Police and
Criminal Evidence Act 1984 as qualified by the Youth Justice and Criminal Evidence
Act 1999, but the evidence of a spouse who is testifying reluctantly will often
appear to lack cogency.
The police have also traditionally regarded domestic violence as belonging to the
private sphere of family life and unsuitable for law enforcement.

While insensitive
interference by the police is obviously to be deplored, the reluctance of police to
prosecute wife batterers has been criticised. A number of senior officers, including the
former Metropolitan Police Commissioner, Sir Ian Blair, have now indicated that official
policy favours the vigorous prosecution of cases of domestic violence and the Home
Office has issued a number of circulars emphasising the importance of appropriate
policing in family violence cases.
4.1.1 Matrimonial relief
Where the parties are married, divorce may be the most appropriate response to a
violent spouse. If spouses wish to separate, but not divorce, they may take advantage
of the decree of judicial separation (see below). Such a decree entitles the petitioner
to live apart from the respondent, but does not entitle either party to remarry. This
was a remedy of some significance when divorce could only be obtained upon proof
of a limited number of matrimonial offences. With the widening of the ‘facts’ for
divorce and the reduction of the period to one year during which divorce could not be
obtained, the decree of judicial separation has declined in popularity.
MCA s.17 governs the award of decrees of judicial separation

(but note for civil
partnerships a separation order can be applied for under s.56(1) CPA 2004). Any of the
five ‘facts’ sufficient to prove a petition for divorce must be shown, but it is
unnecessary for irretrievable breakdown of the marriage to be established. When
granting a separation order, the court has all the powers of making financial provision
and custody orders that it would upon divorce. Although there is some evidence that
solicitors in a small number of cases were seeking decrees as a response to wife
battering, judicial separation as a remedy has been overtaken by the procedures
which are designed to regulate occupation of the family home following the
breakdown of a relationship.

See also Law Com 205 ‘Rape
within Marriage’ (1992).

Some points to consider:
To what extent does and
should the criminal law
provide effective remedies
in relation to domestic
violence?
Does the relative
ineffectiveness of the criminal
law mean that spouses
and cohabitees are treated
differently from strangers in
relation to violence?

See Garlick, P. ‘Judicial
separation: a research study’
(1983) 46 MLR 719.
page 54 University of London External System
4.2 Injunctions
Two forms of injunction are relevant in the context of domestic violence:
u a non-molestation order, which enjoins and restrains the defendant from
interfering with the claimant
u an ‘ouster’ order (or ‘occupation’ order), which requires one party to vacate the
home and not to return to it.
Before the enactment of the FLA, there were three relevant statutes empowering
the superior courts to grant orders in the context of domestic violence, as well as
jurisdiction in the Magistrates’ Courts. These statutory provisions were complex, they
overlapped and were not comprehensive. The FLA redressed these defects, providing
a comprehensive and unified code that provides remedies for domestic violence. For
the immediate future it is still necessary to understand the law before its 1996 reform,
with a view to appreciating the merits of the reformed law. The old law also retains
relevance insofar as the concept of ‘molestation’ is incorporated into the FLA, without
statutory definition, and remains to be interpreted by the judiciary.
4.2.1 Matrimonial Homes Act 1983
The Matrimonial Homes Act 1983 (MHA) (repealed and replaced by the Family Law
Act 1996) consolidated the Matrimonial Homes Act 1967 and subsequent amendments
to that Act. The Act of 1967 had not been envisaged as a legal response to domestic
violence. Rather, it was intended as Parliament’s response to the House of Lords’
decision in National Provincial Bank v Ainsworth [1965] AC 1175 which had rejected Lord
Denning’s attempts in a number of cases in the 1950s and early 1960s to establish a
‘deserted wives’ equity’ in the former matrimonial home. The MHA gave spouses in
occupation of the matrimonial home ‘rights of occupation’, the most important of
which was the right not to be evicted during the marriage unless the court orders
otherwise. The Act also provided machinery – registration of a Class F Land Charge or a
Land Registry notice – whereby spouses could protect such rights against third parties.
In Richards v Richards [1984] 1 AC 174 the House of Lords significantly widened the use
of the MHA to cases of domestic violence. Indeed, the House went so far as to hold
that other legislation, such as the Domestic Violence and Matrimonial Proceedings
Act 1976 (DVMPA), must be read subject to the overriding framework of the MHA. The
legislation was available to those who were married and provided that if one of the
spouses had rights to occupy the matrimonial home within s.1(1) of the Act, then the
High Court or the County Court could make an order:
u declaring, enforcing, restricting or terminating the statutory rights of occupation
of a spouse
u prohibiting, suspending or restricting the exercise of the right, by either spouse,
to occupy the dwelling house that has arisen by operation of law independently of
the Act
u requiring either spouse to permit the exercise by the other of that right. (The effect
of the section is that either spouse can be ordered to leave the home, or be given
the right to re-enter, by court order, irrespective of their property interests.)
It must be noted that the court was not empowered under this legislation to make
a non-molestation order, nor was it empowered to restrain the respondent from
entering the geographical area in which the matrimonial home was situated. It
could, however, make orders for periodical payments and impose on either spouse
obligations to repair and maintain the house or discharge any obligations with respect
to it (s.1(3)(b), (c)). It could also order that certain parts of the house be excepted from
a spouse’s right of occupation (s.1(3)(c)).
Family law 4 Protection against domestic violence page 55
Activity 4.1
Did Richards v Richards significantly broaden or narrow the availability of ouster
orders?
Once a marriage is terminated by court order (whether for nullity or divorce), no
jurisdiction under the MHA remains, although jurisdiction continues to vest in the
court until the decree absolute is granted. See P v P (Ouster; Decree of Nullity) [1994] 2
FLR 400.
Since the decision in Richards v Richards, the courts insisted that in any case where a
question of ouster concerning married couples arises, the criteria for orders in s.1(3) of
the Act must be satisfied. This stated that:
the court may make any such order as it thinks just and reasonable having regard to the
conduct of the spouses in relation to each other and otherwise, to their respective needs
and financial resources, to the needs of the children and to all the circumstances of the case.
Children
It must be noted that interests of the children are not paramount. See Richards v
Richards and Gibson v Austin [1993] Fam Law 20. In practice, however, they may be
extremely important. See T v T [1987] 1 FLR 181 and Brown v Brown [1994] 1 FLR 233.
‘Conduct’
The conduct of the parties is relevant. See Wiseman v Simpson [1988] 1 FLR 490. Indeed,
the party to be excluded must usually be more ‘culpable’. See Blackstock v Blackstock
[1991] 2 FLR 308. It is most unusual for such exclusion to be granted where there has
been no violence (see Scott v Scott [1992] Fam Law 102).
‘Just and reasonable’
Essentially, the order must be ‘just and reasonable’. See Summers v Summers [1986]
1 FLR 343. The court will also be alive to its ‘draconian’ nature. See B v B (Transfer of
tenancy) [1994] Fam Law 250 in which the court reversed the lower court’s decision to
transfer a tenancy (under Schedule 1 of the CA 1989) to the wife for the benefit of the
children, holding that the welfare of the children was not paramount and that the wife
would be better placed seeking alternative accommodation.
Note, however, that the superior courts will be very slow to set aside a decision of a
lower court which had considered all the evidence. The Court of Appeal has held that
any change in circumstance would have to be of such significance that it would have
resulted in the recorder exercising his or her discretion differently. See Brown v Brown
[1994] 1 FLR 233.
4.2.2 The Domestic Violence and Matrimonial Proceedings Act 1976
(DVMPA)
This Act (repealed and replaced by the Family Law Act 1996) was enacted as a private
member’s bill. Section 1 conferred upon the county court the power to make orders:
u restraining the other party to the marriage from molesting the applicant
u restraining the other party from molesting a child living with the applicant
u excluding the other party from the matrimonial home or a part of the matrimonial
home
u requiring the other party to permit the applicant to enter and remain in the
matrimonial home or a part of the matrimonial home.
(The Family Proceedings Rules 1991 (FPR), r.3.9(2) provided that the High Court may also
grant an injunction in the terms of the Act.)
‘Matrimonial home’ was not defined by the Act. The ‘child’ referred to need not be a
‘child of the family’, as defined by s.52 MCA (see Chapter 7).
page 56 University of London External System
The following features of the 1976 Act should be particularly noted.
u Relief could be sought independently of any other claim.
u The remedies provided by the Act were available to a ‘party to a marriage’. This
includes a void or voidable marriage and extended to ‘a man and a woman who are
living with each other in the same household as husband and wife’. This has been
interpreted to include couples who have recently parted, as long as they were
living together conjugally at the time the alleged incidents took place and so long
as relief is sought shortly after separation. See Adeoso v Adeoso [1980] 1 WLR 1535
and compare Tuck v Nicholls [1989] 1 FLR 283. It does not extend to divorced couples
who are not cohabiting but are living together under the same roof.
u There was no definition of ‘molestation’ in the Act,

but it has been interpreted
widely to cover pestering, see:
u Vaughan v Vaughan [1973] 3 All ER 449 (hanging posters about the wife at her
place of work)
u Homer v Homer [1982] Fam 90 (searching through the woman’s handbag)
u Spencer v Camacho [1983] 4 FLR 662 (unwanted telephone calls and other general
harassment).
u No indication of the principles to be applied in exercising the jurisdiction were
contained in the DVMPA, but the cases indicate that the same principles apply to
applications for ouster as do applications under the MHA. See Thurley v Smith [1988]
1 FLR 490 and Wiseman v Simpson. Thus, the order must be ‘just and reasonable’ in
the light of the parties’ conduct in relation to each other and generally and, in the
context of their respective financial resources, to the needs of any children and all
the circumstances of the case (s.1(3) MHA).
u Accordingly, the cases decided under the pre-1996 law are relevant in this
context. Non-molestation orders appear to be granted on the basis of fairness and
convenience.
u An exclusion order

is considered to be in the nature of ‘first aid, not intensive care’
(see Davis v Johnson [1979] AC 264). Further, the court was wary of assuming
jurisdiction equivalent to property adjustment. See O’Neill v Williams [1984] FLR 1.
This is especially so if the parties are unmarried. See Spencer v Camacho.
A Practice Direction [1978] 2 All ER 1056 issued by Sir George Baker P stated that:
‘consideration should be given to imposing a time limit on the operation of the
injunction. In most cases a period of up to three months is likely to suffice, at least in
the first instance.’
See also Hopper v Hopper [1979] 1 All ER 181. In exceptional cases, however, an indefinite
order may be considered ‘just and reasonable’. See Galan v Galan [1985] FLR 905 where
an exclusion order was granted until a further order was made, following numerous
short-term orders.
u An application for an injunction could be heard after only two days’ notice to
the respondent: County Court Rules Order 13, r.6(3). In an emergency an interim
order can be obtained ex parte, but such an order should only be made or granted
if there is a real, immediate danger of serious injury or incurable damage (see
Practice Note (Matrimonial Causes Injunction) [1978] 1 WLR 925).
Activity 4.2
What do you understand by the term ‘molestation’? Should ‘molestation’ be
defined in statute? Why do you take this view?
Activity 4.3
Why is an exclusion (or ouster) order (now known as an occupation order) regarded
as ‘first aid’ rather than a long-term solution?

The FLA Part IV employs
the concept of molestation,
but leaves the concept
undefined. Accordingly, the
court’s interpretation of this
concept under the DVMPA will
remain relevant.

An exclusion order is
an order requiring the
respondent either to leave
the matrimonial home (see
s.16(3)) or to refrain from
entering the matrimonial
home.
Family law 4 Protection against domestic violence page 57
4.2.3 Supreme Court Act 1981
General powers of injunction
The Supreme Court Act 1981 (not repealed by the Family Law Act 1996) consolidating
earlier legislation and effectively supplanting what used to be the ‘inherent’
jurisdiction of the High Court (Richards v Richards), gives a general power to the court
to grant an injunction ‘in all cases in which it appears just and convenient to do so’ on
‘such terms and conditions as the court thinks fit’.
Self-assessment questions
1. What is an ex parte order?
2. What do you understand by the term ‘inherent jurisdiction’?
County courts enjoy an equivalent jurisdiction, derived entirely from statute, s.3 Courts
and Legal Services Act 1990.
Limitations
The scope for using injunctions under the Supreme Court Act 1981 is subject to limitations.
u Richards v Richards makes it clear that if a married person requires an injunction to
regulate occupation of the family home, he or she must proceed under the MHA.
u The power of the court to grant an injunction may only be exercised where there
are substantive proceedings in progress (or about to be initiated) to which the
injunction sought is ancillary or where the injunction sought is within the scope
of the remedy sought in the main proceedings. This will be satisfied if there
are matrimonial proceedings (other than those under s.27 MCA), proceedings
under the Children Act 1989 with respect to the residence of a child, wardship
proceedings or proceedings in tort for damages for assault.
u There must be a sufficient link between the substantive proceedings and the
injunction. See Des Salles Depiniox v Des Salles Depiniox [1967] 1 WLR 553 where an
order to vacate the matrimonial home could not be made in proceedings founded
on neglect to maintain, as the injunction would have no effect on the husband’s
ability to discharge the obligation.
u An injunction will only be granted in support of a recognised legal or equitable
right. You should note that this is the most important restriction on the jurisdiction
and the question of whether there is the necessary legal or equitable right in the
claimant is one of considerable difficulty. This restriction has proved problematic
where claimants, without proprietary interest, seek to oust defendants from the
former shared home. See Ainsbury v Millington [1986] 1 FLR 331, M v M [1988] 1 FLR 225
and Lucas v Lucas [1992] 2 FLR 53.
However, there is some authority which suggests that there is jurisdiction to oust
where this is in the interests and the welfare of children, even where such eviction is
not in support of a sole legal right. See Wilde v Wilde [1988] 2 FLR 83 and C v K [1996] 2
FLR 506. This approach was criticised in Gibson v Austin.
This restriction could create difficulties for an ex-spouse who is not the sole owner
of the matrimonial home and who wishes to oust his or her former spouse after
decree absolute. However courts have sometimes allowed such orders in certain
circumstances (see Webb v Webb [1986] 1 FLR 510), particularly where it is necessary to
protect the children (see Quinn v Quinn [1983] 4 FLR 394).
Difficulties were also faced by an ex-cohabitant without a sole legal right who is, in
effect, without remedy. This difficulty has now been addressed by the FLA 1996.
The jurisdiction can also be used for non-molestation orders. Here again, the
injunction must be in support of an existing legal right. See Patel v Patel [1988] 2
FLR 179, Tabone v Seguna [1986] 1 FLR 591 and Bumett v George [1992] 1 FLR 525. Note,
however, that the FLA extends the range of eligible applicants.
page 58 University of London External System
Enforcement
Section 2 of the DVMPA provided that a power of arrest could be attached to an
injunction which contained a provision that:
u restrains the other party to the marriage from using violence against the applicant
u restrains the other party from violence against a child living with the applicant
u excludes the perpetrator from the matrimonial home or from a specified area in
which the matrimonial home is included where the judge is satisfied that: ‘the
other party has caused actual bodily harm to the applicant or... to the child... and
considers that he is likely to do so again.’
This section now only applies to injunctions issued under the Supreme Court and
County Courts Acts and, arguably, those issued under the MHA. There is no power to
attach an arrest power if the injunction does not meet the requirements of s.2 DVMPA
1976 as amendeded by s.63 FLA. See Re G [1982] 4 FLR 538 and White v White [1983] Fam
54. Injunctive relief granted under the FLA has a different method of enforcement.
‘Bodily harm’ for these purposes includes real psychological harm. See Kendrick v
Kendrick [1990] 2 FLR 107. The attachment of a power of arrest is not routine. See Lewis
v Lewis [1978] 1 All ER 729. It is also normally subject to a three-month time limit. See
Practice Direction [1981] 1 All ER 224.
Note that the FPR 1991 ss.3, 9(6) and (7) required a copy of the injunction to be
delivered to the officer in charge of the police station for the applicant’s address. This
has now been repealed and replaced by s.47 FLA.
Activity 4.4
a. What practical value does a power of arrest have?
b. Should powers of arrest routinely be attached to orders?
Breach of an order is a contempt of court which may be punished by committal to
prison for a fixed term of up to two years. See George v George [1986] Fam Law 294 and
Miller v Juby [1991] Fam Law 97.
4.2.4 Personal protection and exclusion orders under the Domestic
Proceedings and Magistrates’ Courts Act 1978 (DPMCA)
This Act was repealed and replaced by the Family Law Act 1996. For many years
magistrates have been empowered with a jurisdiction to protect married women
from physical assault by their husbands. The Matrimonial Causes Act 1878 introduced
the concept of the non-cohabitation order whereby magistrates could decree that a
woman was no longer bound to cohabit with her husband. Such orders were, however,
of limited use since, although they entitled a wife to live apart from her husband, he
could not be excluded from the home.
In its report on ‘Matrimonial Proceedings in Magistrates’ Courts’ (Law Com No. 77),
the Law Commission recognised this limitation, proposing both the abolition of
the non-cohabitation order and its replacement by two new types of order: the
personal protection order and the exclusion order. These proposals, although not the
terminology suggested by the Law Commission, were implemented by the DPMCA. A
personal protection order is an order that the respondent shall not use, or threaten to
use, violence against the person of the applicant or against the person of a child of the
family (s.16(2) DPMCA). The applicant must prove that:
u the respondent had used or threatened to use violence against the person of the
applicant or a child of the family
u it is necessary for the protection of the applicant (or a child of the family) that an
order be made.
Family law 4 Protection against domestic violence page 59
The court must be satisfied that:
u the respondent has used violence against the person of the applicant or a child of
the family
u the respondent has threatened to use violence against the person of the applicant
or a child of the family and has used violence against some other person
u the respondent has, in contravention of a personal protection order, threatened
violence against the person of the applicant or a child of the family.
In all three cases it must be shown that the applicant or child of the family is in danger
of being physically injured by the respondent (or would be in such danger if the
applicant or child were to enter the matrimonial home).
Note the following points in connection with these orders:
u The provisions applied only to ‘parties to a marriage’. They do not extend to
cohabitees.
u A power of arrest could be attached to the order if the respondent has ‘physically
injured’ the applicant or a child of the family and the court considers that he
is likely to do so again (DPMCA s.18(1)). These were not routinely attached and
magistrates had to give their reasons for attaching such a power. See Widdowson
v Widdowson [1982] 4 FLR 121. If no power of arrest is attached, the applicant may
apply for a warrant for the arrest of a respondent alleged to have disobeyed an
order (ss.18(4) and (5)). The respondent may be fined or imprisoned.
u Violence, or the threat of violence, is an essential prerequisite to the making of a
personal protection order. The DPMCA was not intended to supply remedies for
psychological harm, or for tension or friction not leading to threats of violence.
u References in s.16(2) to a ‘child’ were references to a ‘child of the family’, as
defined in MCA s.52 and DPMCA s.88 (see Chapter 7). Compare s.1 DVMPA where this
restrictive definition of ‘child’ does not apply.
u Actual violence was an essential prerequisite for an exclusion order. In practice,
this meant that under the DPMCA no exclusion order could be made against a
husband who indulges in antisocial conduct that falls short of violence. See Horner
v Horner [1982] Fam 90. The threat of physical violence need not be immediate,
however. See McCartney v McCartney [1981] Fam 59.
4.2.5 Reform
In Richards v Richards Lord Scarman criticised the confusing array of injunctive
remedies available in the context of domestic violence. He stated that:
‘the sooner the range, scope and effect of these powers are rationalised into a coherent
and comprehensive body of statute law, the better.’
You should note that not only are the powers confusing, but they also leave certain
individuals (such as those who live together with no element of conjugality – friends,
etc. who simply share accommodation – former cohabitants or lovers living apart)
with no remedy and fail to provide an adequate regime to regulate the occupation of
the shared home of cohabitants.
Comprehensive reform was proposed by the Law Commission in its draft Family
Homes and Domestic Violence Bill (Law Com No. 207, 1992). In short, the Bill proposed
that non-molestation orders should be available to anyone associated by virtue
of a family or similar relationship, which all courts would have the power to make
whenever it is just and reasonable to do so, having regard to all the circumstances,
including the need to secure the health, safety and well-being of the applicant or any
relevant child. Such orders would be available whether or not there had been physical
violence.
page 60 University of London External System
Courts would also be empowered to make occupation orders. These would be
available to all applicants against anyone with whom they are associated by virtue
of a family or similar relationship, where the applicant is entitled to occupy property
by virtue of a beneficial interest, contract or statutory right. This includes, under the
MHA, a right which would be extended to cohabitants if the property has been the
home of both parties at any stage. Where the applicant is not so entitled, he or she
would be able to obtain such an order against a spouse, former spouse, cohabitant
or former cohabitant. The criteria for such orders, which all courts would be
empowered to grant, would be uniform, although it is envisaged that the Magistrates’
Court would decline jurisdiction or transfer the case to a county court if the
determination of the right of the party to occupy was in issue. Enforcement powers,
including the attachment of an arrest power, would be strengthened and the police
would be empowered to apply for a civil remedy on behalf of the victim in certain
circumstances.
Summary
There has long been concern that the remedies available to those who suffer
from domestic violence are ineffective and variable. This demonstrates the law’s
ambivalence to the issue. The criminal law offers protection (as in other cases of
violence) and the marital exemption to rape no longer applies. The injunctions
described were a popular equitable remedy used, at the discretion of the court, to
protect the victims of domestic violence from further abuse. The Matrimonial Homes
Act 1983 dealt with the injunction, known as an ouster order, which ousted the violent
abuser from the home. The Domestic Violence and Matrimonial Proceedings Act 1976
provided for an injunction known as a non-molestation order. The court had a general
power to issue an injunction by reference to the Supreme Court Act 1981. Personal
protection was available under the Domestic Proceedings and Magistrates’ Courts Act
1978. After such a wide variety of injunctions and rememdies the Family Law Act 1996
repealed and replaced the 1983, 1976 and 1978 legislation and consolidated it into one
piece of legislation. The general power under the Supreme Court Act 1981 remains.
4.3 The Family Law Act 1996
Part IV of the Act, which relates to domestic violence and occupation of the
matrimonial home, came into force in 1997. You do also need to know the old case law
to see how judicial attitudes have changed – or not – to the issue of domestic violence.
Most, if not all, of the Law Commission’s recommendations (discussed above) were
enacted into law. Most significant among those recommendations that were excluded
were the right of the police to intervene and pursue civil remedies on behalf of
domestic violence victims and the incorporation of same-sex relationships within
the scheme of protection relating to ouster orders (although the latter may be
deemed to be included – see further below). Part IV of the FLA regulates occupation
rights in the matrimonial home and extends protection of such rights to present and
former cohabitants living together as ‘husband and wife’. Part IV also regulates non-
molestation and ouster orders. The MHA has been repealed, as have ss.16–18 of the
DPMCA and the entire DVMPA.
The FLA thus provides a single comprehensive scheme for protection against
violence and disputes concerning the occupation of the matrimonial home. The Act
distinguishes between applicants who have an estate or interest in a dwelling house
(s.33), former spouses with no such existing right to occupy the dwelling house (s.35)
and spouses neither of whom has an entitlement to occupy a dwelling house which
is or was the matrimonial home (s.37). The Act also makes specific provision for
cohabitants or former cohabitants with no existing right to occupy (s.36) and those
cohabitants neither of whom is entitled to occupy (s.38). The Domestic Violence,
Crime and Victims Bill broadens this definition of cohabitants in s.62 FLA 1996 to
include ‘two persons who, although not married to each other, are living together as
husband and wife or (if same sex) in an equivalent relationship’.
Family law 4 Protection against domestic violence page 61
4.3.1 FLA Section 33
Applicants with estate or interest or matrimonial home rights
Where a person has an entitlement to occupy a dwelling house or has matrimonial
home rights, the court may by order:
u enforce the applicant’s entitlement to remain in occupation
u require the respondent to permit the applicant to enter and remain
u regulate the occupation rights of either or both parties
u suspend, prohibit or restrict the exercise of the respondent’s right to occupy
u restrict or terminate the respondent’s matrimonial home rights
u require the respondent to leave the dwelling house or part thereof
u exclude the respondent from a defined area in which the dwelling house is
included.
Orders granted under this section cease upon the termination of the marriage or by
the death of the other spouse. The court is required to consider all the circumstances
of the case, including:
u the housing needs and resources of the parties and any children
u the financial resources of the parties
u the likely effect of any order on the health, safety or well-being of the parties and
any relevant children and the conduct of the parties ‘in relation to each other and
otherwise’.
Sub-section 7 specifically directs the court to consider whether or not the applicant or
any relevant child is likely to suffer significant harm if an order is not made. If the court
feels that significant harm will be suffered, it must make an order unless it appears to
the court that the respondent or any relevant child is likely to suffer significant harm
if the order is made, and that the harm likely to be suffered by the respondent is likely
to be greater than, or as great as, the harm which is attributable to the respondent’s
conduct which is likely to be suffered by the applicant or any relevant child if the order
is denied. This will require the court to enter into a careful analysis of the respective
‘harms’ alleged by both applicant and respondent.
4.3.2 Occupation orders in practice – case law
There has been extensive case law since the enactment of the FLA.
In the case of B v B [1999] 1 FLR 715 the Court of Appeal allowed an appeal by a husband
against the county court judge’s decision to grant an occupation order to the wife.
The wife, joint tenant with her husband, had left the home because of the husband’s
violent behaviour, taking their baby with her. The husband was looking after his
six-year-old son from a previous relationship. The Court of Appeal concluded that the
son was likely to suffer harm if the order were made and that his needs at present
outweighed those of the couple’s baby, particularly because the local authority’s duty
to the husband and son would be only temporary at best, whereas its duty to the wife
and baby would be to rehouse them.
The Court of Appeal in Chalmers v Johns [1999] 1 FLR 392 continued the pre-Act
approach to ouster orders, counselling caution in:
u making occupation and exclusion orders which overrode proprietary rights at the
interlocutory stage of proceedings
u ousting those with proprietary rights other than when the balance of harm test
applied in the applicant’s favour.
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What s.33 FLA provides is that a court may make any s.33(3) order without the balance
of harm needing to come into operation, but shall make a s.33(3) order (which need
not amount to an ouster) if the balance of harm does operate.
This was recognised by the Court of Appeal in Gripton v Gripton 15/7/99 (Unreported) in
which the wife’s account of two assaults upon her by the husband was accepted by the
judge, who also took account of the likely effect of any order, or any decision not to
exercise his powers, on the health, safety and well-being of the wife and her children.
The husband appealed, on the ground that the judge had wrongly included the notion
of significant harm in s.33(7). In dismissing the husband’s appeal, the Court of Appeal
referred to the ‘impeccable exercise of judicial discretion’.
In Banks v Banks [1999] 1 FLR 726 the wife was a threat to her husband as a result of her
verbal and physical aggression but because of her mental condition, making an order
to evict her was likely to cause her greater harm than allowing her to remain would do
to her husband.
Re Y (children) (Occupation Order) [2000] 2 FCR 470 considered a number of issues.
Unusually, an occupation order had been made in favour of the husband in that, in the
light of his health and disability, the balance (s.33(7)) went in his favour. On appeal,
it was held that there was no evidence that harm was ‘attributable’ to the wife, as
is required by s.33(7). The exercise of discretion under s.33(6) to evict a co-owner of
a matrimonial home was a draconian remedy which was to be used as a last resort.
It was not an order to be made lightly. The issue should have turned not on eviction
but upon whether the home was capable of being divided so as to accommodate the
parties, together with cross-undertakings.
See G v G (Occupation Order: Conduct) [2000] 2 FLR 36 on the relationship between
ss.33(7) and 33(6). On an application for an occupation order under s.33, if the court
found that the applicant or any relevant child was likely to suffer significant harm
attributable to the conduct of the respondent, the court was required to make an
occupation order under s.33(7) unless the harm which would be suffered if the order
was made was greater than the harm which would follow if it was not. Even if an order
under s.33(7) was not mandatory, an occupation order could nonetheless be made in
the exercise of the court’s discretion under s.33(6), in the light of the factors set out
in s.33(6). In considering, for the purposes of s.33(7), whether any harm likely to be
suffered by the applicant or any relevant child was attributable to the conduct of the
respondent, the important factor was the effect of the conduct upon the applicant or
the children, rather than the intention of the respondent. Lack of intent might be a
relevant consideration, but of itself it did not mean that any such harm could not be
attributed to the respondent’s conduct.
Activity 4.5
Do you think these decisions suggest a growing prevalence of the rights of the
victim over the historic deference to the proprietary rights of the abuser? Do you
think such a move would be desirable?
4.3.3 FLA Section 35
Former spouse with no existing right to occupy
The disentitled former spouse may apply to the court for an order giving the applicant
the right not to be evicted or excluded from the dwelling house or any part of it by
the respondent for a specified period and may prohibit the respondent from evicting
or excluding the applicant during that period. If the applicant is not in occupation, an
order may be made giving the applicant the right to enter and occupy for a specified
period. An order may also:
u regulate the occupation of either of the parties
u prohibit, suspend or restrict the exercise by the respondent to occupy
u require the respondent to leave all or part of the dwelling house
Family law 4 Protection against domestic violence page 63
u exclude the respondent from a defined area in which the dwelling house is
included.
Here again the court is directed to consider all the circumstances under s.33 and must
also consider:
u the length of time that has elapsed since the parties have ceased to live together
u the length of time since the marriage was dissolved or annulled
u whether there are pending proceedings under the MCA relating to property
adjustment orders
u applications under the Children Act 1989 for property provision for a child
u pending proceedings relating to the legal or beneficial ownership of the dwelling
house.
The court must also, as under s.33, consider the issue of harm suffered and likely to
be suffered as a result of making an order. Orders under this section are limited to
a specified period not exceeding six months, but may be extended on one or more
occasions for a further period not exceeding six months.
4.3.4 FLA Section 36
One cohabitant or former cohabitant with no existing right to occupy
Equivalent provisions to those under s.35 are available to cohabitants. The court is
directed to consider all the circumstances, including:
u housing needs and resources, financial resources, the effect of any order, the
conduct of the parties and also the ‘nature of the parties’ relationship’
u the length of time they have lived together as husband and wife
u whether there are or have been any children for whom both parties have or had
parental responsibility
u the length of time which has elapsed since the parties ceased living together
pending proceedings.
Again, the issue of harm must be considered as well as a balance of the harms which
may be caused to either applicant or respondent through the making of an order.
Unlike s.35 orders, an order under s.36 lasts for six months and may only be extended
once for a further six-month period.
4.3.5 FLA Section 37
Neither spouse entitled to occupy
Either party may apply for an order under this section and the court has power to:
u require the applicant to enter and remain
u regulate the occupation of the dwelling house by either or both parties
u require the respondent to leave
u exclude the respondent from a defined area in which the dwelling house is
included.
An order under this section may last for six months and may be extended on
one or more occasions for a further period not exceeding six months. The same
considerations apply as to applicants under s.33 in relation to what the court must
take into consideration.
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4.3.6 FLA Section 38
Neither cohabitant or former cohabitant entitled to occupy
The same provision is made for disentitled cohabitants. The only difference in this
regard is the number of extensions to the order, which is limited to one. Both ss.36
and 38 do require the court to consider the ‘balance of harm test’, but it also retains
its discretion whether or not to exercise its power to, for example, require the
respondent to leave the dwelling house. In the cases of spouses or former spouses,
however, (even when neither is entitled to occupy) the balance of harm in favour of
the applicant obliges the court to exercise at least one of its regulatory powers.
4.3.7 Supplementary provisions (s.40)
Section 40 provides that, where an order is made under ss.33, 35 or 36, the court may
impose conditions:
u as to the repair and maintenance of the home or to the discharge of any mortgage or
other outgoings
u to order the occupying party to make periodic payments to the other party
u to grant either party possession or use of furniture or other contents
u to order either party to take reasonable care of any furniture or other contents
u to order either party to take reasonable steps to keep the home and contents secure.
If the parties are cohabitants or former cohabitants, the court is directed under s.41 to
have regard, when considering ‘the nature of the parties’ relationship’, to the fact that
‘they have not given each other the commitment involved in marriage’.
4.3.8 Personal protection: non-molestation orders under the FLA (s.42)
Consistent with the Law Commission’s wish to see the class of eligible applicants
extended, s.42 introduces the concept of an ‘associated person’. An associated person is
defined in s.62(3)–(6), and includes:
u present and former spouses
u civil partners, or former civil partners
u present and former cohabitants (opposite sex or same sex)
u those who live or have lived within the same household other than as the other’s
employee, tenant, lodger or boarder (this is the provision which may extend to same-
sex relationships)
u relatives
u engaged or formerly engaged couples
u parties to a civil partnership agreement
u persons who have, or have had, an intimate personal relationship with each other
which is or was of significant duration
u parents of a child or those having parental responsibility for a child
u parties to the same family proceedings (other than those under this part of the Act).
As under the DVMPA, the FLA uses the terms ‘molestation’ and ‘non-molestation
order’. The court’s previous interpretation of the term molestation will thus remain of
importance since the Act does not define the term.
A non-molestation order may be made for a specified period or until ‘further order’. A
child may apply for a non-molestation order or for an occupation order but only with the
leave of the court, which will continue to employ the tests of ‘sufficient understanding to
make the proposed application’. (See s.43 on ‘sufficient understanding’. Also see Chapters
11–12 of this subject guide.)
Family law 4 Protection against domestic violence page 65
4.3.9 Non-molestation orders in practice – case law
Again, since the FLA’s introduction, there have been a number of cases dealing with
specific issues.
The President of the Family Division in C v C [1998] 1 FLR 554 stated that molestation
had to involve some element of deliberate conduct causing clear harassment to such a
degree that the court’s intervention was necessary. The ex-wife’s conduct in procuring
the publication in newspapers of her (and two former wives’) relationship with her
ex-husband was an invasion of privacy but was not molestation.
In Banks v Banks (see 4.3.2 above), the husband’s application for a non-molestation
order was refused as the wife’s behaviour towards her husband was a symptom of her
mental condition and, as she could not exercise control of those actions, ‘an order
would serve no useful purpose’.
Two cases considered the definition and relevance of ‘associated persons’. In Chechi v
Bashier [1999] 2 FLR 489 the parties were ‘associated’ but the nature of the proceedings
(predominantly tortious) meant that separate family proceedings under the FLA were
not appropriate. In G v F [2000] 2 FLR 533 the applicant had said ‘strictly speaking, we
do not live together’; the parties divided their time between each other’s flats. At first
instance, it was held that they were not associated persons. On appeal it was held that
the court should give the non-molestation order provisions a purposive construction
and not decline jurisdiction, unless the facts of the case were plainly incapable of
being brought within the statute. Since Part IV of the 1996 Act was designed to provide
swift and accessible protective remedies to persons of either sex who were the victims
of domestic violence, where the criteria laid down in s.62 were met, s.62(3) should not
be narrowly construed so as to exclude borderline cases.
Activity 4.6
Two men, Alistair and Tony, were in a relationship for five years but had never lived
together. If Alistair became violent in the relationship could Tony apply for a non-
molestation order under s.42?
Jurisdiction
Orders under Part IV may be made by the High Court, county court or a magistrates’
court. The Lord Chancellor may specify circumstances in which particular proceedings
may be commenced in a specified court, and for transfers of cases between courts
(s.57).
Undertakings
Where the court has jurisdiction to make an occupation order or non-molestation
order, the court may accept an undertaking from any party to the proceedings. The
court shall not accept an undertaking, however, where apart from the section (s.46), a
power of arrest would be attached to the order. An undertaking is enforceable as if it
were an order of the court.
Injunctive relief available under the Protection from Harassment Act 1997
Some people were not protected by the old provisions and would not be protected
under the 1996 Act, as in the case of Khorasandjian v Bush [1993] 3 All ER 669. This
case added to the well-documented concerns about stalking (see Masson et al., pp.
234–35) and the inability of the law of tort to find a tort of harassment. Therefore the
Protection from Harassment Act 1997 (PHA) creates a new tort of harassment (see
discussion in Khorasandjian v Bush). This means that an injunction can be sought if
there is an actual or anticipated breach under s.1. Under this section three elements
must all be proved.
u The defendant must have harassed the victim.
u The offence can only be committed where there is a course of conduct which must
involve conduct on at least two occasions.
page 66 University of London External System
u It must be demonstrated that the defendant ought to have known that their
conduct constituted harassment.
Defences are available (s.1(3)).

So far there has been limited use of this form of relief,
but see Lau v DPP [2000] 1 FLR 799.
Summary
Part IV of the Family Law Act 1996 consolidated the previous legislation and came into
force in 1997. The ouster order, as was, is now the occupation order and the criteria for
it being granted by the court is governed by ss.33, 35–38 and 40 of the Act. The
non-molestation order remains and the criteria for this is governed by s.42. Molestation
is once again not defined, so reference to previous case law under the old legislation is
required. If someone falls outside the scope of the FLA then they may be able to rely on
injunctive relief from the Protection from Harassment Act 1997.
4.4 Enforcement of orders
4.4.1 Power of arrest
If an occupation or non-molestation order is made, and it appears to the court that the
respondent has used or threatened to use violence against the applicant or a ‘relevant
child’ (as defined by s.62(2)), the court must attach a power of arrest unless the court is:
‘satisfied that in all the circumstances of the case the applicant or child will be adequately
protected without such a power of arrest.’ (s.47)
In the case where an ex parte order has been granted under s.45, the court may attach a
power of arrest if it appears to the court that the respondent has used violence against
the applicant or child and that there is a significant risk of harm to the applicant or the
child attributable to the conduct of the respondent.
Although the courts have wanted to send out a clear message that domestic violence
is not to be tolerated they have still demonstrated a willingness to keep sentences
awarded for contempt low if the sentences were deemed to be ‘manifestly excessive’.
Following three breaches of a non-molestation order under s.42 FLA in Head v Orrow
[2005] 2 FLR 329, a sentence of 12 months was reduced to nine months. But in Robinson
v Murray [2006] 1 FLR 365 the Court of Appeal offered an alternative strategy where
they suggested that if the defendant’s actions warranted a sentence at the top end
of the range (in this case there had been three breaches of non-molestation and
occupation orders) then it may be wise to bring proceedings under the Protection
from Harassment Act 1997.
In an attempt to be seen to be taking domestic violence more seriously moves have
been taken to ‘beef up’ the enforcement of non-molestation orders and on 1 July
2007 SI 2007/1845 came into force which means that a breach of a non-molestation
order without reasonable excuse is a criminal offence punishable by up to five years’
imprisonment. It is no longer possible to attach a power of arrest to a non-molestation
order. It is now an automatically arrestable offence under s.24(1) Police and Criminal
Evidence Act 1984.
4.4.2 Compensation
A victim of family violence may also be able to seek financial compensation from
the Criminal Injuries Compensation Board. When the criminal injuries scheme was
instituted in 1964, such cases were excluded from the operation of the scheme.
Although the bar on family applicants was removed in 1979, in practice informal rules
operated by the Board serve to limit the number of successful claims. One such rule
is that the victim and offender must no longer be living together, a rule designed to
minimise collusion and to prevent the aggressor benefiting from an award to the
victim. Another rule is that an award may be refused or reduced:
Go to your study pack and
read ‘Domestic violence,
mens’ groups and the
equivalence argument’ by
Felicity Kaganas.
Think about how domestic
violence is often thought
to be a gender specific
problem (men being
violent to women); how far
does Kaganas explore and
challenge any suggestion
that it is in fact a gender
neutral problem (women
being violent to men as well
as men being violent towards
women).
Family law 4 Protection against domestic violence page 67
‘having regard to the conduct of the applicant before, during or after the events giving rise
to the claim, or to his character and way of life.’
A claim might be defeated under this heading where the Board considers that the
violence was provoked by the victim. (Compensation is also available in criminal
actions and in a civil action.)
4.4.3 Rehousing
Many battered women do not want to be reinstated in their former matrimonial
homes and look for rehousing in the public sector by local authorities or housing
associations. The enactment of the Housing Act 1980 and the Housing Act 1985 (now
the Housing Act 1996) conferred upon tenants of local authorities ‘secure tenancy’
status (i.e. rights which in some respects resembled those enjoyed by private tenants
under the Rent Acts). Authorities can no longer flexibly ‘switch’ tenancies to provide
an immediate remedy in cases of violence. Violent husbands can be excluded from
council accommodation by exclusion orders (discussed above) and tenancies can
be transferred upon divorce under s.53 FLA, but these are procedures which must be
initiated by the victim and not by the local authority. Note that the FLA extended the
court’s powers to transfer tenancies.
Any woman who has been forced to leave home, whether or not rented from the local
authority, may decide to apply to the authority as a homeless person for rehousing.
The Housing (Homeless Persons) Act 1977 imposed obligations upon local authorities
to rehouse certain classes of applicant. These duties are now contained in Part VII
Housing Act 1996. An applicant for rehousing must satisfy certain criteria.
u She must be homeless or threatened with homelessness (i.e. likely to become
homeless within 28 days). In deciding whether she is homeless, the local authority
must consider whether she would be at risk of violence if she returned home. See R
v Broxbourne BC ex parte Willmoth (The Times, 18 April 1989).
Some local authorities have argued that a woman staying at a refuge for battered
women is not homeless since she has the roof of the refuge over her head. This
argument was decisively rejected in R v Ealing LBC ex parte Sidhu (The Times, 26 January
1982).
u The applicant for rehousing must have a ‘priority need’.
Section 175 of the Housing Act 1996 sets out the categories of priority need, three of
which are relevant in the present context.
u A pregnant woman.
u A woman who has dependent children residing with her or who might
reasonably be expected to reside with her.
In R v Ealing LBC ex parte Sidhu, Hodgson J disapproved of the practice, prevalent
in some local authorities, of requiring battered women to obtain custody orders
before treating them as having a priority need.
u A woman who is vulnerable as a result of old age, mental illness or handicap or
physical disability or other special reason.
The Code of Guidance, published by the government and intended to be used
by local authorities as an aid to construing the Act, recommends that battered
women who do not fall within the other categories of priority need (i.e. are not
pregnant and do not have dependent children) should be treated as vulnerable for
the purposes of the Act.
u The applicant must not be intentionally homeless (HA 1985 s.60). The case law on
intentional homelessness is vast, but for present purposes it is enough to refer to
the practice of some local authorities of classifying victims of domestic violence
as intentionally homeless if they do not apply for an order excluding their violent
partner from the home.
page 68 University of London External System
In Warwick v Warwick (1982) Fam Law 60 the Court of Appeal refused to grant an
injunction which had been sought only at the insistence of the local authority. Ormrod
LJ said that the court should not ‘play the obscure housing-policy game of the local
authority’.
In Re Wandsworth LBC ex parte Nimnko-Boateng [1984] 1 Fam Law 117, however, the court
said (without considering Warwick v Warwick) that a local authority could reasonably
insist upon a wife seeking an exclusion order before considering an application to
rehouse her, even where her husband had been violent.
If a battered woman satisfies the criteria set out above, she is entitled to be rehoused
by the local authority, although if she has a local connection with the area of another
local authority, she may be transferred to that other authority for rehousing. If the
accommodation is not permanent or settled, she may still not be homeless. See R v
Brent ex parte Awua [1996] AC 55.
4.4.4 Domestic Violence, Crime and Victims Act 2004 (DVCVA)
In order to give greater protection to victims of domestic violence and following
further criticisms of the FLA, the government decided to implement further reform.
The DVCVA was enacted in 2004 and amends Part IV of the Family Law Act 1996. Under
the 1996 legislation a cohabitant couple were not deemed to be a couple for the
purposes of either non-molestation orders or occupation orders. Under the DVCVA
they are now deemed a couple because they are ‘two persons who, although not
married to each other, are living together as husband and wife or (if the same sex)
in an equivalent relationship’. Unlike previously, if the couple are non-cohabitant
couples then they are now protected as the DVCVA includes ‘associated persons’ who
‘have or have had an intimate personal relationship with each other which is or was
of significant duration’. This inclusion of same-sex couples also extends to occupation
orders so they are now ‘entitled persons’ for the purposes of the order.
The DVCVA makes it a criminal offence to breach a non-molestation order. This makes
the order a hybrid order, which is in line with other government legislation (see the
anti-social behaviour order). The Act also limits the acceptance of undertakings by the
court instead of awarding a non-molestation order.
Activity 4.7
Put yourself in the position of a court considering a non-molestation order affecting
non-married couples under the new Act. Debate the following issues with yourself
(or others).
a. What would you consider an ‘equivalent relationship’ to marriage?
b. What would constitute an ‘intimate personal relationship’?
c. How long would a relationship need to have existed to be considered ‘of
significant duration’?
No feedback provided.
Self-assessment questions
1. Why did the government enact the Protection from Harassment Act 1997?
2. How is the new tort of harassment proven under the Act?
3. What is the meaning of ‘violence’ within the context of the 1978 Act?
4. Is ‘psychological violence’ covered by the Act?
5. What does the term ‘intentionally homeless’ mean?
6. In what ways do local authorities seek to limit their duty to victims of domestic
violence?
7. How have the courts dealt with attempts by local authorities to evade their duty
under the Housing Act 1996?
Family law 4 Protection against domestic violence page 69
8. What difference has the Domestic Violence, Crime and Victims Act made to the
position of same-sex couples?
9. What is a ‘hybrid order’?
10. What are the main provisions of s.33 FLA?
Summary
If an occupation order or non-molestation order is made and violence has been
threatened or used, then the courts have the discretion to attach a power of arrest to
the order. Victims of domestic violence can also seek financial compensation, although
there are limits to eligibility for such awards. Rehousing can be a significant issue for
a victim of domestic violence and the eligibility for rehousing is contained in housing
legislation, which includes the Housing Act 1996.
4.5 The Human Rights Act 1998
It can be argued that the Human RIghts Act 1998 (HRA) is relevant to the law relating to
domestic violence in the following five ways (see Herring, pp. 283-285).
1. An occupation order requires someone to leave their home. This would appear to
conflict with Article 8 of the Convention and the respect for private life. However,
paragraph 2 of Article 8 would defeat any such claims as the order can be made
with public safety in mind.
2. Article 6 requires a public hearing and yet some occupation orders are granted
ex parte. For example, an ex parte order could be heard against a violent husband
without him being present. This could arguably undermine his right to a fair trial
under Article 6.
3. Article 1 of the Convention says that every person should be permitted to have
peaceful enjoyment of their possessions. Use of an occupation order could
undermine this Article. This would be justified, though, as being in the public
interest.
4. It could be argued that the law on occupation orders discriminates against
unmarried couples and is therefore in breach of Article 14. The European Court has
not yet ruled that discrimination on the grounds of marital status is per se unlawful.
See Lindsay v UK (1986) 49 DR 181 but contrast with Sahin v Germany (2003) 2 FCR
619.
5. Article 3 prevents the state from subjecting its citizens to torture or inhumane
treatment. As there is a positive duty to protect the citizen from such treatment,
then an occupation order may be the only way a citizen is afforded this protection.
Should a court not provide such an order they may find themselves in breach of
this Article.
Useful further reading
¢ Bird, R. Domestic Violence: Law and Practice (London: Jordan Publishing, 2006)
fifth edition [ISBN 9780853089742].
¢ Choudhry, S. and J. Herring, ‘Righting Domestic Violence’, (2006) International
Journal of Law, Policy and the Family 95.
¢ Garlick, P. ‘Judicial separation: a research study’ (1983) 46 MLR 719.
¢ Humphries, M. ‘Occupation orders revisited’ (2001) Fam Law 542.
¢ Kaganas, F. and C. Piper, ‘Domestic violence and divorce mediation’ (1994) 16
JSWFL 265.
¢ Kay, R. ‘Guidelines on sanctions for breach: Hale v Tanner’ (2001) MLR Vol. 64 No.
4, 595.
page 70 University of London External System
¢ Lawson-Cruttenden, T. and N. Addison ‘Domestic violence and harassment
– a consideration of Part IV of the Family Law Act 1996 and the Protection of
Harassment Act 1997’ (1998) Fam Law 542.
¢ Madden Dempsey M. ‘What counts as domestic violence? A conceptual analysis’,
(2006) William and Mary Journal of Women and the Law 301.
¢ Platt, J. ‘Human rights and Part IV of the Family Law Act 1996’ (2000) Fam Law
905.
¢ Reece, H. ‘The End of Domestic Violence’, (2006), 69 MLR 770.
Sample examination questions
Question 1 Tom and Rose met six years ago. She was living with her sister Sarah
in the house left to them by their parents when they died. Sarah had the daunting
task of bringing up her three-year-old autistic daughter, Dawn. Five years ago Tom
moved into their house and within a year he and Rose had a child, Fred. A year later
their relationship deteriorated when Sarah, who was very persuasive, and Tom,
who was naturally compliant, started having a sexual relationship. By that time
Tom and Rose were hardly talking to one another. Sarah had become very hostile
towards Rose who was worried about the effect the situation was having on Fred,
who seemed to be very easily affected by Sarah’s behaviour. Three weeks ago Rose
decided to move out of the house temporarily and live with her brother, Victor, and
his wife. Sarah and Tom then started a campaign to convince Victor that Rose was
not fit to look after Fred. They telephoned and sent letters telling Victor about how
Rose neglected Fred and they continue to do so.
Rose wants to move back into the house but not while Tom and Sarah are living
there. She wants ‘an end to all the aggression and intimidation’. Tom and Sarah
have told Victor that they are setting up home together there and that they intend
to have Fred living with them.
Can Rose’s needs be met? What action might Tom and Sarah take? Would your
advice to Rose be different if she and Tom had married four years ago?
Question 2 ‘Since the enactment of Part IV of the Family Law Act 1996, there have
been no significant improvements to the state of the law prior to the Part IV’s
implementation.’
Discuss.
Advice on answering the questions
Question 1

This problem question requires a good working knowledge of the Family
Law Act 1996 and the remedies and exclusions it enjoys. As Rose wants an end to the
animosity you should consider whether she may apply to the court for a non-
molestation order under s.42 of the Act. In order to do this she must be an ‘associated
person’. Consider whether she is ‘associated’ to Tom and ‘associated’ to Sarah. What do
the courts understand by molestation? Would Tom and Sarah’s actions amount to
molestation? For Rose to move back into the house with Tom and Sarah gone she
would have to apply to the court for an occupation order. Which statutory provision
applies? You should work through the different types and notice that s.33 is the most
appropriate.
Of course, Sarah also has occupier’s rights to the house so she may choose to bring an
action also. Remember, though, that the orders are often seen as ‘first aid’ rather than
a long-term solution. Look at s.33(6) to see what factors the courts will consider when
looking at whether to grant an occupation order. What are each of the parties’ housing
needs? What are the parties’ respective financial resources? If no order is made,
what impact may this have on the parties and any children involved? Dawn’s autism
may be relevant here. Is Tom and Sarah’s behaviour towards Rose likely to be levied
against them by the court? Under s.33(7) significant harm becomes an important
consideration. Look at the case law here and see if it helps. See Chalmers v Johns and G
v G. It will be for you to advise the court as to what you think their decision may be.

You might find it useful
to draw a diagram of the
relationships and needs in a
question such as this. A short
list of what the various parties
now want would also help.
Family law 4 Protection against domestic violence page 71
Tom may also bring an occupation order under s.36 and the courts would consider the
same factors. These orders can be awarded ex parte but this is unlikely here because
there is no evidence of significant harm being so immediate as to deny one party
the right to appear in proceedings. As to Tom’s position if he had married Sarah: his
position would be stronger as he would have acquired rights under s.33 and would not
have to rely on the less compelling s.36. Consider the statute here to ascertain why he
would be in a stronger position. Sections 30 and 31 may prove useful.
Question 2 This question makes a controversial statement as you would hope, as with
any law reform, that the position is better in law now than it was prior to legislative
change. Like the CA before it, the FLA was a welcome statute of consolidation. You may
like to review the old law and then be mindful of Lord Scarman’s comments in Richards
v Richards, which suggested the law was a ‘hotchpotch of enactments of limited
scope’. Consider the array of powers that were available to different courts to respond
to a particularly worrying issue. Then you need to consider the Law Commission’s
report No. 207 which led to the reform implemented by the 1996 Act.
Having set the scene, you would need to consider the new arrangements under the
1996 Act. Part IV deals with matrimonial home rights and it is worth looking at both
the occupation (formerly termed ouster) order and the non-molestation order. First,
consider the occupation order, which is potentially quite serious as it restricts a
person, sometimes with significant proprietary rights, by denying them the right to
exercise those rights. Look at the different classification of applicants under ss.33 and
35–38. Then look at the non-molestation order under s.42. Look at who may apply and
the discretion available under s.45.
Once you have done this, you will need to look at the case law to see if things have
got any better. When looking at occupation orders, consider B v B and Chalmers v
Johns. Gripton v Gripton, Banks v Banks and G v G (Occupation Order: Conduct) may also
prove useful. With non-molestation orders look at C v C, Banks v Banks and even G v F
to see how these are working. In view of what was in place before, it would be a fair
assessment to suggest things have got better. That said, recent reform has taken place
and it is worth outlining the reforms of Part IV under the Domestic Violence, Crime and
Victims Act 2004 in your penultimate paragraph. Under this legislation the protection
afforded to victims of domestic violence is even greater and this is a positive note to
end on. Is there, as Helen Reece considers (Helen Reece (2006) ‘The End to Domestic
Violence’ 69 MLR 5, 770), now an end to domestic violence?
page 72 University of London External System
Reflect and review
Look through the points listed below:
Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on
Need to
revise first
Need to
study again
I can discuss the role and effectiveness of the
criminal law in domestic violence.

¢

¢

¢
I can describe the differing jurisdictions under which
court orders may be made.

¢

¢

¢
I can explain the difference between the grounds for
non-molestation orders and ouster orders under the
DVMPA and the DPMCA.


¢


¢


¢
I can draw up a list of the persons who may apply
under each of the Acts.

¢

¢

¢
I can explain the duration of orders, particularly in
relation to ouster orders.

¢

¢

¢
I can state the definition of harassment under the
DVMPA.

¢

¢

¢
I can define the new tort of harassment under PHA. ¢ ¢ ¢
I can consider the potential impact of the HRA on
this area of law.

¢

¢

¢
If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
4.1 The criminal law ¢ ¢
4.2 Injunctions ¢ ¢
4.3 The Family Law Act 1996 ¢ ¢
4.4 Enforcement of orders ¢ ¢
4.5 The Human Rights Act 1998 ¢ ¢
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74
5.1 Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75
5.2 Financial support during marriage . . . . . . . . . . . . . . . . . . . . .77
5.3 Other provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .78
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . .81
5 Family maintenance
page 74 University of London External System
Introduction
This chapter, and the two that follow it, outline the means by which family members
can acquire financial support. In common law a duty was imposed on a husband to
maintain his wife by providing her with ‘necessaries’ but this obligation is no longer of
practical relevance. Today, there are three areas that are important in this context.
u The first, which is the subject of this chapter, covers the rules governing provision
of welfare benefits by the state.
u Second, also the subject of this chapter, is the powers of both the Superior and
Magistrates’ Courts to make orders requiring one spouse to support the other
during marriage and after divorce. We will also look at the powers of the Superior
and Magistrates’ Courts that may be invoked after parties have separated prior to
divorce, or where the parties are separated but do not wish to divorce, perhaps for
religious reasons.
u The third area concerns the extensive powers given to the courts by statute to
order parents to provide financial support to their children. These provisions
on financial support for children are now superseded, or in some cases
complemented, by the provisions of the Child Support Acts 1991, 1995 (CSA) and the
reforms contained within the Child Support, Pensions and Social Security Act 2000
(CSPSSA) (see Chapters 6 and 7).
Since the inception of the CPA 2004 all legal references to couples for the purposes of
these benefit entitlements and liabilities would extend to civil partners. (See Part 14
of Schedule 24 of the CPA and the alterations made to the Tax Credits Act 2002 for an
example.)
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
u outline the British system of financial support for families
u define ‘liable relative’ and explain his or her rights and obligations
u list the grounds on which applications may be made under the MCA and DPMCA
and describe the differences between them
u explain the powers of the various courts to make financial provision.
Essential reading
¢ Masson et al., Chapter 6, pp.179–207.
¢ Probert, Chapter 7, pp.129–134, 146–148.
Family law 5 Family maintenance page 75
5.1 Benefits
5.1.1 Background
You are not expected to know more than an outline of the impact of the social
security system upon family law. However, you should have some familiarity with the
income support, family credit and child benefit allowances and an awareness of the
existence of other state benefits and the rules governing the state’s entitlement to
reimbursement of such benefits from the ‘liable relative’.
Some doubt surrounds the number of applications made for financial support
during marriage. What is indisputable, however, is that, in spite of considerable
refurbishment of the relevant statutory principles by the Domestic Proceedings and
Magistrates’ Court Act 1978 (DPMCA), this area of law has attracted comparatively little
judicial attention and remains undeveloped.
Applications for maintenance to the magistrates fell by 26 per cent between 1983 and
1987, from 27,000 to 20,000. This was due, in particular, to the increase in the number
of separated and divorced spouses relying upon state social security payments as their
principal form of financial support, as well as by the growing number of couples who
regulate their financial requirements by private agreement. Indeed, the number of
one-parent families dependent on ‘supplementary benefit’ grew from 330,000 in 1980
to 777,000 in 1989, with fewer than a quarter of one-parent families on income support
in 1989 receiving any periodical payments from the absent parent (mostly fathers).
In practice the court’s powers are also much affected by the introduction of the
Child Support Act 1991 (CSA), as amended by the 1995 Act and the Child Support,
Pensions and Social Security Act 2000 (CSPSSA). This has meant that where parents are
separated and there is a qualifying child within the definition of the CSA 1991, the Child
Support Agency will be the first avenue to follow in seeking maintenance for children.
5.1.2 Income support
Section 20(3) of the Social Security Act 1986 entitled a person who was not engaged in
remunerative work, but was available for and actively seeking employment and whose
income did not exceed his ‘applicable amount’ (a standard weekly rate of benefit), to
claim income support. The details of the scheme, which are complex and outside the
Family law syllabus, are contained in the Income Support (General) Regulations 1987,
as amended.
A person under 18 is qualified to apply for income support in exceptional
circumstances only.
Each claimant’s resources are aggregated for most purposes with those of his or her
family – ‘family’ for this purpose consists of husbands and wives, cohabiting couples
and parents and children. Benefit awarded to a claimant will be in respect of his or
her family and the regulations prescribe 16 different ‘personal allowances’ which
depend on the individual characteristics of the claimant. Further, certain categories
of claimant are entitled to a ‘premium’ (i.e. a higher rate of weekly benefit). These
include families and ‘lone parents’. Under the Social Security Contributions and
Benefit Act 1992 (SSCBA) unemployed single parents are not expected to be available
for work. Allowances for an unemployed person who is part of a two-parent family
require him or her to be available for employment under the Jobseekers’ Act 1995. It is
important to note that housing costs, which are defined to include mortgage interest
payments, are included in a claimant’s ‘applicable amount’. This has been of immense
significance in the assessment of financial provision on divorce.
page 76 University of London External System
5.1.3 Family credit (now abolished)
This benefit was designed to provide assistance for low-earning families with children.
The claimant or his or her partner:
u had to be ‘engaged and normally engaged in remunerative work’ for no fewer than
16 hours weekly
u had to be responsible for a child member of the household
u had income and capital that did not exceed certain levels.
There was no allowance for child-care costs or for housing costs, such as mortgage
interest payments.
Family credit was replaced in October 1999 by the working families tax credit under
the Tax Credits Act 1999. The criteria are identical, but now families can also apply for a
child-care tax credit, which was introduced as an incentive for mothers to work rather
than remain on benefit. These tax credits were subsequently renamed in 2002 and are
now called child tax credit and working tax credit and are governed by the Tax Credits
Act 2002.
5.1.4 Child benefit
This benefit, which is neither means-tested nor taxed, used to be payable under s.1 of
the Child Benefit Act 1975 to ‘a person who is responsible for one or more children in
any week’. It is now payable under s.141 of the Social Security Contributions and Benefit
Act 1992. Responsibility may be established by providing either that the child lives with
the claimant or that he or she is contributing to the cost of providing for the child.
One-parent families used to be able to claim an additional benefit – one-parent benefit
– in respect of their first child only to cover the special costs of bringing up children in
these families. This was abolished in 1998.
Those who are entitled to claim child benefit was reviewed and this is now governed
by the Child Benefit Act 2005.
5.1.5 Contributory benefits
These are a large number of benefits, including unemployment and sickness benefit,
invalidity allowance and pensions which are dependent on contributions

made by
the claimant or his or her spouse.
The ‘liable relative’
Social security legislation contains provisions, extended in scope in 1990, whereby the
authorities can recover payments of income support from ‘liable relatives’.
For the purposes of income support, a man is liable to maintain his wife and his
children and a woman, her husband and her children. The liability of spouses towards
each other, but not to their children, ceases on divorce. The obligation to maintain is
only enforceable if there has been a claim for income support in respect of a spouse or
a child and extends to incorporate not only the personal allowance in respect of any
children but also ‘child-related’ premiums and the ‘personal allowance element’ in
income support.
The Department for Work and Pensions (DWP) seeks to identify and trace welfare
claimants’ liable relatives in order to ensure that such relatives, rather than the state,
maintain their dependants. An administrative formula is used to calculate the amount
that the relative should contribute to dependants, allowing the liable relative to
keep a reasonable sum for his or her own maintenance. In the event that the DWP is
unable to encourage the liable relative to maintain his or her dependants voluntarily,
it may apply for a court order directing that the liable relative pay an appropriate sum.
Should income support cease to be payable, the benefit of the order may be assigned
to the claimant. The DWP is also entitled to enforce maintenance orders made by the
courts on behalf of income support claimants.

These contributions are
made via National Insurance
(NI), which is in effect a
supplementary tax on
incomes.
Family law 5 Family maintenance page 77
Summary
There are a number of ways in which a person can receive financial support from the
state. These benefits include income support, working families tax credit and child
benefit. There are also benefits which are dependent on contributions made by the
claimant. On some occasions the state is able to recover payments of income support
from ‘liable relatives’. Liable relatives include fathers who have an obligation to
maintain their wives and children.
5.2 Financial support during marriage
5.2.1 Powers of the courts
Applications to superior courts
The Matrimonial Causes Act (MCA) s.27 provides that either party to a marriage may
apply to the High Court or to a Divorce County Court for an order on the ground that
the other party has failed to provide reasonable maintenance for the applicant or that
he or she has failed to provide, or to make a proper contribution towards, reasonable
maintenance for any child of the family. In deciding whether there has been a failure to
maintain and what order to make, the court is to ‘have regard to all the circumstances
of the case’, including the matters referred to in the divorce legislation. Where an
application is made alleging both a failure to provide maintenance for the applicant
and for a child of the family who is under 18, the court must, as in divorce proceedings,
give ‘first consideration’ to the welfare of the child while a minor.
The court may make unsecured and secured periodical payments and lump sum
orders but has no power with regard to property adjustment.
The Magistrates’ Court
The DPMCA codifies the circumstances in which magistrates have powers to make
financial orders in domestic cases. These powers arise where the applicant can
establish one of the two grounds in s.1 of the Act, both of which involve an element
of wrongdoing. The court is also given power to make certain financial orders in
cases where the parties are living apart by agreement and where parties have agreed
payments between each other. The FLA amends the DPMCA by repealing the facts
relating to behaviour and desertion (see bullet points below) on which an application
for financial provision could be made to the Magistrates’ Court (see Schedule 10).
The four grounds for complaint in s.1 DPMCA before the FLA were:
u failure to provide reasonable maintenance for the applicant (see MCA 1973 s.27 for a
discussion of the identical ground in applications to superior courts)
u failure to provide, or to make proper contributions towards, reasonable
maintenance for any child of the family
u behaviour: the respondent has behaved in such a way that the applicant cannot
reasonably be expected to live with the respondent. This provision is repealed by
the FLA (Schedule 10). The ground was identical to the divorce ‘fact’ (see Bergin v
Bergin [1983] 1 WLR 279).
u desertion: the respondent has deserted the applicant. An application must
be made within six months of the date when the cause of complaint arose
(Magistrates’ Court Act 1980, s.127).
Activity 5.1
Read the cases of Titheradge v Titheradge [1983] 4 FLR 552, E v C (Child Maintenance)
[1996] 1 FLR 472 and B v B (Periodical Payments: Transitional Provisions) [1995] 1 FLR
459. Explain how you think the courts, in exercising their discretion, were able to
assess ‘how the reasonable needs of the family can best be met’.
page 78 University of London External System
Where a ground under s.1 has been established, the court may make the following
orders under s.2.
u An order that the respondent shall make to the applicant such periodical
payments, for such term, as may be specified in the order.
u An order that the respondent shall pay to the applicant such lump sum, not
exceeding £1,000, as may be specified in the order.
u An order that the respondent shall make to the applicant for the benefit of a child
of the family, or to such a child, periodical payments or a lump sum not exceeding
£1,000. It should be noted that powers with respect to children are significantly
affected by the Child Support Agency, which is described in Chapter 7.
Guidelines for the exercise of the Magistrates’ Courts’ discretion are to be found in s.3
which consists of a checklist similar to that contained in s.25 MCA, discussed in Chapter
6. Like s.25, it was amended in 1984 and the court must give first consideration to the
welfare of any child of the family under 18.
Among the relevant matters, the court shall have regard (as in financial provision upon
divorce) to the conduct of each of the parties and if that conduct is such that it would,
in the opinion of the court, be inequitable to disregard it. Magistrates have, however,
been cautioned against paying excessive attention to issues of conduct at the expense
of a proper consideration of the needs and resources of the parties. See Vasey v Vasey
[1985] 15 Fam Law 158.
Activity 5.2
a. Do you think the conduct of the parties should be taken into account when
awarding financial provision?
b. What effect should bad conduct have on the award of financial provision?
No feedback provided.
Summary
Prior to divorce a couple often separate. Sometimes couples wish to separate but for
religious reasons have no intention of divorcing. There are powers of both the Superior
Courts and Magistrates’ Courts which can be invoked to make sure that financial
support is available for spouses and their children should it be required. If reasonable
maintenance is not provided then an application can be made to a Superior Court. The
Magistrates’ Courts also have powers to make financial orders in domestic cases.
5.3 Other provisions
5.3.1 Consent orders
A consent order is one where the parties present their agreement to the court and ask
it to make a consent order. The court scrutinises the terms of the agreement and then
makes the order.
DPMCA s.6 empowers the court to make a consent order for financial provision for a
spouse or a child of the family provided there is adequate proof of the agreement and
the court has no reason to think that it would be contrary to the interests of justice to
make the order. In the past incorporating a maintenance agreement in a court order
used to confer tax advantages, but these have largely been removed by the Finance
Act 1988. Accordingly, the only remaining advantage to an order under s.6 is that the
payee has a legally enforceable right.
Family law 5 Family maintenance page 79
5.3.2 Continuation of payments
DPMCA s.7 (as amended by the FLA) provides that, where there has been a separation
for at least three months and one of the parties has been making periodical payments
for the benefit of the other party or a child of the family, that other party may apply
for an order that the payments be continued. The court must specify the aggregate
amount of the payments made during the three months preceding the application
and no order can be made that exceeds this aggregate. No order should be made if
the amount to be paid would not provide sufficient maintenance for the applicant or a
child of the family but in such a case the application may be treated as an application
under ss.1 and 2 of the DPMCA.
Duration of orders
Although an order can be obtained even if the parties to the marriage are living with
each other, a periodical payments order will cease to be enforceable if they continue
to live with each other or resume living with each other for a continuous period of six
months. Orders with respect to children remain enforceable.
DPMCA s.4 prescribes that the order shall not extend beyond the death of either of
the parties to the marriage and shall cease upon remarriage. It is implicit in s.4 that a
Magistrates’ Court order may continue beyond the subsequent granting of a divorce
decree.
Variation provision
Variation, revocation and revival of order are to be found in s.20.
Periodical payments orders may be revoked but not lump sum orders. In exercising its
variation and revival jurisdiction, the court gives effect to any agreement between the
parties ‘so far as it appears just to do so’ and has regard to:
‘all the circumstances of the case, first consideration being given to the welfare while a
minor of any child of the family who has not attained the age of 18 and any circumstances
of the case shall include any change in the matters to which the court was required to
have regard when making the order.’
Enforcement
The Maintenance Enforcement Act 1991 allows the court to direct payments of
maintenance to be made by direct debit or standing order. Enforcement proceedings
must be brought by the Clerk of the Court in his or her own name if he or she is
requested to bring such proceedings.
Self-assessment questions
3. What is the meaning of the term ‘reasonable maintenance’?
4. What does the term ‘desertion’ mean?
5. What do you understand by the term ‘consent order’?
Summary
The other provisions available to the courts include a consent order and an order
to ensure the continuation of payments. There are some residential limits on
the duration of these orders and the orders can be varied, revoked or revived in
accordance with statutory provisions. There are statutory provisions to enforce these
orders.
page 80 University of London External System
Sample examination question
Jean is seeking financial provision from her husband, David, from whom she
separated 12 months ago. She has the care of their six-year-old child, Lucy. At first
David voluntarily paid £70 per week to Jean, who is partially disabled and can only
work part-time and earns £56 per week. At this time David had a job as a plumber
and was earning £300 per week. Two months ago David stopped making payments
to Jean, suspecting (wrongly) that she had committed adultery with his brother.
David has now given up his job as a plumber and is intent on obtaining a place at
a university next year to study oriental art. He is living with his parents who are
supporting him.
Advise Jean.
Advice on answering the question
This question demands a knowledge of financial support during separation. There
is no divorce. David may have thought he had grounds after he suspects Jean had
committed adultery but he would have been mistaken. In advising Jean you should
look at the fact that she had voluntary periodical payments from her husband to help
support the family. If the courts are to get involved then she needs an order under
s.1 DPMCA as her husband has failed to provide reasonable maintenance to Jean and
her daughter. The courts may decide to make an order for a lump sum which may be
preferred by Jean as David is about to become a student with no working wage. If she
seeks a periodical payments order she would get less as David will soon be a student.
Look at E v C and the father dependent on state benefit. A Child Support Agency
assessment may well return a nil assessment if David, as a student, has no income and
the family income cannot be assessed because David is living with his parents. Look at
the limitations identified in B v B.
Family law 5 Family maintenance page 81
Reflect and review
Look through the points listed below:
Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on
Need to
revise first
Need to
study again
I can outline the British system of financial support
for families.

¢

¢

¢
I can define ‘liable relative’ and explain his or her
rights and obligations.

¢

¢

¢
I can list the grounds on which applications may be
made under the MCA and DPMCA and describe the
differences between them.


¢


¢


¢
I can explain the powers of the various courts to
make financial provision.

¢

¢

¢
If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
5.1 Benefits ¢ ¢
5.2 Financial support during marriage ¢ ¢
5.3 Other provisions ¢ ¢
page 82 University of London External System
Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84
6.1 Financial provision orders . . . . . . . . . . . . . . . . . . . . . . . . .85
6.2 The limits of the financial powers of the court . . . . . . . . . . . . . . .88
6.3 The exercise of the court’s powers . . . . . . . . . . . . . . . . . . . . .89
6.4 The welfare of children . . . . . . . . . . . . . . . . . . . . . . . . . .90
6.5 ‘All the circumstances’ . . . . . . . . . . . . . . . . . . . . . . . . . . .91
6.6 The ‘clean break’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .99
6.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
6 Financial provision upon divorce, dissolution, nullity
and separation
page 84 University of London External System
Introduction
Courts have a wide discretion as to what financial provision should be ordered upon
divorce, nullity and separation (formerly judicial separation) and it appears that no
distinction is made by the courts in this context between such proceedings. See
Wagstaff v Wagstaff [1992] 1 FLR 333.
That discretion must be exercised in accordance with s.25 MCA (as amended by
the Matrimonial and Family Proceedings Act 1984). The financial circumstances of
divorcing couples vary so considerably that it is impossible to predict with certainty
the outcome of an application for financial provision in any given case.
The same rules apply upon dissolution of a civil partnership as upon divorce. Section
72 CPA 2004 declares explicitly that Schedule 5 ‘makes provision for financial relief in
connection with civil partnerships that corresponds to provision made for financial
relief in connection with marriages by Part II MCA 1973’. Due to the relatively new
status of the CPA the current guiding authority tends to focus on divorce among
heterosexual couples.
Some separating couples are able to reach agreement as to financial provision and the
distribution of property on divorce and these agreements could be incorporated in a
court order (a consent order; see below 6.6.3, Private ordering). The FLA tried to further
this practice by encouraging the parties to reach their own agreements without the
interference of the court. These reforms were never fully implemented. Consequently,
when agreement is not possible, the court will exercise its powers to order financial
provision and property distribution. To this extent the law remains the background to
negotiated settlements and becomes operable when agreements prove impossible to
reach.
The court’s powers to grant financial provision upon divorce have been greatly
affected by the Child Support Acts (CSA) 1991 and 1995, and CSPSSA 2000. In essence,
before exercising its jurisdiction to make financial provision and property distribution
orders, the court must be appraised of whether the Child Support Agency has
jurisdiction over provision for the children of the marriage. Where the Agency has
jurisdiction, the court’s jurisdiction is confined to the circumstances set out in s.8 CSA
1991.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
u state the jurisdiction of the divorce court to make financial provision and
property orders in favour of spouses and children
u explain the differences between secured and unsecured periodical payments
and lump sum orders and their respective merits
u state the significance of the welfare of the children of the family
u state the considerations which the court must take into account in calculating
awards
u consider the growing case law on ‘big money’ cases and the move towards
‘equality’
u give examples of the different possible approaches to calculating orders
u describe the relationship between financial provision and property orders
u define the concept of the ‘clean break’ and explain the manner in which the
courts have interpreted it
u explain the role of negotiated settlements under the current law
u consider the potential impact of the Human Rights Act 1998 on financial
provision.
Family law 6 Financial provision upon divorce, dissolution, nullity and separation page 85
Essential reading
¢ Herring, Chapter 5, pp.198–257.
¢ Masson et al., Chapter 13, pp.325–422.
¢ Probert, Chapter 8, pp.149–182.
¢ Standley, Chapter 9, pp.159–215.
6.1 Financial provision orders
6.1.1 Orders available
The court may make:
u interim periodical payments orders
u full periodical payments orders
u lump sum orders
u a combined order against the parties on one occasion
u separate orders on different occasions
u different orders in favour of different children
u different orders from time to time in favour of the same child.
6.1.2 Maintenance pending suit
The court could make:
‘an order requiring either party to the marriage to make to the other such periodical
payments, for his or her maintenance, for such term, being a term beginning not earlier
than the date of the presentation of the petition and ending with the date of the
determination of the suit, as the court thinks reasonable.’ (s.22 MCA 1973)
This is intended as a temporary measure of financial support for one of the spouses
pending the outcome of the divorce petition and financial relief sought upon divorce.
The difficulty with this type of order is that it does not really improve the position
of (say) a wife who does not have sufficient funds even to initiate an application
for maintenance pending suit. In practice, a wife is more likely to be supported by
voluntary payments from her husband, or by income support, than to seek an order of
maintenance pending suit.
In G v G (Maintenance pending suit: legal costs) [2003] 2 FLR 71, the wife asked for an
element in respect of her legal costs to be included in a maintenance pending suit
award. The husband argued that ‘maintenance’ did not extend to include the legal
costs of ancillary relief proceedings. The court, however, held that ‘maintenance’ was
to be construed in the overall context of the Act, which was to promote and produce a
fair result between husband and wife, and could therefore include a payment to meet
the costs of the ancillary relief proceedings.
Orders may be for a lump sum or periodical payments and may be interim or full
orders. However, other than where an interim order is made, the court must be
satisfied before making the order that:
u the circumstances are exceptional
u it would be just and reasonable for the order to be so made.
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6.1.3 Periodical payments orders
The court may order that either party to the marriage shall make to the other such
periodical payments, secured or unsecured, as may be specified in the court order for
the benefit of either party to the marriage or any child of the family.
It has been noted above that full (as opposed to interim) periodical payments orders
may exceptionally be made after the receipt of the statement of breakdown, but
before the order for divorce is granted.
If the order is unsecured, it will direct the payer to make payments with the regularity
stipulated by the order (weekly, monthly, quarterly, etc.). The court has the power to
order payment by standing order or direct debit. It may also make an attachment of
earnings order requiring an employer to deduct specified sums from an employee’s
pay and to pay them over to the court.
A secured order consists of periodical payments orders secured to capital belonging to
the payer (such as real property or stocks and shares) which will be vested in trustees
by the court order. Default by the husband, if he is the payer, will result in the wife
being entitled to claim upon the security in order to cover the arrears in payments
owed to her. In such a case, the secured order may continue for the wife’s lifetime;
the husband may die, but the fund remains. In contrast, there is no power to order
unsecured payments to continue beyond the parties’ joint lives.
The basic rule for the duration of orders is laid down by s.28(1) MCA. An unsecured
order shall not extend:
‘beyond the death of either of the parties to the marriage or where the order is made on
or after the grant of a decree of divorce… the remarriage of the party in whose favour the
order is made’.
Note that if an ex-wife who is in receipt of a periodical payments order from her
former spouse cohabits with another man, her order does not automatically
terminate, although the ex-husband may have grounds for applying for a variation of
the order under s.31 MCA. See Atkinson v Atkinson [1988] Fam 93.
Secured or unsecured periodical payments orders may be made, subject to the
provisions of the CSA 1991 in respect of children of the family.
Note also that remarriage does not terminate orders in favour of children of the
previous marriage.
6.1.4 Lump sum orders
MCA s.23(1)(c) states that a lump sum order is:
‘an order that either party to the marriage shall pay to the other such lump sum or sums
as may be so specified’.
Lump sums enjoy several advantages over periodical payments orders. These orders
may sometimes be very large: see Gojkovic v Gojkovic [1990] 1 FLR 140.
Enforcing the payment of a once-and-for-all sum is often easier than trying to recover
relatively small periodical payments at intervals. The lump sum, being a judgment
debt, can be enforced in bankruptcy proceedings. Moreover, in many cases such a
payment comes closest to promoting the philosophy of a ‘clean break’ which courts
are enjoined to consider (see 6.6 below). A factor that courts contemplating the award
of a lump sum have to bear in mind is that, although the husband may have assets
from which the sum may be derived, they may not be immediately realisable. The
attempt to realise them may indeed simply depress the resources of both husband
and wife. This can occur, for example, where the husband owns a farm or runs his own
one-man business. In such a case the court may order payment of the lump sum by
instalments.
Family law 6 Financial provision upon divorce, dissolution, nullity and separation page 87
Some issues have arisen in recent decisions: see M v B (Ancillary Proceedings: Lump Sum)
[1998] 1 FLR 53. In this case the Court of Appeal stressed the ‘paramount consideration’
to ‘cover the needs of both parties for a home’, even for the parent without day-to-day
care of children. It was a matter which ‘would almost invariably have a decisive impact
on the outcome’ of the case.
A clear reminder that decisions involving the exercise of discretion do not create
rules was given by the House of Lords in Piglowska v Piglowski [1999] 2 FLR 763. The
Court of Appeal varied an order on appeal by awarding the husband 40 per cent of
the proceeds of the sale of the former matrimonial home. This would have had the
effect of requiring the home to be sold, the justification for which was that, as the
parties were legally aided, the husband would have been able to purchase a home,
thereby deferring the operation of the Legal Aid statutory charge. The HL held that it
was wrong for a court to order more than it otherwise would have on the ground that,
by doing so, the husband could avoid the Legal Aid Board’s charge. Furthermore, M v B
(above) had not established a rule that both spouses had a right to be able to purchase
a home; a value judgment could be made in particular cases that a spouse should not
be awarded a lump sum sufficient to buy a property. Finally, an appeal court should not
substitute its own discretion for that of the judge by a narrow textual analysis which
enables it to claim that the judge misdirected himself. Some diversity in the decisions
of first instance courts was a reasonable price to pay for the flexibility of the discretion
which the MCA conferred upon them.
Activity 6.1
Why should there be any redistribution of property upon separation and divorce?
Activity 6.2
Evaluate the advantages and disadvantages of lump sum orders.
6.1.5 Property adjustment and transfer orders
MCA s.24(1)(a) enables the court to order that specified property, to which the spouse
is entitled in possession or reversion, be transferred to the other spouse (or for the
benefit of the children). You should note that rented property can be transferred
under this section. Furthermore, s.53 FLA 1996 enabled the court to transfer Rent Act
protected or assured tenancies (in the private sector) or Housing Act secure tenancies
(in the public sector) upon divorce.
Property adjustment orders can only take effect after the making of a divorce or
separation order unless the court is satisfied that:
u the circumstances of the case are exceptional
u it would be just and reasonable for the order to be so made (MCA 1973 s.23).
Recent decisions have demonstrated the possibilities under this provision: see B v B
(Welfare of Child and Conduct) [2002] 1 FLR 555. In this case an order to the wife of the
entire net value of the matrimonial home was justified by the need to house the child
of the marriage to a reasonable standard. A Mesher order

was not appropriate, taking
into account not only the contributions of the parties, particularly the wife’s ongoing
contribution to the care of the child, but also the parties’ conduct. The wife was
entitled to rely on various aspects of the husband’s conduct, including:
u his litigation conduct in not disclosing the removal of assets from the jurisdiction
u his actual conduct in preventing the court from having any meaningful say in the
disposition of assets
u the reality that the burden of maintaining the child was likely to rest with the
mother alone
u the husband’s abduction of the child.
See also Akintola [2002] 1 FCR 453.

Mesher orders: see 6.5.3
below.
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6.1.6 Settlement orders
MCA s.24 (1)(b) enables the court to direct that property to which a party to the
marriage is entitled can be settled for the benefit of the other spouse and/or the
children of the family.
6.1.7 Variation of nuptial settlements
MCA s.24 (1)(c) and (d) enable the court to make an order varying any ante-nuptial or
post-nuptial settlement made on the parties to the marriage for the benefit of the
parties of the marriage and/or the children of the family.
The power to create, vary or revoke settlements was of considerable practical
significance before the power to award lump sums and make property transfers was
conferred upon the divorce court, since it was the only way by which the ownership
of capital could be dealt with upon breakdown of marriage. Courts have construed
‘settlement’ generously.
6.1.8 Sale orders
MCA s.24A now confers upon the court the power to order the sale of property
consequent upon the making of any order for financial relief other than an order for
unsecured periodical payments. The power can be exercised even if a third party
has a beneficial interest in the property, although such a person must be given an
opportunity to make representations to the court. See Harwood v Harwood [1991] 2 FLR
274.
6.2 The limits of the financial powers of the court
The court’s financial powers are not unlimited: it must act within the provisions of
the legislation and cannot make any order it chooses. For example, it has no power to
order the husband to take out an insurance policy for his wife and children (see Milne v
Milne [1981] 2 FLR 286) or to nominate his wife as a beneficiary under a pension scheme
(see Crittenden v Crittenden [1990] 2 FLR 361) or to pay off a mortgage. Some of these
objectives can, however, be attained indirectly.
u The husband can give an undertaking to the court that he will, for example, pay off
the mortgage. Failure to carry out the undertaking may constitute a contempt of
court.
u The amount of financial provision awarded can be made conditional on the
husband’s willingness to pay off the mortgage. Failure to do so might entail the
husband making higher periodical payments.
u Under the MCA, where the divorce was based upon five years’ separation, the
decree could be refused on the ground of ‘grave financial hardship’ unless
satisfactory arrangements are made (see MCA 1973 s.5).
A financial provision order must also not derogate from the rights of third parties not
before the court. Hence it will be impossible to order the transfer of a mortgage or
consumer credit agreement if an assignment is forbidden by their terms.
Self-assessment questions
1. What is the difference between a ‘secured’ and an ‘unsecured’ order?
2. What is a ‘nuptial settlement’?
Family law 6 Financial provision upon divorce, dissolution, nullity and separation page 89
Summary
Courts exercise a wide, but not limitless, discretion when they consider the financial
settlements to couples upon marital breakdown. The court can order a maintenance
pending suit so that a party to a divorce is not without financial support prior to the
divorce taking place. Upon divorce the court has the option to grant any one of a
collection of financial orders. The periodical payments order is available in exceptional
cases to allow a regular income to be awarded to the economically weaker of the
parties to the divorce. A lump sum order provides the economically weaker party with
a once-and-for-all payment. A property adjustment and transfer order enables the
court to resolve disputes over possession of marital property. The court also has the
power to make a settlement, variation of nuptial settlement or a sale order. There are
limits to the financial powers of the court, regulated by statute and the common law.
6.3 The exercise of the court’s powers
Where the legislation merely directed the court to make such order as it ‘thinks
reasonable’, the orders of the court are governed by the statutory guidelines laid
down in s.25 MCA as substituted by s.3 of the Matrimonial and Family Proceedings Act
1984.
The guidelines were originally contained in the Matrimonial Proceedings and Property
Act 1970, a measure that introduced the present range of financial provision powers
conferred on the divorce court. It was designed to make the principles applied in
disputes concerning financial provision consistent with the provisions and philosophy
of the Divorce Reform Act 1969. The list of factors to be considered included not only
such matters as the financial needs of the parties, and the contributions made by each
of them to the welfare of the family, but also required the court to exercise its powers
so as to:
‘place the parties, so far as is practicable and, having regard to their conduct, just to do so, in
the financial position in which they would have been if the marriage had not broken down.’
(s.25(1) MCA 1973 (formerly s.5 Matrimonial Proceedings and Property Act 1970))
This last guideline attracted considerable criticism in the late 1970s and early 1980s.
Judges and registrars said it was impossible to apply in many cases, especially where
the family resources were low. When the principle was invoked, it was said to lead to
high maintenance awards which impoverished ex-husbands and their new families.
Finally, continuing periodical payments orders were considered to be inconsistent
with the objective of the divorce legislation that the:
‘empty legal shell of marriages that had irretrievably broken down should be buried with
the minimum bitterness, distress and humiliation.’ (‘Reform of the Grounds of Divorce:
The Field of Choice’ (Law Com No. 6 (1966))
Activity 6.3
Do you think justice is best maintained with unfettered judicial discretion? Why?
After detailed consideration of these issues in a Law Commission Discussion Paper
(Law Com No. 103) and Report (Law Com No. 112), Parliament enacted the Matrimonial
and Family Proceedings Act 1984 which removed the obligation from the courts of
attempting to restore the parties to their financial position prior to divorce. The
majority of factors listed in MCA 1973 were retained, with slight amendments, but two
special statutory objectives were incorporated into the new s.25.
1. It shall be the duty of the court in deciding whether to exercise its powers in
financial matters and, if so, in what manner, to:
‘have regard to all the circumstances of the case, first consideration being given to the
welfare while a minor of any child of the family who has not attained the age of 18.’ (s.25(1))
2. If the court decides to exercise its financial powers in favour of a party to the
marriage it must consider:
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‘whether it would be appropriate so to exercise those powers that the financial
obligations of each party towards the other will be terminated as soon after the grant of
the decree as the court considers just and reasonable.’ (s.25A(1))
Furthermore, the court must consider whether it would be appropriate for a
periodical payments order:
‘to be made or secured only for such term as would, in the opinion of the court, be
sufficient to enable the party in whose favour the order is made to adjust without undue
hardship to the termination of his or her financial dependence on the other party.’
(s.25A(2))
These are the so-called ‘clean break’ provisions of the Act.
In the context of s.25, various issues are considered. It should be noted that a principle
of sexual equality exists in making financial provision orders. This means that former
wives can be ordered to maintain their ex-husbands as well as the other way around.
See Calderbank v Calderbank [1976] Fam 93 and Browne v Browne [1989] 1 FLR 291.
Further, ‘all the circumstances past, present and, insofar as one can make a reliable
estimate, future’ must be taken into account. See Browne v Browne. Precedent
operates loosely and the appellate court will only interfere in very clear cases. See
Preston v Preston [1982] Fam 17.
6.4 The welfare of children
In determining financial provision the court must:
‘have regard to all the circumstances of the case, first consideration being given to the
welfare while a minor of any child of the family who has not attained the age of 18.’ (s.25(1)
MCA)
The following points are to be noted about this provision.
u The provision is not solely related to the making of orders relating to the children,
but extends to the exercise of the court’s powers to make orders in relation to the
spouses. Thus it has been held that it is not in the interests of the children that
their mother be in difficult circumstances.
u The welfare of a child of the family is the ‘first’, but not the ‘first and paramount’
consideration. In deciding cases under the Children Act, we shall see in Chapter 11
that courts must regard the welfare of the child as ‘the paramount consideration’
(Children Act 1989 s.1(1)). So far as the law of financial provision is concerned,
welfare is the ‘first’ consideration, which means that it is far from being the sole
relevant consideration. Other matters, such as the policy of encouraging the
spouses to be self-sufficient, may in any given case override the welfare principle.
See Suter v Suter [1987] Fam 111.
u The statutory ‘welfare’ test applies only to a child of the family (see Chapter 12 for
a discussion of the meaning of this phrase). Further, it applies only in respect of
children who have not reached the age of 18.
Activity 6.4
Why is the welfare of the child the ‘first’ but not the ‘paramount’ consideration?
Self-assessment question
What was the underlying objective being pursued under the guideline that parties
be placed in the position they would have been in if the marriage had not broken
down?
Family law 6 Financial provision upon divorce, dissolution, nullity and separation page 91
Summary
In exercising its discretion the court is governed by the statutory guidelines contained
in s.25 MCA. Generally, all circumstances are taken into account, which means that
each case will be decided on its own facts. In exercising this discretion the welfare of
any children of the family must be considered. This should be the first consideration of
the court but is not its paramount concern.
6.5 ‘All the circumstances’
MCA s.25(1) directs the court to consider ‘all the circumstances’ and to have regard ‘in
particular’, but not necessarily exclusively, to specified matters listed in s.25(2). There
is a vast body of case law elaborating the meaning of this provision. The following is
merely a guide as to what the courts have determined to be particularly significant in
the interpretation of the provision.
6.5.1 Section 25(2)(a): financial resources
Resources are construed widely and nothing is excluded. They have been held to
encompass property inherited after divorce, but before the court has settled the
financial arrangements between the parties. See Schuller v Schuller [1990] 2 FLR 193.
They have also been held to encompass personal injury damages awarded to one of
the spouses. See Daubney v Daubney [1976] Fam 267, Wagstaff v Wagstaff [1992] 1 FLR 333
and Baker v Baker [1995] 2 FLR 829.
It has also been held that the court may take account of the likelihood that one of the
spouses will benefit under a will (Michael v Michael [1986] 2 FLR 389 and MT v MT [1992]
Fam Law 99).
There is no power for the court to order that a third party, such as a new spouse or
cohabitee, provide for the applicant and it may not make an order which can only be
satisfied by dipping into a third party’s resources. See Re L (Minors) (Financial Provision)
[1979] 1 FLR 39. However, the fact that the respondent is living with a new partner may
be relevant in that he or she has more available resources. See Macey v Macey [1981] 3
FLR 7.
A court may consider making an order against a spouse who is on welfare benefits. See
Stockford v Stockford [1982] FLR 58. However, it will not make an order which will reduce
the respondent’s means to below subsistence level. See Fletcher v Fletcher [1985] 1 FLR
851.
Courts are prepared, moreover, in appropriate cases, to take into account welfare
benefits as resources available to the applicant. See Ashley v Blackman [1988] 2 FLR 278
and Delaney v Delaney [1990] 2 FLR 457. In this context it is to be noted that the court is
wary of allowing respondents to escape their financial responsibilities to their families
by relying on the existence of welfare benefits.
6.5.2 Section 25(2)(a): earning capacity and potential
The court is concerned with what each spouse could reasonably earn and neither may
enjoy the privilege of earning less than their capacity. See Hardy v Hardy [1981] 2 FLR
321.
The earning capacity and potential of middle-aged homemaker wives should not
be overestimated. See Camm v Camm [1982] 4 FLR 577, M v M [1987] 2 FLR 1, Newton v
Newton [1990] 1 FLR 33 and Leadbeater v Leadbeater [1985] FLR 789.
Activity 6.5
To what extent do the courts insist that dependent spouses become self-sufficient?
page 92 University of London External System
6.5.3 Section 25(2)(b): financial needs
The court assesses ‘reasonable needs’ (see Leadbeater v Leadbeater). The needs of the
wealthy are assessed as greater than those of the less affluent. See Preston v Preston
[1981] FLR 331 and Gojkovic v Gojkovic [1990] 1 FLR 140.
Secure housing for the parties has been a particular concern of the courts. For most
divorcing couples the most significant – and often the only – capital asset is the
matrimonial home. If the property is owned, it may well be subject to a mortgage,
in which case the parties’ entitlement will be a share in the equity of redemption.
Alternatively, the home may be rented, either from a private landlord under the Rent
Act 1977 or the Housing Act 1988, or from a local authority or housing association
under the Housing Act 1996. In all these cases the court enjoys a broad discretion to
transfer the property from one spouse to the other (or from both spouses to one of
them) upon divorce. In some cases the court may conclude that it is best to transfer
the house outright to one spouse. See Hanlon v Hanlon [1978] 1 WLR 592.
In the case of an owned property, a number of devices have been evolved to enable
both parties, upon dissolution of the marriage, to share in the value of the house
which will usually have been enhanced during marriage by inflation of property values.
Mesher orders
A Mesher order is, in essence, the imposition of a postponed trust for sale upon the
home. It directs, for example, as in Mesher itself, that the property should not be sold
until the youngest child has attained the age of 17 or ceases full-time education. See
Mesher v Mesher [1980] 1 All ER 126.
Mesher orders have become less popular, partly because they appear out of step
with the ‘clean break’ philosophy, and they may cause hardship when the time for
sale arrives: see Hanlon v Hanlon (details above). Nevertheless, they are still made in
appropriate circumstances: see Austin-Fell v Austin-Fell [1989] 2 FLR 497.
Martin orders
The Martin order, another popular device, gives the wife the right to occupy the house
until her death or remarriage or her dependence on another man. See Martin v Martin
[1978] Fam 12 and Clutton v Clutton [1991] All ER 340.
A similar objective can be achieved by transferring the house to one spouse on
condition that the other be granted a percentage charge. See Cumbers v Cumbers
[1974] 1 WLR 1331.
Reasonable needs fell for consideration in R v R [1994] 2 FLR 1044.
Of particular interest in recent years has been the ‘financial needs’ in so-called ‘big
money cases’. See two cases in particular: Dart v Dart [1996] 2 FLR 286 and Conran v
Conran [1997] 2 FLR 615.
In Dart, the husband’s assets were worth over £400 million. The wife claimed £122
million to meet her requirements, but the Court of Appeal upheld a lump sum award
of £10m, emphasising that subjective requirements were not the same as objectively
assessed needs.
In Conran, the court first assessed the wife’s reasonable requirements to be met by
property transfers and a lump sum amounting to £8.4 million and then, by taking into
account the ‘outstanding’ contributions she had made during the marriage to her
husband’s business success and to the family, increased the lump sum by a further £2.1
million. These issues were further explored in Hobhouse [1999] 1 FLR 961 and in Scheeres
[1999] 1 FLR 241.
Activity 6.6
How do the courts assess the ‘reasonable needs’ of the wealthy spouse?
Recent cases have seen the reasonable needs of the wealthy spouse increase beyond
Family law 6 Financial provision upon divorce, dissolution, nullity and separation page 93
what would have once been imagined. The McFarlane and Parlour decisions (see below)
have generated much discussion as to whether the pendulum has now swung too far in
the other direction and spouses are being too richly rewarded at the point of divorce.
In McFarlane v McFarlane [2004] 3 All ER 921 Mrs McFarlane appealed against a periodical
payments award. After equal division of £3 million of family capital, Mrs McFarlane
had sought £275,000 per annum of the £753,000 income of her former husband. She
stated her needs as being £128,000. She was awarded £250,000 by the district judge.
Mr McFarlane appealed successfully, the judge finding that the award was effectively a
means for giving Mrs McFarlane extra capital, which went against the principle that ‘an
award of capital is made once and once only’. He reduced the award to £180,000. Mrs
McFarlane appealed, arguing that no such principle existed and that the original award
should stand.
The Court of Appeal allowed the appeal and stated that the judge had been wrong to
find that the district judge had erred. In ancillary relief proceedings, the court had a duty
to work towards a clean break wherever possible, a duty to which the judge had failed
to give sufficient weight. When, as here, the payer’s income was significantly more than
the amount that the parties required to meet their needs, the surplus should be divided
between them by way of periodical payments to the payee for a short period to enable
investment that could bring about a clean break in the future. The size of the award had
to be determined by the factors in the Matrimonial Causes Act 1973 s.25(2) and should not
be limited to the payee’s reasonable requirements, which was only one of the criteria.
The district judge had correctly identified that Mrs McFarlane should have a ‘fair share’
of Mr McFarlane’s surplus income and her award of £250,000 would be restored but
for a term of only five years. Mrs McFarlane appealed against the term of five years and
the joint life term was restored. Mr McFarlane appealed to the House of Lords but was
unsuccessful.
The Parlour decision was met with particular interest because Mr Parlour was a
Premiership footballer. The case involved many of the same questions as the McFarlane
case. Here, though, the term of the order was for four rather than five years as in
McFarlane. The major point about the case is that periodical payments can be for capital
investment which will ensure ‘clean break’ at a later date but with an equitable share of
future earnings.
The impact of this case is likely to be limited to ‘big money cases’. As Thorpe LJ warns:
‘It is worth re-emphasising that these are exceptional cases. In the majority of cases the
income of the earner is insufficient to cover the outgoings of two households. In many
others the single income is sufficient only to provide for both households at a standard
below that which the family enjoyed before separation. In many others the income will
provide for both amply. In many more it will provide for both and a measure of luxury
which each contends is not disproportionate to the standard enjoyed before separation.
In all the above instances the respondents are correct in their submission that the court’s
discretionary judgment will be dominated by an assessment of needs or, for the more
affluent families, reasonable requirements.’
In Miller v Miller and McFarlane v McFarlane (2006) 3 All ER 1 the House of Lords revisited
the proper use of periodical payments. The cases reinforce the suggestion that periodical
payments can be ordered for the purposes of compensation as well as maintenance.
The main judgements are delivered by Baroness Hale and Lord Nicholls. Baroness Hale
and Lord Nicholls do agree on a number of matters but also differ on others, most
notably that Baroness Hale suggests that a more individualistic approach to the marriage
partnership which goes some way to meeting the criticisms that general principles do
not solve individual case examples. As a coda Baroness Hale suggests:
‘The ultimate objective is to give each party an equal start on the road to independent
living.’
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Since Miller there has been an appeal against the largest ever award made in England
and Wales following contested ancillary relief proceedings. In Charman v Charman [2007]
EWCA Civ 503 the wife managed to secure 36.5 per cent of the parties’ assets. The appeal
by the husband was unsuccessful.
6.5.4 Section 25(2)(b): obligations and responsibilities
The court will take account of ‘reasonable’ obligations: see Slater v Slater (1982) 3 FLR
364 and Delaney v Delaney [1990] 2 FLR 457.
Responsibilities to children, irrespective of parentage, will be taken into account: see
Fisher v Fisher [1989] 1 FLR 423.
Such responsibility will be judged in the light of reasonableness: see Waterman v
Waterman [1989] 1 FLR 380.
Of particular interest in recent years to lawyers and academics alike has been the
status of the ‘contributions’ made by spouses and the relationship between s.25(2)
(a) and s.25(2)(b) MCA. In White v White [2001] 1 AC 596 the wife had, during a 25-year
marriage, contributed fully to both the marital and business partnership, but the
first instance judge held that her reasonable requirements could be fully met by the
husband making a lump sum payment to her of £800,000, a sum less than one-sixth
of their assets. On appeal, the Court of Appeal increased the amount to £1.5 million.
Both parties appealed to the HL, which held that, where a husband and wife both
contribute equally to the family, but in different ways, there should be no prejudice or
advantage when considering the nature of those contributions. In such cases of equal
contribution, as a general guide, equality in the division of assets should be departed
from only if there was good reason for doing so.
However, Lord Nicholls went on to state that there was no principle that, in every
case (i.e. irrespective of contributions), the starting-point in division of asset cases
should always be equality, as to do so would wrongly suggest that there was a legal
presumption in s.25 MCA of equal division.
In ‘big money’ cases, judicial interpretation of s.25(2)(b) in terms of ‘reasonable
requirements’ had created a determinative and limiting factor on the amount of the
award, thereby outweighing the matters in s.25(2)(a). There was no reason why a court
should confine the assets it awarded to the wife to her reasonable requirements,
thereby leaving the husband with the much larger balance.
However, (applying Piglowska) the HL did not disturb the Court of Appeal’s exercise of
its discretion, so the award to the wife was, in the event, no more than one-third of the
assets.
White has now been considered in a number of cases. In N v N [2001] 2 FLR 69 the judge
stated:
‘The theory behind White is one thing. But the actual practicalities involved in valuing,
dividing up, and/or realizing certain species of assets make the attaining of the White
objective sometimes either impossible or only achievable at a cost which may not overall
be in the family’s best interests. In this regard of one thing I am convinced. I am sure the
House of Lords did not intend courts to exercise their far-reaching powers to achieve
equality on paper if in doing so they, Samson-like, brought down or crippled the whole
family’s financial edifice to the ultimate detriment of the children.’
In D v D [2001] 2 FCR 561 where Connell J in applying White concluded that the wife’s
claim to capital was no longer confined to her reasonable requirements and that her
needs were only one of the factors to which a court must have regard.
In Cowan v Cowan [2001] 2 FLR 192 the parties had married in 1959 and had two
children. The husband made a substantial fortune manufacturing polythene bags.
The family developed a very high standard of living. The Court of Appeal increased a
lump sum award to the wife to £3m, elevating her wealth to approximately £4.4m,
representing approximately 38 per cent of the total net assets. Thorpe LJ made a
number of points.
Family law 6 Financial provision upon divorce, dissolution, nullity and separation page 95
u The decision in White is directed to ‘abnormal’ (‘big money’) cases.
u White does not give the objective of equality, but of fairness, which is a subjective
standard.
u The yardstick of equality is a cross-check against discrimination.
In pursuit of fairness, the reasons for departure from equality will prove to be too
varied to permit of listing or classification.
Mance LJ, in a penetrating analysis, suggested four possible cases, all assuming a long-
term marriage in which the children were grown up and contributions were from a
husband who works and a wife whose contributions have been domestic.
u The husband’s work may have produced sufficient (but no more than sufficient)
assets to enable both parties to be housed and continue to live in the manner to
which they have become accustomed.
u The husband may, either by special skill or effort, have accumulated not only assets
sufficient for, but wealth surplus to, the needs in (1).
u The husband may have accumulated assets surplus to that purpose, without any
special skill or effort.
u One or other party may have acquired assets before, and brought them into the
marriage, or may have acquired assets during the marriage from a third party by
inheritance, in which case such assets may themselves either:
u be required to enable both parties to be housed and continue to live in the
manner to which they have become accustomed, or
u be, at least in part, surplus to that purpose.
In case (1), there would be little doubt that the assets accumulated would be
divided so as to enable each party to live in the manner to which they have become
accustomed. Likewise, in case (4)(a), if the claimant’s needs cannot be met without
recourse to that property, then the fact that they were acquired before the marriage
or by inheritance would carry little weight. However, in case (4)(b), if the inheritance
or assets brought into the marriage produced a surplus, then greater weight would
be given to them. It is likely that they would remain with the party who had brought
them into the marriage. For recent consideration of elements of this scenario, see
Norris v Norris [2003] 2 FCR 245 and Elliott v Elliott [2001] 1 FCR 477.
Inconsistency
The courts have not always been consistent. In Cowan [2001] and S v S [2001] 3 FCR 316,
reasons were found to depart from equality.
Two cases in 2002, one an appeal to the Family Division and the other a Court of Appeal
decision, signalled a determination not to encourage litigation which focused upon
finding (or contriving) reasons to depart from equality. See Coleridge J in H-J [2002] 1
FLR 415 and Thorpe LJ in Lambert v Lambert [2002] 3 FCR 673.
But the court must strive to achieve fairness for both the husband and the wife. In
Wells [2002] 2 FLR 97 the Court of Appeal allowed the husband’s appeal as to how
assets had been distributed on divorce on the basis that the judge at first instance
had erred in awarding the wife the bulk of assets which were readily saleable at stable
prices, leaving the husband with all those assets which were substantially more illiquid
and risk-laden. There should have been an equal division of both types of assets. If the
husband were to carry all the risk and all the disadvantage of the business, the judge’s
allocation of the risk-free realisable assets was not fair.
Activity 6.7
From the cases since White [2001] AC 596, is s.25 MCA still the guide for financial
provision?
page 96 University of London External System
6.5.5 Section 25(2)(c): the standard of living
Adequate recognition of the standard of living prior to the divorce will be made, but
the same standard of living need not be replicated. See Leadbeater v Leadbeater and
Attar v Attar (No. 2) [1985] FLR 653.
Activity 6.8
a. How relevant should the former standard of living be to financial provision?
b. Do the courts give too little or too much weight to the former standard of living?
6.5.6 Section 25(2)(d): the parties’ age and the length of the marriage
Where a marriage has been short, the applicant cannot usually expect a one-third
order. In extreme cases she or he may be entitled to no provision whatsoever: see
Krystman v Krystman [1973] 1 WLR 927.
More commonly, the court may consider a short-term ‘rehabilitative’ maintenance
award. See Attar.
On some occasions the contributions can be substantial. See C v C [1997] 2 FLR 26 and
Foster v Foster [2003] 2 FLR 299.
In unusual cases premarital cohabitation is included in the computation of the length
of the marriage. See S v S (Financial Provision) [1994] 2 FLR 228, Hill v Hill [1998] 1 FLR 198
and GW v RW [2003] 2 FLR 108.
Since White questions have been asked when the principles for big money cases are
applied to a short rather than a long marriage as in White. In Miller v Miller [2005]
EWCA Civ 984 there was a 26 per cent transfer of assets from the husband to the wife
for a marriage which had lasted less than three years. Mr Miller appealed against the
decision but his appeal was dismissed by the Court of Appeal. The Court of Appeal
confirmed that pre-White cases were no longer applicable. An appeal to the House of
Lords followed, in a conjoined appeal with Mrs McFarlane, and the husband’s appeal
was again dismissed.
6.5.7 Section 25(2)(e): physical or mental disability of either of the parties
This factor is usually considered when the courts look at needs. In C v C (Financial
Provision: Personal Damages) [1995] 2 FLR 171 a badly disabled husband was held to be
entitled to £5 million. This resulted in his wife being left on social security benefits.
The nature of the husband’s disability meant that in responding to his needs he had to
have complex equipment and constant care and so he took all the assets.
6.5.8 Section 25(2)(f): contributions to the welfare of the family,
including looking after the home or caring for the family
This provision specifically addressed the homemaker role, but can cover contribution
to business. See Gojkovic v Gojkovic [1990] 1 FLR 140.
Activity 6.9
Do the courts give enough weight to non-financial contributions?
No feedback provided.
Family law 6 Financial provision upon divorce, dissolution, nullity and separation page 97
6.5.9 Section 25(2)(g): conduct
A brief mention of conduct

was made in the ‘old’ MCA s.25 but, since 1984, it has been
accorded a paragraph in its own right. Courts had traditionally taken into account the
conduct of either or both parties in assessing maintenance. The wife’s adultery, or the
husband’s cruelty, might materially affect the provision made for the wife. In some
cases, although increasingly rarely in the post-war era, a wife’s misconduct might
totally disqualify her from receiving financial provision. After the Divorce Reform Act
1969 and the accompanying statute on financial provision, the Matrimonial
Proceedings and Property Act 1970 (now incorporated within the MCA) had been
brought into effect, Lord Denning indicated that a fresh approach to the treatment of
conduct in financial provision applications was required. In Wachtel v Wachtel [1973]
Fam 72 he asserted:
‘There will no doubt be a residue of cases where the conduct of one of the parties is both
obvious and gross,

so much so that to order one party to support another whose conduct
falls into this category is repugnant to anyone’s sense of justice… But, short of cases falling
into this category, the court should not reduce its order for financial provision merely
because of what was regarded as guilt or blame.’
Although the ‘obvious and gross’ formula was imprecise, the courts developed the
principles on conduct along the lines laid down by Lord Denning. The following are
among the points established by subsequent case law.
u The court may consider not only conduct during marriage but also incidents
occurring after the divorce decree. See Jones v Jones [1976] Fam 8 and H v H
(Financial Provision: Conduct) [1994] 2 FLR 801.
u The word ‘gross’ does not necessarily carry any moral connotation: conduct may be
gross even if it would not conventionally be regarded as immoral. See West v West
[1978] Fam 1.
u Conduct may operate positively to increase a spouse’s share of financial provision,
as well as negatively to decrease it. See Kokosinski v Kokosinski [1980] 1 All ER 1106.
u Conduct may include financial mismanagement. See L v L [1993] Fam Law 471.
An issue which remains open is whether the fact that conduct was accorded a
paragraph of its own in the reformed MCA indicated that Parliament intends courts to
take cognisance of conduct even where it is not ‘obvious and gross’. Commentators
are divided on the question of whether s.25(2)(g) reformulates Lord Denning’s test in
statutory prose or whether it introduces a wholly new test. The Parliamentary history
of the provision suggests that the former is the correct view and the cases so far
suggest that this is so. See Kyte v Kyte [1988] 1 Fam 45, Evans v Evans [1989] 1 FLR 351, K v
K [1990] 2 FLR 225 and Primavera v Primavera [1992] 1 FLR 16.
Recent cases suggest that the courts will be keen to look on conduct

within marriage
to determine settlement. It is limited to conduct within marriage, not litigation. See H
v H (Financial relief: conduct) [1998] 1 FLR 971, and Tavoulareas v Tavoulareas [1998] 2 FLR
418.
The approach adopted was considered in Young v Young [1998] 2 FLR 1131 and then
the CA considered these issues in Clark v Clark [1999] 2 FLR 49. For a more recent
consideration see Al-Khatib v Masry [2002] 1 FLR 1053.
Activity 6.10
To what extent should conduct have a bearing on financial provision?

You should read pre-1984
cases (for example Wachtel
v Wachtel (1973) Fam 72) to
see what the courts have
considered ‘conduct’ to be.

‘Gross’ can mean excessive,
extreme, harsh, bad-
mannered, distasteful, or any
combination of these.

It is to be noted that
conduct is only one factor
to be taken into account in
assessing financial provision:
you may like to make a
checklist of the other factors
before going any further.
page 98 University of London External System
6.5.10 Section 25(2)(h): benefits and pensions
You will recall that the divorce court has had no power to make orders with respect
to property to which the respondent is not entitled. This has created particular
difficulties with respect to pension funds and discretionary trusts. Courts may make
an immediate order affecting other assets to compensate for the loss (see Richardson
v Richardson [1978] 2 FLR 286), adjourn the application for ancillary relief until sums
become payable (see Roberts v Roberts [1986] 2 FLR 152) or encourage the respondent
to make other arrangements to compensate the applicant (see Parker v Parker [1972]
Fam 116).
Pension entitlement, especially important for those who have made no pension
provision themselves, has always been a consideration under s.25(2)(h) but
amendments to the MCA improve the situation for the spouse seeking to rely on their
partner’s pension. Recognised as a post-nuptial settlement, the court now has the
ability to reallocate a pension on divorce. It can do this in one of three ways.
u ‘Offsetting’. In order to make compensatory allowances for the loss of a pension
the court can order a larger lump sum to be awarded or the matrimonial home to
be transferred. The pension could then be retained by the provider.
u Attachment order (which used to be called an earmarking order). Under ss.25B–D
MCA the court can make an attachment order, which means a pension can be split
upon retirement. There is a two-stage process for this order to be granted. First,
it will be asked if the order should be made to take account of any loss under a
pension scheme. If the answer is yes then the court must decide whether to order
the trustees of the pension to make payments to the other spouse. The payments
made to the other spouse must not exceed those of the pension holder. There is no
automatic entitlement to this order. See T v T (Financial relief: pensions) [1998] 1 FLR
1072.
u A pension sharing order. There are two criticisms of the attachment order process:
it can be uncertain as to when the monies will appear and it negates the court’s
preference for a ‘clean break’. By virtue of the Welfare Reform and Pensions Act
1999, Part II of the MCA is amended to allow pension sharing upon divorce. This
means the pension fund will be split and can be allocated to the other spouse to
invest as they choose. It applies only to petitions filed after 1 December 2000.
Summary
Under s.25(1) MCA the court must consider all of the circumstances and must have due
regard to the matters specified in s.25(2). The factors to be included for consideration
are financial resources, earning capacity and potential, financial needs, obligations and
responsibilities and the standard of living. The courts also have to consider the parties’
age and the length of the marriage, any physical or mental disability of either of the
parties, the contributions to the welfare of the family, conduct of each party and
benefits and pension provision.
Go to your study pack and
read the critique of financial
provision outlined by Alison
Diduck in ‘Family finances:
owning and sharing’.
Think about her concern
that there is no theoretical
framework supporting
the allocation of financial
provision.
Family law 6 Financial provision upon divorce, dissolution, nullity and separation page 99
6.6 The ‘clean break’
Lord Scarman noted that the ‘clean break’ principle informed modern financial
provision legislation in Minton v Minton [1979] AC 593, 608.
This principle is now legislatively enshrined in s.25A. Thus, s.25A(1) states:
‘it shall be the duty of the court to consider whether it would be appropriate so to
exercise those powers that the financial obligations of each party towards the other
will be terminated as soon after the grant of the decree as the court considers just and
reasonable.’ (MCA s.25A(1))
Where the court is minded to make a periodical payments order it must:
‘consider whether it would be appropriate to require those payments to be made or
secured only for such term as would in the opinion of the court be sufficient to enable
the party in whose favour the order is made to adjust without undue hardship to the
termination of his or her financial dependence on the other party.’ (MCA s.25A(2))
Finally, where a party to a marriage applies in divorce or nullity proceedings for a
periodical payments order, then if the court considers that no continuing obligation
should be imposed on either party to make or secure periodical payments in favour
of the other, the court may dismiss the application with a direction that the applicant
shall not be entitled to make any further application.
6.6.1 Points emerging from the cases
u The policy is that, so far as possible, financial provision applications for former
spouses (especially where there are no children of the family requiring support)
should be dismissed. See B v B [1990] 1 FLR 202.
u In C v C [1989] 1 FLR 11 and Hedges v Hedges [1991] 1 FLR 196 the court indicated that
periodical payments for a young or middle-aged wife in possession of substantial
capital were largely obsolescent. But see DWJ v SRJ [1999] 2 FLR 176 and then
consider F v F [2003] 1 FLR 847.
u Courts have been reluctant to deny applicants the right to make any further
application, particularly where circumstances may change. See Waterman v
Waterman [1989] 2 FLR 380, Whiting v Whiting [1988] 2 All ER 275 and Barrett v Barrett
[1988] 2 FLR 516, but note Seaton v Seaton [1986] 16 Fam Law 267.
u As far as possible, periodical payments should only be ordered for a fixed term of
years. Fixed-term maintenance orders were often made even before the ‘clean
break’ amendments of 1984. Such orders have since become even more frequent.
(See Waterman v Waterman, where the Court of Appeal approved an order
awarding the wife periodical payment for five years. See also C v C [1989] 1 FLR 11,
Flavell v Flavell [1997] 1 FLR 353, G v G [1998] 1 FLR 368 and Jones [2000] 2 FLR 307.)
u Courts should prefer capital provision, such as lump sum and property adjustment
orders, to periodical payments orders. Lump sum orders have been made more
frequently in recent years. The courts have developed a number of principles
for quantifying the lump sum. See Duxbury v Duxbury [1987] FLR 7 and Gojkovic v
Gojkovic [1990] FLR 140.
u The ‘clean break’ principle must be considered even in cases where there are
children under 18 whose welfare is the first consideration of the court. Although
the principle is not designed to apply to the financial provision for children, its
application must be considered in relation to the obligation of spouses to support
each other. See Suter v Suter and Jones [1987] 2 All ER 336 and contrast with Delaney v
Delaney [1990] 2 FLR 457.
u The court must give proper weight to the ability of a spouse to become self-
sufficient ‘without undue hardship’. This is particularly problematic in the context
of middle-aged, homemaker wives. See Morris v Morris [1985] FLR 1176.
u In considering a spouse’s financial independence from the other spouse, all
There is useful web-based
information on these
somewhat complex
provisions at, among others:
www.dwp.gov.uk,
www.watsonwyatt.com,
www.npi.co.uk
page 100 University of London External System
possible forms of support will be regarded and not only the dependent spouse’s
earning capacity. See Seaton v Seaton [1986] 16 Fam Law 267, Ashley v Blackman
[1988] Fam 85 and more recently M v M (Financial Relief: Substantial Earning Capacity)
[2004] 2 FLR 236.
Financial provision orders incorporating ‘clean break’ attitudes appear to be becoming
increasingly popular, suggesting that the divorcing population would prefer to avoid
an ongoing maintenance obligation. You should be aware that the introduction of
the Child Support Act legislation has had an adverse impact on the philosophy of the
‘clean break’.
Activity 6.11
a. What are the advantages and disadvantages of the ‘clean break’? How willing
are the courts to make ‘clean break’ orders?
b. Janet and Michael have been married for 30 years. Janet is a doctor in general
practice and Michael is a partner in a firm of architects. Their children Andrea,
aged 21 and Simon, aged 19 are both students at university. Having grown apart,
Janet and Michael have decided to get divorced and are enquiring as to whether
a ‘clean break’ order would be appropriate given their situation. Advise.
6.6.2 Evaluation
Circumstances arising after the divorce may require a financial provision order to be
varied. The wife’s ill-health, the husband’s redundancy, the impact of inflation upon
awards – all these are obvious reasons for reassessing the initial order for financial
provision. Some relevant changes of circumstances have already been noted:
remarriage of the payee or the death of either party automatically terminates a
periodical payments order. In all other cases an application to the court must be made
for variation.
Section 31 MCA sets out the principles a court must apply in applications to vary a
financial provision order.
u Lump sum and property adjustment orders cannot be varied (s.31(2)). They are
intended to facilitate a final ‘clean break’ of the marriage. The court may, however,
vary any provisions relating to instalments or security for such an order. It is
possible, for example, to change the property against which a lump sum is secured.
u Periodical payments orders can be varied. The court has power to:
‘vary or discharge the order or suspend any provision thereof temporarily and to revive
the operation of any provision so suspended.’ (s.31(1))
Where payment of maintenance has been limited in point of time (for example, the
husband has been ordered to pay the wife £200 a week for five years), the court may
vary the term specified in the order unless a direction has previously been given that
no application for this purpose shall be permitted (s.28(1A)). In considering whether
to exercise the power to vary a periodical payments order, the court is directed to
consider all the circumstances of the case (s.31(7)). In particular, it is directed to give
first consideration to the welfare of any minor children of the family and to consider
whether, in all the circumstances and having regard to any change in the relevant
matters since the order was made, it would be appropriate to terminate the periodical
payments after a period sufficient to enable the recipient to adjust to the termination
without undue hardship. As we shall see, these are factors germane to the initial
application for financial provision as well as to a subsequent application to vary.
The court has no power under s.31 MCA to substitute a lump sum or property
adjustment order for a periodical payments order. However, where a spouse is anxious
to commute his or her liability to make regular periodical payments for a once-and-
for-all lump sum or property adjustment order, the court may accept an undertaking
on his or her part, if it is sufficient, to pay a sum or transfer property in satisfaction of
his or her claims under the previous order. See S v S [1986] Fam 189.
Family law 6 Financial provision upon divorce, dissolution, nullity and separation page 101
6.6.3 Private ordering
Most financial ordering after breakdown of marriage is resolved by agreements
between the parties. However, s.34 MCA provides that any provision in a maintenance
agreement restricting the parties’ right to apply to the court is void. Parties may seek
an order by consent from the court, which will then derive its legal effect from the
decision of the court. See De Lasala v De Lasala [1980] AC 546.
The provisions governing such orders are in ss.33A, 34, 35 and 36 MCA. The court’s role
is not as a ‘rubber stamp’, but it must consider ‘all the circumstances’, including those
in s.25 MCA, and the parties have a duty to provide all relevant information. See Livesey
v Jenkins [1985] FLR 813, G v G [2000] 2 FLR 18, X v X (Y and Z Intervening) [2002] 1 FLR 508
and Harris v Manahan [1997] 1 FLR 205.
An order may be set aside for non-disclosure of relevant information. See Livesey v
Jenkins (details as above). However, consent orders are not lightly overthrown: see
Edgar v Edgar [1980] 1 WLR 1410, Pounds v Pounds [1994] 1 FLR 775 and Beach v Beach
[1995] 1 FLR 161.
Leave can be given to set aside a consent order where there is a change of
circumstances unforeseen by either party if the change of circumstances falsifies
the basis or fundamental assumption underlying the order, which occurs within a
relatively short time, where the application for leave is made promptly and where
granting of leave does not unfairly prejudice third parties. See Barder v Barder [1987]
1 FLR 480, Hopes Smith v Hopes Smith [1989] 2 FLR 56, Smith v Smith [1991] 2 All ER 306,
Barber v Barber [1992] Fam Law 436, Chaudhuri v Chaudhuri [1992] Fam Law 384 and S v S
(FinanciaI Provision) [1994] 2 FLR.
Pre-nuptial agreements
Following the decision in Miller more media attention focused on the use and
relevance of the pre-nuptial agreement. The Law Reform Committee of the Solicitors’
Family Law Association had already called for pre-nuptial agreements to be made
legally binding in a report, published in November 2004, called ‘A More Certain Future
– Recognition of Pre-Marital Agreements in England and Wales’. This was in response
to the government’s Green Paper ‘Supporting Families’ calling for reform. Case law
had also seen greater reference, if not reliance, by the courts on these agreements
as in K v K (Ancillary Relief: Prenuptial Agreement) [2003] 1 FLR 120. That said the courts
have also confirmed that the parties to a divorce cannot oust the court’s jurisdiction
by agreement. They cannot fetter the court’s discretion by drafting express
provisions on how a settlement is to be devised nor what legal provisions will govern
its construction. This was confirmed in Charalambous v Charalambous, The Times,
September 7, 2004.
It is possible that more and more attempts will be made by the parties to a marriage
to raise the importance of these pre-nuptial agreements in an effort to secure
expectations of what may happen with financial provision upon divorce. In line with
reliance in other jurisdictions it remains to be seen how far the courts will continue to
consider such agreements.
page 102 University of London External System
6.6.4 The Human Rights Act 1998 and financial provision upon marital
breakdown
The two relevant provisions of the European Convention on Human Rights which may
be applicable with regard to this area of family law are Article 1 of the first Protocol of
the Convention and Article 5 of the seventh Protocol on the equality between spouses.
u Article 1 concerns the peaceful enjoyment of property and this would appear to
be contrary to any court making an order for financial support upon divorce. There
has been no action founded on this basis. Herring (p.209) argues that if you view
any financial support as a ‘share’ rather than a transfer then the Article is unlikely to
be invoked.
u Article 5 was not included within the Human Rights Act 1998 and so its relevance
is limited here. Even if it had been, the memorandum of explanation which
accompanies the Article would suggest that it is not incompatible with our own
law. Especially if post-White equality is to be used and, in accordance with Lambert,
rarely departed from as a yardstick, then there would be no chance of successful
challenge.
Summary
Modern financial provision has been heavily influenced by the principle of ‘clean
break’. Periodical payments have become less popular as lump sum orders are seen
as more final, allowing the parties to get on with their lives free from the shackles of
the failed marriage. The case law offers guidance as to the operation of this principle.
On occasions there may be a need to vary the provision of a financial order. It is
not possible for private ordering to restrict the discretion of the court if informal
resolutions break down. Pre-nuptial agreements have become increasingly popular
and the government have suggested that such agreements ought to be binding. The
Human Rights Act 1998 is unlikely to have a substantial impact upon the existing law
for provision of financial support following marital breakdown.
6.7 Conclusion
Students often find it hard to apply the law relating to financial provision upon
divorce, dissolution, nullity and separation (although, please note that most exam
questions only concern divorce) to the facts of a given problem.
The principles and, still more, the cases are so numerous that it is no easy matter to
distinguish the relevant from the irrelevant. You may find the following checklist of
questions helpful.
u Does the problem reveal whether or not the Child Support Agency will have
jurisdiction to make orders for the children?
u What sort of order is most appropriate?
u periodical payments order (secured or unsecured)
u lump sum order
u property adjustment order
u order varying or extinguishing an interest under a settlement
u sale order (if used to give effect to one of the other types of order).
u What order will ensure that the children’s interests are the first consideration?
u Will the petitioner be able to adjust to the termination of his or her financial
dependence on the other party without undue hardship? If so, what type of ‘clean
break’ order will most effectively promote independence?
u Are the factors listed in s.25(2) MCA particularly relevant to the facts of the problem
(e.g. special needs of either party or the conduct of either party)? There is no need
Family law 6 Financial provision upon divorce, dissolution, nullity and separation page 103
to consider every paragraph in s.25(2). Only those which appear to be relevant to
the facts of the problem should be discussed.
u If a periodical payments or lump sum order is appropriate, what sort of order will
be made (e.g. more or less than one-third)? There is no need to assess a precise
figure. If a property adjustment order should be made, what type of order do you
think the court will favour (e.g. Mesher order, outright transfer)?
Useful further reading
¢ Bailey-Harris, R. ‘Dividing the assets on family breakdown: the content of
fairness’ (2001) CLP 533.
¢ Barton, C. and M. Hibbs ‘Ancillary financial relief and the fat cat(tle) divorce’
(2002) 65 MLR 79.
¢ Bird, R. ‘The reform of Section 25 (2002)’ Fam Law 428.
¢ Bird, R. ‘Miller v Miller: Guidance or Confusion’, Fam Law, 2005, 35, 874-882.
¢ Bond, A. ‘Ancillary relief and the short marriage’ (2002) Fam Law 551.
¢ Campbell, D. ‘Pension sharing in practice’ (2002) Fam Law 35.
¢ Cretney, S. ‘Trusting the judges: money after divorce’ (1999) 52 CLP 286.
¢ Diduck, A. Law’s Families. (Cambridge: Cambridge University Press, 2003)
[ISBN 9780406967336] Chapter 6, pp.133–164.
¢ Eekelaar, J. ‘Should s.25 be reformed?’ (1998) Fam Law 46.
¢ Eekelaar, J. ‘Miller v Miller: the Descent into Chaos’, Fam Law ,2005, 35, 870-874
¢ George, P. ‘Fair is Fair – After White’ (2002) Fam Law 307.
¢ Gerlis, S. ‘White – the unlearned lesson’ (2002) Fam Law 628.
¢ Hitchings, E. (2008) ‘Everyday cases in the post-White era’ 38 Fam Law 873.
¢ Meehan, A. ‘Miller: Practitioners’ Expectations Disappointed’, Fam Law, 2005,
35 (October), 787-793.
¢ O’Donovan, K. ‘Flirting with academic categorizations – McFarlane v McFarlane
and Parlour v Parlour’ (2005) CFLQ, Vol 17, No 3, 415.
¢ Salter, D. ‘The pitfalls of pension sharing’ (2002) Fam Law 598, 666.
Sample examination questions
Question 1 Critically consider the opinion that equal distribution of assets and
income on divorce, if automatically applied, would depart too far from justice and
that the only way to maintain justice is to preserve unfettered judicial discretion.
Question 2 James and Sandra, now aged 48 and 45, respectively, have been married
for 20 years and have two children. Tom, aged 12, and Emily, 10. The family live in
a five-bedroomed house, currently valued at £1 million, which Sandra inherited
from her parents. Sandra has never worked, having also inherited a substantial
legacy from her parents. Last year, Sandra discovered that James, a theatre manager
who earns £30,000 a year, has been living with a set decorator, Alison, during the
week in London. James had told Sandra that he had been staying in a hotel near the
theatre.
This year Sandra met William, a wealthy antique dealer, and decided that she had
had enough of James. Sandra now intends to divorce James, but is worried that,
on divorce, James may be awarded a share in the value of the house and her other
assets.
With reference to case law, advise Sandra of the principles the court will employ
and the likely outcome of any application made by James for property and financial
provision.
page 104 University of London External System
Advice on answering the questions
In the incomplete world of examination problems, prediction of possible financial
provision orders is hazardous. Confronted with this uncertainty, many candidates
answering questions on this topic content themselves with copying out, more or less
accurately, the relevant paragraphs of MCA s.25 and conclude with some generalized
statement such as ‘the court will make whatever order it considers appropriate’.
Answers of this sort earn few marks. You are expected to apply your own powers of
analysis to the facts of the problem and to indicate the relevance of specific facts in the
problem to the factors set out in s.25 and to cases decided under that section. Few, if
any, marks are awarded for copying out the statutes.
Question 1 In responding to this essay question students ought to demonstrate a
grasp of how judicial attitudes have changed from the early operation of the MCA. In
exercising their discretion, the courts were initially too focused on the ‘needs’ of the
economically weaker party being met. This could lead to significant injustice if the
economically stronger party was very rich. This led to rough and ready formulas of
calculation such as the one-third rule and then the more complicated Duxbury
calculation.

Neither were seen to reflect a true picture of what was required or what
was seen as just. Then came White [2001] AC 596 and the goalposts appeared to move.
Lord Nicholls recommended a ‘yardstick of equality’ and some commentators thought
he meant a presumptive 50/50 split. This was over-zealous on the part of those
demanding more for the economically weaker party. Lord Nicholls actually suggested
that equality should be a starting point. It is this position which the essay question is
asking you to consider. Does a presumption of equality depart from justice? Will there
be instances where this yardstick is unjust in operation? Look at S v S [2001], H-J [2002]
and Norris [2003].
You can also raise the concern that in the ‘big money’ cases, whilst 50/50 is not the
net result of the decisions, substantial amounts of money are now being awarded to
spouses (Charman [2007]; McCartney v Mills-McCartney, [2008] EWHC 401) and even
future earnings are being used as a way of ensuring future capital gain for the spouse
who is not in the large income job (Parlour [2005]). Is this a desirable development?
Should there be any limit on award? After all even if 50 per cent is not acquired, 36.5
per cent (as in Charman) resulted in substantial settlements.
Sometimes the principle of equality will not assist the economically weaker party. In
Cowan [2001] the success of the husband appeared to outweigh any suggestion of
equality. This was qualified in Lambert [2002] as being exceptional. But in ‘big money’
cases it seems to be par for the course (Miller [2005]). If parents have made significant
contributions are these lost under a principle of equality? If one party has acted in a
grossly objectionable way, do they deserve the 50/50 split? You should remember that
Parliament provided a framework for discretion in s.25 MCA. Should the courts be in
a position to substantially depart from that framework? Equality rather than needs is
quite a departure. There are some justifications for the equality presumption. After
all, needs could lead an older woman in a long marriage to require less than a younger
woman in a shorter marriage and this would not appear fair. However, other criticisms,
as discussed, have identified the limitations of such an approach. Also ask how the
judges have ‘flirted with academic categorisation’ (O’Donovan, 2005) to assist them
with their judgments.
This question demands a good grasp of recent case law but also a sensible conclusion
based on effective argument. The line of argument matters less than the student’s
commitment to a position. You must take a stand. Examiners are often more critical of
students who remain too neutral.
Question 2 This problem question is reasonably straightforward but does give you
an opportunity to come up with a creative package of ancillary relief for Sandra.
Remember the children are under 18 and so under s.25(1) their welfare is the first,
but not the paramount, consideration. If James and Sandra can reach an agreement
there will be no need to apply to the Child Support Agency for an assessment of
maintenance. From Sandra’s perspective this can be a useful device in coercion as

In Duxbury v Duxbury [1987]
1 FLR 7 a calculation was made
based on the life expectancy
of the recipient spouse, the
rate of inflation, etc. The
calculation is still used for the
cases of the very wealthy but
has been subject to criticism
since White.
Family law 6 Financial provision upon divorce, dissolution, nullity and separation page 105
very often fathers seem to think they will pay more under a Child Support Agency
assessment. When considering the division of property and the principles used you
must use equality as a yardstick following White. You must be mindful that the courts
will not always follow White as in Cowan but Lambert has said that White will only be
departed from in exceptional circumstances. Would the cases of McFarlane, Parlour,
Miller or Charman assist your advice? The courts under s.25(2) will consider the age
of both parties and their income potential. Inherited property is considered under
the Act. The standard of living prior to the marriage breakdown is considered and
the length of the marriage will be considered. The contribution made by each party
is considered. Conduct will also be considered, as will whether a ‘clean break’ will be
possible given the status of the children. Finally, pension provision will be considered.
The key to a good package is one which understands the operation of the statute but
is also mindful of the way the courts interpret it. Sandra is asking for your advice. Be
creative, be innovative but also be realistic! Sandra will probably be very concerned
to hear that her inherited five-bedroomed house will be considered. The principle of
equality as a yardstick in White may not help her although she would be best advised
to offer a package which does not assume equality. After all, the experience in the
cases of McFarlane, Miller and Charman was that, although 50/50 may not be possible,
substantial sums of money can still be awarded, far more than ‘reasonable needs’
would suggest. It is also worth remembering that co-operation is highly prized by the
courts. Acrimony rarely succeeds (see McCartney).
page 106 University of London External System
Reflect and review
Look through the points listed below:
Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on
Need to
revise first
Need to
study again
I can state the jurisdiction of the divorce court to
make financial provision and property orders in
favour of spouses and children.


¢


¢


¢
I can explain the differences between secured and
unsecured periodical payments and lump sum
orders, and their respective merits.


¢


¢


¢
I can state the significance of the welfare of the
children of the family.

¢

¢

¢
I can state the considerations which the court must
take into account in calculating awards.

¢

¢

¢
I can consider the growing case law on ‘big money’
cases and the move towards ‘equality’.

¢

¢

¢
I can give examples of the different possible
approaches to calculating orders.

¢

¢

¢
I can describe the relationship between financial
provision and property orders.

¢

¢

¢
I can define the concept of the ‘clean break’ and
explain the manner in which the courts have
interpreted it.


¢


¢


¢
I can explain the role of negotiated settlements
under the current law.

¢

¢

¢
I can consider the potential impact of the Human
Rights Act 1998 on financial provision.

¢

¢

¢
If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
6.1 Financial provision orders ¢ ¢
6.2 The limits of the financial powers of the court ¢ ¢
6.3 The exercise of the court’s powers ¢ ¢
6.4 The welfare of children ¢ ¢
6.5 ‘All the circumstances’ ¢ ¢
6.6 The ‘clean break’ ¢ ¢
6.7 Conclusion ¢ ¢
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
7.1 Family maintenance outside the Child Support Acts . . . . . . . . . . . 109
7.2 Financial provision during marriage . . . . . . . . . . . . . . . . . . . 111
7.3 The Child Support Act 1991 . . . . . . . . . . . . . . . . . . . . . . . 113
7.4 The welfare of the child . . . . . . . . . . . . . . . . . . . . . . . . . 115
7.5 Child support in action. . . . . . . . . . . . . . . . . . . . . . . . . . 118
7.6 Continued dissatisfaction and the road to further reform . . . . . . . . 123
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
7 Child support and the Child Support Acts
page 108 University of London External System
Introduction
The Child Support Act 1991 (CSA) was enacted in an attempt to rationalise the
law governing the provision for child support. But although s.8 CSA removes the
jurisdiction of the courts to make financial orders for children, it does not change the
pre-existing law as such: it merely provides that in cases to which the Act applies ‘no
court shall exercise any power which it would otherwise have’. In other words, the
powers of the courts are not abolished, but they may not be exercised. Note that the
system was reformed by CSA 1995 but a new, much more straightforward formula
has been implemented by the Child Support, Pensions and Social Security Act 2000
(CSPSSA). That said, knowledge of the old law is required to secure your grasp of this
potentially controversial area of family law.
Notwithstanding the introduction of the CSA, there are residual areas in which the
courts retain jurisdiction. First, the CSA only applies to ‘qualifying children’ – natural or
adopted children of both parents – thus the support of non-qualifying children, such as
step-children, is outside the scope of the Act and within the jurisdiction of the courts.
Further, even where the child is a qualifying child, the court has a role in three cases.
1. Where a maintenance assessment is in force and additional amounts of support
are required.
2. Where the child is in instruction or training or is disabled.
3. Where revocation of a maintenance order is sought (CSA s.8(4)).
This chapter therefore considers:
u the powers of the court to make orders for a child on dissolution or nullity of
marriage and judicial separation
u the powers of the divorce court and the magistrates’ court to make orders with
respect to children during marriage
u the financial powers under the Children Act 1989 (CA) and the CSA 1991
u the reforms advanced by the CSA 1995 and the new formula advanced by the
CSPSSA.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
u list the defects in the law of child maintenance which led to the introduction of
the Child Support Act 1991
u outline the powers of the Child Support Agency
u define ‘qualifying child’, ‘parent with care’ and ‘absent parent’
u explain the importance of the ‘welfare of the child’ under the Acts
u say who may and who must apply to the Child Support Agency for child
maintenance
u outline the elements of the formula
u explain the residual jurisdiction of the courts
u describe the manner in which payments under the Child Support Acts critically
affect the award of maintenance and financial provision on divorce
u consider whether recent reforms will make the collection of maintenance any
more effective.
Essential reading
¢ Herring, Chapter 5, pp.175-198.
¢ Masson et al., Chapter 15, pp.443–484.
¢ Probert, Chapter 7, pp.134–146.
¢ Standley, Chapter 14, pp.319–340.
Family law 7 Child support and the Child Support Acts page 109
7.1 Family maintenance outside the Child Support Acts
Orders available
These orders are made under the MCA and cannot be provided if the Child Support
Agency has jurisdiction to make an assessment.
The court may make periodical payments orders, secured periodical payments orders
and lump sum orders under s.23(1)(d)–(f) MCA. In each case, the court may order that
the payment be made to the child or such person as may be specified in the order for
the benefit of the child. The powers may be exercised before a decree is granted and
they can be exercised from time to time. Even where the proceedings are dismissed,
an order may be made within a reasonable time after dismissal and further orders may
be made from time to time (s.23(2), (4) MCA).
The court has the power to make transfer of property orders in favour of a child of the
family or some other person for the benefit of the child. It may order a settlement of
property for the benefit of children of the family and it may vary any pre- or post-
nuptial settlement for the benefit of such a child (s.24 MCA). However, although the
court has the power to make these property adjustment orders and the power to
order payment of a lump sum, it will normally not make lifelong provision for a child
who is under no disability and whose education is secure. See Lifford v Glyn [1979] 1
WLR 78 and H v M [1992] 1 FLR 229.
It should be noted that the power to make orders for the ‘benefit of the child’ (which
also exists in the DPMCA and the CA) does not confine the court to orders providing
a direct financial benefit to the child. It extends to enable the court to direct that a
father transfer to a mother his interest in the joint tenancy in the family home so as to
enable her to provide a home for the children. See K v K [1992] 2 All ER 727.
Criteria
The matters to be taken into account in determining whether to make an order and
the content of the order are in s.25(3) MCA, which directs the court to have regard to:
u the financial needs of the child
u the income, earning capacity (if any), property and other financial resources of the
child
u any physical or mental disability of the child
u the manner in which he or she was being, and in which the parties to the marriage
expected him or her to be, educated or trained
u the financial resources and financial needs of the spouses, the standard of living
enjoyed by the family before the breakdown and any disability of either party to
the marriage.
The ‘child of the family’
Orders are available in respect of a ‘child of the family’ defined in s.52 MCA. Such a child
is a child of both of the parties to the marriage: in other words, their biological child
or any other child who has been ‘treated’ by both parties as a child of their family.
This formulation covers stepchildren, even where the treatment is in ignorance of the
child’s true parentage (see W(RJ) v W(SJ) [1972] Fam 12) and privately fostered children.
In order to fulfil the definition, however, the child must be treated as a child of the
family after his or her birth (see A v A [1974] Fam 6) and the treatment must occur
within a family (Re M (A Minor) (1980) 2 FLR 184).
Where the child is a ‘child of the family’, but no financial provision is sought from an
individual who is not his or her biological parent, s.25(4) MCA directs the court to have
regard to:
u whether that party assumed any responsibility for the child’s maintenance and,
if so, to the extent to which, and the basis upon which, that party assumed such
page 110 University of London External System
responsibility and to the length of time for which that party discharged such
responsibility
u whether in assuming and discharging such responsibility that party did so knowing
that the child was not his or her own
u the liability of any other person to maintain the child.
See Re A [1998] 1 FLR 347 where a mother, unable to look after her child, sought her
parents’ help. In proceedings brought when her marriage broke down, the court held
that the grandchild was a ‘child of the family’.
Duration and age limits
Section 29 provides that no financial provision order and no order for a transfer of
property shall be made in favour of a child who has attained 18 and that periodical
payments orders will not last beyond the child’s 18th birthday. These restrictions
do not apply where the child is or would be receiving instruction at an educational
establishment or undergoing training for a trade, profession or vocation, whether or
not he or she is employed simultaneously or where there are special circumstances,
such as disability (s.29(3) MCA).
Death of the payee terminates any periodical payments orders (s.29(4) MCA).
Applicants
Orders are available to a party to a marriage. The child may not apply on his or
her own behalf. However, he or she may intervene in matrimonial proceedings,
notwithstanding the fact that the decree may have been pronounced many years ago,
and claim financial provision (see: Downing v Downing (Downing Intervening) [1976] Fam
288).
Activity 7.1
What is the position of a stepchild for the purposes of an award under the MCA
1973?
Summary
There will be some instances where the courts make orders, under the MCA, outside
of the Child Support Acts. These cannot be made if the Child Support Agency has
jurisdiction to make an assessment. These orders are ‘for the benefit of the child’ and
are subject to certain criteria. They are not available for children who have reached the
age of 18. The orders are made on behalf of the child by a party to a marriage. Children
may not apply on their own behalf although they can intervene in matrimonial
proceedings whether past or existing.
Family law 7 Child support and the Child Support Acts page 111
7.2 Financial provision during marriage
The divorce court is empowered under s.27 MCA to make unsecured and secured
periodical payment and lump sum orders for the benefit of a child of the family
to whom an application relates. In determining whether to grant an order and its
content, the court must take into account those matters contained in s.25(3) and (4),
discussed above. The same restrictions in s.29 (on the making of financial provision
orders in favour of children who have attained the age of 18) apply.
Unsecured periodical payments and lump sum orders may also be granted for the
benefit of the child of the family (see s.88 DPMCA) in the Magistrates’ Court (s.2
DPMCA). The matters to be taken into account in s.3(3) DPMCA are similar to those
in s.25(3) and (4) MCA. Again the same restrictions apply on the making of orders in
favour of children who have attained 18 (see s.5 DPMCA).
7.2.1 Financial orders for children under the Children Act 1989
Orders available
Schedule 1 CA establishes a comprehensive code empowering the court to make
financial support orders against a child’s parent, defined as including any party to a
marriage, whether or not subsisting, in relation to whom the child concerned is a child
of the family (paragraph 16(2)). Such a person does not include the biological parent’s
cohabitant. See Re J (1992) The Times, 12 November.
Orders available include unsecured and secured periodical payments, lump sum and
property transfer orders (paragraphs 1 and 2(2)). Such orders can be made to the child
himself or herself or to the applicant for the benefit of the child. See K v K [1992] All ER
727.
Magistrates have the jurisdiction to make unsecured periodical payments and lump
sum orders not exceeding £1,000, while the jurisdiction of the High Court and the
county court is unrestricted.
Although a court has the power to make a lump sum order, the court held in Phillips
v Peace [1996] 2 FLR 230 that, given the restrictions applied by s.8(3) CSA 1991 on the
powers of the courts to make orders for child maintenance, lump sums should be
ordered specifically for items of capital expenditure (a house and furniture) and not as
a capitalised form of maintenance.
Criteria
The criteria governing the court’s discretion are similar to those governing the MCA
and the DPMCA. The court is to ‘have regard to all the circumstances’ including:
u the income, earning capacity, property and other financial resources which the
applicant, the parents and the person in whose favour the order would be made,
has or is likely to have
u those persons’ financial needs, obligations and responsibilities
u the financial need, income, earning capacity (if any), property and other financial
resources of the child
u any physical or mental disability of the child
u the manner in which the child was being, or was expected to be, educated or
trained (paragraph 4).
Where the liability of a person who is not the child’s legal parent is taken into account,
the court should also consider under Schedule 1 paragraphs 4(1) and 4(2):
u whether that person had assumed responsibility for the maintenance of the child
and, if so, the extent to which and basis on which he assumed that responsibility
and the length of the period during which he met that responsibility
page 112 University of London External System
u whether he did so knowing that the child was not his child
u the liability of any other person to maintain the child.
It is interesting to note that unlike other provisions within the CA the welfare of the
child is not the paramount consideration.
Other points (see Herring, p.182) are considered by the courts when making these
orders.
u The level of the award should not reflect the marital status of the parents.
u The child should be brought up in a way which is in some way commensurate with
the non-residential parent’s lifestyle.
u The court should be wary of making an award which will benefit the resident
parent but not the child.
u The parent will only be liable to support the child during that child’s minority.
u If a step-parent is being considered for liability, then the courts will have to
consider any biological children that step-parent has.
u If the applicant is a disabled adult, they can claim against their parents. Under the
CA any expenses will be considered. This differs to the Child Support Acts where
only expenses directly relating to the disability are available.
Activity 7.2
What is the justification for the child’s welfare not being the paramount
consideration in financial orders made under the Children Act 1989?
Duration and age limits
Similar restrictions on granting financial provision for children over 18 apply as under
the MCA (Schedule 1 paragraph 3). These do not affect applications by persons over 18
under paragraph 2. Periodical payments orders payable to a parent of a child cease to
have effect if the parents live together for more than six months (paragraph 3(4)). All
orders for periodical payments cease to have effect on the death of the person liable
to make payments under the order (paragraph 3(3)).
Applicants
The following people may apply for a financial order in respect of a child.
u A ‘parent’, including an adoptive parent and both parents of an illegitimate child. A
parent is defined to include ‘any party to a marriage (whether or not subsisting) in
relation to whom the child… is a child of the family’ (paragraph 16(2)). This includes
step-parents.
u A guardian.
u Any person in whose favour a residence order is in force with respect to a child.
u A child over 18 who would be or is receiving instruction at an educational
establishment or undergoing training or is subject to special circumstances
(paragraph 2). No order may be made under this paragraph where the applicants’
parents are living in the same household and the court’s powers are confined to
periodical payments and lump sum orders.
Financial orders may also be made even though there has been no application on the
making, varying or discharge of residence orders and where the child is a ward of court
(paragraph 1(6)).
Family law 7 Child support and the Child Support Acts page 113
7.3 The Child Support Act 1991
7.3.1 Background and development
The impetus for this legislation, which came into force on 5 April 1993, was twofold.
u The system of private law outlined above was perceived to be, in many respects,
ineffective.
u The government was concerned at the growing volume of state expenditure on
welfare benefits for one-parent families.
The background to the Act was as follows.
u 1974: The Report of the Committee in One-Parent Families (Cmd. 5629) (Finer Report)
which recommended that maintenance for children and spouses should be assessed
by administrative means and enforced by civil servants.
u 1988: Australian Child Support Act. Evaluation of the Australian scheme, introduced in
two stages in 1988 and 1989, revealed that the new scheme was much more efficient
at enforcing payment of reasonable maintenance than a court-based system.
u 18 July 1990: The Prime Minister announced the Child Maintenance Review against
the background of concern about the shortcomings of the then court-based system.
These shortcomings were perceived as arising from three factors.
u The large number of births to young single mothers where no effort was made to
recover maintenance from the father.
u Demands on the social security budget caused by the increasing rate of marital
breakdown and financial settlements involving former matrimonial homes, under
which absent parents were not required to pay realistic maintenance.
u Courts which appeared to have lost sight of the taxpayer as an interested party
in financial provision cases. See, for example, Delaney v Delaney where the wife’s
entitlement to welfare benefits was taken into account by the court as a resource.
In her statement, the then Prime Minister announced that she intended to set up
a Child Support Agency with access to the information necessary to trace absent
parents and make them accept their financial obligations. The Agency would
assess maintenance through a standard administrative formula.
u 1990: Child Maintenance Review Discussion Paper.
u 1990: White Paper, Children Come First (Cmnd. 1264).
u 1991: Maintenance Enforcement Act.
u 1991: Child Support Bill (given Royal Assent 25 July 1991).
7.3.2 Aims of the Act
These are the aims as spelled out in the White Paper Children Come First, vol. 1, page i.
u ...parents [must] honour their responsibilities to their children whenever they can
afford to do so
u ...a fair and reasonable balance is struck between the liable parent’s responsibilities
for all the children he or she is liable to maintain
u ...the system produces fair and consistent results
u ...that maintenance payments are reviewed regularly to reflect changes in
circumstances
u ...parents’ incentives to work are maintained
u ...the public receive an efficient and effective service
u ...dependence on Income Support is reduced.
page 114 University of London External System
The long title of the Act is:
‘An Act to make provision for the assessment, collection and enforcement of periodic
maintenance payable by certain parents with respect to children of theirs who are not in
their care; for the collection and enforcement of certain other kinds of maintenance and
for connected purposes.’
7.3.3 General principles of the legislation
The duty to maintain:
Section 1(1): ‘Each parent of a qualifying child is responsible for maintaining him.’
Section 1(2) ‘...an absent parent shall be taken to have met his responsibility to maintain
any qualifying child of his by making periodical payments of maintenance with respect to
the child of such amount and at such intervals, as may be determined in accordance with
the provisions of the Act.’
Qualifying child, absent parent, person with care: s.3 CSA
A child is a qualifying child if:
u one of his or her parents is, in relation to him or her, an absent parent
u both of his or her parents are, in relation to him or her, absent parents (s.3(1)).
For the purposes of the Act, a child is defined as:
u a person under 16
u a person under 19 receiving full-time education (which is not advanced education)
by attending a recognised educational establishment or elsewhere, if the
education is recognised by the Secretary of State
u a person who is under 18 and fulfils certain prescribed conditions (s.55(1) CSA).
Further, a person cannot be a child if he or she is or has been married or has been
party to a void marriage or a marriage in respect of which a decree of nullity has been
pronounced.
The parent of any child is an absent parent in relation to the child if that parent is not
living in the same household as the child and the child has his or her home with a
person who is, in relation to him or her, a person with care (s.3(2) CSA).
A parent is defined as ‘any person who in law is the mother or father of the child’ (s.54):
in other words, the natural, adoptive or s.30 Human Fertilisation and Embryology Act
1990 (HFEA) mother or father of the child. This is subject to HFEA, ss.27 and 28. Thus,
the birth mother is the parent of the child within the CSA 1991 and the person who
provides the sperm resulting in the child is the child’s father, except where the child is:
u born to a married couple as a result of Artificial Insemination by Donor (AID),
embryo transfer or egg donation, in which case the husband of the wife is regarded
as the father of the child, unless it is proven he did not consent (s.28(2) HFEA)
u born following licensed fertility treatment to a woman and her partner, in which
case her partner is treated as the child’s father, unless it can be proven he did not
consent (s.28(3) HFEA).
Further, a donor of sperm for the purposes of treatment services under HFEA is not
treated as the child’s father and thus is not the child’s father for the purposes of the
CSA. Finally, the paternity and entry on the birth register presumes that, at the outset,
the husband of the mother of a child and/or the man registered as the child’s father
is the child’s parent within the CSA. It is to be noted that the concept of ‘child of the
family’ does not appear in the CSA. Such a child is not a qualifying child in relation to
any ‘treating’ non-natural parent (i.e. donator of the sperm) within the meaning of the
CSA. However, such a child does not lose his or her right to be maintained under the
pre-CSA law.
Family law 7 Child support and the Child Support Acts page 115
‘In their care’
The person with care is a person:
u with whom the child has his or her home
u who usually provides day-to-day care for the child (whether exclusively or in
conjunction with another)
u who does not fall within a prescribed category of person (s.3(3) CSA).
Persons who cannot be prescribed as falling outside the definition of persons with
care are parents, guardians and persons who have residence orders in their favour
(s.3(4) CSA).
Regulations so far have prescribed only local authorities and local authority foster
parents as outside the definition of persons with care.
These complex provisions essentially mean that obligations are imposed on parents of
children where:
u they are the natural or adoptive parents of a child
u one or both of them does not live in the same household as the child
u the child lives with a person who provides care for him or her.
Summary
In addition to the MCA 1973, the CA 1989 gave the courts the power to provide financial
support for children, whether the parents were married or not. These powers have
been significantly reduced, however, since the introduction of the Child Support Act
1991. This legislation was introduced as a result of the perceived ineffectiveness of
existing financial provision and the government was becoming increasingly concerned
about the amount of state expenditure on (typically) single mothers where the errant
father had deserted them and not provided any financial support for the deserted
child. The principles of the Act and the amendments made in 1995 and 2000 are
administered by the Child Support Agency. This somewhat controversial body makes
an assessment of available income from the absent parent and then the state will
recover that amount to support the deserted child.
7.4 The welfare of the child
Where the Secretary of State, or any child support officer, in any case which falls to be
dealt with under the Child Support Act is considering the exercise of any discretionary
power conferred by this Act, he or she shall have regard to the welfare of any child
likely to be affected by his or her decision (s.2 CSA).
7.4.1 How maintenance is assessed
The Act introduces a maintenance formula prescribing the method of calculating the
maintenance payable in any particular case. This is administered by an administrative
agency, the power of the courts being excluded, and the right of appeal is limited.
The formula for establishing the ‘basic rate’ of child support maintenance is the
following percentage of the non-resident parent’s net income of at least £200 a week
(with no account taken of weekly income over £2,000):
u 15 per cent where he has one qualifying child
u 20 per cent where he has two qualifying children
u 25 per cent where he has three or more qualifying children.
If the non-resident parent also has one or more relevant other children, the
appropriate percentage referred to above is to be applied instead to his net weekly
income:
page 116 University of London External System
u less 15 per cent where he has one relevant other child
u 20 per cent where he has two relevant other children
u 25 per cent where he has three or more relevant other children.
There is a reduced rate for those who earn between £100 and £200 a week and a flat
rate of £5 for those who earn less than £100 a week.
The use of the formula essentially involves a series of mathematical calculations and
no element of discretion will be involved. Computer software is used for this process.
(You are not expected to be able to work your way through the formula!)
Procedure for obtaining assessment
According to s.4(1) a person who is, in relation to any qualifying child or qualifying
children, either the person with care or the absent parent may apply to the Secretary
of State for a maintenance assessment to be made under the CSA with respect to that
child or any of those children.
Where such an application is made, the applicant must, as far as is reasonable,
comply with any regulations made by the Secretary of State which aim to provide the
Secretary of State or child support officers with information that is required to enable:
u the absent parent to be traced
u the amount of child support maintenance payable by the absent parent to be
assessed
u the maintenance to be collected from the absent parent (s.4(4)).
Where a maintenance assessment has been made in response to an application under
s.4(1), the Secretary of State may, if the person with care or the absent parent makes
the application, arrange for collection and enforcement (s.4(2)).
Except where the person with care is in receipt of state benefit and s.6 applies, a
person with care need not take advantage of s.4 and may choose, rather, to enter
into a maintenance agreement (s.9(1)). This is an agreement ‘for the making, or for
securing the making, of periodical payments by way of maintenance… for the benefit
of the child’. However, s.9 establishes that it is impossible to contract out of the CSA
system as the existence of a maintenance agreement does not prevent any party to
the agreement, or any other person, from applying for a maintenance assessment
under the CSA. Further, any provision within an agreement which purports to restrict
the right of a party to seek a maintenance assessment shall be void (ss.9(3) and (4)).
It is likely that many persons not in receipt of state benefit will use the CSA as there
are no other means available of securing maintenance from an absent parent who is
unwilling to pay.
Parents with care in receipt of certain state benefits are required to authorise the
Secretary of State to take action under the CSA to recover child support maintenance
from the absent parent (s.6). This obligation is waived only in those cases where s.6(2)
applies. This provides that the Secretary of State shall not require a person to give
him or her the required authorisation if he or she considers that there are reasonable
grounds for believing that there would be a risk to him or her or of any child living with
him or her, suffering harm or undue distress if the parent were required to give that
authorisation, or if he or she were actually to give it.
The obligation only applies in circumstances where the parent of the qualifying child is
the person with care. Where the person with care is not the parent (e.g. the guardian
or a non-parent with a residence order), they may make an application under s.4, but
they are not compelled to do so under s.6. Once the Secretary of State has received
authorisation within the terms of s.6(1) – such authorisation extending to all the
children of the absent parent in relation to whom the applicant is the person with care
(s.6(4)), which must be given without unreasonable delay (s.6(5)) – the parent with
care incurs various obligations.
Family law 7 Child support and the Child Support Acts page 117
Section 6(9) provides that the parent with care shall, as far as is reasonable, comply
with any regulations made by the Secretary of State. Regulations which have been
announced indicate that the required information includes:
u the habitual residence and name and address of the absent parent
u the name and address of any current or recent employer of the absent parent
u the name of any persons living in the same household as the absent parent.
The obligation to provide the information does not apply where s.6(10) applies, i.e.
in such circumstances as may be prescribed, or in circumstances (which again may
be prescribed) where the Secretary of State waives the obligation. So far, no such
circumstances have been prescribed.
Any parent with care who fails to comply with the obligations in s.6(1) or s.6(9) is
subject to sanction within s.46. A written notice is served on the parent requiring
him or her to comply. If the parent does not do so within a specified period, the child
support officer must consider whether, with regard to any reasons they may have
given, there are reasonable grounds for believing that, if the parent were to comply,
there would be a risk of them or any children living with them suffering harm or undue
distress as a result of complying. If a child support officer considers that such grounds
exist they shall take no further action, but if they do not, the officers may issue a
reduced benefit direction. Such a direction, which is subject to appeal, is provided for
by regulation. There is a two-stage reduction: 20 per cent of the personal allowance
for the parent for 26 weeks, followed by 10 per cent of the personal allowance for the
parent for 52 weeks.
7.4.2 The role of the courts
One of the fundamental objectives of the CSA is to remove the task of assessing child
maintenance from the courts and transferring this responsibility, together with
collection and enforcement, to the Child Support Agency.
In any case where s.8(3) applies, no court shall exercise any power which it would
otherwise have to make, or vary or revive, any maintenance order in relation to the
child and absent parent concerned. This applies in any case where a child support
officer would have jurisdiction to make a maintenance assessment with respect to
a qualifying child and their absent parent on an application duly made by a person
entitled to apply for such an assessment with respect to that child. In other words, in
those cases where a child support officer can make a maintenance assessment, the
court is excluded.
The court thus retains a role in the following situations.
u Where the child support officer has no jurisdiction, i.e. where:
u there is no qualifying child
u the child is between 17 and 19 and not in full-time education or is receiving
advanced education
u the child is over 19
u s.44 applies.
u Where s.8(6) applies, i.e. where:
u there is a maintenance assessment in force with respect to the child
u the amount of child support maintenance payable was assessed in accordance
with the alternative formula
u where the circumstances of the case make it appropriate for the absent
parent to make or secure the making of periodical payments order under a
maintenance order in addition to the child support maintenance payable in
accordance with the maintenance assessment.
page 118 University of London External System
u Where lump sum and property adjustment orders are concerned.
u Where s.8(7) applies. Here the court is not prevented from exercising any power to
make a maintenance order with respect to a child if the child is, will be or would
be, receiving training at an educational establishment or undergoing training for
a trade, profession or vocation (whether or not in gainful employment). The order
must be made solely for the purposes of requiring the person making, or securing
the making of, periodical payments fixed by the order to meet some or all of the
expenses incurred in connection with the provision of the education or training.
u Where s.8(8) applies (orders for expenses of disabled or blind children). Here the
court is not prevented from exercising any power to make a maintenance order
in relation to a child if a disability allowance is paid to or in respect of them, or if
no such allowance is paid but they are disabled (s.8(9)). The order must be made
solely for the purpose of requiring the person making, or securing the making of,
the periodical payments to meet some or all of any expenses attributable to the
child’s disability.
u Where there are orders against the person with care of the child. For example,
where a child applies under Schedule 1, paragraph 2 CA for a maintenance order
against the parent with care.
Activity 7.3
Mary and John have one son, James, aged 10. Mary and John divorced in 2003.
Should Mary apply to the Child Support Agency or to the courts for maintenance for
James?
Activity 7.4
Anne and David, who have never married, have just separated. Anne has two
children from a former marriage who are now aged seven and five. David, who used
to support the children, has told Anne that he will no longer do so. Should Anne
apply to the Child Support Agency or to the courts? Who will an order to maintain
the children be made against?
Summary
The Child Support Agency has the responsibility of administering the Child Support
Acts and this means that they assess and enforce the payments. The Acts provide a
formula which determines the liability of the absent parent. In making an assessment,
the Child Support Agency must have due regard for the welfare of the child. The
resident parent, or person who has the child in their care, can make an application
to the Secretary of State for a maintenance assessment. The courts will only become
involved in very particular circumstances as the whole aim of the scheme is to reduce
the role of the courts.
7.5 Child support in action
7.5.1 The case law

Crozier v Crozier [1994] Fam 114; [1994] 2 All ER 362
On divorce, the husband had transferred his half-share in the matrimonial home to
the wife in exchange for a nominal order for child maintenance. This arrangement was
contained in a consent order of the court. The wife subsequently applied to the Child
Support Agency, which assessed the former husband’s liability at £29.00 per week. The
husband applied for leave to appeal against the consent order out of time.
Note that the reforms introduced by the CSA 1995 give some protection to former
spouses in this situation.

You should try to memorise
the details of these important
cases.
Family law 7 Child support and the Child Support Acts page 119
B v M (Child Support: Revocation of Order) [1994] 1 FLR 342
The parties were divorced in 1985, with W

being given custody of the three children of
the marriage who remained living with her. In 1986, H was ordered to pay maintenance
for each child at £41 per child per month. The order was never varied, but
subsequently related to the younger children only. In 1993 the mother wrote to the
Child Support Agency which told her that if the order was revoked she could apply to
the agency. The order was revoked and the father appealed.
The appeal succeeded, with Bryant J concluding that, although the court no longer
had any power to make or revive a maintenance order, it retained the power to vary
an existing order. If the order were not revoked, the agency had no jurisdiction until
1996 and the court retained the jurisdiction to vary the order, a power conferred in
s.31(1) MCA. Although the assessment under the CSA was likely to be higher, it was not
necessarily in the best interests of the child, taking into account other factors and,
in any event, during this transitional period, transitional provisions were the most
appropriate.
A v A (A Minor: Financial Provision) [1994] 1 FLR 657
The mother had had three children, O, A and T. The children were born from 1978 to
1984 when the mother had a sexual relationship with the father, a very wealthy man,
whom she had not married. Blood tests revealed that O and T were not the children
of the father, but he accepted that he was the father of A (a girl). The mother sought
outright transfer of offshore property acquired by the father as a home for herself and
the children, either to herself for the benefit of A or to A herself.
Ward J decided that the father should pay the daughter’s school fees and extras
and, taking into account all the circumstances and the fact that the amount of
maintenance for a child could properly take into account an allowance for the parent
with care, £20,000 per annum. In general, property adjustment orders should not be
made to provide benefits for children after they reach independence. The fact that
a father buys a property to provide a roof over the head of the unmarried mother
and the child is not such an exceptional circumstance as to justify the transfer of the
property to the child absolutely. Here the girl had no disability and there were no
special circumstances requiring the father to do more than maintain the girl until
independence. Thus, the proper order was for settlement of property for the benefit
of the girl. Further, while A was under the control of her mother, her mother would
have the right to occupy the property to the exclusion of the father, for the purposes
of looking after A.
Mawson v Mawson [1994] 2 FLR 985
This was a claim with respect to a child born in 1988 of a marriage between W and H
lasting less than four years. During proceedings for financial relief, W withdrew her
claim for provision for the child pending adjudication by the Child Support Agency. The
agency assessed H’s liability with respect to the child as £596.70 per month. On that
basis, W was awarded transfer of the matrimonial home and payment of a lump sum of
£2,000 and a three-month term of periodical payments at £150 per month. A direction
was made that neither party should be entitled to make any further application
for periodical payments. W appealed, asking for increased periodical payments to
continue during the spouse’s joint lives or until remarriage. She contended that the
net effect of the order would be to leave her with a gross imbalance of income from
all sources, in particular because an expected reduction in H’s salary would reduce the
amount of the Child Support Agency assessment and the sum paid to the child. She
said that, in any event, the judge had been wrong to conclude that she could adjust to
the absence of maintenance without undue hardship within three months.
Thorpe J concluded that H had no means to meet an increased capital order and that
changes in the assessment by the Child Support Agency in accordance with variations
in H’s salary must be taken to have been contemplated by the judge’s approach.
However, a reduction in the Child Support Agency assessment brought about by
changes in the child support legislation, being a reduction not consequent on a
change in salary, was an important reduction which had not been before the judge

‘W’ and ‘H’ stand for ‘wife’
and ‘husband’.
page 120 University of London External System
and had to be reflected in W’s maintenance. The judge considered a balance had to be
struck between the desirability of securing the child’s financial future and the clean
break principle. This could be achieved by periodical payments of a finite term, but not
if direction under s.28(1 A) MCA prohibited application for extension within s.31.
Smith v Mclnemey [1994] 2 FLR 1077
The husband and wife married in 1973 and later separated. There were three children
of the family. Pursuant to a separation agreement, H transferred to W his half-share
in the family home and collateral endowment policies, in return for which he was
released from any future obligations under the mortgage and any further obligation to
maintain W and the children. Nevertheless, H paid £200 per month to W for 15 months
for the benefit of the children. H was subsequently made redundant and the payments
ceased. In 1993, H applied for property adjustment and lump sum orders. An order
was made that his former home be charged with a payment of 35 per cent of the net
value of the property, all other claims being dismissed upon the execution of this. W
appealed.
Thorpe J allowed W’s appeal, holding that, as a matter of policy, it was important that
the agreement of the parties at the time of separation should be upheld, unless there
are overwhelmingly strong considerations for interference. Here the circumstances
fell short of this but, since W had asserted her rights under the separation agreement,
H too was entitled to the full benefit of those rights and, in particular, to the return
of monies he advanced prior to his redundancy. W was likely to claim social security
benefit and thus H would be subject to assessment under the CSA. This would mean
he was paying twice to discharge the same obligation. He was, therefore, entitled to
an indemnity from W in respect of any substantial periodical payments extracted from
him by the Child Support Agency.
T v S (Financial Provision for Children) [1994] 2 FLR 882
Unmarried parents had five children and the mother applied for financial provision for
them. The available financial resources of the parties amounted to £74,000: £29,000
was ordered to be spent on school bill arrears, with the remainder to be used to buy
a small property for the mother and the children. The property was to be held by
trustees with a power of sale, the power to be postponed until the youngest child
reached 21 or ceased full-time secondary education, whichever was the sooner. On
that event the benefit would pass to the children. The father appealed and the order
was varied so that the sale was postponed until the youngest child was 21 or all the
children had completed their full-time education, whether secondary or tertiary, at
which time the property would revert to the father. The view of the court was that
there was nothing in the circumstances of this case which rendered the children’s
circumstances special or unusual.
Re A (Child of the Family) [1998] 1 FLR 347 CA
A child was born to a 17-year-old. The girl’s parents helped her look after their
grandchild and eventually cared for her on a full-time basis. The court held that the
grandchild was a child of the grandparents’ marriage. It was right to be cautious
in deciding that grandparents were treating the child as a child of their family and
it would be wrong to hold that the relationship had been established where the
grandparents had done no more than society would expect in harbouring a grandchild
in response to some family crisis. But on the facts supplied (the child called the
grandparents ‘Mum’ and ‘Dad’ and the grandparents not only provided primary
care for the child but took decisions about medical treatment and education) the
grandparents’ commitment went beyond the ordinary natural affection and close
ties inherent in the relationship and justified the finding that they had assumed
responsibility for the child and treated her as the child of their marriage.
Family law 7 Child support and the Child Support Acts page 121
7.5.2 Areas of controversy
1. Parliamentary scrutiny/role of delegated legislation
The Act, albeit accompanied by 10 sets of Regulations, was described as ‘skeletal’
by the Leader of the Opposition in the House of Lords, where it was introduced.
Regulations prescribe persons with a duty to furnish information, the purpose for
which this information will be used, the mathematical formulas, the procedure in
making assessments and details of means of collection and enforcement. In contrast,
many of the issues dealt with by the statutory instruments are personal and sensitive
and amount to matters of principle and substance, rather than technicality. The Act
therefore leaves an extensive amount of decision-making to the Secretary of State.
2. Differing treatment
The Act requires differing treatment of those on state benefit and those who are not
and may impose a financial penalty on the former group where information required
by the legislation is not provided. In the House of Lords the compulsory nature of
the legislation was regarded as indefensible in principle and unworkable in practice.
Some Lords questioned whether the government was entitled to deprive individuals
of benefits and others argued that the financial penalty would damage the children
that the legislation aimed to protect. The disclosure clause was defeated in the Lords
but reappeared in the Commons and appears in the Act. It continues to be opposed by
numerous organisations and individuals.
3. Welfare of the child
Some commentators believe that the legislation downgrades the welfare of the child.
Although s.2 provides that welfare ‘should be had regard to’ by the Secretary of State
and child support officers, it is unlikely to defeat the object of the statute and sits
oddly with the power to reduce benefit.
4. New powers
The powers of inspectors and enforcement provisions (ss.14, 15 and Schedule 2) import
novel, intrusive and draconian powers into family law. These include powers of entry
to non-residential premises, examination and enquiry powers and powers to demand
documents and information.
5. Exclusion of the courts
The exclusion of courts from all areas of the assessment of maintenance has been
criticised: the court has no means of supervising the correctness or otherwise of an
assessment.
6. Other effects
Note the effect of the ‘clean break’ philosophy and capital provision generally. This
may encourage the use of Mesher and similar orders which may be employed more
extensively by the courts in the light of obligations imposed under the CSA.
Activity 7.5
Why do you think it has been argued that the CSA favours the state over the child?
Activity 7.6
a. What is meant by a ‘clean break’?
b. Under the CSA what is the effect of liability on the divorce court’s power to order
financial provision and property distribution?
Self-assessment question
What jurisdiction does the court retain? You should make a checklist of the areas in
which the courts may still be involved.
page 122 University of London External System
7.5.2 Reform of the CSA 1991
For reasons such as those cited above, and in the light of mounting and sustained
public pressure,

the CSA 1991 has been reformed to remove some of its more
draconian features.
The CSA 1995
In January 1995, the Social Security Secretary announced a package of reforms to the
CSA 1991 which have been enacted in the Child Support Act 1995.
The 1995 Act amended the Maintenance Assessments and Special Cases Regulations
1992. For example by providing, in Schedule 3(A), the so-called ‘broad brush’
allowances in calculating exempt income by taking into account a ‘qualifying transfer’
of the type which gave rise to the dispute in Crozier. Paragraph 10 of Schedule 3 sets
out the amounts allowed when computing exempt income. Schedule 3(B) provides for
allowances in respect of exempt income as regards travelling costs.
The 1995 Act also introduced departure directions (these are now called variations)
whereby a child support officer, on an application by the parent/person with care or
the absent parent, can make a new assessment which departs from the CSA formula,
thereby affecting the level of exempt or protected income. In Schedule 4(b) account
can be taken of:
u travel to work costs other than those which fall within Schedule 3(B)
u costs incurred in maintaining contact with the child
u costs attributable to the applicant’s long-term disability or illness
u financial obligations incurred before the breakdown of the marriage/relationship
for the benefit of the parties and/or the qualifying child
u pre-April 1993 commitments impossible or unreasonable to withdraw from (e.g.
life assurance policies, private school fees)
u costs incurred in supporting a child who is not the parent’s but is part of his or her
family
u pre-1993 court orders or agreements where the ‘broad brush’ provisions are
inadequate
u the absent parent’s refusal to make income-producing use of capital assets
u where lifestyle appears to be inconsistent with declared income
u where housing or travelling costs are unreasonably high
u where the absent parent has a partner who should contribute to his or her housing
costs.
Even if the application for a departure direction falls within Schedule 4(B), the officer
must still take account of the matters in ss.25(e) and (f) in forming a judgment that,
in all the circumstances of the case, it would be just and equitable to give a departure
direction. Under Paragraph 30 of the Departure Direction Regulations 1996, account
can be taken of whether the giving of a direction would be likely to result in, for
example, the absent parent ceasing to be employed. On the other hand, no account
is to be taken of whether the conception of the child was unplanned, whether the
parent with care was responsible for the breakdown of the relationship or whether the
parent with care is refusing to allow contact with the child.
For an assessment under the CSA 1995, see Henderson v Secretary of State for Social
Security, TLR, 1 December 1998. In this case the Court of Appeal held that a transfer of
a share in the former matrimonial home (rather than necessarily an entire transfer)
was still a qualifying transfer for the purpose of affecting the absent parent’s exempt
income.

Public pressure: the CSA has
always been controversial,
and is unpopular with
absent fathers in particular.
Campaigns against the Act
have attracted considerable
publicity.
Family law 7 Child support and the Child Support Acts page 123
The reforms made by the 1995 Act still proved problematic. By 1997 the collection of
revenue figures were still alarming. Only 31 per cent of those assessed were paying the
full amount due; 36 per cent were only paying part of what was due and 33 per cent
were paying nothing. It appeared that the Child Support Agency spent 90 per cent of
its time assessing maintenance and only 10 per cent of its time collecting it
(Department of Social Security, 1997).
Child Support, Pensions and Social Security Act 2000 (CSPSSA 2000)
The government introduced a new scheme for child support under the CSPSSA 2000.
This scheme is much simpler. Only three pieces of information are required:
u the non-residential parent’s income
u the number of children they have
u whether they live in a household with other children.
This provides for a much simpler system than was in place previously (which
demanded over 100 pieces of information). There were concerns at the time the Act
was passed that the new scheme’s formula was rather ‘rough and ready’ and lacked
precision. It was also felt that in almost all cases it resulted in lower payments, which
increased the financial burden on the state. The latter scheme does not take into
account the income of the parent with care of the child and this is unfair in practice
should a child live with a wealthy parent but receive maintenance from a parent on a
lower income. There is also no maximum payment, which means that vast amounts,
out of proportion with the actual need, are being demanded of absent parents.
7.6 Continued dissatisfaction and the road to further reform
The CSPSSA 2000 has not been as successful as was originally hoped. This has meant
that in recent years the whole child support system has been beset by further
criticism. This time public pressure and judicial dissatisfaction appears to have
coincided and by 2006 it had become apparent that the Child Support Agency
was effectively in melt-down due to spiralling running costs and continually low
enforcement rates.
One area which had proved particularly fertile for judicial concern was the delays
which parents with care were experiencing from the Agency. In R (Kehoe) v Secretary of
State for Works and Pensions, 2005, UKHL 48 a mother decided to test whether the Child
Support Act 1991 was in fact human rights compliant. She argued that her Article 6
rights

had been breached because she was excluded from seeking recovery of owed
child support from the non-resident parent because she was unable to gain access to
the court due to the agency’s sole responsibility for recovery. She further argued that
the protracted delay in her case also breached her Article 6 rights. She was ultimately
unsuccessful but the case did focus the spotlight once more on the troubling
performance of the Agency to recover payments from absent parents.
Unfavourable publicity also continued when a rush of case law concerning the CSA
came to the House of Lords (See Secretary of State for Works and Pensions v M [2006]
UKHL 1; Farley v Child Support Agency [2006] UKHL 31; Smith v Secretary for Work and
Pensions [2006] UKHL 35).
A mother then decided to bring a negligence claim against the CSA for negligent
failure to deal with the assessment, collection and enforcement of maintenance owed
by the non-resident father (see R (Rowley and others) v Secretary of State for Work and
Pensions [2007] Civ 598). Her claim was ultimately unsuccessful at the Court of Appeal
but it became apparent that the Child Support Agency, despite numerous reforms, just
could not satisfy its remit in its present form.
Given this heightened review of enforcement powers and the failure of the reforms
undertaken by the CSPSSA 2000, it was not surprising when it was announced in
February 2006 that ‘neither the agency nor the policy is fit for purpose’. As a result a
Go to your study pack and
read ‘Conclusion’ to Child
Support in Action by Gwynn
Davies and others.
Consider why further reform
of the Child Support Acts was
deemed necessary.

Article 6 of the European
Convention on Human Rights
as given effect to by the
Human Rights Act 1998.
page 124 University of London External System
White Paper, ‘A new system of child maintenance’ (2006) Cm 6979, was presented to
Parliament in December 2006.
The White Paper outlines the failures of the CSA and calls for a fresh start for child
maintenance. With the aim of tackling child poverty the child maintenance system
would be redesigned and a new organisation (Child Maintenance and Enforcement
Commission – C-MEC) will replace the Child Support Agency and ‘ensure the delivery
of a high quality and efficient service’. It will encourage parents to make their own
arrangements. Where this is not possible, simpler calculations will be used and there
will be tougher enforcement measures with increased efforts to collect and reduce
debt. This scheme, if implemented, would become operational in 2009 and the
transfer completed by 2011.
Self-assessment questions
1. In what years were the three Child Support Acts passed?
2. What other countries have similar legislation?
3. What is the definition of a ‘child of the family’?
4. Which children are excluded from this definition?
5. What are the four elements used in assessment of maintenance?
6. The CSA 1991 has been said to have introduced ‘draconian new powers’. What
were they?
7. In what way does the CSA treat those who are receiving state benefit differently
from those who are not?
8. Why has there been a recent decision taken to overhaul the CSA?
Summary
The case law has identified some of the problems with the definition of key terms in
the legislation and how inflexible the CSA has proven to be. In view of these problems,
it is not surprising that the CSA 1995 and then the CSPSSA 2000 were introduced.
It is important to remember that the CSA 1991 still provides the framework for the
operation of the Child Support Agency and the latter formula (as introduced by the
2000 Act) only applies to those who applied after 2003. With all its problems the old
formula remains for those who were assessed prior to 2003. Fifteen years after the CSA
was introduced further cracks appeared in its processes and high profile cases and a
White Paper followed which will overhaul the present system in the hope of producing
an agency which is ‘fit for purpose’.
Useful further reading
¢ Barnett, H. ‘Reflections on the Child Support Act 1991’ (1993) JCL 5(2) 77.
¢ Bergmann B. R. and S. Wetchler ‘Child support awards’ (1995) 29(3) Fam Law Q
483.
¢ Gilespie, G. ‘Child support – the hand that rocks the cradle’ [1996] Fam Law 162.
¢ Gilmore, S. ‘R (on the application of Kehoe) v Secretary of State for Works and
Pensions’ 2006, Vol 8 No 2, JSWFL, 180
¢ Pirrie, J. ‘Child Support update’ (2002) Fam Law 195.
¢ Wikely, N. ‘Child support – the new formula’ (2000) Fam Law 820.
¢ Wikeley, N. ‘A duty but not a right: child support after R (Kehoe) v Secretary of
State for Works and Pensions’, 2006, CFLQ, 287
¢ Wikeley, N. (2007) ‘Child support reform – throwing the baby out with the bath
water?’ CFLQ, Volume 19, No 4, 434
Family law 7 Child support and the Child Support Acts page 125
Sample examination questions
Question 1 Amy and Conrad, who have never married, have two children, Sally
and Jane, aged five and three. Amy also has another child, Justin, now aged 10, from
her former marriage. Her husband was killed in a motor accident. The family lives
in rented accommodation, the lease being in Conrad’s name. In 1996 Conrad left
Amy, who is now dependent upon state benefits. Amy is angry that Conrad will
not support her and the children, particularly since he is now earning £50,000 per
annum.
Advise Amy how to obtain financial provision for Sally, Jane and Justin.
Question 2 ‘Changes in child maintenance have been marked by a slow decline
from fairness for parents and children to unfairness for all.’
What do you understand by the statement? Discuss its accuracy, referring to statute
and decided cases.
Advice on answering the questions
When answering problem questions on financial provision and the distribution of
property on divorce, you should always first analyse whether there is a qualifying
child who is eligible under the Child Support Acts. Without establishing this primary
question, you will be led astray in the rest of your answer.
Question 1 This problem question demands a good understanding of the law
concerning child support. One of the issues that you need to think about is the status
of Conrad if he and Amy were never married. As Amy’s husband was killed in a motor
accident, who is to help her support Justin? Amy is living on state benefits so what
particular agency will require a maintenance assessment? If the CSA is of no use, then
can the CA be utilised at any point? As Amy and Conrad were never married, there is no
point in considering provisions under the MCA.
Question 2 This essay question demands a good understanding of the reasons
for the creation of the CSA and its reception. You need to be familiar with the old
system of recovering maintenance prior to the CSA and then consider the old and
new formulas under the 1991, 1995 and 2000 legislation. You should also be familiar
with the criticisms lodged at the CSA concerning its inflexibility (remember Crozier v
Crozier) and see how reforms have tended to be responsive rather than innovative.
You should consider some of the cases discussed in your Essential reading and see how
they demonstrate problems with the operation of the scheme. You can agree with
the statement, but remember to consider the reforms as being better, although not
without criticism, and also consider alternatives.
page 126 University of London External System
Reflect and review
Look through the points listed below:
Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on
Need to
revise first
Need to
study again
I can list the defects in the law of child maintenance
which led to the introduction of the Child Support
Act.


¢


¢


¢
I can outline the powers of the Child Support Agency. ¢ ¢ ¢
I can define ‘qualifying child’, ‘parent with care’ and
‘absent parent’.

¢

¢

¢
I can explain the importance of the ‘welfare of the
child’ under the Acts.

¢

¢

¢
I can say who may and who must apply to the
Agency for child maintenance.

¢

¢

¢
I can outline the elements of the formula. ¢ ¢ ¢
I can explain the residual jurisdiction of the courts. ¢ ¢ ¢
I can describe the manner in which payments under
the Child Support Acts critically affect the award of
maintenance and financial provision on divorce.


¢


¢


¢
I can consider whether recent reforms will make the
collection of maintenance any more effective.

¢

¢

¢
If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
7.1 Family maintenance outside the Child Support Acts ¢ ¢
7.2 Financial provision during marriage ¢ ¢
7.3 The Child Support Act 1991 ¢ ¢
7.4 The welfare of the child ¢ ¢
7.5 The case law ¢ ¢
7.6 Continued dissatisfaction and the road to further reform ¢ ¢
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
8.1 What is cohabitation? . . . . . . . . . . . . . . . . . . . . . . . . . . 129
8.2 Legal differences between unmarried and married couples . . . . . . . 131
8.3 Same-sex couples: substance over form . . . . . . . . . . . . . . . . . 136
8.4 Discrimination or difference? . . . . . . . . . . . . . . . . . . . . . . 141
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
8 Cohabitation
page 128 University of London External System
Introduction
Evidence suggests that one in eight British couples is unmarried. This is because many
couples today choose to cohabit rather than to marry. Some couples are unable to
marry because they are homosexual and it is clear from the law that this particular
group often find themselves discriminated against on this basis.
Having explored what the law views cohabitation to be, this chapter will then consider
the existing differences between married and unmarried couples. The position of
same-sex couples will then be considered: this area of law has recently been reformed.
Interestingly, the reforms have meant that unmarried cohabiting heterosexual
couples are in a more vulnerable position than same-sex cohabiting couples who have
registered a civil partnership. A justification for this is that the law does not permit
same-sex couples to marry while this option is available to heterosexual couples.
In 1998 the government published a discussion paper entitled Supporting Families
(1998, Home Office) which outlines its commitment to strengthening marriage with a
view that marriage is the best relationship in which to bring up children. With this in
mind, the chapter will conclude by asking whether the law is right to draw distinctions
between married and unmarried couples. Does the law discriminate or simply
differentiate?
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
u explain the way the law defines what is meant by cohabitation
u critically consider the legal differences between a married and an unmarried
couple
u analyse the status of same-sex couples and the reforms that have taken place in
recent years
u discuss whether the law seeks to discriminate or differentiate between married
and unmarried couples.
Essential reading
¢ Herring, Chapter 2, pp.61–92.
¢ Masson et al., Chapter 3, pp.85–112 and Chapter 7, pp.209–229.
¢ Probert, Chapter 1, pp.1–15.
¢ Standley, Chapter 3, pp.52–57.
Family law 8 Cohabitation page 129
8.1 What is cohabitation?
There has always been a difficulty in defining cohabitation because the law recognises
it can take so many different forms. A ‘cohabiting couple’ could be two students living
together, it could be a boyfriend and girlfriend who are thinking about marrying or it
could be a couple who have lived together for many years and have decided never to
get married. The law has never been coherent in its treatment of cohabitees because
of these different forms of relationship. After all, should the couple who have lived
together for many years acquire more rights than the couple who are two students at
university? The law has never made the answer clear.
8.1.1 The need to define
There have been occasions when the law has had to consider the question of when
a couple are cohabiting for fear of causing real injustice against those who are
married. The main example is in the distribution of social security benefits. It would
be manifestly unfair if a spouse’s income was taken into account for the calculation
of income support but a cohabitee’s income was not considered for the purposes of
calculation. It would also involve the state having to pay substantially more money in
benefit and this is why an attempt at definition has had to be made.
The underlying policy of calculation of benefit is that where a couple live together
as husband and wife, the fact that they are not legally married should not make
their position either better or worse than a couple who are in fact married. Proving
this has often involved secret investigations on behalf of the state to ascertain who
cohabits and who does not. It has been necessary to formulate some criteria for
these procedures: guidance for the assessment of social security benefit can be found
in the Adjudication Officers’ Guide, which is amended from time to time. For our
purposes, case law has proven most useful at showing us what criteria the law views as
important when defining cohabitation.
8.1.2 A working definition?
The leading case for the purposes of ascertaining if cohabitation is taking place
is Kimber v Kimber [2001] 1 FLR 383. While this case concerns the cessation of
maintenance under the Matrimonial Causes Act 1973, the criteria formulated are useful
guidance in terms of providing a working definition of cohabitation. In Kimber, Tyrer
J suggested that questions to ask when considering whether a couple are living as
husband and wife would include the following.
u Are the parties living together under the same roof? If the parties live together
in the same household and are only absent for the purposes of illness, holidays or
work then they are living under the same roof.
u Do the couple share in the tasks and duties of daily life? If the parties share
‘mutuality in the daily round’ of tasks and duties then this question is answered in
the positive.
u Does the relationship have stability and permanence? The question to be asked
is whether the living together is a brief association? Has a child been born to
the parties living together? Are the couple just sharing on an occasional basis?
Often time will demonstrate whether the relationship has some stability and
permanence.
u How have the parties arranged their finances? Is there any financial support from
one of the parties to the other? Do the parties share household expenses? Of
course people can share household expenses and not be a cohabiting couple and
people can also live together in relationships where one party pays for everything.
Any evidence will be considered by the court.
u Do the parties have an ongoing sexual relationship? A sexual relationship is a
normal feature of a marital relationship and so this is something for the courts to
consider. Its absence at a particular time will not disprove cohabitation, just as its
page 130 University of London External System
presence at a particular time would not prove it. The key question is whether there
has ever been a sexual relationship? If not, the courts would be unlikely to view a
couple as cohabiting.
u Have the parties got children? And how do the parties act towards each other’s
children if such children are present? Here the courts will consider whether the
parties share children. This is evidence of prior sexual relations and living together
as a married couple with a family in all but name. If one party has children which
the other party looks after or appears to operate as a surrogate parent, then this
too would be evidence to support cohabitation.
u Finally, would the reasonable person with normal perceptions, looking at the
couple’s life together, deem this to be an unmarried cohabiting couple? This is a
question of public acknowledgement. Do the parties present themselves to other
parties as a couple? If they do, this may not mean they are presenting themselves
as a married couple as they may want to retain their identity as an unmarried
couple. Such motivation will not prevent them being regarded as a ‘cohabiting
couple’ for the purposes of the law.
The message from these criteria seems to be that the courts, when pressed, will
consider substance over form. If it appears that a couple are acting, whether overtly
or covertly, as a married couple then the law will consider the household income. The
problem – as we shall see later on – is that if couples are to be treated as ‘cohabitees’
when it suits the state, then surely this should also be the case when it does not suit
the state. If the state gains a benefit but is not prepared to bear the burden, then
we have to consider whether any existing distinctions are there to discriminate or
differentiate.
Self-assessment questions
1. What different forms can cohabiting couples take?
2. Why has the law had, on occasions, to define cohabitation?
3. What criteria does the case of Kimber use to suggest a couple are cohabiting?
Activity 8.1
Julian and Sue live together in a three-bedroom house. They have done so for eight
years. Julian has a child, Little Tim, who also lives in the house. Julian and Sue have
separate bedrooms. They often go out together for their leisure activities. People
who don’t know them often think ‘they make the perfect couple’. They share the
household expenditure and Sue often collects Little Tim from school. Sue regularly
does the household shopping.
Recently, Sue became unemployed and decided to apply for state benefit. Under
the criteria established in Kimber v Kimber [2001], would the courts be able to take
Julian’s income into account when deciding on the amount of state benefit to grant
Sue?
Summary
The law has always struggled to define what is meant by cohabitation due to the
varying types of relationship which could fit under this umbrella term. Despite this
difficulty the law has been prepared to attempt a definition in the area of assessment
for state benefit. The criteria used include membership of same household, sharing
daily life, stability, financial support, sexual relationship, children and public
acknowledgement. Such criteria are useful to see what the state regards as hallmarks
of a ‘cohabiting’ relationship.
Family law 8 Cohabitation page 131
8.2 Legal differences between unmarried and married couples
The following provides a summary of the legal differences between unmarried and
married couples.
8.2.1 Formalities at the end of a relationship
By virtue of the law of nullity and divorce it becomes clear that the law closely
regulates the beginning and end of a marriage. The same cannot be said about an
unmarried couple. There is no formal register of cohabiting couples, similar to a
marriage register, and so the state has no part to play in the beginning or end of such
a relationship. This means that the law, unlike with marriage, can take no regulatory
position as to who cohabits with whom. Such formalities are there but they should not
be viewed as at all restrictive and it would be naïve to overestimate their importance.
It is not hard to get married and it is not hard to get divorced. It cannot be said these
formalities are the most important concerns to any couple whether it be upon
marriage or divorce.
8.2.2 Children and parentage
Until the Family Law Reform Act 1987 the distinction between legitimate and
illegitimate children was still clear. Such distinctions now rarely exist and yet the
position of the unmarried father is still very different to that of the married father.
When you consider parentage in Chapter 9 of this subject guide you will see that a
married father is afforded greater status than an unmarried one. Every mother has
parental responsibility and a married father will also automatically gain parental
responsibility. An unmarried father does not gain parental responsibility automatically
unless he is registered on the child’s birth certificate. If he is not registered then he
must lodge a parental responsibility agreement at the court or he has to apply to
the court under s.4 CA to gain a parental responsibility order. The division is of more
symbolic than practical significance. Courts are keen to grant such orders and any
need for parental responsibility will usually only appear if there is a dispute about
medical treatment or the child’s upbringing. The justifications for such a distinction
can be found in Chapter 9.
8.2.3 Financial support
The law concerning financial provision both during and at the end of a marriage
does not apply to cohabiting couples. Masson et al. identify a common law duty to
maintain a spouse but there is no method of enforcing this obligation. On divorce,
however, the court has the power to make significant declarations as to the allocation
of property and of parties’ assets. All that an unmarried couple can do upon separation
is seek a declaration from the court as to who owns what property. The devices used
to make such calculations are usually equitable and can see unmarried couples’
property divided the same way as that of married couples would be. Although there
is a wide operation of discretion for the division of assets under the MCA, the rules
in equity demand far more discretion and conduct may play a far greater part in its
enforcement. Therefore, a distinction does remain. That said, liability under the Child
Support Acts for the maintenance of children applies to both married and unmarried
parents.
It has become more popular in recent years for cohabiting couples to enter into
binding cohabitation contracts which can be court enforced. The status of these
contracts and when they will be enforceable was discussed by Charles J in Sutton v
Mischon de Reya [2004] 3 FCR 142.
page 132 University of London External System
8.2.4 Inheritance and succession
When a party dies intestate (that is, without having made a will) then all property
passes to the spouse. If there is no spouse, but only a cohabitee, then no such
automatic passing of property takes place. To effect this passage, the party would have
to apply under the Inheritance (Provision for Family and Dependents) Act 1975 for an
order which would then grant them a portion of the estate. They must have cohabited
for two years. This means that if a party to a relationship is bereaved, they have to gain
a court order to put them in the same position as a married couple.
8.2.5 Matrimonial property
Under s.30(1) FLA 1996 married couples are provided with matrimonial home rights.
These include the right to enter or occupy the matrimonial home. Under s.336 of the
Insolvency Act 1986 protection is afforded to the occupation rights of a bankrupt’s
spouse. The Welfare Reform and Pensions Act 1999 allows a pension to be shared upon
divorce. These matrimonial property rights are not available to cohabitants upon the
breakdown of their relationship. In addition, a widow’s pension is only available to a
married woman. There is no equivalent for unmarried women.
8.2.6 Taxation and benefits
If a spouse dies then his or her property can pass to the living spouse without being
subject to any inheritance tax under s.18 Inheritance Tax Act 1984. This provision was
always useful to avoid a situation where, upon death of her husband, a wife would
have to sell the matrimonial home to pay inheritance tax. The same is true for capital
gains tax where a transfer between spouses does not give rise to a chargeable gain
under s.32 Finance Act 1988. These benefits are not afforded to unmarried couples and
the European Court of Human Rights has confirmed that the UK does discriminate
against unmarried fathers when it comes to taxation (see M v UK (Application No
6638/03) The Times, July 19, 2005).
Activity 8.2
Do you think the law ought to permit the transfer of the matrimonial home without
liability arising for inheritance tax under the Inheritance Tax Act 1984?
No feedback provided.
8.2.7 Citizenship
If you are not a citizen of the UK or one of its colonies, then you do not acquire
citizenship just because you marry someone who is a citizen. This law is governed
by the British Nationality Act 1981. There are various methods of naturalisation (with
which you do not have to concern yourself) but, needless to say, requirements for
naturalisation of a spouse are less restrictive, under s.6(2) and Schedule 1, paragraph
3 of the British Nationality Act 1981, than for other people. A cohabitant would find it
more difficult to become naturalised than a spouse would. There is a requirement for
leave to enter the UK and remain, which in practice is often given to a spouse. Such
leave is not so easy to obtain for a cohabitant.
8.2.8 Statutory succession to tenancies
Statute provides rights to a tenant’s family so that they may succeed to the tenancy
upon death of the tenant. ‘Family’ was initially interpreted by the Court of Appeal
in Fitzpatrick v Sterling Housing Association [2000] AC 27 not to include homosexual
couples. The House of Lords reversed this position [2000] 1 FCR 21. ‘Family’ and
‘husband and wife’ applies to heterosexual and homosexual cohabitants or same-sex
or heterosexual couples. No distinction is now made between married and unmarried
couples and this was confirmed in Ghadain v Godin-Mendoza [2004] 2 FCR 21.
Family law 8 Cohabitation page 133
8.2.9 Domestic violence
The Family Law Act 1996 provides a remedy of an occupation order or non-molestation
orders for victims of domestic violence. Both married couples and cohabitants are
‘associated persons’ under s.42 FLA 1996 as amended by the DVCVA 2004, and so can
apply for the non-molestation injunction. Cohabitants can also apply for an occupation
order under s.33 or s.36 FLA. A s.33 order is easier to acquire because it applies to
people who have proprietary rights in the property. These rights are not required in
s.36 but it will be more difficult to gain these orders without those rights.
8.2.10 Fatal Accident Act 1976
The Fatal Accident Act 1976 allows a spouse of a deceased person killed in an accident
to claim damages under certain specific circumstances. A cohabitant will be able
to qualify for compensation but only if he or she has lived with the deceased as an
unmarried couple in the same household for a specified period, which at present is
two years. No such restriction is placed upon a married couple.
Activity 8.3
Trisha lives in Trisha’s flat with Marcus and their one-year-old child Ben. The
couple are not married. One day there is a motorcar accident. Trisha and Ben were
passengers in the car. Trisha died at the scene and is intestate and now the hospital
has to operate on Ben.
What problems can you foresee emerging as a result of Trisha and Marcus’s unmarried
status?
8.2.11 Criminal law
There are some differences in the criminal law between married and cohabitant
couples. Some of the key differences are no longer in place but some are still apparent.
Rape
The law used to state that a man could not rape his wife (i.e. that forced intercourse
with one’s wife did not constitute rape). This marital exemption to the law of rape was
abolished in R v R (Rape: Marital Exemption) [1991] 4 All ER 481. The Criminal Justice and
Public Order Act 1994 confirmed this abolition. There appears now to be no difference
between the rape of a wife and the rape of a stranger, although evidence suggests that
marital rapists receive lower sentences that non-marital rapists.
Actual bodily harm
Two cases in the 1990s gave rise to the immediate and arguably simplistic view that a
person could occasion actual bodily harm upon a person under s.47 if they were part
of a married couple (R v Wilson [1996] 3 WLR 125), but could not if they were a group of
gay men indulging in sado-masochistic activities (R v Brown [1993] 1 AC 212). The case
of R v Emmett (unreported) suggests that no such distinction can be sustained and the
law appears to frown upon anyone inflicting injuries upon another unless it falls within
a lawful exception.
Coercion to crime
If a wife commits a crime due to threats from her husband, then she may plead the
defence of coercion under s.47 Criminal Justice Act 1925. This is not permitted for
crimes of murder or treason. The defence is analogous to duress although unlike
duress there need be no threat of death or serious injury – there just needs to be
evidence that the wife was acting as a result of the husband’s coercion. The case of
R v Court [1912] 7 CAR 127 indicates that this defence is not available to an unmarried
couple.
page 134 University of London External System
Theft
The Director of Public Prosecutions must give consent to any prosecution for theft by
a husband or wife against their spouse. This consent is required under s.30 Theft Act
1968. No such consent is required for the prosecution of a cohabitant.
Conspiracy
Under s.2(2)(a) Criminal Law Act 1977 a person cannot be guilty of conspiracy if the
only person they have an agreement with is their spouse. If it can be proven that
the conspiracy was with their spouse and other people then a crime will have been
committed. No such restriction is in place for an unmarried couple.
Activity 8.4
Jane and George, Frances and David were two married couples at a party at the
home of Sue and Ray, another married couple. At the party George becomes jealous
of Jane flirting with David and takes her to a bedroom and forces her to have sexual
intercourse with him. Meanwhile Frances and David agree they do not like George
and will try and persuade the local mechanic to tamper with the brakes of George’s
car so that George will, at some stage, be at least injured in a car accident. At the
party David says to Sue that he really likes Ray’s designer watch. As Sue fancies David
she craftily manages to take it from Ray and give it to David. Following the sexual
intercourse Jane and George return to the party. George likes the watch that David
has just put in his pocket and he tells Jane to ‘get that watch for him’. While this is
going on, Angela and Mark, another married couple, are having violent sex in Sue
and Ray’s bedroom. Angela likes sex to be ‘a bit rough’ and Mark places a plastic bag
over her head and sets fire to her left breast with lighter fluid. She suffers severe
burns but assures everyone that she likes it like that.
Discuss how being married, or not, has an impact on any criminal charges which
may be brought against George, Jane, Frances, David, Sue and Mark.
8.2.12 Law of obligations
The distinctions which used to exist between married and unmarried couples for
the purposes of actions in tort no longer exist. The position in the law of contract
is still notably different when it comes to pre-nuptial type agreements. Under the
present law a signed pre-nuptial agreement is unlikely to be upheld if it unreasonably
interferes or tries to fetter the jurisdiction of the divorce court under the MCA. Any
agreement signed by an unmarried couple, however, could easily determine what will
happen to their property if the relationship should break down.
8.2.13 Marital confidences
Since Argyll (Duchess) and Argyll (Duke) [1967] Ch 302 it has been clear that the
law does protect confidences between married couples. The Duchess of Argyll
successfully prevented her husband from publishing the secrets of her life which
she had communicated to him during their marriage. Such protection is extended
to cohabiting couples as seen in the case of Stephens v Avery [1988] Ch 449. The
protection of such information must now be considered in light of the Human Rights
Act and Article 8 of the Convention (see Douglas v Hello! Ltd [2002] 1 FCR 289).
8.2.14 Evidence
Under the present law in criminal proceedings a spouse is a competent, i.e. is able to
give evidence, but is not compellable, i.e. he or she cannot be forced to give evidence
or be a witness against the other spouse. There are exceptions to this rule governed
by s.80 Police and Criminal Evidence Act 1984 which makes a spouse compellable
if the offences are of a violent or sexual nature and committed against children
under 16. In civil proceedings a spouse is both competent and compellable to give
evidence against his or her spouse. Historically, a spouse was neither competent nor
compellable for fear of interfering with marital harmony and the bias of the evidence
Family law 8 Cohabitation page 135
given. These rules have been gradually diminished in times of social change. The
case of R v Pearce [2001] EWCA Crim 2834 confirmed that these rules do not apply to
cohabitants. They will be competent and compellable in all cases regardless of their
status as a cohabitant.
Activity 8.5
Soriya and Amandeep have been married for five years. Amandeep has recently
been charged with the theft of a car and the rape of a 14-year-old girl. Soriya knows
he is guilty because, in a distressed state, he told her immediately afterwards.
The Prosecution wish to call Soriya as a witness. Can they do so? Would your answer
be different if Soriya and Amandeep were unmarried?
8.2.15 Theoretical differences: unity and consortium
The final differences documented here are of a theoretical rather than a practical
nature.
First, the doctrine of unity is now thought to be of very limited application. It was
presented in accordance with the doctrine ‘of one flesh’ which argues that upon
marriage a husband and wife become one. This doctrine is a legal fiction and has been
inconsistently applied. The common law and statute have reduced its significance.
Little of it remains, although in 1945 it was used by magistrates to acquit a man of
using his wife’s non-transferable railway ticket as they were one and the same person
(see G Williams, 10 MLR 16). Also in 1978 in Midland Bank Trust Co. Ltd and Another v Green
and Another (No 3) [1982] Ch 529 CA the courts had to decide whether it was a good
defence to a tort action in conspiracy that those involved were husband and wife and
thus one person. While of limited importance now, we shall have to see whether it
would be argued successfully in a contemporary case.
There also exists a troublesome concept entitled consortium. The contemporary
significance of the concept is hard to see but the common law doctrine suggests that
husband and wife become entitled to one another’s consortium, which is the right to
the other’s society, assistance, comfort and protection. It has been described by Lowe
and Douglas (1998) as ‘an abstract notion which appears to mean living together as
husband and wife with all the incidents that flow from that relationship’. The common
law system appears to allow, although it rarely utilises, a sense that a husband-and-
wife couple are to be treated differently: as a special relationship. The existence of
this doctrine was confirmed by Munby J in Sheffield CC v E and S [2004] EWHC 2808
(Fam). This concept is a particularly symbolic one to conclude with, as there is no such
doctrine for cohabiting couples.
Self-assessment questions
1. What regulatory position does the law take with cohabiting couples?
2. How significant is marital status of a couple for the upbringing or adoption of
children?
3. What financial, proprietary and residence benefits are acquired by a married
person over a cohabiting person?
4. How does the law governing domestic violence differ for married and
unmarried couples?
5. What difference is there in the way the Fatal Accidents Act 1976 operates for
married and unmarried persons?
6. In what ways does the criminal law, law of obligations and confidences
distinguish a married person from an unmarried cohabitant?
7. What distinctions does the law of evidence draw between a spouse and an
unmarried cohabitant?
8. Do the doctrines of unity and consortium have any contemporary relevance?
page 136 University of London External System
9. What is the doctrine of unity?
10. What benefit does a married couple have under the Inheritance Tax Act 1984?
Summary
The law does, in certain important circumstances, make a distinction between married
and unmarried couples. The law does not involve itself at the beginning or end of an
unmarried couple’s relationship, whereas the formalities of marriage and the laws of
nullity and divorce do regulate the formation and conclusion of a married relationship.
The status of a couple does influence the law’s response to decisions concerning a
child’s upbringing or even their adoption (see Chapter 14). The law grants additional
rights and benefits to spouses in the areas of property, residence, finance, taxation and
inheritance. Spouses are arguably more protected by laws concerning domestic
violence and can recover compensation more readily under the Fatal Accidents Act
1976. In substantive areas of law – such as confidences, obligations and crime –
distinctions are made. The law of evidence also draws a line between those couples
who are married and those who are not. Finally, the doctrines of unity and consortium,
although of little practical significance, do provide a symbolic indication of the
traditional view of the law which manifests itself in so many different ways.
8.3 Same-sex couples: substance over form
It is clear from the previous section that the law does distinguish between those who
are married and those who are unmarried. Such distinctions are often difficult to
justify. One area where it was historically difficult to justify was in cases where
same-sex couples were involved. You will recall from the law concerning void
marriages that, in order to marry, two parties must be respectively male and female.
Same-sex couples cannot, under English law, marry.

With this in mind, it was clearly
discriminatory to restrict access to any benefits of marriage on this basis.
Due to extensive pressure from the gay community as a whole, the Women and
Equality Unit of the Department of Trade and Industry issued a consultation paper
on civil partnerships in June 2003. The Civil Partnerships Bill 2003 followed and was
mentioned in the Queen’s Speech in November 2003 as part of the government’s
commitment to equality and social justice. The idea of registering your partnership is
not new and couples were already allowed to symbolically register their partnership in
parts of the UK. However, these registration schemes had no legal effect.
With the arrival of the Bill came an equally forceful set of views from the judiciary.
These came in the case of Ghaidan v Godin-Mendoza [2004] 2 AC 557. The defendant
had, from 1972, lived in a stable and permanent homosexual relationship with the
protected tenant of a flat of which the claimant was the freehold owner. In possession
proceedings brought by the claimant on the tenant’s death in 2001, the judge granted
a declaration that the defendant did not succeed to the tenancy of the flat as the
surviving spouse of the original tenant within paragraph 2 of Schedule 1 to the Rent
Act 1977, but became entitled to an assured tenancy of the flat by succession as a
member of the original tenant’s family within paragraph 3(1) of that Schedule. On
the defendant’s appeal, the Court of Appeal held that paragraph 2(2) of Schedule 1,
which extended the meaning of the word ‘spouse‘ to persons living with the original
tenant ‘as his or her wife or husband’, placed a surviving homosexual partner in a less
secure position than the survivor of a heterosexual partnership and as such infringed
the defendant’s rights under Articles 8 and 14 of the Convention on Human Rights. In
an immediate appeal to the House of Lords, the court held, pursuant to s.3 Human
Rights Act 1998, that it was possible to give effect to paragraph 2(2) in a way that was
compatible with the Convention rights by reading it as extending to persons living
with the original tenant as if they were his or her wife or husband. This meant that the
defendant’s long-standing homosexual relationship with the original tenant allowed
him to succeed to the tenancy.
Go to your study pack
and read ‘Marriage and
cohabitation in England:
changing attitudes and
behaviour’ by Anne Barlow
and others.
Consider why, despite the
differences between marriage
and cohabitation, the authors
of this chapter suggest
that marriage is no longer
‘desirable, essential
or practical’.

In other EU countries
the position on same-sex
marriages varies greatly. In
June 2004, the mayor of a
small French town carried out
a marriage between two men.
This was unlawful, and was
evidently a ‘stunt’ to publicise
the issue. The authorities
threatened the mayor with
prosecution.
Family law 8 Cohabitation page 137
In a powerful speech Baroness Hale argued:
‘My Lords, it is not so very long ago in this country that people might be refused access
to a so-called ‘public’ bar because of their sex or the colour of their skin; that a woman
might automatically be paid three quarters of what a man was paid for doing exactly the
same job; that a landlady offering rooms to let might lawfully put a ‘no blacks’ notice in
her window. We now realise that this was wrong. It was wrong because the sex or colour
of the person was simply irrelevant to the choice which was being made: to whether he
or she would be a fit and proper person to have a drink with others in a bar, to how well
she might do the job, to how good a tenant or lodger he might be. It was wrong because
it depended on stereotypical assumptions about what a woman or a black person might
be like, assumptions which had nothing to do with the qualities of the individual involved:
even if there were any reason to believe that more women than men made bad customers
this was no justification for discriminating against all women. It was wrong because it
was based on an irrelevant characteristic which the woman or the black did not choose
and could do nothing about. When this country legislated to ban both race and sex
discrimination, there were some who thought such matters trivial, but of course they
were not trivial to the people concerned. Still less trivial are the rights and freedoms set
out in the European Convention. The state’s duty under Article 14, to secure that those
rights and freedoms are enjoyed without discrimination based on such suspect grounds,
is fundamental to the scheme of the Convention as a whole. It would be a poor human
rights instrument indeed if it obliged the state to respect the homes or private lives of one
group of people but not the homes or private lives of another.’
Only Lord Millet dissented on the grounds of what he saw as a question of
constitutional importance.
‘I have the misfortune to be unable to agree with this conclusion. I have given long and
anxious consideration to the question whether, in the interests of unanimity, I should
suppress my dissent, but I have come to the conclusion that I should not. The question is
of great constitutional importance, for it goes to the relationship between the legislature
and the judiciary, and hence ultimately to the supremacy of Parliament. Sections 3 and 4
of the Human Rights Act were carefully crafted to preserve the existing constitutional
doctrine, and any application of the ambit of section 3 beyond its proper scope subverts
it. This is not to say that the doctrine of Parliamentary supremacy is sacrosanct, but only
that any change in a fundamental constitutional principle should be the consequence of
deliberate legislative action and not judicial activism, however well meaning.’
Such constitutional concerns by Lord Millet were allayed when the Civil Partnerships
Bill became the Civil Partnership Act 2004 and the legislation has had a far-reaching
legal effect. The Act creates a new legal status of ‘civil registered partner’ for same-sex
couples and brings English law into line with that of The Netherlands, Belgium, parts
of Canada, Denmark, Sweden, Portugal, Spain and Germany. It grants various rights
and responsibilities to those homosexual partnerships which have been registered.
Like marriage, it has certain formalities which need to be in place and each registered
partnership has, upon breakdown, to be dissolved by the court in the same way as a
marriage is by divorce. If a registered partner dies, then the restrictions on intestacy
which exist for cohabitants are extended to registered partners. This scheme, in many
ways, is marriage in all but name although there are some notable differences.
u Although formalities are required for a civil partnership to be registered they are
not the same as for marriage. Marriage involves the exchanging of vows whereas
the registration process merely requires the signing of the register.
u There are no non-consummation grounds for the annulment of the civil
partnership (see Chapter 2).
u The fact of adultery cannot be used as evidence of irretrievable breakdown of a
civil partnership (see Chapter 3).
u If a woman receives assistance from a licensed clinic in order to secure pregnancy
then her husband, if he has consented, will be regarded as the father of the child.
Such recognition is not afforded to civil partners.
page 138 University of London External System
As the Civil Partnership Act 2004 is said to create marriage in all but name the previous
distinctions between unmarried and married couples can now said to be distinctions
between married couples, civil partners and unmarried couples or unregistered
partners.
In addition to the areas discussed above (where lines were drawn between married,
civil partners and cohabiting couples) we shall now consider the areas where the law
draws a distinction between married heterosexual or civil partners and homosexual
couples who have not registered their civil partnership. The difficulties remaining have
diminished in recent years and therefore would now appear to be of substance rather
than form.
8.3.1 Children upon separation
If a heterosexual couple with children splits then the courts will have to adjudicate as
to the residence requirements of the children if there is any dispute. If one of the
parents has formed a homosexual relationship, then this will be a factor considered by
the courts. When making decisions about a child’s upbringing the court’s paramount
consideration is the welfare of the child. This means that while a court can grant
residence to a mother or father in a homosexual relationship, they will not do so if the
court feels it is not in the child’s best interest. The operation of this discretion has led
to some controversial comments.
In C v C (A Minor) (Custody: Appeal) [1991] 1 FLR 223 a couple had split and the father
had remarried while the mother had entered into a lesbian relationship. The Court of
Appeal made the point that ‘if the child’s house was to be with the father that would
be a normal home by the standards of our society; that would not be the case if the
home were with the mother’. The court in B v B (Minors) (Custody: Care and Control)
[1991] 1 FLR 402 viewed any change from ‘normal’ household to ‘abnormal’ household
to be important for two reasons. First, children in an ‘abnormal’ household might be
teased at school and, secondly, the children might suffer confusion over their sexual
orientation or gender identity. In this case the court was satisfied this would not
happen because the mother was not a ‘militant lesbian’ and she had male friends
who could be role models for the son. In addition, the child looked very boyish. Such
narratives from the case law simply support the stereotypes some judges have and
which will often influence their decisions. What if the mother had been a ‘militant
lesbian’? Would they have granted residence to the father if the mother had been
a ‘militant communist’ or a ‘militant religious despot’? It is unlikely this would have
affected the court’s decision. Many things can be justified for the welfare of the child.
These decisions will have to be reconsidered in light of the Human Rights Act 1998 as
Article 14 of the European Convention on Human Rights prohibits discrimination on
the basis of sexual orientation. This was raised as an issue in Da Silva Mouta v Portugal
[2001] 1 FCR 653 where the judgment of the Lisbon Court of Appeal was held to be
in breach of the Convention when it refused to grant parental responsibility to a
homosexual father on the basis that homosexuality ‘was an abnormality and children
must not grow up in the shadow of abnormal situations’.
It would appear the courts have become more enlightened in recent years as
demonstrated by Baroness Hale’s discussion in Re G (Children) [2006] UKHL 43.
However, if Helen Reece is to be believed,

overt prejudice can be replaced by covert
prejudice and despite the Civil Partnership Act 2004 the judiciary may still use the
welfare principle as a smokescreen for the true reason for their decisions.
Go to your study pack and
read ‘Partnership or marriage:
the provisions of the Civil
Partnership Act’ by Stephen
Cretney.
Why does Cretney still think
it would have been easier to
have introduced same-sex
marriage rather than this new
civil partnership?

See her seminal account
of the welfare principle,
‘The paramountcy principle:
concensus or construct’, in
your study pack
Family law 8 Cohabitation page 139
8.3.2 Family Law Act 1996
Historically a same-sex couple could not apply for a non-molestation order because
they were not defined as ‘associated persons’ under s.42 FLA. They did not count as
a cohabiting couple because the Act only defines cohabitation in terms of a man
and a woman. For an occupation order, same-sex couples can only apply if they are
‘entitled’, which suggests they have a right of occupation. As ‘entitled’ applicants,
married couples can apply for an order without occupation rights because they
have matrimonial home rights under s.30 FLA. These discrepancies were amended
by the Domestic Violence, Crime and Victims Act 2004 which inserted a new all
encompassing s.42A into the FLA.
8.3.3 Inheritance
We have already seen that cohabitants must apply for a court order to grant them
a share in the partner’s estate upon death. This is only granted if they have lived
together for two years. The term ‘cohabitants’ would now appear to apply to all
couples regardless of their sexuality (see Ghaidan v Godin-Mendoza [2004] 2 AC 557).
8.3.4 Adoption and Children Act 2002
The Adoption and Children Act 2002 now allows for joint applications from
cohabitants. This means that, in theory, a same-sex couple are able to make a joint
application for adoption. To be eligible to make a joint application is an advance in
same-sex couple rights but barriers may remain. Any adoption must now be made
with the child’s welfare as the paramount consideration (see Chapter 14). While the
judiciary may not articulate their prejudices in such an obvious way following the
incorporation of the European Convention on Human Rights, the welfare principle
could be hidden behind to prevent the real reasons for a decision being clear.
8.3.5 Article 8 and the Human Rights Act
We have already indicated that it is unlawful to discriminate under Article 14 of the
Convention. Interestingly, the law does not currently protect a same-sex relationship
under Article 8 (respect for family life). A same-sex relationship would, according to
ADT v UK [2000] 2 FLR 697 fall within the definition of private life. Given changes in
societal views this distinction is unlikely to remain.
Activity 8.6
Sophie has divorced her husband Gerald and moved in with her lover Jane. Sophie
and Gerald have two children Max, aged 10, and Helena, aged eight. Gerald recently
got married to Linda and now Gerald wants the children to live with him, but
Sophie refuses. Having looked after Max and Helena at weekends, while Jane and
Sophie took weekend breaks, Brett and Anton, a gay couple decide they would like
to adopt a child. Jane’s ex-lover Crystal, with whom she never lived, keeps harassing
Jane to return to her. Jane really wants to stop Crystal from visiting her at home.
Sophie’s brother Derek is devastated because his lover and cohabitant of 12 years,
Nathan, has just died suddenly without leaving a will.
Advise the parties within each couple of how their status may impact upon the
events they have encountered.
page 140 University of London External System
8.3.6 Further reform
With the arrival of the civil partnership the discriminatory differences between
married couples and same-sex couples who have registered their partnerships appear
to have been abandoned. There remains a group of people who are still vulnerable
under the law and these are unmarried and unregistered couples. The distinctions
between the protections afforded to recognised couples over unrecognised
couples are documented in 8.2 above. Reforms have recently been proposed by
the Law Commission in their report: Cohabitation: The Consequences of Relationship
Breakdown (Law Com No. 307). In this report the Commission made a number of
recommendations which included the introduction of a new scheme of remedies
which would be available for cohabitants in respect of property on family breakdown
and death.
Activity 8.7
Read Bridge, S. (2006) ‘Money, marriage and cohabitation’, 36, Fam Law, 641; Bridge,
S. (2007) ‘Cohabitation: Why Legislative Reform is Necessary’, Fam Law, 37, 911 and
Bridge, S. (2007) ‘Financial Relief for Cohabitants: Eligibility, Opt out and Provision
on Death’, Fam Law, 37, 1076
It is interesting to note that the Law Commission’s report deals with the consequences
of financial breakdown of a relationship. This suggests that those distinctions covered
in 8.2 above which do not involve financial breakdown would remain. By March 2008
the government announced that the project would not for the moment be taken
forward. There are separate reforms which are already in operation in Scotland and
the government wants to see how these reforms work before considering any changes
to the current law in England and Wales.
Discrimination remains
With the arrival of the CPA 2004 much of the discrimination between same-sex and
opposite-sex couples has disappeared. However two examples show how some may
still believe that discrimination remains.
The first example is in Wilkinson v Kitzinger and Another [2006] EWHC 2022 (Fam) where
a debate as to the substance of marriage against civil partnerships over the form was
considered where a marriage between two women that took place in Canada was
not recognised in the UK. It would have been recognised as a valid civil partnership.
The case is important because it does explore some of the arguments that might be
mounted to explore whether civil partnership has a lesser status than marriage.
The second example is in Burden v UK (Application No 13378/05) (2006). In light of the
CPA 2004 recognising partnerships which are not ‘marriages’ a question was asked
as to whether the Act should cover cohabiting siblings. Due to the liabilities under
inheritance legislation if one sibling dies the other would have to pay this tax unlike
those who have registered their civil partnership. Two elderly sisters, Joyce and Sybil
Burden raised a legal challenge to this in the European Court of Human Rights arguing
that the law was discriminating against them. They sought equality under the law in
relation to property rights under Protocol 1 of the Convention and Article 14. They were
not, however, successful.
Issues for debate
You may like to discuss these questions with other students.
1. Why are same-sex couples allowed to register a civil partnership but opposite
sex couples are not?
2. Despite the claim that the Civil Partnership Act 2004 is ‘marriage in all but name’
do you think it is important for the ‘name’ of marriage to be extended to same-
sex couples?
3. Is the law right to discriminate against cohabiting sisters as it presently does?
Family law 8 Cohabitation page 141
Self-assessment questions
1. How does the court resolve disputes concerning children upon separation when
one of the parties is involved in a same-sex relationship?
2. Does the Family Law Act 1996 make any distinction between cohabitant
heterosexual and cohabitant homosexual couples?
3. Do the rules on inheritance favour unmarried heterosexual cohabitants over
homosexual cohabitants?
4. Is it true to say that adoption is no longer discriminatory against same-sex
couples under the 2002 Adoption and Children Act?
5. Are same-sex couples included in the definition of a right to a family life under
Article 8 European Convention on Human Rights?
Summary
The law no longer draws such an extreme distinction between married and unmarried
couples where the same-sex couple have registered a civil partnership under the CPA
2004. The differences would now appear to only be of substance over form. There
is still potential for discrimination when considering the position of children upon
separation when one of the parents enters into a homosexual relationship. The Family
Law Act 1996 has been amended to no longer distinguish between cohabitants and
married couples and civil partners. Adoption will, in theory, be less discerning as to
sexual orientation on the basis of eligibility under the 2002 Act. Even Article 8 of the
ECHR does not protect same-sex relationships as part of the right to family life. Due to
these identified differences, the CPA 2004 was passed and it provides marriage status
in all but name for registered homosexual couples. The law does however, in some
instances, still discriminate.
8.4 Discrimination or difference?
Throughout this discussion we have assumed that the law ought to treat cohabiting
couples in the same way as it treats married couples. This is based around the sense
that those who cohabit are discriminated against. That is, they are treated less
favourably by the law, although the rule of law has always argued for equality before
that law regardless of status.
8.4.1 An end to discrimination?
The arguments supporting an end to discrimination for same-sex couples are
presented very cogently by Rebecca Bailey-Harris (2001).

She argues that the state has
a responsibility to both equality and self-determination to provide rights to same-sex
couples. Bailey-Harris argues the state should provide some formal recognition of
same-sex relationships because this will:
u promote equality and equal access to legal rights
u safeguard and promote the welfare of any children involved
u encourage the stability of family life
u promote pluralism and party autonomy
u achieve economic justice between parties upon relationship breakdown
u protect the public purse through effective enforcement of an individual’s legal
obligations.
Arguably these concerns have been addressed with the creation of the civil
partnership under the CPA 2004.

Bailey-Harris, R. ‘Same-
sex partnerships in English
family law’, in Wintemute,
R. and M. Andenaes, (eds)
Legal Recognition of Same-
Sex Partnerships: a study
of national, European
and international law.
(Oxford: Hart, 2001) [ISBN
9781841131382].
page 142 University of London External System
8.4.2 A need to differentiate?
The above list provides a strong case as to why there needs to be an end to
discrimination. We now need to consider whether, in bringing an end to that
discrimination, there is room for any form of differentiation between married and
cohabiting couples. As Herring (2007) suggests, there are arguments favouring
differentiation.
State benefit
We have already highlighted the view taken by the government in its 1998 Green
Paper called Supporting Families. In this paper the government made clear its view that
‘Marriage does provide a strong foundation for stability for the care of children’. The
government appears to believe that marriage should be promoted over other forms
of personal relationship because it provides a ‘strong foundation’. How is this so? We
know of no society without marriage, so we cannot now consider a world without it.
Secondly, the government wants to promote families as a way of producing and caring
for children. Thirdly, the state wants to involve itself at the beginning and end of the
relationship. Fourthly, the state may wish to make out economic support for this claim.
If one person is ill, then the other party could support their partner. This would not be
the case if the party was unmarried. Finally, it is argued that marriage can be used as an
effective evidential tool to regulate family life. Alternatives would be available but this
current approach is easy and straightforward and the ease with which the benefits of
marriage have been extended to civil partners does demonstrate this.
Choice
It can be argued that if a couple choose not to marry or register a civil partnership – or
refuse to marry or register a civil partnership – then it is wrong for the law to treat
them as if they were married: this would negate their choice not to be married or
party to a civil partnership. This argument is not without its critics but it does make an
interesting point and one which the law should be careful not to dismiss.
Current attitudes
If the law should reflect current attitudes, then it should view cohabitation as an
acceptable relationship to be in. Society does not differentiate between a married
and unmarried couple so it is difficult to see how the law could justify its attempt to
distinguish between the two states.
Abolition?
It has been argued that if there is no need to differentiate then perhaps we should
abolish the institution of marriage so that the status of a cohabiting couple is the same
as that of a married couple. Marty Slaughter (2002)

argues that marriage has been
used to perpetuate disadvantage among married women. It places the husband as the
head of the household and the woman subject to his whims. This position can be
supported by the argument that marriage as an institution is self-centred: it
encourages people to focus on their home rather than on engaging with their local
community. Despite these calls there is currently little support for the abolitionist
stance.
These arguments demonstrate that the law does discriminate but it has, for some
reason, differentiated. Arguably, if you accept the benefits of marriage then you should
accept the burdens. The two are not separable.
Activity 8.8
Which of the four arguments considered in the previous section do you find the most
persuasive and why? Is it possible to end discrimination and yet celebrate difference?
No feedback provided.

Slaughter, M. ‘Marital
bargaining’ in Maclean, M.
(ed.) Making Law for Families.
(Oxford: Hart, 2000) [ISBN
9781841132051].
Family law 8 Cohabitation page 143
Questions for debate
1. What interest does the state have in ending the discrimination against married/
civil partners and unmarried/unregistered couples?
2. In what ways does the state benefit from people being married/civil partners
rather than cohabiting?
3. Should we treat cohabitants the same as married couples or civil partners if they
have chosen not to get married?
4. If society accepts the existence of cohabiting couples then should the law avoid
differentiation between married/civil partners and unmarried couples?
Summary
In this section we have considered the arguments for an end to discrimination but
have also considered arguments that would support some form of differentiation.
If the law treats differently a group of people who are different to others, then
this is discrimination. To support such a policy we must have very good reasons.
If the justifications for differentiation can be dealt with by registering a partner
in accordance with the 2004 Act then there must be a call to end discrimination
for all other unregistered couples. If, on the other hand, there are good reasons to
distinguish between the two groups, then differentiation should be celebrated not
censured.
Useful further reading
¢ Bailey-Harris, R. ‘Law and the unmarried couple – oppression or liberation?’
[1996] 8 CFLQ 137.
¢ Bailey-Harris, R. ‘Same-sex partnerships in English family law’ in Wintemute,
R. and M. Andenaes (eds) Legal recognition of same-sex partnerships: a
study of national, European and international law. (Oxford: Hart, 2001) [ISBN
9781841131382].
¢ Bamforth, N (2005) ‘Philosophical and constitutional arguments in the same-sex
marriage debate.’ CFLQ, Volume 17, No 2, 165.
¢ Bamforth, N. (2007) ‘The benefits of marriage in all but name? Same-sex couples
and the Civil Partnership Act 2004’, CFLQ, Volume 19, Issue 2, 133.
¢ Bridge, S. (2007)‘Cohabitation: why legislative reform is necessary’, Fam Law, 37,
911.
¢ Bridge, S. (2007) ‘Financial relief for cohabitants: eligibility, opt out and provision
on death’, Fam Law, 37, 1076.
¢ Bull, L. (2008) ‘Cohabitation outcomes after the Law Commission Report’, Fam
Law, 38, 56.
¢ Diduck, Chapter 8, pp. 201–204.
¢ Douglas, G. ‘Marriage, cohabitation and parenthood – from contract to status’,
in Katz, S., J. Eekelaar and M. Maclean (eds) Cross Currents. (Oxford: Oxford
University Press, 2000) [ISBN 9780198299448].
¢ Humphries, M. (2007) ‘The Law Commission consultation on cohabitation’, Fam
Law, 36, 860.
¢ Lewis, J. ‘Marriage and cohabitation and the nature of commitment’ [1999] 11
CFLQ 355.
¢ Murphy, J (2004) ‘Same-sex marriage in England: a role for human rights?’ CFLQ,
Volume 16, No 4, 245.
¢ Probert, R. and A. Barlow ‘Displacing marriage – diversification and
harmonisation within Europe’ [2000] CFLQ 153.
page 144 University of London External System
¢ Probert, R. (2007) ‘Hyde v Hyde: defining or defending marriage?’, CFLQ, Volume
19, No 3, 322.
¢ Slaughter, M. ‘Marital bargaining’ in Maclean, M. (ed.) Making Law for Families.
(Oxford: Hart, 2000) [ISBN 9781841132051].
¢ Summers, J & Chase, J, ‘Civil partnership’s first year’, 2006, Fam Law, 36, 1077.
Sample examination questions
Question 1 Do you agree that the law ought to treat all family partnerships
equally? What would be the implications of such treatment? Does the current law
differentiate or discriminate between the various forms of partnership?
Question 2 ‘To give cohabitees rights in law would destroy the very freedom which
makes cohabitation attractive to them. It would also create enormous problems of
definition and entitlement while providing a bonanza for lawyers.’
Discuss.
Advice on answering the questions
Question 1 This essay question is split into three separate questions and it is
important to remember to deal with the three questions equally. The first question
asks you to consider the merits of treating family partnerships equally. Bailey-Harris’s
criteria are a good point for discussion when considering the interests a state would
have in treating family partnerships equally.
When looking at the implications of such treatment you need to consider the
arguments which support the law treating marriage differently. The two stronger
arguments are the possible benefits to the state and the issue of choice. If you treat
all relationships equally then will the state lose some of its benefits? Will we be
undermining people’s choice?
Registration of civil partnership has its disadvantages. While in some ways it is a step
forward for gay rights, as it will afford practical solutions to the manifestations of
the injustices of the present law, is it also a sop which allows the state to avoid the
responsibility of confronting the issue of gay marriage? A discussion of Wilkinson v
Kitzinger and Another [2006] would help here as, although registration can be viewed
as an alternative form of marriage, it can also be seen as possibly a poorer one.
What about those who are still not afforded protection by the law as a result of their
cohabiting status? Consider the Burden sisters here. Will it coerce cohabiting couples
to make a choice that will involve the state in their affairs? After all, those who do not
register will not be afforded the status changes that those who do will.
The final part of the question asks you to consider whether the current law does
discriminate or differentiate. There is plenty of evidence which suggests that the
present law does discriminate, but your answer will depend on whether you believe
the state has a right to do so. Our obligations under the European Convention on
Human Rights would say no in some areas – but what of others? Is formal equality
ever attainable? Is it desirable? After all, we could be assuming that cohabitants
want to be ‘married’ or in a ‘civil partnership’ and yet even if they do not, is it a
state’s responsibility to coerce them into doing so? The Law Commission’s recent
suggestions for reform do provide an opportunity for protection which would at least
undermine the myth of common law marriage. The problem with all opportunities for
protection is that those who choose not to engage in them may well find themselves
discriminated against on this basis.
Question 2 In a similar essay-type question you are being asked to consider the legal
rights of cohabitees. You can pick from financial, proprietary, taxation, status rights
and the available protection from domestic violence. You then need to consider the
CPA 2004 and how it has eradicated many of the substantive differences between
married couples and civil partners. One implication is that recent legislative proposals
by the Law Commission may undermine the very freedoms that cohabitants enjoy. It
will arguably create problems of definition which will involve further litigation and the
Family law 8 Cohabitation page 145
only people who tend to benefit from litigation are lawyers. Hence the term bonanza!
Having said this you should consider whether you think it is the law’s responsibility,
in accordance with the rule of law, to at least offer couples the chance to be treated
equally. Here you may like to consider whether the law ought to discriminate
(arguably never) or differentiate in celebrating the differences between the two.
Marriage/civil partnership has benefits and it also has burdens. Some cohabitants may
not wish to share in these benefits or these burdens.
In many ways this question utilises much of the material in the first question, but the
structure will differ and the consequences are seen as more particular in this second
question. Both questions demand more than simply a ‘compare and contrast’. Think
about the material and the arguments. Both sides have some merit and it is up to
you to formulate an argument which proves to be both cogent and powerful. Do not
appear too neutral. This will convince Examiners you have no view.
page 146 University of London External System
Reflect and review
Look through the points listed below:
Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on
Need to
revise first
Need to
study again
I can explain the way the law defines what is meant
by cohabitation.

¢

¢

¢
I can critically consider the legal differences between
a married and an unmarried couple.

¢

¢

¢
I can analyse the status of same-sex couples and the
reforms that have taken place in recent years.

¢

¢

¢
I can discuss whether the law seeks to discriminate
or differentiate between married and unmarried
couples.


¢


¢


¢
If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
8.1 What is cohabitation? ¢ ¢
8.2 Legal differences between unmarried and married couples ¢ ¢
8.3 Same-sex couples: substance over form ¢ ¢
8.4 Discrimination or difference? ¢ ¢
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
9.1 Parentage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
9.2 Status: legitimacy and illegitimacy . . . . . . . . . . . . . . . . . . . 153
9.3 Those with parental responsibility . . . . . . . . . . . . . . . . . . . . 157
9.4 The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . 159
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
9 Status and parentage
page 148 University of London External System
Introduction
The next six chapters are devoted to the law relating to children. This chapter
concerns parentage and status and the concept and content of parental responsibility.
Chapter 10 outlines wardship and the court’s inherent jurisdiction with regard to
children. Chapter 11 describes the general principles the courts use when considering
disputes concerning children, while Chapter 12 considers private court proceedings
under the Children Act 1989 (CA).

Chapter 13 deals with local authority powers and
duties intended to promote the welfare of children and the circumstances in which
the state can intervene in the child’s upbringing. Finally, Chapter 14 outlines the law
concerning adoption.
The law regulating the upbringing of children in England was revolutionised by the
CA, which came into force on 14 October 1991. This Act – described by the then Lord
Chancellor as ‘the most comprehensive and far-reaching reform of child law which
has come before Parliament in living memory’ – aims to provide a clear, consistent
and comprehensive code for the whole of child law and reforms. It brings together
the public and private law relating to children. The reforms to private law are those
recommended by the Law Commission in their report Review of Child Law: Guardianship
and Custody (Law Com. No. 172), while those to public law follow many of the
recommendations in the Department of Health and Social Security Review of Child
Care Law and the White Paper, The Law on Child Care and Family Services Cmnd. 62.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
u describe the manner in which legal parentage is established, whether in
disputes about paternity or when infertility treatment has been undertaken
u state the legal definition of ‘mother’ and ‘father’
u explain the meaning and content of parental responsibility
u outline the extent to which parental responsibility exists in relation to a ‘Gillick
competent minor’
u state the extent and limits of minors’ rights to take decisions
u say who has or may acquire parental responsibility in relation to legitimate
children, illegitimate children, adopted children and children born as a result of
infertility treatment or surrogacy
u consider the relevance of the Human Rights Act 1998 when looking at status and
parentage.
Essential reading
¢ Herring, Chapter 7, pp.306-372 & Chapter 8 pp.373–393.
¢ Masson et al., Chapter 17, pp.525–576.
¢ Probert, Chapter 10, pp.203–217; Chapter 11, pp.219–240.
¢ Standley, Chapter 10, pp.245–272.

The Children Act 1989
repeals and replaces the
Guardianship of Minors Act
1971, the Guardianship Act
1973, much of the Children
and Young Persons Act 1969,
Nurseries and Childminders
Regulation Act 1948, Children
Act 1975, Child Care Act 1980,
Foster Children Act 1980,
Children’s Homes Act 1982
and Children and Young
Persons (Amendment) Act
1986.
Family Law
9
Status and parentage page 149
9.1 Parentage
9.1.1 The parents
The parentage of a child is one of the central concerns of child law. Legislation
frequently confers rights or imposes duties on a child’s parent or mother or father. The
identification of the child’s father and mother will determine the status of the child –
in other words, whether they are legitimate or illegitimate. Further, parentage resolves
the question of who has parental responsibility and, accordingly, the right to make
decisions about aspects of the child’s upbringing.
The use of modern techniques to assist reproduction has sometimes left parentage
in doubt. See L Teaching Hospitals v A (No. 2) [2003] EWHC 259. It has also resulted in
difficult ethical questions being asked in very tragic circumstances. See R v HFE Agency
ex p Blood [1997] 2 All ER 687.
The mother
Traditionally, the identity of a child’s mother was established by birth, but modern
techniques of human-assisted reproduction, such as egg and embryo donation,
embryo transfer and surrogacy, have complicated this issue.

See Re W (Minors)
(Surrogacy) [1991] 1 FLR 385.
The identification of the legal mother of a child born after 1 August 1991 as a result of
such medical procedures is now governed by Human Fertilisation and Embryology Act
1990 (HFEA) s.27(1), which defines the carrying mother as the legal mother.
The father
In general, the legal father is the person who provides the sperm which leads to
conception. This is subject to the following exception.
u The husband of a woman who is artificially inseminated is treated as the father
of the child, unless it is proven that he did not consent to the treatment (s.27 of
the Family Law Reform Act 1987 (FLRA), applying to procedures after 4 April 1988).
This provision is expanded by s.28(2) HFEA to encompass artificial insemination by
donor (AID) and embryo donation occurring after 1 August 1991 and provided the
husband can rebut the presumption that he is the father of any child his wife bears
(s.28(5) HFEA).
The importance of this consent of the potential ‘father’ to this treatment continues to
be pivotal. In a recent and very public case it was determined that, however tragic the
circumstances, a father’s consent was required before frozen embryos could be used
following the couple’s separation. In Evans v Amicus Healthcare Ltd [2005] Fam 1 Ms
Evans, who was infertile, appealed against a decision that she was not entitled to use
frozen embryos created by IVF treatment after separating from her male partner, Mr
Johnston, who had withdrawn his consent to the treatment. Ms Evans and Mr Johnston
had given their written consents to each other’s treatment ‘together’ to include the
‘use’ and storage of their embryos. The judge had rejected Ms Evans’ application for an
injunction to restore Mr Johnston’s consent and also her application for a declaration
of incompatibility argued on the basis that her rights under the Human Rights Act 1998
Schedule 1 Part I Article 8 and Article 14 had been breached by the HFEA Schedule 3. Ms
Evans contended that the judge had erred:
1. in his construction of the words ‘treatment together’ and the phrase ‘used in
providing treatment services’ in Schedule 3 paragraph 4(2)(a) of the 1990 Act, and
that for the purposes of Schedule 3 paragraph 4(2)(a) the requisite ‘use’ had been
fulfilled by the separation and choice of suitable eggs fertilised for storage
2. in holding that the interference with her private life was necessary and
proportionate under Article 8(2)
3. in holding that E had not been discriminated against in the enjoyment of her
Article 8 rights in contravention of Article 14

See Report of Warnock
Committee into Human
Fertilisation and Embryology,
(1984, Cmnd. 9314,
paragraphs 5–7).
page 150 University of London External System
4. in holding that J had not consented to the continuing treatment of E and that
therefore there was no continuing consent from which J could be estopped from
withdrawing.
The Court of Appeal (civil division) dismissed the appeal, holding that the adverb
‘together’, ‘qualified the treatment to a man and a woman whilst the couple were
united about the treatment and irrespective of the nature of their relationship’.
The House of Lords refused permission to appeal, and Ms Evans then appealed to the
European Court of Human Rights. Her application was unsuccessful. See Evans v UK
(Application No 6339/05)
When a couple were being treated ‘together’ but subsequently separate without
informing the licensed clinic then the validity of that initial consent is nullified. See M v
W (Declaration of Parentage) [2006] EWHC 2341 (Fam).
Where a woman has been artificially inseminated in the course of treatment provided
for her and a man under the licensing procedure established by the HFEA, that man is
treated as the child’s father (s.28(3) HFEA).
A donor whose sperm is used for licensed treatment under the Act and whose consent
to the use of his sperm has been acquired in accordance with the Act will not be the
legal father of the child (s.28(6)(a) HFEA).
Until recent reforms a donor whose sperm was used after his death was not the legal
father of the child (s.28(6)(b) HFEA). This has been amended by the Human Fertilisation
and Embryology (Deceased Fathers) Act 2003. This now means that a man can be
registered on the child’s birth certificate as the father of a child which is conceived
after his death using his sperm. The father has to give written consent that his sperm
can be used after his death and to the registration of his name on the birth register. If
no consent is given then the old law applies.
It is to be noted that s.28 creates the possibility that a child may be legally ‘fatherless’.
The consequences of s.28 being applied, and its interpretation, has been considered
in U v W [1997] 2 FLR 282 Re B [1996] 2 FLR 15 and then decided contrary to this case:
Re Q [1996] 1 FLR Re D [2001] 1 FLR 972 Re R [2003] 1 FLR 1183 where, for a man to claim
s.28(3) HFEA paternity, the embryo had to be placed in the mother ‘at a time when
treatment services were being provided for her and the man together’. If the couple
subsequently separate then the child can become fatherless (See M v W (Declaration of
Parentage) [2006] EWHC 2341 (Fam). Section 28(3) was an unusual provision, conferring
the relationship of parent and child on people who were related neither by blood nor
by marriage. That was a serious matter, and the rule should only apply to those cases
which clearly fell within the statutory language.
Leeds Hospital v A & B [2003] 1 FLR 1091 where Mrs A consented to her eggs being used
with her husband’s sperm, and Mr A consented to his sperm being used to treat his
wife. By error, another man’s (Mr B’s) sperm was injected into the eggs. Mrs A gave
birth to twins.
If s.28 applied, Mr A would be treated as father. The court held that neither s.28(2) nor
s.28(3) applied. Mr A had not consented that another man’s sperm be used (s.28(2))
and a fundamental error that resulted in the use of the sperm of the other man
vitiated the whole concept of ‘treatment together’ (s.28(3)). Consequently, Mr B was
the father.
Family Law
9
Status and parentage page 151
9.1.2 Adoption and a parental order under HFEA 1990
The effect of an adoption order is that a child is treated in law, from the date of the
order, as the child of the adopters and no one else.
The HFEA s.30 enables a married couple who have provided the genetic material

(egg
and sperm) which has led to a child’s conception to apply for a ‘parental order’ which
will require the child to be treated in law as their child. The court’s power, introduced
as a result of Re W (Minors) (Surrogacy) [1991] 1 FLR 385, is subject to various conditions.
u The applicants must be husband and wife.
u They both must be over 18.
u At least one must be domiciled in the United Kingdom.
u The application must be made within six months of the child’s birth.
u At the time of the application the child’s home must be with the husband and wife.
u The carrying woman and her husband must have ‘freely, and with full understanding
of what is involved, agreed unconditionally to the making of the order’ and this
consent may be dispensed with only where the required person ‘cannot be found
or is incapable of giving agreement’.
u No money or other benefit, other than expenses reasonably incurred, must be
paid.


See Re C [2002] 1 FLR 909. A court can retrospectively authorise payment which
otherwise would contravene s.30(7), if it considers that a parental order would be in
the child’s best interests.
Activity 9.1
a. Marianne and her husband Niall are unable to have children. Unknown to Niall,
Marianne has received artificial insemination treatment and is now pregnant.
Who, in law, will be the child’s father?
b. Mary is unable to have children. She and her husband, David, entered into an
agreement with Susan for her to have a child for them after being inseminated
with David’s sperm. Who, in law, is the baby’s mother? Who is his father? If
Susan had been inseminated with another man’s sperm, who then, in law,
would be the father?
9.1.3 The determination of parentage
The law has developed a number of presumptions to assist the determination of
parentage.

First, pater est quem nuptiae demonstrant: any child born to a married
woman is presumed to be that of her husband. See Preston-Jones v Preston-Jones [1951]
AC 391 Knowles v Knowles [1962] 1 All ER 695.
There is also a presumption that the man named on the birth certificate is the child’s
father (s.10 Births and Deaths Registration Act 1953). Any presumption of law as to the
legitimacy or illegitimacy of any person may, in any civil proceeding, be rebutted by
evidence that it is more probable than not that the person is legitimate or illegitimate
(s.26 FLRA), but it seems that the better view is that the evidentiary burden is greater
than in the usual civil cases and is consonant with the seriousness of the question.
Contrast S v S [1972] AC 24, 41 with Serio v Serio (1983) 4 FLR 756 and W v K (1988) 18 Fam
Law 64.
Tests
See also, for the criteria to be applied in determining whether blood tests should be
ordered: Re F (A Minor: Paternity Test) [1993] Fam Law 407 and see the contrast in Re H
[1996] 2 FLR 65; Re T (A Minor: Blood Tests) [1994] 1 FLR 495; Re CB (Blood Tests) [1994] 2 FLR
762; Re A (A Minor) (Paternity: Refusal of Blood Tests) [1994] 2 FLR 463; O v L (Blood Test)
[1995] 2 FLR 930 (CA) and Re T [2001] 2 FCR 577.

This refers to cases where
a married couple make use
of a ‘surrogate mother’, who
undergoes the pregnancy
and gives birth to the child
without contributing any
genetic material to the child.

Thus a woman who
undergoes a pregnancy and
gives birth to a child by way
of surrogacy is not allowed to
demand payment for doing
so.

This is despite evidence
from numerous studies
showing that in most
societies roughly 10 per cent
of babies are not the genetic
offspring of their presumed
fathers.
page 152 University of London External System
Evidence used can include physiognomy (i.e. facial appearance – see C v C [1972] 3 All
ER 577) and, more reliably, blood tests, which the court has the power to direct (s.20
FLRA).

In addition s.21(3)(b) FLRA gives a court the power to order the taking of a bodily
sample from a person under the age of 16 (where the person with care of the child
refuses) if the court considers that it would be in the child’s interest to do so. Thorpe LJ
in the Court of Appeal has stated that:
‘The interests of justice in the abstract are best served by the ascertainment of the truth
and there must be few cases where the interests of children can be shown to be best
served by the suppression of truth.’
The principles to be applied in exercising the discretion are outlined in S v McC [1972]
AC 24; Re F (A Minor) (Paternity Test) 10 February 1993, The Independent; Re CB [1994] 2 FLR
762 and Re H & A (Paternity: Blood Tests) [2002] 1 FLR 1145.
The court has no power to enforce its direction for tests. The court may, but need not
always (see Re CB), draw inferences from a refusal to undergo such a test. See F v CSA
[1999] FLR 244. Sometimes the court will draw adverse inferences from a male’s refusal
to subject himself to a blood test, even if this is that the man is not the child’s father.
See Re G (Parentage: Blood Sample) [1997] 1 FLR 360.
Even when earlier declarations have been made, the European Court of Human Rights
has considered the problems associated with scientific progress and DNA testing for
the purposes of determining a child’s parentage. See Tavli v Turkey (European Court of
Human Rights; 9 November 2006) and Rozanski v Poland (Application No 55339/00).
Recent case law in both the national courts and the European Court of Human Rights
has suggested that the traditional approach of the courts to discover paternity
regardless of the impact on the family is no longer the primary concern. See London
Borough of Lambeth v S, C and Others [2006] EWHC 326 (Fam) and Re J (Paternity: Welfare
of Child) [2006] EWHC 2837 (Fam).
Further reform is, at the time of going to press, being considered. The Human
Fertilisation and Embryology Bill is currently before Parliament and it is anticipated
it will come into force in 2009. The main provisions of this Bill are to ensure that the
creation and use of all human embryos outside the body are subject to regulation. The
Bill proposes a ban on selecting the sex of offspring for non-medical reasons. There is
also a retention of the duty to take account of the ‘welfare of the child’ when providing
fertility treatment. There are provisions within the Bill to recognise same-sex couples
as legal parents of children conceived through the use of donated sperm, eggs or
embryos. Finally the Bill proposes to alter the current restrictions on the use of data
collected by the Human Fertilisation and Embryology Authority to allow appropriate
follow-up research. The Bill is not without its critics (for example, see Callus, T. ‘First
‘designer babies’, now a la carte parents’ (2008) 38 Fam Law 143).
Activity 9.2
What weight is given to the ‘welfare of the child’ when paternity is in issue?
Summary
The parentage of a child is of particular significance in law both in terms of the
obligations it may place on the parents and also the rights to which it entitles a child.
The mother is the person who gives birth to the child. This includes women who are in
receipt of egg or embryo donation. The law recognises the child’s biological father as
his legal father, subject to certain exceptions. If an adoption has taken place then an
adoptive couple will be regarded, in law, as the child’s parents.
Family Law
9
Status and parentage page 153
9.2 Status: legitimacy and illegitimacy
9.2.1 The consequences of status
Historically, English law drew a sharp distinction between those born inside marriage,
classed as legitimate, and those born outside marriage, classed as illegitimate. Those
classed as legitimate enjoyed full legal rights with respect to their family members and
those who were classified as illegitimate were given little legal recognition. By virtue
of piecemeal reform, the legal position of illegitimate children gradually improved,
until the FLRA 1987 removed most of the adverse consequences of illegitimate status.
Section 1 of the FLRA asserts the general principle that references in legislation:
‘to any relationship between two persons shall, unless the contrary intention appears, be
construed without regard to whether or not the father and mother of any person through
whom the relationship is deduced, have or had been married to each other at any time.’
This indicates that the question of whether or not an individual’s parents were married
is now irrelevant in the determination of legal relationships. This principle applies,
unless specifically excluded, to all legislation coming into force after the enactment of
the FLRA on 4 April 1988, but does not affect earlier legislation, except where express
provision is made for that purpose.
There remain some areas where the determination of a child’s legitimacy is relevant to
his or her legal rights.

Until recently, British citizenship could not be acquired through
the father unless the parents were married to each other. This has now been changed
by s.9 of the Nationality, Immigration and Asylum Act 2002.
In addition, unmarried fathers do not, subject to one exception, acquire automatic
parental responsibility. This in turn means an illegitimate child is not arguably
as protected by the law as a legitimate one for the purposes of parents having
responsibilities for their children. This issue is discussed in more detail below.
Activity 9.3
Should the concepts of legitimacy and illegitimacy be abolished? What is the
justification for retaining these concepts?
9.2.2 Parental responsibility
At common law, the child’s parent was recognised as having certain rights and
authority with respect to the child. For example, to make decisions about the child’s
residence, religion, education and movements. Originally, these rights vested entirely
in the father, see Re Agar Ellis [1883] 24 Ch 317, and were subject to control by the courts
in extreme cases only. Eventually, the mother came to share the rights and authority of
the father with respect to the child.
During the twentieth century the view that parents have ‘rights’

or ‘authority’ over
their children ‘waned’ both as a result of the ‘welfare principle’ (i.e. the growth in the
recognition of children’s decision-making power) and children’s rights, encapsulated
most completely in the United Nations Convention on the Rights of the Child. See
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.

As a reflection of this, the CA replaces the terms ‘parental rights and duties’, ‘parental
powers and duties’ and the ‘rights and authority’ of a parent, which were to be found
in previous legislation relating to children, with ‘parental responsibility’. According to
the Lord Chancellor, this emphasises that the days when a child could be regarded as
a possession of his or her parents, indeed when in the past they had a right to his or
her services and to sue on his or her loss, are now buried forever. The overwhelming
purpose of parenthood is now said to be:
‘the responsibility for caring for and raising the child to be a properly developed adult both
physically and mentally.’ (Lord MacKay LC, 502 HL Official Report (fifth series) col. 490.)

Succession to the UK throne
is governed by the Act of
Settlement 1701. The right of
succession is restricted to the
legitimate. The Family Law
Reform Act 1987 does not
alter this position. This does
not greatly affect the average
citizen.

See Hall, ‘The waning of
parental rights’, [1972b] CLJ
258.

This case gave rise to ‘Gillick
competent’. This refers
to an important decision
made by a child who is 16
years or younger which
usually goes against the
wishes of the parent. To be
Gillick competent suggests
that the child has sufficient
understanding and maturity
to make the decision. Its
limits are that it appears
to enable a child to give
consent to treatment but
not withhold consent to
treatment.
page 154 University of London External System
Parental responsibility is defined in s.3(1) CA as:
‘all the rights, duties, powers, responsibilities and authority which by law a parent of a
child has in relation to the child and his property.’
The definition throws us back to the common law for a determination of the
content of parental responsibility. Conventionally, the rights, duties, powers and
responsibilities enjoyed by those with parental authority were those described below.
A right to physical possession of the child
See Re Agar Ellis [1883] 24 Ch D 317 and Barnardo v Ford [1892] AC 32. This is not an
absolute right. It is subject to the wishes of the child where he or she is Gillick
competent and is subject to the welfare principle (s.1 CA) in cases of a dispute as to the
child’s upbringing and to local authority intervention in cases of ‘significant harm’ (s.31
CA).
Further, those with parental responsibility may lose the right to physical possession
against those who care for the child for a prolonged period (s.10(5), (10) CA).
Unless the child is suffering significant harm, however, the local authority may not
detain the child against the wishes of a person with parental responsibility (s.20(8) (9)
CA).
Education
A person with parental responsibility, or anyone with care of the child (s.576 Education
Act 1996), has a duty to educate the child (s.36 Education Act 1944). If such a person
fails to ensure that the child is educated, he or she may be guilty of a criminal
offence (ss.39, 40 Education Act 1944) and the child may be subject to an education
supervision order or even a care order if the child is suffering ‘significant harm’.
See Re O (A Minor) (Care Order: Education Procedure) [1992] 2 FLR 7 and Re G (Parental
Responsibility: Education) [1994] 2 FLR 964.
Discipline
A person with parental responsibility may administer reasonable corporal
punishment.

See R v Derriviere [1969] 53 Cr App Rep 637 and Re H [1987] 2 FLR 12.
However this will only provide a defence for common assault. Any more serious injury
is prohibited under s.58 Children Act 2004.
This right may be delegated, but s.548 Education Act 1996 forbids corporal punishment
‘at any school’. Section 550A allows a member of staff to use reasonable force to
prevent a pupil from injuring another pupil. Section 550B allows a child to be given a
detention outside school hours without parental consent, provided the parents are
given at least 24 hours’ notice. See A v UK [1998] 2 FLR 959 and R v H [2002] 2 FLR 431.
Religion
A person with parental responsibility has a common law right to determine a child’s
religious education. See Andrews v Salt (1873) 8 Ch App 622.
Such a person may demand that the child be excluded from religious studies lessons
and school assembly (s.9 Education Reform Act 1988). While a child is in care, the local
authority may not cause the child to be brought up in any religious persuasion other
than that in which he or she would have been brought up if the care order had not
been made (s.33(6)(a) CA).
Right to services
There is some doubt as to the existence of this ‘right’. See F v Wirral MBC [1991] 2 All ER
648.
This case points out, further, that there is no action of interference with parental
rights.

In common law and
political discourse the level
of acceptable corporal
punishment is often
referred to as ‘reasonable
chastisement’ (see 9.4.2
below). The legal position has
now been clarified by s.58 CA
2004.
Family Law
9
Status and parentage page 155
Administration of property
Parental responsibility ‘includes the rights, powers and duties which a guardian of the
child’s estate would have had in relation to the child and his property’.

Parents, but no
others with parental responsibility, have a right to inherit their unmarried children’s
property.
Right to represent the child in legal proceedings
At law a child is generally unable to bring or defend legal proceedings. This is subject
to a court’s discretion, under the Civil Procedure Rules r.21, and the child is able to use
a ‘litigation friend’ who may assist them with either an action or a defence. This rule
does not apply to cases involving family proceedings under the Family Proceedings
Rules 1991.
Medical treatment
According to s.8 Family Law Reform Act 1969, a person over 16 has a statutory right
to consent to treatment, but this may not give them the right to withhold consent.
See Re W (A Minor) (Inherent Jurisdiction: Consent to Treatment) [1992] 4 All ER 627; Re HG
(Specific Issue Order: Sterilisation) [1993] 1 FLR 587 and Practice Note [1993] 3 All ER 222.
Where the person is under 16, a person with parental responsibility has some rights
to consent to the treatment of his or her immature children, but such treatment may
be given or refused in a proper case against such a person’s wishes. See Gillick v West
Norfolk and Wisbech Area Health Authority [1986] AC 112; Re R (A Minor) (Wardship: Medical
Treatment) [1991] 4 All ER 177; Re C [1997] 2 FLR 180; Re T (Wardship: Medical Treatment)
[1997] 1 FLR 502 and Re C (Medical Treatment) [1998] 1 FLR 384.
Parental responsibility may not be sufficient to authorise sterilisation and the matter
may have to be referred to the court. See Re D [1976] 1 All ER; 326 Re B [1988] AC 199; Re
E [1991] 2 FLR 585; Re HG (A Minor) (Sterilisation) [1993] Fam Law 43 and Practice Note on
Sterilisation [1990] 2 FLR 530.
Where a child is at risk of suffering significant harm because of lack of treatment,
an emergency protection order or a care order may be made and the treatment
authorised by the local authority or the court (ss.31, 33 and 34 CA). Doctors have been
advised by the Department of Health that they are unlikely to be held liable for assault
and should carry out treatment without waiting for a court order where the treatment
is essential.
A decision about the child’s treatment can be given in the wardship procedure or in
the court’s inherent jurisdiction: the court could make a specific issue or prohibited
steps order on the application of any person who has obtained leave. See ss.8 and 10
CA and Re B [1981] 1 WLR 1421; Re C [1989] 2 All ER 783; Re Baby J [1991] 3 All ER 930; Devon
CC v S [1993] Fam Law 41; Re S (A Minor) (Consent to Medical Treatment) [1994] 2 FLR 1065;
Re C [1997] 2 FLR 180; Re T (Wardship: Medical Treatment) [1997] 1 FLR 502; Re C (Medical
Treatment) [1998] 1 FLR 384.
Right to consent to marriage
Under Schedule 12 of the CA, Schedule 2 of the Marriage Act 1949 is amended and a
parent has a right to consent to marriage. Any refusal can be overridden by the court
under s.3(1)(b) of the Marriage Act.
Right to contact with the child
Contact with a child is not a fundamental right of a parent, although Lord Oliver stated:
‘As a general proposition a natural parent has a claim to contact with his or her child to
which a court will pay regard.’ (See Re KD [1988] AC 806.)
The issue of contact can be resolved by a contact order, s.8 CA. Where the child is in
care, CA ss.34 and 44(13) and Schedule 3, paragraph 125 are applicable.

See s.41(1)(iii)
Administration of Estates Act
1925 and s.18(2) FLRA.
page 156 University of London External System
Surname
Section 2(7) CA states that where more than one person has parental responsibility
for a child, each of them may act alone and without the other in meeting that
responsibility. The provisions of s.13(2) CA state that where a residence order is in force,
no person may cause the child to be known by a new surname without the written
consent of those with parental responsibility or the leave of the court. The issue of the
surname and/or changing it has been considered in: W v A [1981] Fam 114; Re B (Change
of Surname) [1996] 1 FLR 791 (CA) and Re PC (Change of Surname) [1997] 2 FLR 730. In this
case three legitimate children, aged 12, 10 and six, lived with their mother following
their parents’ divorce. There was no residence order in force. The mother remarried
and sought to change the children’s surname. She applied for a specific issue order
to determine whether, in the absence of a residence order, she could unilaterally
change the children’s names. The court held that s.13 had not changed the common
law position that neither parent of a legitimate child could change the surname of the
child without the agreement of the other or a court order and that the other’s consent
had to be written. Obiter, where only one person had parental responsibility for a child
he or she could change the surname unilaterally. See Dawson v Wearmouth [1997] 2
FLR 629. In this case the Court of Appeal held that it was ‘a perfectly natural and logical
choice’ for the mother of an illegitimate child to call the child by the surname of her
former husband rather than by the father’s name.
The House of Lords dismissed the father’s appeal at [1999] 1 FLR 1167 holding that,
where the proposed change was from the name by which a child had been registered
at birth and by which the child had been known, clear circumstances were required to
justify, under the paramountcy principle, any change.
The same issue, that of the circumstances in which a child, registered at birth in one
name, might have his or her name changed by one parent against the wishes of the
other, was raised in: W (a child); A (a child); B (children) [1999] 2 FLR 930 where the
Court of Appeal held that, where a residence order was in force, a person seeking
to change the child’s name needed either the written consent of the person with
parental responsibility or leave of the court under s.13 CA. In cases where there was no
residence order, written consent or a specific issue order from the court was required.
In either case, the child’s welfare was paramount and the checklist in s.1(3) applied.
The Court of Appeal considered the type of factors and their respective weight
which might have a bearing upon the determination of what would best serve a
child’s interest. See Re T (Change of Surname) [1998] 2 FLR 620. Dawson v Wearmouth
is the authority for the proposition that a father with a parental responsibility order
had standing to object to the change of a child’s surname notwithstanding that no
residence order was in force. Since Re P & C (Minors) [1997] 2 FLR 730 it is clear that
children’s names were important to the issue of welfare and that in any dispute the
consent or leave of the court was an essential prerequisite to a change of name,
particularly where both parents had parental responsibility.
This list of rights and duties cannot be seen as exhaustive or, more importantly, closed.
There is always room for further development. See Re Z (Identification) [1997] Fam 1.
You should be aware that disputes about incidents of parental responsibility both
between adults and between adults and children is a fertile area for examination
questions.
Activity 9.4
Should parental responsibility be more clearly defined in law?
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Status and parentage page 157
Summary
The issue of legitimacy and illegitimacy is far less significant than it used to be. Parental
responsibility gives parents, or others awarded parental responsibility, certain rights
and authorities with respect to their child. This means they have certain duties with
regard to the child’s upbringing. The exercise of these duties involves parents making
decisions as to a child’s education, discipline, religion, medical treatment, the
administration of property, right to marry and surname. Those with parental
responsibility may also have a right of physical possession of the child and a right to
contact, subject to the overriding principles of the CA.
9.3 Those with parental responsibility
9.3.1 Categories of parent
Both parents of legitimate child
‘Where a child’s father and mother were married to each other at the time of his birth,
they shall each have parental responsibility for the child.’ (s.21(1) CA)
Section 112 Adoption and Children Act 2002 provides the means to give parental
responsibility to a step-parent either by the parent agreeing or by a court order.
The mother of an illegitimate child
‘Where a child’s father and mother were not married to each other at the time of his
birth…:
a the mother shall have parental responsibility for the child.’
The father of an illegitimate child
‘b the father shall not have parental responsibility for the child, unless he acquires it
in accordance with the provisions of this Act.’ (s.111 Adoption and Children Act
2002).
Section 4 CA allows the father to acquire parental responsibility either on application and
by court order or by agreement between the mother and the father in prescribed form. In
deciding whether to grant a parental responsibility order on application by the father, the
child’s welfare is the paramount consideration (s.1(1) CA) and the court must be satisfied
that making such an order is better than making no order at all (s.1(5) CA). Reported cases
indicate that the following factors should be taken into account in the determination of
whether the father should be granted parental responsibility.
u The degree of commitment which the father has shown towards the child.
u The degree of attachment which exists between the father and the child.
u The reasons the father has for applying for the order. If it is felt a father may use the
order to interfere and improperly undermine the mother’s care of the child, then
an order will be refused. See Re P (Parental Responsibility) [1998] 2 FLR 96 CA.
Such an order may be made even though the child is about to be freed for adoption, is
in local authority care or where aspects of parental responsibility cannot be exercised
or are unenforceable due, for example, to the mother’s hostility. See Re H [1989] 2 All ER
353, 906; Re H (Minors) (Adoption: Putative Fathers’ Rights) [1991] 2 All ER 185; Re C (Minors)
[1992] 2 All ER 86 and D v Hereford & Worcester CC [1991] 2 All ER 177.
Note that an unmarried father can be granted parental responsibility without contact:
see Re H (Contact and Parental Responsibility) [1993] 1 FLR 484 CA.
The putative father’s parental responsibility can be brought to an end by order of the
court made by application of any person with parental responsibility for the child
or the child himself or herself (in the event the court is satisfied that the child has
sufficient understanding to make the proposed application).
Go to your study pack and
read ‘Responsibility’ by John
Eekelaar.
Consider what Eekelaar
views as being the nature of
responsibility.
page 158 University of London External System
Section 9(6) CA, which prevents the court making orders except in exceptional
circumstances where the child is over 16, does not apply to parental responsibility
orders, nor is there a direction to apply the checklist in s.1(3).
The putative father is also granted parental responsibility automatically where a
residence order is made (s.12(1) CA). This must be granted by a separate s.4 order,
which will not automatically end when the residence order comes to an end.
There are various decisions which may be seen to adopt different approaches to a
s.4 parental responsibility application. See Re S (Parental Responsibility) [1995] 2 FLR
648; Re C V (Contact and Parental Responsibility) [1998] 1 FLR 393 and Re H (Parental
Responsibility) [1998] 1 FLR 855.
A ‘welfare approach’ continues to be used. See R v P (Parental Responsibility) [1998] 2 FLR
96; Re J M (Parental Responsibility) [1999] 2 FLR 737; Re M (Parental Responsibility) [2001] 2
FLR 342 and Re J-S [2003] 1 FLR 399.
There has been a recent change in the attitude towards unmarried fathers.
After significant consultation a compromise between automatic parental
responsibility to all unmarried fathers and no automatic parental responsibility to all
unmarried fathers has been reached. The Adoption and Children Act 2002 amended
s.4 CA in December 2003 to provide that an unmarried father shall acquire parental
responsibility for his child if he becomes registered as the child’s father under s.10(11)
(a)–(c) of the Births and Deaths Registration Act 1953 (s.4(1)(a) and (1A) CA 1989). This
requires that both parents are registered at birth if both parents make a request to
this effect with a declaration from the father that he is the father of the child being
registered. Interestingly, this parental responsibility can still be terminated by the
court. The discrimination between married and unmarried fathers remains.
If the unmarried father is not registered in this way and wishes to obtain parental
responsibility he will have to acquire it in the usual way.
Activity 9.5
What arguments can you think of to justify the law drawing a distinction between
married and unmarried fathers in awarding parental responsibility to children?
Adoptive parents
The adoptive parents of an adopted child have parental responsibility. The making of the
adoption order operates to extinguish the parental responsibility vested in any other
person immediately before the making of the order (s.12(3) Adoption Act 1976).
Other individuals appointed by parents and guardians
The CA provides for parents and guardians to appoint other individuals to be the
child’s guardian by will or written instrument. It is also possible for the court to
appoint a guardian (s.5(3) CA). By virtue of s.6, the child’s guardian has parental
responsibility. Appointment takes effect on the death of any person making the
appointment, where the child concerned has no parent with parental responsibility
for him or her or if, immediately before the death of any person making such
appointment, a sole residence order existed in his or her favour with respect to the
child (s.5(7) CA).
Other persons who may have parental responsibility
Persons with residence orders have parental responsibility for the child as long as the
order remains in force (s.12(2) CA). Such a person may not consent or refuse to consent
to the making of an adoption order under s.46 of the Adoption and Children Act 2002,
with respect to the child or appoint a guardian for the child (s.12(3) CA).
Where a care order is in force with respect to a child, the local authority designated by
the order has parental responsibility for the child (s.33(3) CA). The local authority may
not have the child brought up in a religious persuasion other than that in which he or
she would have been brought up were the order not made, nor does it have the right
Family Law
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Status and parentage page 159
to consent or refuse to the making of an adoption order or an order freeing the child
for adoption, nor can it appoint a guardian for the child (s.33(6) CA).
Any person who has an emergency protection order has limited parental responsibility
(s.44(4), (5) CA).
9.3.2 Sharing of parental responsibility
Parental responsibility may be shared (s.2(5) CA). A person does not lose parental
responsibility solely because another person also acquires it (s.2(6)). Where parental
responsibility is shared, any person who has it can act alone and without the consent
of the other in meeting the responsibility, except where enactment provides that
agreement of all is required (s.2(7)). However, no person may act inconsistently with
any order made with respect to the child under the Act (s.2(8)). And where there is
a care order, the local authority has the power to determine how the parents may
exercise parental responsibility (s.33(3)).
Parental responsibility may be delegated (s.2(9)–(11)). Such delegation does not affect
the liability to discharge parental responsibility by the delegator. In order to meet
emergency situations, s.3(5) provides that any person with care of a child who does
not have parental responsibility may: ‘do what is reasonable in all the circumstances of
the case for the purpose of safeguarding or promoting the child’s welfare’.
Summary
The awarding of parental responsibility has often been seen as a controversial issue
in family law. The mother, whether married or unmarried, automatically acquires it.
The married father also automatically acquires it. The unmarried father can acquire
automatic parental responsibility if he jointly registers the child in accordance with
recent legislative changes. However, this is not necessarily permanent. If they do not
jointly register the child, unmarried fathers will have to acquire parental responsibility
in accordance with the provisions of the CA. Adoptive parents acquire parental
responsibility on the granting of an adoption order. Parental responsibility can be
shared by parents with, for example, a local authority. Parents, except unmarried
fathers, cannot lose parental responsibility. Rather than being a matter of fact, parental
responsibility is a legal device to monitor a child’s upbringing in some ways.
9.4 The Human Rights Act 1998
For the purposes of status and parentage, a number of key issues emerge as to
whether the present law is in violation of the Convention.
u Should there be a right to know one’s parentage?
u Should parental responsibility include the right to discipline a child in whatever
way the parent chooses?
u Is the current distinction between married and unmarried fathers for the purposes
of granting parental responsibility a violation of the Convention?
9.4.1 The right to know?
It could be argued that the Convention, through the HRA, does support a right to know
one’s parentage through Article 8 and the right to respect for private and family life.
However, the case law does not support such a view. Prior to the enactment of the
1998 legislation, it was thought the Convention would not support any right to know.
See MB v UK [1994] 77 A DR 108.
This view was confirmed in: Rose v Sec of State for Health [2002] 2 FLR 962. In this case
the Secretary of State for Health had refused the claimant’s request for information
in respect of the anonymous donor by whose sperm she was conceived and for
the establishment of an anonymous contact register. On the claimant’s application
to judicially review the decision, the court held that respect for private and family
page 160 University of London External System
life required that everyone should be able to establish details of their identity as
individuals, including the right to obtain information about a biological parent. To a
certain degree, respect for family life comprised the right to establish relationships
with other human beings and the fact that there was no relationship beyond an
unidentified biological connection did not prevent Article 8 ECHR from applying.
Therefore, Article 8 was engaged in respect of both identifying and non-identifying
information. This decision prompted recent reforms in medical law where anonymous
sperm donors can now be identified if they donated their sperm after 1st April 2005.
The reforms have increased access to information for the children but there has been
a sharp decline in the occurrence of sperm donation.
9.4.2 Discipline and the Convention
It has traditionally been thought that a person with parental responsibility may
administer reasonable corporal punishment. However, a case from the ECHR has
suggested that English and Welsh law is in breach of the Convention. In A v UK [1998] 2
FLR 959, the question was whether there was violation of Article 3 of the ECHR by the
UK in its failure to safeguard a boy from inhuman treatment by his stepfather who
used to cane him when he was nine. The stepfather was charged with assault, but
acquitted on the basis of ‘reasonable chastisement’. The court held that an assessment
of what was reasonable was relative and depended upon all the circumstances – the
nature, extent and duration of the punishment, any physical or mental effects and the
age, sex and state of health of the child. UK law had not given adequate protection
to the child and this constituted a violation of Article 3. The common law defence of
‘reasonable chastisement’ was subsequently reviewed and as a result of s.58 Children
Act 2004 it was preserved but only to a summary charge of common assault. Any more
serious injury to a child will no longer be afforded this defence.
Historically corporal punishment in schools was permitted. This was justified on the
basis that teachers were in loco parentis when children were in school and so were
able to administer punishment in the same way as parents did. This right to administer
corporal punishment was abolished in state schools in 1986 but continued to be
available in independent schools until 1996. This means that the defence of reasonable
chastisement cannot be claimed by a school teacher and so the use of physical
force by a teacher can give rise to civil and/or criminal liability. This prohibition was
considered in the case of R v Secretary of State for Education and Employment ex parte
Williamson and Others [2005] UKHL 15.
9.4.3 The unmarried father and the assignment of parental responsibility
It has been suggested (Herring, p.300) that English law does breach the Convention for
its failure automatically to assign parental responsibility to unmarried fathers. This is
based on:
u discrimination on the grounds of sex under Article 14, but see McMichael v UK [1995]
20 EHRR 205 ECtHR and B v UK [2000] 1 FLR 1
u discrimination on the grounds of marital status under Article 14, but see B v UK
[2000] 1 FLR 1
u breach of right to respect for family life under Article 8, but see Johnston v Ireland
[1986] 9 EHRR 203 ECtHR.
All three of these grounds have been rejected by the ECtHR.
The perceived injustice of this assignment of parental responsibility should have been
remedied when the Adoption and Children Act 2002 gave parental responsibility to
unmarried fathers if they are registered on their child’s birth certificate. As we have
already seen, however, this award of parental responsibility is not absolute.
Family Law
9
Status and parentage page 161
Summary
The Human Rights Act 1998 has asked some interesting questions about parents and
parental responsibility. The European Convention does not support a right to know
one’s parentage. The law on reasonable chastisement was reviewed and the defence
is still possible but with tighter regulation under the Children Act 2004. Recent
legislative changes have attempted to massage the apparent discrimination against
unmarried fathers. It has not removed the distinction, however, and we shall have to
wait to see if the new legislative changes are challenged under the Convention.
Useful further reading
¢ Barton, C. ‘Hitting your children: Common assault or common sense?’ (2008) 37
Fam Law 64.
¢ Callus, T. ‘First ‘designer babies’, now a la carte parents?’ (2008) 38 Fam Law 143.
¢ Deech, R. ‘Family law and genetics’ (1998) 61 MLR 697.
¢ Eekelaar, J. ‘Parental responsibility – a new legal status?’ (1996) 112 LQR 233.
¢ Fortin, J. ‘Re F: the gooseberry bush approach’ (1994) 57 MLR 296.
¢ Gilbert, B. ‘Paternity, Truth and the Interests of the Child’ (1996) 8 CFLQ 361.
¢ MacLean, M. and S. MacLean ‘Keeping secrets in assisted reproduction’ (1996) 8
CFLQ 243.
¢ Mnookin, R. ‘Child custody adjudication’ (1975) 39 Law and Contemporary
Problems 226.
¢ Morgan, D. and R. Lee, ‘In the name of the father? Ex parte Blood’ (1997) 60 MLR
840.
Sample examination questions
Question 1 Critically consider the Law Commission’s reasons for not conferring
automatic parental responsibility on unmarried fathers. Should the law now revise
this position and, if so, under what conditions, if any?
Question 2 Gina and Harry began living together in 1996 in Harry’s house. They
are not married. In 1998 they had a son, John. In 2000, after fertility treatment (to
which Harry consented) at a clinic licensed under the HFEA 1990, Gina gave birth to
a daughter, Fiona.
After 8 years of what appeared to be a happy family life, Gina left Harry, taking
the children with her and went to live with Ed, with whom she had been having a
relationship since 2000. She refused to allow Harry to see the children. John has said
that he wants to live with ‘my dad’ but Fiona wishes to be with ‘my mum’. Gina has
now told Harry that Fiona was not born as a result of the treatment but is Ed’s child
and that, as she and Harry were not married, ‘he has no rights over either of the
children’. She has also told him that she plans to change the children’s surnames to
that of Ed and to move abroad where Harry will be unable to find them.
Harry wants the children to live with him, or failing that, to prevent Gina from
carrying out her plans.
Consider:
a. Harry’s legal relationship with the children and whether the relationship has
any bearing upon any steps he might take.
b. What steps he can take regarding the children’s future.
page 162 University of London External System
Advice on answering the questions
Question 1 This essay question requires an examination of the Law Commission’s
reports between 1979 and 1986 which present some arguments for not conferring
automatic parental responsibility on unmarried fathers. You will then need to outline
what the present law is for an unmarried father to acquire parental responsibility.
Once you have explored this, it may be useful to revisit the feedback to Activity 9.5
(in the Feedback to activities section at the end of this guide) to see what arguments
there are in favour of granting or not granting automatic parental responsibility. You
should consider the Human Rights Act 1998 here and its reluctance to automatically
grant parental responsibility. You should then document the compromise in the
enactment of the Adoption and Children Act 2002, where joint registration of birth, a
symbol of commitment by the unmarried father, will allow for acquisition of parental
responsibility. Is further reform necessary or justified? It will be for you to reach a
conclusion based on the evidence you submit and the argument you present.
Question 2 This question is asking you to consider the status of Harry’s relationship
with the two children and what actions he can take regarding the children’s future.
With regard to John, you need to consider both the parentage of the child and
whether Harry has parental responsibility or not over John. If he does not have
parental responsibility, what is the significance of this? As Harry is an unmarried father
you need to consider how he may acquire that status under the CA 1989. Can we
assume he did not place his name on the birth certificate as per the 2002 reforms?
What questions would a court ask if they were to grant parental responsibility? How
do you think the facts of the question may support Harry’s application for parental
responsibility? Don’t forget the court will consider the welfare of John, even if it is not
the court’s paramount consideration.
When considering Fiona you need to look at the position of parentage under HFEA
1990. Under what conditions will Harry be treated as Fiona’s father? Look at s.28(3)
for clarification. If he is the father, you would need to consider once more how he
may acquire parental responsibility as he does not automatically have it (he and Gina
being unmarried). If there is doubt, as there appears to be, as to Fiona’s paternity then
the courts may direct scientific tests under ss.20–23 FLRA 1969. DNA tests are virtually
certain to provide a conclusive result. But consider the case law here. Courts can direct
but cannot enforce DNA testing.
The second part of the question would be difficult to answer at this stage and requires
a greater knowledge of the CA. You should revisit this once you have completed
working through Chapters 10 and 11.

Suffice to say the issues concern the welfare of
the children and the welfare checklist under s.1 CA. Also Harry may seek a residence or
contact order under s.8 CA for the children’s residence (presuming paternity is proven
in the case of Fiona). To prevent Gina from changing the children’s surname, Harry
could seek a prohibited steps order under s.8 CA.

You will have a greater
understanding of these
provisions once you have
completed Chapters 10 and
11. This question is useful
in reminding you that
examination questions can
contain a coverage of issues
from different areas of the
syllabus.
Family Law
9
Status and parentage page 163
Reflect and review
Look through the points listed below:
Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on
Need to
revise first
Need to
study again
I can describe the manner in which legal parentage
is established, whether in disputes about paternity
or when infertility treatment has been undertaken.


¢


¢


¢
I can state the legal definition of ‘mother’ and
‘father’.

¢

¢

¢
I can explain the meaning and content of parental
responsibility.

¢

¢

¢
I can outline the extent to which parental
responsibility exists in relation to a ‘Gillick
competent minor’.


¢


¢


¢
I can state the extent and limits of minors’ rights to
take decisions.

¢

¢

¢
I can say who has or may acquire parental
responsibility in relation to legitimate children,
illegitimate children, adopted children, and children
born as a result of infertility treatment or surrogacy.



¢



¢



¢
I can consider the relevance of the Human Rights Act
when looking at status and parentage.

¢

¢

¢
If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
9.1 Parentage ¢ ¢
9.2 Status: legitimacy and illegitimacy ¢ ¢
9.3 Those with parental responsibility ¢ ¢
9.4 The Human Rights Act 1998 ¢ ¢
page 164 University of London External System
Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
10.1 Wardship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
10.2 The inherent jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . 169
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
10 Wardship and the inherent jurisdiction
page 166 University of London External System
Introduction
As you will see, the law concerning children is predominantly in statutory form. There
are two other jurisdictions where questions concerning children can be resolved:
wardship and the inherent jurisdiction. The origin of the jurisdiction in wardship lies in
feudal times and parens patriae

(Masson et al., p.623). Although it is commonly stated
that in wardship the court exercises its inherent jurisdiction, changes introduced by
the Children Act 1989 indicate that there is an inherent jurisdiction, separate from that
of wardship, whose origins also lie in the parens patriae jurisdiction. Although an
inherent jurisdiction separate from wardship was recognised prior to the CA, there
had been no need to develop it. With the introduction of the CA and particularly in the
light of the comments of Lord Mackay LC in his Joseph Jackson Memorial Lecture 1989,
which acknowledged the existence of the High Court’s separate inherent jurisdiction,
it is likely that there will be development of this power.
In Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, the Court of Appeal
affirmed that the wardship jurisdiction had survived the passage of the CA.
Learning outcomes
By the end of this chapter and the relevant reading, you should be able to:
u describe the nature and scope of wardship
u say who may apply for wardship of a child
u list the powers of the court in relation to a ward
u explain the restricted availability of wardship to local authorities
u define the inherent jurisdiction and its relationship with wardship.
Essential reading
¢ Herring, Chapter 7, pp.327, 330 and Chapter 9, pp.528–533.
¢ Masson et al., Chapter 18, pp.634–642.
¢ Probert, Chapter 12, pp.265–270.
¢ Standley, Chapter 10, pp.238–241.

Parens patriae (Latin) =
parent or protector of the
realm. More fondly termed
father of the nation.
Go to your study pack and
read ‘The child in family law’
by Michael Freeman.
Why does Freeman believe
that the child is now at the
centre of family law?
Family Law 10 Wardship and the inherent jurisdiction page 167
10.1 Wardship
10.1.1 Characteristics of the wardship jurisdiction
Law Commission, Working Paper No. 10, ‘Wards of Court’ stated that:
‘Wardship is a system whereby any person may, by issuing proceedings for that purpose,
make the High Court guardian of any child within its jurisdiction, with the result that
1 no important step in the child’s life can be taken without the court’s leave
2 the court may make and enforce any order or direction consistent with the
principle that the first and paramount consideration is the welfare of the child.’
Broadly, the court takes over ultimate parental responsibility for the child (see R v
Gyngell [1893] 2 QB 232 at 239 per Lord Esher MR). It has wider powers than a parent
and, unlike the parent, derives its jurisdiction from the Crown. This is a continuing
jurisdiction and the court retains its overall responsibility to supervise the child’s
welfare even where care and control is given to a third party. See Re H [1987] I FLR 128
and Re S [1988] 1 FLR 128.
The court decides all serious issues relating to the ward (see Re CB [1981] 1 All ER 16, 24
per Ormrod LJ).
The question of what constitutes a serious issue is a matter of some uncertainty, but a
ward may not marry, be adopted, change caregivers or whereabouts, be subjected to
major medical treatment or blood tests for the determination of parentage without
the court’s consent. See Re R (A Minor) (Wardship: Medical Treatment) [1991] 4 All ER 177
and Re J (A Minor) (Inherent Jurisdiction: Consent to Treatment) [1992] 4 All ER 614.
Failure to obtain the court’s consent with respect to a ‘serious’ issue amounts to a
contempt of court.
Who may ward the child?
Any person with sufficient interest in the child may take proceedings to ward the child.
See Re D (A Minor: Sterilisation) [1976] 1 All ER 326 and Re B [1987] 2 All ER 206. Contrast Re
Dunhill [1967] Sol. Jo. 11.
Under Rules of the Supreme Court, I Order 80, r.2, a child may ward him or herself by
making a wardship application through a ‘next friend’. Other applicants must now
prove evidence of ‘interest’ (FPR 1991 r.5.1).
The official solicitor may not ward the child. See Re D [1976] (see above for details). Nor
may the guardian ad litem in his or her capacity as guardian (see Re T (Minors) [1989] 1
All ER 297 and A v Berkshire CC [1989] 1 FLR 273).
The greatest restrictions on the invocation of the jurisdiction concern local authorities
and are dealt with below.
Who may be made a ward?
The jurisdiction extends to protect any unmarried person under the age of 18,
provided he or she is a British subject or an alien minor physically present in England
and Wales (the test being whether the minor ‘owes allegiance to the Crown’). See Re P
(GE) (An Infant) [1965] Ch 568 and Re B-M (Wardship: Jurisdiction) [1994] 1 FLR 979.
Wardship may not be used where:
u the child is unborn (see Paton v Trustees of British Pregnancy Advisory Service [1978] 2
All ER 987; C v S [1987] 1 All ER 1230 and Re F [1988] Fam 122)
u the child is living in the house of diplomats who are entitled to diplomatic
immunity (see Re C (An Infant) [1959] Ch 363)
u the child is an alien who has been refused entry by immigration officials (see: Re S
(Minors) [1981] 11 Fam Law 55).
page 168 University of London External System
The jurisdiction is, however, discretionary and is generally not exercised when
the child’s presence in the country will be fleeting only and where exercise of
the discretion might interfere with other courts and tribunals (see Re F (A Minor)
(Immigration: Wardship) [1990] Fam 125).
The use of wardship over other court orders
In Re W [1995] 2 FLR 466 it was shown that if a parent’s future conduct was
unpredictable but likely to affect the welfare of his children, wardship was more
appropriate than a prohibited steps order which could not be made in general terms.
In Re K [1997] FCR 387 it was decided that if the court revoked (or declined to make)
an adoption order but took the view that the child should remain with the proposed
adopters, it could continue wardship and allow the child to remain with the proposed
adopters rather than make a residence order.
10.1.2 The process
Applications are governed by Supreme Court Act 1981, s.41. The moment an application
for wardship is made, the child becomes a ward of court. This offers immediate and
effective protection of children. If the application is accepted, the child remains a ward
until the court directs otherwise or the child reaches majority.
The High Court can make a child a ward on its own motion, without anyone applying
for wardship. Local authorities cannot apply for wardship under s.100 CA.
Powers of the court
The court has wide, but not unlimited, powers. Proceedings are family proceedings
within CA s.8(3). Therefore it can make any s.8 order either on its own motion or on
application (Re CB [1981] 1 All ER 16 suggested that a custody order was incompatible
with wardship). It remains to be seen whether this will be the case where residence
orders are concerned. Re C (Minors) (Wardship: Adoption) [1989] 1 All ER 395 indicates
that it is inconsistent with the court’s power to appoint an individual to be the child’s
guardian during wardship.
It may make financial provision orders within CA, Schedule 1 and it has been
suggested it has an inherent power where financial provision is concerned. See
Calderdale Borough Council v H and P [1991] 1 FLR 461.
It can make directions within s.37 CA, pending which it has the power to make interim
care or supervision orders (s.38 CA).
It also has wide protective powers where restrictions on publication are concerned.
See M and N [1990] 1 All ER 205 and Re C (A Minor) (Wardship: Surrogacy) [1985] FLR 846;
BBC v Rochdale MBC and X and Y [2005] EWHC 2862 (Fam); Re H (Freeing Orders: Publicity)
[2005] EWHC Civ 1325; Re Webster; Norfolk County Council v Webster, BBC, Associated
Newspapers Ltd and Archant Group [2006] EWHC 2733 (Fam); X and Y v Person or Persons
who have offered and/or provided information to the publishers of the Mail on Sunday,
Mirror and Sun newspapers [2006] EWHC 2783 (QB); Leeds CC v Channel Four Television
Corporation [2007] 1 FLR 678; Re Ward: BBC v CAFCASS Legal and Others [2007] EWHC 616.
The key principle from these cases appear to be that the court knows that it should
strike a proper balance between the welfare of the ward and freedom of speech. It
may restrain activities of third parties, but only where it is essential to protect the
ward from harm.
Family Law 10 Wardship and the inherent jurisdiction page 169
The principle governing the court in wardship
In Re D [1977] Fam 158 at 163, Dunn J said:
‘The welfare of the child is the golden thread which runs through the wardship
jurisdiction, it is the welfare of the child which is considered first, last and all the time.’
Self-assessment questions
1. When wardship has been invoked, who has the right to decide issues relating to
the child? Who has parental responsibility?
2. What do you understand by the concept of ‘sufficient interest’?
3. Who may be warded, and who may not?
4. In what circumstances will wardship be used as opposed to another court
order?
5. Under what circumstances may freedom of expression override the welfare of
the child?
Activity 10.1
Why is it often said that wardship is particularly useful in urgent cases?
Activity 10.2
Read the cases of Re C (A Baby) [1996] 2 FLR 43; Re W (Wardship: Discharge: Publicity)
[1995] 2 FLR 466 and Re KR (Abduction: Forcible Removal by Parents) [1999] 2 FLR 542.
Identify why wardship was useful in each of these cases.
Summary
Wardship is exercised under the court’s inherent jurisdiction and it means that once
a child becomes a ward of the court decisions concerning that child’s upbringing
are frozen. The court acts in loco parentis for the child so that any decision about
the child’s upbringing must be made with the court’s consent. Refusal will result in
imprisonment or fines. Any person with sufficient interest may ward the child and
any unmarried person under the age of 18 may be made a ward. The welfare principle
applies when the court exercises its extensive, but not limitless, powers over the child.
10.2 The inherent jurisdiction
Although not synonymous with wardship, applications in the inherent jurisdiction
are made to the High Court. There is no specific procedure for application: it is made
by originating summons, with an affidavit in support. There is some blurring of the
distinction between this jurisdiction and wardship, but its incidences were examined
in Re W (A Minor) (Medical Treatment) [1992] 4 All ER 627.
This decision suggests that the effect of invoking the inherent jurisdiction is not so
wide-ranging as invoking wardship, in that the inherent jurisdiction does not confer
parental responsibility on the court. The child becomes subject to the inherent
jurisdiction only if the court decides to exercise the inherent jurisdiction. Moreover,
the inherent jurisdiction allows the court to make particular orders in relation to a
child and his or her upbringing without encroaching on other aspects of parental
responsibility. In recent years, however, the limitations of the inherent jurisdiction
have been identified when considered against the Human Rights Act 1998 (see Re S (A
Child)(Identification: Restriction on Publication) [2004] UKHL 47).
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10.2.1 Local authorities, wardship and the inherent jurisdiction
The importance of the distinction between wardship and the inherent jurisdiction
is of most importance in the context of local authorities. Prior to the CA, local
authorities had become the major users of the wardship jurisdiction: for some it was a
supplement to the existing statutory powers; for others it was a substitute. The courts
encourage local authorities to fill the gaps in the statutory scheme with wardship
(see A v Liverpool CC [1982] AC 363) while at the same time denying parents, relatives
and carers access to the jurisdiction to challenge the decision of authorities. See A
v Liverpool CC and W v Hertfordshire CC [1985] 2 All ER 301, where the House of Lords
rejected the argument that there was a residual category of exceptional cases which
justified intervention of the High Court in wardship (Masson et al., p.627).
Therefore, at the time of the CA, parental use of wardship was confined to cases
where there was no local authority involved or where the local authority supported
the use of the jurisdiction. On the other hand, the jurisdiction could be used by local
authorities against parents.
One of the principles of the CA is the provision of a statutory scheme which provides
an exhaustive statutory code for compulsory intervention by the state in children’s
lives (s.31(2) CA). In order to preserve the integrity of this code, major limitations on
local authorities’ use of both wardship and the inherent jurisdiction appear in s.100.
Thus, s100(1) abolishes the power of the court to place a ward in the care or under
the supervision of the local authority. In other words, a child may only find himself
or herself in care or under supervision after application by the local authority under
s.31(2), either as a single application or in family proceedings. All a court may do, as
both wardship and inherent jurisdiction proceedings are family proceedings, is –
pursuant to s.37 CA – order the local authority to investigate. However, where there
is no other appropriate route for a local authority to pursue to protect a child (from
abuse) and there is evidence that the child is likely to suffer significant harm unless
the court granted a local authority leave to pursue applications under the inherent
jurisdiction such leave can be granted. See Devon CC v S and Another [1994] 1 FLR 355; Re
S (Minors) (Inherent Jurisdiction): Ouster [1994] 1 FLR 623.
In Re RJ (Wardship) [1999] 1 FLR 618 a long-term foster father of three children, having
been cautioned by the police for actual bodily harm on a young child, was thereafter
prevented from acting as foster carer under the terms of the Children (Protection
from Offenders) Regulations 1997. The High Court, in the exercise of its wardship
jurisdiction, concluded that the Regulations could not, in private law proceedings,
take precedence over the child’s welfare and that care and control of the children
should remain with the foster parents.
CA s.100(2) goes on to provide that no court shall exercise the High Court’s inherent
jurisdiction with respect to children, so as to:
1 require the child to be placed in the care, or put under the supervision of a local
authority
2 require a child to be accommodated by or on behalf of a local authority
3 make a child who is the subject of a care order a ward of court
4 for the purposes of conferring on any local authority power to determine any
question which has arisen, or which may arise, in connection with any aspect of
parental responsibility for a child.
It is to be noted that 1, 2 and 4 apply to the inherent jurisdiction, which includes
wardship, while 3 appears to be limited to wardship.
The effect of the section is that the local authority must either seek a care order
within s.31(2) CA – and end up with full parental responsibility – or a specific issue
or prohibited steps order. In seeking a specific issue order, however, it may not
circumvent the restrictions in s.100(2) (see s.9(5)). Nor may it seek such orders where
the child is in care (s.9(1)).
Family Law 10 Wardship and the inherent jurisdiction page 171
If an issue were to arise with respect to a child in care, there is a limited possibility for
invocation of the court’s inherent jurisdiction. CA s.100(3) states:
‘No application for any exercise of the court’s inherent jurisdiction with respect to children
may be made by a local authority unless the authority have obtained the leave of the court.’
Such leave is subject to s.100(4) and (5). This provides that such leave cannot be
granted:
u unless the result the authority wishes to achieve could not be achieved through
the making of an order for which the authority is entitled to apply, other than
under the inherent jurisdiction
u and that there is reasonable cause to believe that if the court’s inherent
jurisdiction is not exercised, the child would be likely to suffer significant harm.
The hurdles presented to the local authority in s.100 were overcome in the case of
W (see above for details) and a number of other medical treatment cases. It appears
that the jurisdiction will remain as a means for local authorities to resolve difficult
questions with respect to children in their care, for example, questions of sterilisation
and life prolongation. The boundaries for intervention were most recently considered
in E (By Her Litigation Friend EW) v London Borough of X [2005] EWHC 2811 (Fam).
Some hard cases
However, the restrictions do place local authorities in a difficult position where they
are unable to find an alternative route to protect children, as in Nottinghamshire CC v P
[1993] 2 FLR 134.
In Devon CC v S [1994] 1 FLR 355, Thorpe J distinguished between a local authority
seeking leave with a view to having additional powers conferred upon them and
a local authority seeking leave for the court to make orders without conferring
additional powers on local authorities. He also distinguished Nottingham CC v P on the
basis that in Nottingham the local authority was seeking power to exclude a member
of the family from the home, whereas in the Devon case the local authority was seeking
leave to invoke the inherent jurisdiction to secure an injunction preventing a non-
family member from contacting or communicating with children.
In Re P [2000] 2 FLR 385 a child’s parents had failed to support the local authority’s
attempts to improve her school attendance. She was made the subject of a care order
but, as her welfare so required, continued to live at home. The authority successfully
applied for an injunction (effectively to supplement its s.33(3) powers) to compel the
parents to allow P to attend a sixth-form college. The court observed that it would
have had power to grant leave to the authority under s.100, taking into account ss.(4)
(a) and (b).
But the inherent jurisdiction can be a useful tool when supplementing the statutory
powers. See Re M [1995] 1 FLR 825. It could be invoked where the father of a child in
local authority care wanted his child interviewed concerning the preparation of his
defence to a charge of rape. Weighed against the interest of justice, the child’s welfare
was not the paramount consideration.
The issue of excluding abusing fathers came before the court again in: Re S (Minors)
(Inherent Jurisdiction: Ouster) [1994] 1 FLR 623. There, the local authority sought leave
under s.100 for an order excluding a father who had sexually abused his stepchild. The
application was granted because no alternative order had been suggested. The case
therefore fell within s.100(4)(a) and there was reasonable cause to believe that if the
inherent jurisdiction were not exercised, the child was likely to suffer significant harm
within s.100(4)(b).
In South Glamorgan CC v W and B [1993] 1 FLR 574, a 15-year-old girl who was deemed
to be Gillick competent, refused to comply with the court’s direction to submit to
psychiatric examination. The local authority sought, and was granted, leave to invoke
the inherent jurisdiction to obtain a decision of the court overruling the child’s refusal
to be treated (see Masson et al., pp.622–623).
page 172 University of London External System
Activity 10.3
Does the ‘inherent jurisdiction’ enable local authorities to avoid the provisions of
the CA?
Note that the FLA goes some way towards solving the dilemma of whether to exclude
child abusers from a house they own. Occupation orders could be used under the FLA
1996 to deal with these. Section 52 FLA and Schedule 6 amend the CA and insert a new
s.38A which provides for an exclusion order to be made on the granting of an interim
care order. This can be made on the basis that:
u there is reasonable cause to believe that, if a person is excluded from a dwelling-
house in which the child lives, the child will cease to suffer, or cease to be likely to
suffer, significant harm
u another person living in the dwelling-house (whether a parent of the child or some
other person):
u is able and willing to give to the child the care which it would be reasonable to
expect a parent to give him
u consent to the inclusion of the exclusion order.
The exclusion requirement may:
u order that the person leave a dwelling-house in which he or she is living with the
child
u prohibit the person from entering a dwelling-house in which the child lives
u exclude the person from a defined area in which the home is situated.
In the case of an emergency protection order being granted, the court may also grant
an exclusion order under similar conditions.
A residual question remains as to whether wardship can be used against local
authority decisions. Certainly, if the child is subject to a care order, s.100(2) gives
statutory effect to the principle that the jurisdiction cannot be used to challenge the
authority’s use of its discretion. It does remain possible for an application to be made
in the inherent jurisdiction unless one of the bars in s.100 applies. If a child is not in
care, but is accommodated by the authority, wardship is still available, there being no
restriction in the Act.
The use of the inherent jurisdiction is not just limited to children but has also been
used to protect both vulnerable young adults and elderly people. In Sheffield CC v E and
Another, The Times, January 20, 2005, Sheffield City Council sought, under the inherent
jurisdiction, to prevent a 21 year-old woman, E, marrying or associating with a man that
she was living with. The woman was alleged to function as though she were 13 years
old and the man, S, she lived with was a convicted sex offender. The Council believed
the man to be unsuitable. Munby J was quick to point out that E is either capable of
marrying or she is not. The wisdom of the match with S is irrelevant.
In Re SA (Vulnerable Adult with Capacity: Marriage) [2006] 1 FLR 867 the court were also
asked to order, under their inherent jurisdiction, that a deaf girl with limited capacity
should not be allowed to be removed from the jurisdiction for fear of her being
subject to an arranged marriage abroad, in Pakistan, which she did not understand.
Finally in Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam) the use of the
inherent jurisdiction was sought in an attempt to protect an elderly person, who was
believed to lack the sufficient capacity, from marrying.
Family Law 10 Wardship and the inherent jurisdiction page 173
Summary
The court retains an inherent jurisdiction over its subjects, and especially its
children, and any grant of wardship is the result of an exercise of the court’s inherent
jurisdiction. Wardship is therefore one part of the court’s inherent jurisdiction. The
distinction becomes important when the position of local authorities is considered.
The exercise by the court is immediate, flexible and extensive, but the CA makes it
clear that when Parliament has enacted a statutory code, recourse to the inherent
jurisdiction is not permitted. It does continue to be used for vulnerable young adults
and elderly people who would not be protected by the CA.
Further reading
¢ Bainham, A. Children: the Modern Law. (Bristol: Jordans, 2005) [ISBN
9780853089391].
¢ Foster, S., N. Khan and I. Peddie ‘Care orders, local authorities and the courts’
(2002) NLJ 614.
¢ Geekie, C. ‘Protecting children’s rights after Re S – the pressing need for reform’
2002) Fam Law 534.
¢ Hall, S. ‘The Human Rights Act 1998 – clear starry skies or the Milky Way?’ (1998)
Fam Law 604.
¢ Hayes, J. and M. Hayes ‘Child protection in the Court of Appeal’ (2002) Fam Law
817.
¢ Mitchell, J. ‘Whatever happened to wardship?’ Parts I and II. (2001) Fam Law 130,
216.
¢ Parry, M. ‘The Children Act 1989: local authorities, wardship and the revival of
the inherent jurisdiction’ (1992) JSWL 212.
¢ Posner, G.J. and P.A. Diaz ‘Everything we always wanted to know about the
threshold criteria’ (2002) Fam Law 850.
Sample examination question
Mary and John have two children, Sophie and David, now aged 12 and 8,
respectively. John is a successful politician and has a seat in the Cabinet. In January
2008, the family came to the attention of the Granchester County Council. A
neighbour alleged that Sophie and her female friends were being sexually abused
by John.
In addition, Mary has contacted the local authority and asked for their advice over
the reported publication of a new book which she understood would question
John’s fitness for public office, since he was alleged to have received financial
support from several publishers who had a vested interest in the production of
pornographic books.
John is unwilling to sue in libel because of the costs involved and his uncertainty
as to the outcome of the case. Mary is adamant, however, that such a book would
cause the children humiliation and suffering.
Advise the local authority of any possible causes of action it may take under the
Children Act 1989, or wardship, in order to protect the children.
Advice on answering the question
For the purposes of consolidating your learning on this chapter you should consider
whether wardship and the inherent jurisdiction can be utilised by the local authority.
The local authority would want to investigate the allegations of sexual abuse in
accordance with their statutory duties under the CA (which you will consider in more
detail in Chapter 13). For this task, you are particularly interested in the exercising of
wardship. The local authority will be keen, or Mary could apply, to make her children
wards of the court because of the publication of this new book. Wardship was
page 174 University of London External System
sometimes useful in the past where a third party such as the press were intruding
on the children’s lives. It would be rare for the courts to use the inherent jurisdiction
to restrict the actions of non-parents (see X County Council v A [2000] 2 FLR 953). The
concern is that there would be a conflict between the public interest in freedom of
expression and the child’s welfare. Freedom of expression is protected by Article 10 of
the ECHR. Too often it has been argued that the welfare of the child has been preferred
over freedom of speech. Consideration of cases such as Re C (Celebrities: Publicity)
[1999] 1 FLR 409 and Kelly v BBC [2000] 3 FCR 509 and the more recent cases of X and
Y v Person or Persons who have offered and/or provided information to the publishers of
the Mail on Sunday, Mirror and Sun newspapers [2006], Leeds City Council v Channel Four
Television Corporation (Family Division; 6 July 2006) and Re Ward: BBC v CAFCASS Legal
and Others [2007] will give you plenty of authority to consider and therefore offer
advice as to whether wardship can be used to prevent the book being published and
thus protect the children from ‘suffering and being humiliated’.
Family Law 10 Wardship and the inherent jurisdiction page 175
Reflect and review
Look through the points listed below:
Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the
principles outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter
very difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on
Need to
revise first
Need to
study again
I can say who may apply for wardship of a child. ¢ ¢ ¢
I can list the powers of the court in relation to a
ward.
¢ ¢ ¢
I can explain the restricted availability of wardship to
local authorities.

¢

¢

¢
I can define the inherent jurisdiction and its
relationship with wardship.

¢

¢

¢
If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
10.1 Wardship ¢ ¢
10.2 The inherent jurisdiction ¢ ¢
page 176 University of London External System
Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
11.1 The nature of welfare . . . . . . . . . . . . . . . . . . . . . . . . . . 179
11.2 The meaning of the welfare principle . . . . . . . . . . . . . . . . . . 181
11.3 Criticisms of the welfare principle . . . . . . . . . . . . . . . . . . . . 185
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
11 The welfare of the child
page 178 University of London External System
Introduction
The Children Act 1989 (CA)

establishes the general principles that are to be applied in
court proceedings where children are concerned. They are:
u the child’s welfare is paramount in deciding all questions about his or her welfare
and the administration of his or her property
u regard is to be had to the general principle that delay in deciding any question
with respect to the child’s welfare is likely to prejudice the child’s welfare
u in contested ‘family matters’ (s.8(3) CA) and in all care and supervision proceedings,
the courts should, when applying the welfare principle, pay particular attention to
a list of matters mentioned specifically in CA s.1(3)
u the court should not make an order unless to do so is considered better for the
child than making no order at all (s.1(5) CA).
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
u explain the extent to which the welfare principle does, and does not, apply in
various court proceedings
u state when the court is obliged to apply the ‘checklist’
u say when it will be appropriate for the court to make no order
u define the meaning of ‘harm’
u describe the extent to which the court will respect a child’s wishes
u offer some criticism of the welfare principle
u offer some alternatives to the welfare principle
u consider the relationship between the HRA and the welfare principle.
Essential reading
¢ Herring, Chapter 8, pp.393–411 and Chapter 9, pp.481–528.
¢ Masson et al., Chapter 19, pp.649–682.
¢ Probert, Chapter 14, pp.297–314.
¢ Standley, Chapter 11, pp.315–333.

Remember that CA can also
stand for Court of Appeal,
depending on the context.
Family Law 11 The welfare of the child page 179
11.1 The nature of welfare
Welfare is the cornerstone of all child law. No decision affecting a child can be taken
without regard to the child’s welfare, although the precise weight to be attached
to the concept varies according to the context in which the legal dispute arises. The
principle is stated in CA s.1(1):
‘When any court determines any question with respect to:
a. the upbringing of a child, or
b. the administration of the child’s property or the application of any income arising
from it, the child’s welfare shall be the court’s paramount consideration.’
This provision is modelled on s.1 Guardianship of Minors Act 1971 as amended and
replaces it, although it does not replicate it exactly. The 1971 provision directed the
court to treat the child’s welfare as its ‘first and paramount’ consideration, while
the current provision directs the court to treat it as its ‘paramount consideration’.
It is likely that the slight change in wording is no more than cosmetic, given that
the trend since J v C [1970] AC 668 has been to make the welfare of the child the sole
consideration.
11.1.1 Limitations
In most cases concerning the upbringing of children (those under 18), the court must
apply the welfare principle (s.105(1) CA). There are limits to its application, however:
it does not apply in cases where upbringing is not directly involved, but is merely
incidental to some other dispute. Thus, in Richards v Richards [1984] AC 174, the House
of Lords held that the welfare of children was not paramount in a dispute between
parents over the occupation of the matrimonial home.
This was extended in Lee v Lee [1983] 127 SI 696 to exclusion orders sought by an
unmarried person, but there have been suggestions in the Court of Appeal that in
some ouster cases the child’s welfare is paramount. See Wilde v Wilde [1988] 18 Fam Law
202.
The principle has been held inapplicable to other situations where the interests of a
child are indirectly involved. Hence, it is not applied (although it is certainly relevant)
in the determination of whether blood tests should be taken in an attempt to
ascertain the parentage of a child. See S v McC [1972] AC 24; Re F [1993] The Independent,
10 February and O v L (Blood Tests) [1995] 2 FLR 93 (CA).
In Re H (Paternity: Blood Test) [1996] 2 FLR 65 (CA), the court directed the taking of
blood tests/DNA tests, against the mother’s wishes, in order to ascertain the truth
about paternity. The court refused to accept the mother’s argument that intervention
by the putative natural father, who wished to establish contact with the child, was
more harmful to the child than the possible outcome of the testing; namely, that the
child had ‘two fathers’. In Re C (A Baby) [1996] 2 FLR 43, doctors were authorised to
discontinue life-maintaining artificial ventilation of a baby suffering from meningitis.
Again, although the welfare principle has been described as the golden thread
which runs through wardship to be considered first, last and all the time, there are
limits to its application in this context. See Dunn J Re D [1977] Fam 158 63; Re X [1975]
Fam 47; Re W [1992] Fam Law 69, where the public interest in freedom of publication
overrode the need to protect wards from harm caused by publication. See also Re S
(Minors) (Wardship: Police Investigation) [1987] Fam 199, where the principle did not
apply to prohibit the use of evidence admitted in wardship in subsequent criminal
proceedings.
Where, however, publication of the child’s identity could promote the chances of
therapeutic and life-saving treatment, reporting restrictions could be lifted for the
child’s benefit (R v Cambridge District Health Authority ex parte B (No. 2) [1996] 2 FLR 375).
The principle applies to decisions affecting the child’s surname. See Re B (Change of
Surname) [1996] 1 FLR 791 (CA).
page 180 University of London External System
Some statutes override the principle. Welfare does not govern decisions to grant leave
to apply for s.8 CA orders under s.10 CA. See Re A and W [1992] 3 All ER 872.
As maintenance is excluded from the definition of upbringing in the CA (s.105(1)), its
determination is not governed by welfare and the rest of s.1 CA. Again, orders relating
to maintenance after divorce are not subject to the test in s.1, but to s.25(1) MCA, which
refers to giving ‘first consideration’ to welfare. Under the CSA 1991, as we have seen,
the court’s jurisdiction on maintenance for children is restricted and the Child Support
Agency is not governed by welfare. Questions of adoption are not governed by the test
in the CA, as the Adoption Act 1976 (AA) provides its own test in s.6, where welfare is
the first, but not the paramount, consideration.
The principle does not govern Part II of the CA. See Re M (Secure Accommodation Order)
[1995] 1 FLR 418.
Nor does it govern applications under Schedule 1 CA (orders for financial provision).
See K v H (Child Maintenance) [1993] 2 FLR 61 and B v B (Transfer of Tenancy) [1994] Fam
Law 250.
Nor is the principle paramount when considering whether to restrict a publication
which may be harmful to the child. See Re H-S (Minors) (Protection of Identity) [1994]
All ER 390; R v Central Independent Television plc [1994] Fam 192 and Re R (Wardship:
Restrictions on Publication) [1994] Fam 254.
The welfare principle does not apply to Part III of the CA (which is discussed further in
Chapter 12). While a local authority may consider the welfare principle when deciding
which services they can provide, it does not have to be the paramount consideration.
Limits on resources may dictate a decision which is contrary to the welfare principle.
For example, if Child A can only gain access to a recreational centre by virtue of a lift
or stairs but he or she refuses to attend because he or she does not like travelling in a
lift or is frightened of climbing stairs, then the local authority would not be expected
to fly the child to the centre and land on its roof in a helicopter to accommodate him
or her. Resources would dictate that a helicopter trip was too expensive to justify and
that an alternative recreational centre on a ground floor would have to be found.
In addition, the welfare principle will not apply when it is contrary to express statutory
provisions. Under s.25(1) MCA it is made clear that in the redistribution of property and
assets upon divorce, a child’s interests are the first, but not the paramount, interest.
Also the courts do not have to have any regard for the child’s welfare when deciding
whether to grant a divorce to the child’s parents.
To summarise, the welfare principle is of most importance in the resolution of disputes
concerning s.8 CA orders and the decision as to whether a care or supervision order
should be made with respect to a child. Where the latter is concerned, however, the
principle is relevant only after the applicant satisfies the court that the preconditions
for a care or emergency order have been made out.
Activity 11.1
Can you think of examples outside of the context of litigation where the welfare
principle will not – and perhaps should not – apply to decisions made about a child’s
upbringing?
Summary
Welfare is often described as the cornerstone of child law as it pervades many of the
decisions taken concerning a child. It is often thought to be the sole consideration
of the court, but there are well-documented exceptions to this view. If the issue
does not relate to the child’s upbringing, welfare will not be the court’s paramount
consideration. There are a number of documented examples where this is the case.
Family Law 11 The welfare of the child page 181
11.2 The meaning of the welfare principle
‘‘Welfare’ is an all-encompassing word. It includes material welfare, both in the sense of an
adequacy of resources to provide a pleasant home and a comfortable standard of living
and in the sense of an adequacy of care to ensure that good health and due personal
pride are maintained. However, while material considerations have their place, they are
secondary matters. More important are the stability and the security, the loving and
understanding care and guidance, the warm and compassionate relationships, that are
essential for the full development of the child’s character, personality and talents.’ Hardy-
Boys J, in Walker v Walker and Harrison [1981] NZ Recent Law 257.
See J v C [1970] AC 668. Note that in parliamentary debate, the Lord Chancellor said:
‘the welfare of the child should come before and above any other consideration in
deciding whether to make an order.’ (Hansard, HL Vol. 502, Col. 1167)
This can be compared with Re M (Child’s Upbringing) [1996] 2 FLR 441 where the
‘strong supposition’ that a child should be brought up by his parents (in South Africa)
prevailed, even though he wished to remain with his present family with whom he had
lived for four years, he had lost the ability to speak his language of origin, and the links
with his homeland were tenuous.
11.2.1 The ‘conjoined twins’ case
Sometimes the Court of Appeal have particularly difficult decisions to make relating to
‘welfare’. The tragic case of the conjoined twins Jodie and Mary is one example. See Re A
(conjoined twins) [2001] 2 WLR 480. Jodie and Mary were conjoined twins. J was capable of
independent existence; M was not. The hospital applied to the court for a declaration that
an operation to separate them would be lawful and in the best interests of both twins. The
judge concluded, inter alia, that the operation would be in the best interests of M, as well
as J, because M’s continued life was worth nothing to her and it was in fact hurtful.
The Court of Appeal held that the judge had been wrong to conclude that M’s life
would be worth nothing to her. The operation was not analogous to the withdrawal of
treatment, rather it was an active invasion of M’s body that, without consent or approval,
constituted an unlawful assault. Thus the question was not whether it was in M’s best
interests that the hospital continue to provide her with treatment which would prolong
her life. Rather, it was whether it was in her best interests that an operation be performed
to separate her from J when it was certain that she would die as a result. The only
answer to that question was that it was not in her best interests. Looking at M’s position
in isolation, and therefore ignoring the benefit to J, the court should not sanction the
operation.
Given the conflict of interests between J and M, and the conflict inherent in the court’s
duty to give paramount consideration to the welfare of each twin, it was necessary to
carry out a balancing exercise, with the right of each of the twins to life going into the
balance, alongside the worthwhileness of the treatment. The operation would give J the
prospect of the expectation of a relatively normal life. M’s life would be shortened – but
she was doomed for death in any event. Moreover, it was impossible not to put into the
scales the manner in which the twins were able individually to exercise their right to life.
Thus the least detrimental choice, balancing the interest of the twins against each other,
was to permit the operation to be performed, provided that such an operation would be
lawful. The doctors, faced with irreconcilable duties to M and J, should be in no different
position from that in which the court itself was placed in the performance of its duty to
give paramount consideration to the welfare of each child. The doctors had to be given
the same freedom of choice as the court had given itself and they had to make that choice
along the same lines as the court had done, giving the sanctity of life principle its place
in the balancing exercise that had to be undertaken. For the same reasons that the court
concluded that consent should be given to operate, the performance of the operation
would be justified as the lesser evil. In any event, the availability of a plea of quasi self-
defence, modified to meet the quite exceptional circumstances, made intervention by
the doctors lawful.
page 182 University of London External System
Activity 11.2
‘In the conjoined twins case the right decision was reached for the wrong reasons.’
Discuss.
Welfare requires an individual assessment in each particular case; thus, the court must
consider all the circumstances and the merits and demerits of the possible options
for the child. Precedent is necessarily weak in this area and past cases indicate little
more than the factors that various judges have considered to be of relevance in the
determination of what best serves a child’s interests. As this is the case, the role of the
appellate court is limited to decisions which are clearly unreasonable. See G v G [1985]
2 All ER 225.
Cases with similar facts can result in different outcomes. One highly publicised case
involving questions of welfare was Re Wyatt (A Child) (Medical Treatment: Parents’
Consent) [2004] Fam Law 866 and the subsequent Re Wyatt [2006] EWHC 319 (Fam).
Here a difficult question concerning the best interests and welfare of the child and
non-intervention by hospital staff arose. Following a number of hearings the plight
of Charlotte Wyatt took a more positive turn in October 2005 when on reaching her
second birthday Mr Justice Headley lifted the ‘do not ventilate’ order. He said that
doctors still had the final decision on taking action which would end her life but that
any decision would have to be after consultation with Charlotte’s parents. Mr Justice
Headley concluded that he did not expect to make any further rulings on Charlotte.
However in 2006 Charlotte’s condition did deteriorate. The NHS trust therefore sought
a fresh declaration and this time they were successful. The court declared that in
the child’s best interests it would be lawful for intubation and ventilation not to be
administered. By 2007 Charlotte was still alive and being cared for in the community.
A similar case arose in An NHS Trust v MB (A Child represented by CAFCASS as Guardian ad
Litem) [2006] EWHC 507 where a child, aged 18 months, suffered from spinal muscular
atrophy which is degenerative. The child was unable to move or react to stimuli but
was said to have sensory awareness and normal cognition. The court was therefore
faced for the first time with the balancing exercise of discontinuing treatment, against
the parents’ wishes, when the child was conscious and sentient. The court, having
considered the benefits and burdens suggested by the respective parties, were not
persuaded that it was in the best interests of the child to discontinue ventilation with
the inevitable result that he would die. They therefore refused to make the declaration
sought by the NHS Trust.
It should be noted that, where the welfare of more than one child is under
consideration, each child must be considered individually. See Birmingham CC v H (A
minor) [1994] 2 AC 212 and T and E (Proceedings: Conflicting Interests) [1995] 1 FLR 581.
The CA contains no definition of welfare but, following a recommendation of the Law
Commission (Working Paper, No. 96, 6.34), it sets out in s.1(3) a statutory checklist
of factors which the court must consider in deciding how the welfare of the child
is to be satisfied. The checklist, promoted by the Law Commission as ‘a means of
providing greater consistency and clarity in the law’ and ‘as a major step towards a
more systematic approach to decisions concerning children’ is not designed to be
exhaustive, nor are the factors ranked in order of importance or stated to be of equal
importance. See Law Com no. 172 paragraph 317.
Unlike the welfare principle in s.1(1) which is, subject to the exceptions noted above,
of general application, s.1(4) mandates the application of the checklist in s.1(3) only
where courts are considering a contested s.8 order, a care order, a supervision or
education supervision order or an order relating to contact with a child in care (s.1(4)
CA).
Family Law 11 The welfare of the child page 183
11.2.2 The checklist in s.1(3) CA
The ascertainable wishes and feelings of the child concerned (considered in the
light of his or her age and understanding)
The courts’ attitude to the wishes and feelings of children in cases involving their
future is ambivalent. Some decisions indicate that children are considered to be
poor decision-makers, susceptible to short-term or material considerations and the
conscious or unconscious influence of adults. See Re DW [1984] Fam Law 17.
Others suggest that the child’s expressed wishes can be predictive of his or her future
happiness. See M v M [1987] 1 WLR 404 and Williamson [1986] 2 FLR 146.
The age and maturity of the child are factors to be taken into account. See Re P (a
Minor) (Education) [1992] 1 FLR 316 and Gillick v West Norfolk and Wisbech Area Health
Authority [1986] AC 112.
As the checklist applies to all contested s.8 matters, the wishes and feelings of the
child will also be considered where a ‘prohibited steps’ or ‘specific issue’ order is
before the court (these orders are discussed in more detail in Chapter 12). The child’s
wishes, for example, with respect to his or her surname may be material and it is likely
that greater weight will be given to their views on matters such as this than in the past.
See W and A (Minor: Surname) [1981] Fam 14 and Re S [1999] 1 FLR 672.
Compare, however, Re B (Change of Surname) [1996] 1 FLR 791, in which teenage children
who had lost all contact with their father following divorce wished to be known by
their stepfather’s surname. The Court of Appeal refused the application, stating that
the children’s welfare (despite their wishes) dictated that a link should be preserved
between them and their natural father.
His or her physical, emotional and educational needs
The court is likely to want to keep siblings together. See C v C [1988] 2 FLR 29 1 and
Adams v Adams [1984] FLR 768, but contrast Re B (Minors) (Custody) [1991] 1 FLR 137.
In cases where there is a strong bond between one parent and the child, the court
is likely to want to ensure that the child remains with that parent. See Allington v
Allington [1985] FLR 586.
Attachment to the family will be particularly relevant where the dispute is between a
parent and a third party. See Re K (a Minor) (Wardship Adoption) [1991] 1 FLR 57.
There was a time when courts held the view that young children and girls should
remain with their mothers and boys over a certain age should be with their fathers.
This is no longer the case. See Re S (a Minor) (Custody) [1991] 2 FLR 388 and Re A (a Minor)
(Custody) [1991] 2 FLR 394.
However, mothers still appear to be preferred, particularly in the case of small babies,
see Re W, The Times, 22 May 1992, or even 15-month-old girls (Brixey v Lynas [1996] 2 FLR
499).
As to educational needs, see May v May [1986] 1 FLR 325 and Re P (A Minor) (Education)
[1992] 1 FLR 316.
The likely effect of any change in circumstances
A court is extremely reluctant to make an order which, in the absence of factors
improving the child’s welfare, will involve a change of home or ‘status quo’. See B v B
(Custody of Child) [1985] Fam Law 29.
It will not hesitate to make an order where no status quo has been established (see
Allington v Allington) or where it is unsatisfactory.
Status quo arguments will not be compelling where the parent has established the
status quo wrongfully, as by kidnapping. See Re B (A Minor) (Residence Order: Ex parte)
[1992] 3 All ER 867 and Jenkins v Jenkins [1980] 1 FLR 148. Nor will they be compelling
where one parent has prevented the other from maintaining a relationship with the
child. See Re E [1987] 1 FLR 368.
page 184 University of London External System
His or her age, sex, background and any characteristic of his or hers which the court
considers relevant
Issues of age and sex affect a child’s needs. As discussed above, the courts have
dispensed with presumptions based on the role of the mother. The statutory reference
to ‘background’ clearly allows the court to consider the child’s cultural and racial
background, which it has done in adoption and care cases. See Re P [1990] 1 FLR 96 and
Re P [1987] 2 FLR 421.
Religion has proven to be of importance where its practice may be harmful to the
child. See Wright v Wright [1980] 2 FLR 276; Hewison v Hewison [1977] 7 Fam Law 207; Re T
[1975] 2 FLR 239; Re B & G [1985] 1 FLR 134 and Re P (Residence Order) [1999] 2 FLR 573.
Any harm which he or she has suffered or is at risk of suffering
Harm has the same meaning as it does for the purposes of care proceedings (ss.105(1)
and 31(9) CA). Thus it means both ill-treatment and the impairment of health or
development, covering both physical and psychological trauma and sexual abuse, which
will probably deny an individual care of a child, but will not necessarily deprive him or
her of contact. See C v C [1988] 1 FLR 462; H v H [1989] 1 FLR 212; L v L [1989] 2 FLR 16, but
compare Re R [1988] 1 FLR 206.
Even where there has been inappropriate parental contact, the court will weigh all the
other factors, assessing the relative weight of advantages and risks to the child of the
possible courses of action. See Re B (A Minor) (Child Abuse: Custody) [1990] 2 FLR 317.
How capable each of his or her parents – and any other person in relation to whom
the court considers the question to be relevant – is of meeting his or her needs
This can lead a court to contrast care capabilities. See Dicocco v Milne [1983] 4 FLR 247. It
also allows it to consider, for example, the appropriateness of homosexual carers. See C
v C [1991] 1 FLR 223. Contrast B v B [1991] Fam Law 174.
The range of powers available to the court under this Act in the proceedings in
question
The court can impose conditions on the making of s.8 orders and grant anyone such
an order, even where there has been no application (s.10(1)(b)). It may make a ‘family
assistance order’, the object of which is to provide the family with some skilled short-
term social work support (s.16). The court may also prevent further applications under
Parts I and II CA without leave (s.91(14)).
11.2.3 No delay
Section 1(2) provides that, in any proceedings in which any question with respect to
the upbringing of a child arises, the court shall have regard to the general principle
that delay in determining the question is likely to prejudice the welfare of the child.
The legislation does not, however, prescribe that a case should never be adjourned,
nor does it prevent beneficial delay. See C v Solihull MBC [1993] 1 FLR 209 and Re B (A
Minor) (Contact) (Interim Order) [1994] 2 FLR 269. Compare B v B (Minors) (Interviews and
Listing Arrangements) [1994] 2 FLR 489 (CA) and Re A and B (Minors) [1995] 1 FLR 351.
11.2.4 No order
In its 1988 ‘Report on Guardianship and Custody’, the Law Commission (no 172,
paragraph 3.2) expressed concern over the courts’ tendency to assume that orders
should be made. Hence s.1(5) CA provides that where a court is considering whether
or not to make one or more orders under this Act with respect to a child, it shall not
make the order or any of the orders unless it considers that doing so would be better
for the child than making no order at all. This applies to all orders under the CA. (It
does not apply to adoption proceedings.) An example of where a court thought it was
better to make an order, although there was no dispute between the parties is B v B
(Grandparent: Residence Order) [1992] Fam Law 491.
Family Law 11 The welfare of the child page 185
Note the decision in Re O (A Minor) (Care Order: Education Procedure) [1992] 2 FLR 7 which
has been criticised for paying too little attention to s.1(5).
Recent cases have considered issues of contact. See Re S (Contact: Grandparents) [1996]
1 FLR 158, where it was decided the first instance judge was wrong to make no order
in the hope that the parties would be able to agree when there clearly was a dispute
needing a judicial decision.
A v N [1997] 1 FLR 533, where the mother’s argument – that to commit her for refusal to
comply with a contact order would offend the paramountcy principle by denying her
child maternal care – failed. The decision to commit her did not fall within s.1 CA.
In Re G (Children) [2005] EWCA Civ 1283 A father supported the mother of his two
daughters when issues of contact were being considered. As there was no longer any
parental dispute the district judge decided not to make a residence order in favour
of the mother on the basis of s.1(5) CA. She appealed to the circuit judge who said the
district judge had not been plainly wrong. She then appealed and the Court of Appeal
allowed her appeal.
Activity 11.3
Read the cases of Southwood LBC v B [1993] 2 FLR 559; H v H (Residence Order; Leave to
Remove from the Jurisdiction) [1995] 1 FLR 529 and B v B (Residence Order: Reasons for
Decisions) [1997] 2 FLR 602.
Can you trace differing judicial attitudes as to the use of the welfare checklist?
Summary
There is no definition of welfare in the CA, and the tragic case of the conjoined twins
exposes the weaknesses of welfare having no statutory definition. That said, it could
be argued that a lack of definition assisted the judges in the Court of Appeal reaching
their decision more easily because they were not constrained by any statutory
definition. Instead of defining the principle of welfare, the CA attempts to add flesh to
the debate surrounding a child’s welfare. It prescribes a welfare checklist which
provides factors to be considered by the court when making a decision concerning a
child’s upbringing.
11.3 Criticisms of the welfare principle
The welfare principle has been criticised on four grounds (Herring, pp.349–350).
1. The law has a narrow perception of welfare which rejects wider issues that could
affect a child’s welfare. After all, no mention is made of the quality of housing or
the wider political questions that impact on the welfare of a child.

2. Welfare can be an uncertain criterion

on which to judge matters. Deciding on
matters concerning the welfare of a child can be an exercise in clairvoyance and
this can give judges a very wide discretion. This makes pre-trial negotiation more
difficult.
3. Given this uncertainty, the real basis for the decisions can be hidden behind the
smokescreen

of ‘welfare’. Judicial bias and prejudice can provide the true reason
behind a decision.
4. Due to the unpredictability of the welfare principle, there are increased costs
which makes it more difficult to negotiate settlements.
Go to your study pack and
read ‘The welfare principle
and the rights of parents’ by
Jonathan Herring.
Consider how parents’ rights
are affected by the welfare
principle.

See King, M. and Piper, C.
How the Law Thinks About
Children. (Aldershot: Arena,
1995) [ISBN 9781857422269].

See Mnookin, R. ‘Child
custody adjudication’, Law
and Contemporary Problems 39
(1975) 226.

See Reece, H. ‘The
paramountcy principle:
consensus or construct?’, CLP
49 (1996) 267.
page 186 University of London External System
11.3.1 Alternatives to the welfare principle
If the law did not use a welfare principle, then Herring has suggested that alternatives
could be used. These alternatives include:
u a strong presumption in favour of the children living with their mother; this
maternal presumption could be rebutted with sufficient evidence
u a presumption in favour of the primary carer who was primarily responsible for the
child’s upbringing before the dispute
u a presumption to favour a position where children are subject to joint residence
and parenting
u co-operative parenting could be promoted to allow for decisions to be taken jointly
u following marital breakdown, children could be allowed to decide who should care
for them
u tossing a coin to decide treats both parents equally.
Non-legal solutions would see a greater utilisation of informal dispute resolution
techniques such as mediation.
All of these approaches are not without their critics, but they do identify the shortfalls
of the welfare principle.
11.3.2 The Human Rights Act 1998 and the welfare principle
It has been argued that the HRA, by explicitly giving parents rights, weakens the rights
of children. Sometimes a balancing act has to take place between a child exercising
its rights and a parent doing likewise. On the occasion of such a conflict, the welfare
principle could be used as a method for denying a child his or her choice. When the
compatibility of the welfare principle of the CA and the European Convention on
Human Rights was questioned in Re KD (A Minor) (Ward: Termination of Access) [1998] 2
FLR 139, Lord Templeman decided that it was compatible. He said:
‘In my opinion there is no inconsistency of principle or application between English rule
and Convention rule.’
Lord Oliver believed that any conflict was purely semantic. Others have suggested this
is not the case (Herring, p.348). There have been no challenges to the principle on the
basis of there being a breach of the Convention, but one real documented difference
observed between the two is that the Convention tends to restrict governments,
whereas the welfare principle requires the court to act positively (Herring, p.349). In
the case of Scott v UK [2000] 2 FCR 560 it was stated that the interests of the child ‘are
of crucial importance’ in cases involving the interests of parents and child.
Activity 11.4
a. What are the criticisms of the welfare principle?
b. What alternatives are there?
c. Is the welfare principle compatible with the ECHR under the HRA?
No feedback provided.
Family Law 11 The welfare of the child page 187
Summary
The welfare principle, according to Eekelaar (2002), aims to ensure that children are
not exploited for the interests of adults. This would appear to be a fair justification for
its use in decisions concerning children’s upbringing (at least in the way the judiciary
phrase their decisions concerning a child’s welfare). This laudable aim is not without its
critics, though, and there have been a number of pertinent criticisms. Some academics
have argued for alternatives to the welfare principle to be used by the judges. These
range from welfare being the first, but not paramount, consideration through to the
tossing of a coin. The English courts have opined there to be no conflict between the
European Convention on Human Rights and the welfare principle.
Useful further reading
¢ Bainham, A. ‘The Children Act 1989, welfare and non-interventionism’ [1990] Fam
Law 143.
¢ Diduck, A., Law’s families, (London: Butterworth, 2003) [ISBN 9780406967336]
Chapter 4: ‘Protection against domestic violence’, pp.89–102.
¢ Eekelaar, J. ‘Beyond the welfare principle’ [2002] CFLQ 14, 237.
¢ Fortin, J. Children’s Rights and the Developing Law. (Cambridge: Cambridge
University Press, 2003) [ISBN 9780521606486].
¢ Herring, J. ‘The Human Rights Act and the Welfare principle in family law –
conflicting or complimentary?’ [1999] CFLQ 223.
¢ King, M. and C. Piper How the Law Thinks About Children. (Aldershot: Arena, 1995)
[ISBN 9781857422269].
¢ Mnookin, R. ‘Child custody adjudication’ Law and Contemporary Problems 39
(1975) 226.
¢ Reece, H. ‘The paramountcy principle: consensus or construct?’ (1996) 49 CLP
267.
Sample examination questions
Question 1 Mary and John have two children, Laura (13) and Ben (nine). Laura
attends a private boarding school for children with learning difficulties. Ben attends
a day school. In 2008 Laura became emotionally attached to Simon, a 16-year-old
pupil at her school. In May 2008 she became pregnant. Ben has now decided that
he would rather attend boarding school than remain at home. Mary and John have
different views as to the best way to resolve the issues of whether Laura should
have an abortion (which Laura wants) and whether Ben should remain at the day
school.
Advise Mary, John, Laura and Ben as to any legal proceedings they may take to
determine these questions, and the likely outcome of the case.
Question 2 ‘Children’s legal rights remain contingent upon parental control and
the discretion of the courts. The time has come for a legally binding Charter of
Children’s Rights.’
Do you agree? Illustrating your answer from case law, critically assess the case for
and against a formal statement of children’s rights.
Advice on answering the questions
Question 1 This question concerns the courts’ use of s.8 orders which you will
consider in more detail in Chapter 12. That said, you need to be familiar with the idea
that, when granting an order relating to the children’s upbringing, the courts must
consider the welfare of each child as paramount when making any decision.
In relation to Laura, you have a problem concerning the abortion and it may be
necessary for the courts to adjudicate on whether a specific issues order should be
granted. The same is true for Ben and his remaining at the day school.
Go to your study pack and
read ‘The paramountcy
principle: consensus or
construct?’ by Helen Reece.
This will help you consider
the criticisms of the welfare
principle.
page 188 University of London External System
At this stage, the outcome of the case is not significant. You do, however, need to
be aware that the court will have to take into account the welfare checklist and
work your way through each factor and see which of the facts support a particular
aspect of the scenario. For example, consider the ascertainable wishes and feelings
of the child concerned. Is this to be qualified, but not ignored, in light of the age and
understanding of both children? May it be an option not to make an order? If an order
is to be made, should there be no delay? These are all things that you need to consider
on any issue relating to a child’s upbringing. Once more you need to remember that
questions such as these involve knowledge across the whole subject guide. If you had
revised the welfare principle here, but knew nothing about s.8 orders (discussed in
Chapter 12) you would not have been able to answer the question successfully!
Question 2 A general question concerning children’s legal rights, which suggests the
welfare principle, being undefined and often used loosely by judges to justify some
questionable decisions, is not enough in ensuring children’s rights are adequately
protected. The CA prescribes the duties of those with parental responsibility, but
children’s rights are not specifically defined in law. You could choose a number of
different areas within family law which deal with children not having any control over
what those with parental responsibility or the courts do. You can consider the use of
the statutory welfare checklist in disputes about a child’s upbringing. You could also
however look at the common law issue of Gillick competence which gives some ‘voice’
to the child. It is important to remember though that this allows a child to consent
to medical treatment, but never to refuse it. The child is still therefore subject to the
control of others. You may argue there is an inevitability about this because there is
a need to sometimes protect children from themselves. By selecting relevant case
law and examining alternate statutory provisions, you should be able to construct an
argument which finally looks at the issue of an independent charter of rights. In view
of the courts’ present view of interpreting statutes and developing case law, would
this serve any more purpose than a formal, unenforceable statement of expectations
concerning children? Ultimately, it could be argued that it is difficult to grant children
rights because they are unable to exercise them. A protectionist stance may be
preferred after all.
Family Law 11 The welfare of the child page 189
Reflect and review
Look through the points listed below:
Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on
Need to
revise first
Need to
study again
I can explain the extent to which the welfare
principle does, and does not, apply in various court
proceedings.


¢


¢


¢
I can state when the court is obliged to apply the
‘checklist’.

¢

¢

¢
I can say when it will be appropriate for the court to
make no order.

¢

¢

¢
I can define the meaning of ‘harm’. ¢ ¢ ¢
I can describe the extent to which the court will
respect a child’s wishes.

¢

¢

¢
I can offer some criticism of the welfare principle. ¢ ¢ ¢
I can offer some alternatives to the welfare principle. ¢ ¢ ¢
I can consider the relationship between the HRA and
the welfare principle.

¢

¢

¢
If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
11.1 The nature of welfare ¢ ¢
11.2 The meaning of the welfare principle ¢ ¢
11.3 Criticisms of the welfare principle ¢ ¢
page 190 University of London External System
Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
12.1 Orders available . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
12.2 Restrictions on orders . . . . . . . . . . . . . . . . . . . . . . . . . . 197
12.3 Who may apply for orders? . . . . . . . . . . . . . . . . . . . . . . . 199
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
12 The court’s powers in family proceedings
page 192 University of London External System
Introduction
Part II of the Children Act provides a range of orders that can be made in respect of
children and the basis on which they can be granted in private and public
proceedings.

The orders in Part II are available mainly in private family proceedings,
while the orders in Part IV, which concerns care and supervision, can be made in public
proceedings. However, for the purposes of the Act, both private and public
proceedings are ‘family proceedings’ and the general scheme of the Act is to allow all
orders to be available as long as ‘family proceedings’ are ongoing. In other words, it is
possible for a court to issue one of the private orders available under Part II – for
example, where a local authority is seeking a care order with respect to a child – and
for some ‘public’ orders under Part IV to be made in private proceedings at the same
time.
The approach of the legislation, which creates a range of orders that are
interchangeable and have broadly similar effects, is to create a consistent and unified
scheme that can be used to deal with every practical issue that might arise in relation
to the care of a child. Its flexibility is mirrored by the concurrent jurisdiction that can
be exercised by the High Court, the County Court and the Magistrates’ Court and the
administrative machinery allowing for all proceedings relating to the same child and
the child’s family to be consolidated and heard together before the appropriate level
of court and judge (Children (Allocation of Proceedings Order) 1991).
What follows is a description of the orders that are available to the court in
proceedings and the definition of ‘family proceedings’. The guidelines governing
whether orders should be granted, and the terms of such orders, have already been
considered in Chapter 11.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
u state the meaning and scope of residence orders; contact orders; specific issue
orders and prohibited steps orders
u explain who is entitled as of right to apply for these orders and who must seek
leave of the court to apply for these orders
u list the orders which local authorities may, and may not, apply for
u describe the manner in which the court reaches decisions
u outline the extent to which the court will consider the child’s wishes.
Essential reading
¢ Herring, Chapter 9, pp.455–481.
¢ Masson et al., Chapter 18, pp.577–634.
¢ Probert, Chapter 12, pp.249–265.
¢ Standley, Chapter 12, pp.290–317.

Private proceedings include
resolution of parental
disputes. Public proceedings
include child protection
concerns, where the state
determines whether a child
is ‘at risk’ within, for example,
the parental home.
Go to your study pack and
read ‘Disputing children’;
by Michael Freeman.
Consider how disputes
concerning children have
changed over the past 50
years.
Family Law 12 The court’s powers in family proceedings page 193
12.1 Orders available
It is important to remember that since 2000 all of these s.8 orders must be granted
with the HRA in mind. Potential breaches of the Convention, especially Article 8, must
be guarded against. This was echoed in Re H (Contact) [2002] 1 FLR 22, when it was
stated that:
‘inevitably, however, every order made under s.8 of the 1989 Act represents in some
measure an interference by a public authority (the court) in the right to respect for family
life contained in Article 8. The court’s interference must, of course, be in accordance with
the powers given to the court under the 1989 Act, and proportionate. Every application
involves the court balancing the rights of the participants to the application (including the
children who are the subjects of it) and arriving at a result which is in the interests of those
children (or least detrimental to those interests) and proportionate to the legitimate aim
being pursued. However, a proper application of the checklist in s.1(3) of the 1989 Act is
equivalent to the balancing exercise required in the application of Article 8, which is then
a useful cross-check to ensure that the order proposed is in accordance with the law,
necessary for the protection of the rights and freedoms of others and proportionate.’
12.1.1 Private orders
Residence order
‘An order settling the arrangements to be made as to the person with whom the child is to
live.’ (s.8 CA)
Where such an order is made in favour of an unmarried father, he must also be given a
parental responsibility order under s.4 (see s.12(1)(4)).
Non-parents may also obtain parental responsibility as a result of a residence order
but may not agree to adoption, freeing for adoption or appointing a guardian for the
child (s.12(2)(3)). This was considered in the cases of Re H [1995] 2 FLR 883 and Re WB
[1995] 1 FLR 1023. The order restricts anyone from changing the child’s surname. See
Re F (Child: Surname) [1993] 2 FLR 837; G v A (Children: Surname) [1995] 2 PCR 223 and Re B
(Change of Surname) [1996] 1 FLR 791 (CA).
It also restricts anyone from removing the child from the UK for a period of more than
one month without the written consent of everyone with parental responsibility or an
order of the court (s.13(1)(2)).
On emigration and residence orders, see Re B (Minors) (Removal from Jurisdiction) [1994]
Fam Law 11.
As to whether the court can restrict the place of residence within the UK (see Re H
[2001] 3 FCR 182 but compare it with Re S [2001] 3 FCR 154). Note that emigration cases
must be heard in the High Court (see MH v GP (Child: Emigration) [1995] 2 FLR 106).
It is to be noted that the making of a residence order does not remove parental
responsibility, although no one may act incompatibly with the order (see ss.2(8) and
3(5)). The appointment of a guardian by a parent with a residence order takes effect
immediately on the death of the parent unless the residence order was made jointly
with the surviving parent (ss.5(7)(b), (9)).
A residence order may be made in favour of two or more persons, even though they do
not live together. See s.11(4) and Riley v Riley [1986] 2 FLR 429; J v J [1991] 2 FLR 385; Re D
(Shared residence orders) [2001] 1 FLR 495 and Re S (Shared residence order) [2003] EWCA
Civ 387. A residence order made in favour of both parents ceases to have effect if they
live together for a continuous period of more than six months (s.11(5)).
A word of caution does arise when informal arrangements result in effective shared
residency. If there is any attempt to formalise sole residence, as in A v A (Shared
Residence & Contact) [2004] 1 FLR 1195, this is unlikely to succeed. The principle of ‘No
Order’ is akin to the spirit and letter of the CA and there is not always a necessity to
grant an order if circumstances do not require it.
page 194 University of London External System
The issue of residence has also been considered in the context of a same-sex couple,
upon separation. In Re G (Children) [2006] UKHL 43 one of the women in the same-sex
couple had given birth to two daughters following artificial insemination by donor
and the other had wanted residence. Baroness Hale’s speech in this case is notable as a
commentary on the existing law here.
Activity 12.1
Gillian and James have divorced and no longer live together. They both wish their
children Saskia, aged 10 and Troy, aged 12 to live with them at specified times
throughout the year. They wish to know if a residence order is available on a joint
basis? Advise Gillian and James.
Applications for residence orders may be made ex parte in exceptional circumstances.
See Re B [1992] 2 FLR 1 and Re G (Minors) (Ex Parte Residence Order) [1993] 1 FLR 915 (CA).
Interim residence orders may be granted. See: Re Y (A Minor) (Ex parte Interim Orders)
[1994] Fam Law 127.
Contact orders
A contact order requires:
‘the person with whom a child lives, or is to live, to allow the child to visit or stay with the
person named in the order, or for that person and the child otherwise to have contact
with each other.’ (s.8 CA)
Such orders may define the duration, frequency, time and location of the visits (ss.8(1)
and 11(7)). Such an order is a positive order in the sense that it requires contact to be
allowed between an individual and a child. It cannot be used to deny contact.
A contact order may be sought to require foster parents or residential home staff to
allow visits to any child who has been given accommodation by the local authority, but
not in relation to a child in care (see s.9(1) and s.34). A contact order which requires
one parent to allow the other to visit or otherwise have contact with the child ceases
to have effect if the parents live together for a continuous period of at least six months
subsequent to the order being made (s.11(6)). This is the case even if the parents are
unmarried and the parent with the order is an unmarried father without parental
responsibility. Courts are slow to deny contact between children and their parents,
although there is no presumption of contact. See A v C [1985] FLR 445; Re H [1992] 1 FLR
148; Re B [1992] 1 FLR 140; Re C [1992] 1 FLR 309; Re SM (A Minor) (Natural Father; Access)
[1991] 2 FLR 333 and A v L [1998] 1 FLR 361.
The making of a care order discharges a contact order (see s.3 91(2)).
There has been a plethora of cases which have considered the criteria to be applied in
applications for contact. See, among others: Re H (Contact; Principles) [1994] 2 FLR 969;
Re F (Minors) (Denial of Contact) [1993] 2 FLR 1 (CA); Re L (Contact; Transsexual Applicant)
[1995] 2 FLR 438; Re D (A Minor) (Contact; Mother’s Hostility) [1993] 2 FLR 1; Re F (Minors)
(Contact; Mother’s Anxiety) [1993] 2 FLR 830; Re M (A Minor) (Contact; Imposition of
Conditions) [1991] 1 FLR 272 (CA); Re O [1995] 2 FLR 124; Re D [1997] 2 FLR 48; Re B [1997] 2
FLR 579; Re H (Contact; Mother’s Opposition) [2001] 1 FCR 59; Re W (A Child) (Contact
Orders) [2003] EWCA Civ 117; Re M (Intractable dispute) [2003] 2 FLR 636; Re G (Parental
Responsibility Order) [2006] EWCA Civ 745; Re B; Re O (Contact: Permission to Appeal)
[2006] EWCA Civ 1199 and Re C (Contact: Moratorium: Change of Gender) [2006] EWCA Civ
1765.


A growing area of concern in the contact order cases has been the issue of absent
fathers in cases that involve violence. See Re L; Re V; Re M; Re H [2000] 2 FLR 334.

You should read at least
two of these cases, and more
if possible. Always consider
what trends you can see
emerging in any one period in
the courts.
Family Law 12 The court’s powers in family proceedings page 195
Domestic violence
As a matter of principle, proof of domestic violence or threats of it against the mother
did not constitute a bar to contact,

but was an important factor in the exercise of
judicial discretion when considering the matters in s.1(3) CA. Against a background of
past domestic violence, a court should look for evidence of recognition by the father
of the extent to which violence amounted to a failure in parenting. It should also look
for any damage the violence could cause to children who witnessed it and an
acknowledgement from the father that there was a need to change and that he would
make genuine attempts to do so. The nature of the relationship the father had with
the child should also be considered. It may be that indirect contact is appropriate (see
Re F (Indirect Contact) EWCA Civ 1426).
On a wider issue, Thorpe LJ counselled caution against both a ‘right’ and a
‘presumption’ of contact. The identification of a presumption inhibits or distorts ‘the
rigorous search for the welfare solution’. ‘Assumption’ more accurately reflects the
base of knowledge and experience which the court embarks upon in its application
of the welfare principle and the welfare checklist. Contact orders may maintain an
existing relationship, may restart a relationship which had ended or may begin one
that had never existed. It would be wrong to apply one strong presumption in all
of those situations. Re L clearly moves away from any ‘automatic’ granting of direct
contact.
Prohibiting contact may take the form of a contact order. See Nottingham CC v P [1994]
Fam 18 (CA). It may also take the form of a prohibited steps order (see below). See Re H
(Prohibited Steps Order) [1995] 1 PLR 638 (CA).
Interim contact orders are also available. See Re D (Contact; Interim Order) [1995] 1 FLR
495.
There is a strong presumption that maintaining contact between both parents and
children is in the best interest of the child. See Re W (A Minor) (Contact) [1994] 2 FLR
441, in which the Court of Appeal made clear that the mother had no right to deny the
child contact with his father and the Court could not be put in a position where it was
told that its orders would not be obeyed.
Compare Re M (Contact; Welfare Test) [1995] 2 FLR 274, in which the Court of Appeal
dismissed an appeal from a mother against an order refusing her contact with her two
children. There was evidence that the children would suffer distress and insecurity
through contact with her and, although there was a strong presumption in favour of
contact, each case had to be judged on its own merits.
There has been much negative publicity in recent years about the enforcement of
contact orders. These concerns should be resolved when the Children and Adoption
Act 2006 is fully in force. Part I of the Act aims to provide the courts with new powers
to facilitate contact and underpin contact orders.
Activity 12.2
If the courts decide contact between a child and its parent is not desirable, as the
parent is known to be violent, or feasible, as the parent is in prison, do the courts
deny contact altogether?
Prohibited steps order
‘An order that no step which could be taken by a parent in meeting his parental
responsibility for a child, and which is of a kind specified in the order shall be taken by any
person without the consent of the court.’ (s.8 CA)
The order may only relate to action which could be taken by a parent in meeting his
or her responsibilities. Thus, it cannot be used to prevent one parent contacting the
other. See Croydon London Borough v A [1992] 1 PCR 522. The making of a care order
discharges the order (s.91(2)).

The Family Law Advisory
Board’s report on parental
contact where there is
domestic violence can be
found at: www.dca.gov.uk/
family/abfla/mcwrep.htm
For an excellent discussion of
these issues, see Kaganas, F.
and Day Schlater, S. ‘Contact
and domestic violence – the
winds of change’ Fam Law
(2000) 630.
page 196 University of London External System
Activity 12.3
What sort of issues may be decided by the use of a prohibited steps order?
Specific issue order
A specific issue order is:
‘an order giving directions for the purpose of determining a specific question which has
arisen, or may arise, in connection with any aspect of parental responsibility for a child.’
(s.8 CA)
A specific issue order:
u allows the court to resolve disputes about particular matters, such as medical
treatment or education, which, in the past, have been dealt with in the wardship
jurisdiction
u must relate to an aspect of parental responsibility and cannot be used to protect
one parent from being assaulted by the other; see M v M (Residence Order: Ancillary
Jurisdiction) [1994] Fam Law 440
u cannot be used to compel a local authority to provide support services (see Re J
(Specific Issue Order: Leave to Apply) [1995] 1 FLR 669)
u cannot be used to oust an adult (see Pearson v Franklin [1994] 2 All ER 137: this
decision was referred to again in Re D [1996] 2 FLR 273 and Re J (Specific Issue Order:
Circumcision) [1999] 2 FLR 678).
Strongly held beliefs by the parents will not prevent a specific issues order being
granted. See Re C [1999] BMLR 283 and Re B; Re C (Immunisation) [2003] 2 FCR 156.
Choice of school can be the subject of such an order: Re A (Children) (Specific Issue Order:
Parental Dispute) [2001] 1 FLR 121; Re W (Children) (Education: Choice of School) [2002]
EWCA Civ 1411 and M v M (Specific Issue: Choice of School) [2005] EWHC 2769.
If a dispute arises between parents as to whether a child will be allowed to leave the
country for a holiday or to visit relatives then the destination will prove crucial. If it is
outside the UK then the court will usually be consulted to resolve the dispute (see Re N
(Leave to Remove: Holiday) [2006] EWCA Civ 357). If it is within the UK then the courts do
not need to be consulted (see Re B (Prohibited Steps Order) [2007] EWCA Civ 1055.
Activity 12.4
Imogen has recently discovered she has a rare blood disorder and wants her
newborn child Maria tested for the same disorder but the father, Tristram, refuses.
Meanwhile Tristram wants their eldest son Jonty to attend a boarding school but
Imogen, on discovering she was ill, does not want this to happen. What orders can
Imogen seek from the court to resolve these familial disputes?
Summary
In order to resolve disputes about a child’s upbringing, the courts have a variety of
private orders at their disposal under the CA. Since 2000 these orders must be granted
mindful of the HRA. These orders are termed section 8 orders and cover residence,
contact, specific issues and prohibited steps.
Family Law 12 The court’s powers in family proceedings page 197
12.2 Restrictions on orders
12.2.1 Restrictions under s.9 CA
Section 9 CA contains various restrictions on the making of s.8 orders.
u No court may make any s.8 order, except a residence order, where the child is in
care (s.9(1)). If a residence order is made with respect to such a child, care ends
(s.91(1)).
u No local authority may make an application for a residence or contact order and no
court shall make such an order in favour of a local authority (s.9(2)).
u No court shall exercise its powers to make a specific issue or prohibited steps order
with a view to achieving a result which could be achieved by making a residence or
contact order (s.9(5)).
These provisions don’t allow review of the exercise of the local authority’s discretion
with respect to children in its care by s.8 orders. They also stop the local authority
circumventing the policy of the Act (which is to debar it from taking a child into care
unless ‘significant harm’ within s.31(1) is proven) by seeking, for example, a specific
issue or prohibited steps order. Restrictions are not confined to the local authority,
however, and preclude anyone from seeking to use single issue orders to achieve what
can be achieved by residence and contact orders. See, for example Re S and D (Children:
Powers of Court) [1995] 2 FLR 456: the decision by a judge in care proceedings to make
supervision orders, together with an order restraining the mother from removing the
children from their homes with foster parents, was held to amount in substance to a
prohibited steps order in contravention of s.9 CA.
Finally, courts are precluded from making any s.8 orders with respect to children
over the age of 16 or which will last beyond a child’s sixteenth birthday, unless the
circumstances are exceptional (s.9(6)(7)CA ).
These exceptional circumstances arise where someone over 16 has learning difficulties
or they are deemed by the courts to be immature. This provision of the CA has now
been amended in the case of a residence order under s.114 of the Adoption and
Children Act 2002. The provision is not yet in force and it is not clear when it will be,
but it will allow courts to routinely make extended residence orders until the child
reaches 18.
12.2.2 Conditions and directions
CA s.8 orders may contain directions about how they are to be carried into effect. They
impose conditions which must be complied with by any person:
u in whose favour the order is made
u who is a parent of the child concerned
u who is not a parent of the child but who has responsibility for the child or with
whom the child is living and to whom the conditions are expressed to apply
(s.11(7)): see Leeds CC v C [1992] 1 FLR 269 and Nottingham CC v P [1993] 2 WLR 406.
The court can accept undertakings rather than imposing conditions: see Re R (A Minor)
(Residence: Religion) [1993] 2 FLR 163.
Section 11(7) gives the court wide and comprehensive powers to make orders and set
conditions which effectively ensure contact between the child and a non-residential
parent: see Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124 (CA).
However, there is no power under s.11(7) to impose conditions upon those not referred
to in s.11(7)(b): see Leeds CC v C [1993] I FLR 269 and Nottingham CC v P [1993] 3 All ER 815.
page 198 University of London External System
Family assistance orders
CA s.16 empowers a court to make a family assistance order in any family proceedings
under Part II of the Act. Such an order, which may be made whether or not the court
makes any other order, requires a probation officer to be made available (or a local
authority to make an officer of the authority available) to advise, assist and, where
appropriate, befriend any person named in the order. Persons who may be named in a
family assistance order are:
u the parent or guardian of the child
u any person with whom the child is living or in whose favour a contact order is in
force with respect to the child
u the child himself or herself.
Such orders may only be made where the circumstances of the case are exceptional
and every person to be named in the order, other than the child, has consented. Such
orders last for six months or less.
12.2.3 When orders may be made
CA s.10 provides that the court has power to make s.8 orders in:
‘…any family proceedings in which a question arises with respect to the welfare of any
child…
1 if an application for the order has been made by a person who is entitled to apply
for a section 8 order with respect to the child or who has obtained the leave of the
court to make the application
2 [if] the court considers that the order should be made even though no such
application has been made.’
Section 10(2) goes on to provide that a s.8 order may also be made by the court on the
application of a person who is entitled to apply for a s.8 order with respect to the child
or who has obtained the leave of the court to make the application.
Family proceedings are defined in s.8 as follows.
s.8(3)(a) Proceedings under the inherent jurisdiction (i.e. wardship).
s.8(4)(a) Proceedings under Part I of CA (i.e. s.4 parental responsibility orders;
s.5: guardianship).
s.8(4)(a) Proceedings under Part II of CA (i.e. free-standing applications for s.8 orders
(s.10(1)(2)); applications for leave to apply for s.8 orders (s.10(2)(b)); applications for
financial relief under Schedule 1.)
s.8(4)(a) Proceedings under Part IV of the CA (i.e. care and supervision proceedings
(see s.31); contact with children in care (s.34); education supervision orders (s.36)).
s.8(4)(b) Proceedings under the MCA or s.72 CPA 2004 (i.e. divorce, nullity, dissolution
and judicial separation; applications for financial relief following divorce, etc., or in
cases of neglect to maintain). Note that s.8 orders may be made even though the child
is not a ‘child of the family’ within s.52 of the MCA.
s.8(4)(d) Proceedings under the Adoption and Children Act 2002. (In these
proceedings the court is able to grant a residence order rather than an adoption
order. The decision whether to grant the adoption or residence order will be for the
court to make, applying s.1(2) ACA. The court is able to make a contact order instead of
including access conditions in the adoption order.)
s.8(4)(e) Proceedings under the DPMCA (i.e. proceedings for financial relief;
proceedings for injunctions in the case of domestic violence. The court is able to
determine where the child lives and what contact he or she can have with the
excluded person. Section 8 orders may be made even thought the child is not a ‘child
of the family’ within s.88(1) DPMCA.) This has been amended to include civil partners
under s.26(1) CPA 2004.
Family Law 12 The court’s powers in family proceedings page 199
s.8(4)(g) Proceedings under Part III of the Matrimonial and Family Proceedings Act,
1984 (i.e. proceedings for financial relief after overseas divorce).
s.8(4)(h) Proceedings under the Family Law Act 1996
s.8(4)(i) Proceedings under the Crime and Disorder Act 1998
s.30(1) and (8) HFEA Proceedings under s.30 Human Fertilisation and Embryology Act
1990.
12.3 Who may apply for orders?
Section 8 orders may be made upon application or by the court acting on its own
motion. Section 10 provides the scheme of those who may apply.
u Parents (including a putative father), guardians and those with a residence order
are entitled to apply for any s.8 order as of right (s.10(4)).
u Parties to a marriage – whether or not it is subsisting – in relation to which the
child is a ‘child of the family’ (s.10(5)); persons with whom the child has lived for
a period of at least three years (this need not be continuous, but must not have
begun more than five years before the making of the application – s.10(10)) and
those with the consent of the persons in whose favour a residence order is in force;
the local authority, if the child is in local authority care or each of those who have
parental responsibility for the child, are entitled to apply for a residence or contact
order as of right (s.10(5)). Section 77 CPA 2004 extended s.10(5) to include a civil
partner.
u Those not included in 1 and 2 are entitled to apply for a variation or discharge of
a s.8 order if the order in question was made on his or her application or, in the
case of a contact order, he or she is named in that order. Additional categories of
persons who may apply for orders without leave may be prescribed by the rules
(see s.10(7)).
u All others, including the child, may apply for leave of the court to apply for any
s.8 order. (See s.10(1)(a)(ii).) Where, however, a person is, or has been at any time
during the last six months, a local authority foster parent of the child, he or she
may not apply for leave unless he or she:
u has the consent of the authority
u is a relative of the child or
u the child has lived with him or her for at least three years preceding the
application (s.9(3), (4)).
It is possible for the authority to waive the requirement of living with for three years.
See Re A and W (Minors) (Residence Order: Leave to Apply) [1992] 3 All ER 872.
Any application for leave to apply for an s.8 order, except where it is made by the child,
is decided in accordance with s.10(9). The court must have particular regard to the
nature of the proposed application, the applicant’s connection with the child, any risk
there might be of the proposed application disrupting the child’s life to such an extent
that the child may be harmed by it and, in those cases where the child is being looked
after by the local authority, the authority’s plans for the child’s future and the wishes
and feelings of the child’s parents. Welfare is not the test where leave is concerned,
but is the test which governs the main application. See Re A and W (Minors) (Residence
Order: Leave to Apply) [1992] 3 All ER 872; Re M [1995] 2 FLR 86 and Re J (Grandmother:
contact) [2003] 1 FLR 114.
There is no requirement in a section 10(9) leave application that the court should carry
out a review of future prospects of substantive issue. Re M was decided before Articles
6 and 8 of the ECHR, right to a fair trial and right to respect for family life. See also Re E
[1995] 1 FLR 57; Re S (Adopted Child: Contact) [1999] 1 All ER 648; Re H [2000] 1 FLR 780.
page 200 University of London External System
The potential for discrimination in granting leave was evident in G v F [1999] 2 FLR 799
but was not founded. This was clearly not the view adopted in Mouta v Portugal, ECHR
22/12/99, where the judgment of the Lisbon Court of Appeal was held to be in breach
of Articles 8 and 14 when it refused to grant parental responsibility to a homosexual
father on the basis that homosexuality ‘was an abnormality and children must not
grow up in the shadow of abnormal situations’.
The child himself or herself is entitled to apply for s.8 orders. See, for example, Re AD (A
Minor) [1993] Fam Law 43.
The child, however, requires leave, which will be granted only where the court is
satisfied that the child has sufficient understanding to make the proposed application
(s.10(8)).
Note that local authorities may not circumvent the requirements of Part IV of the CA
(care proceedings) by attempting to use s.8 orders.

See Nottinghamshire CC v P [1993] 3
All ER 815 (CA) and F v Cambridgeshire CC [1995] 1 FLR 516.
Activity 12.5
Place a cross in the relevant box as to whether the person applying has an automatic
right to apply or requires leave to apply.
Who is applying? Automatic right to apply? Requires leave to apply?
Mother
Child
Father
Guardian
Local authority foster parent
Self-assessment questions
1. Under what circumstances will the court deny contact between a parent and
child?
2. Which issues may be decided by a specific issue order? Which may not?
3. What sort of issues may be decided by the use of a prohibited steps order?
4. Who may apply for a family assistance order?
5. What details of contact may be given in a contact order?
6. What should a court look for before granting contact to a father who has been
guilty of domestic violence in the past?
7. What are the different types of ‘section 8 orders’?
8. Under what circumstances will the court make a residence order in favour of
more than one person?
9. What limitations are placed on local authorities in using s.8 orders?
Summary
These s.8 orders are subject to certain restrictions. If a child is in the care of a local
authority, a s.8 order cannot be made. This is to prevent any review of the exercise
of the local authority’s discretion over the upbringing of the child. The order can be
made subject to certain conditions and directions and orders can only be made in
the course of family proceedings. The list of people able to apply for a s.8 order is
exhaustive, but bear in mind who has an automatic right to apply and those who must
apply for leave, or permission, to apply for the orders.

The local authorities’
attempts to use the s.8 order
were a result of there often
being no other means by
which to protect children
from violent adults, other
than taking the children
into care. Note that the
FLA amends the CA to
include the power, under
defined circumstances, to
oust a violent adult, upon
the granting of an interim
care order and emergency
protection order (s.52), and
that the defect in the law has
been remedied.
Family Law 12 The court’s powers in family proceedings page 201
Useful further reading
¢ Bainham, A. ‘Can we protect children and protect their rights?’ Fam Law (2002)
279.
¢ Clucas, B. and K. O’Donnell ‘Conjoined twins: the cutting edge’, Web Journal of
Current Legal Issues (2002) 5.
¢ Collier, R. ‘Fathers 4 Justice; law and the new politics of fatherhood’ [2005] CFLQ
511.
¢ Eekelaar, J. ‘The interests of the child and the child’s wishes’ 8 IJLF (1994) 42.
¢ Gilmore, S. ‘Court decision making in shared residence order cases: a critical
examination’ [2006] CFLQ, 478.
¢ Kaganas, F. and S. Day Schlater ‘Contact and domestic violence – the winds of
change’ Fam Law (2000) 630.
¢ Kaganas, F. and A. Diduck ‘Incomplete citizens: changing images of post-
separation children’ (2004) 67(6) MLR 959.
¢ Levy, A. ‘Do children have human rights?’ Fam Law (2002) 204.
¢ Smith, L. ‘Principle of pragmatism? Lesbian parenting, shared residence and
parental responsibility after Re G (Residence: Same-Sex Partner)’ CFLQ, 18(1),
(2006), 125.
¢ Standley, K. ‘Children and lesbian mothers: B v B and C v C’ Journal of Child Law
(1992) June, 134.
¢ Waite, I. and H. Stead ‘A paramount conflict? Do adults’ rights have precedence
over children’s needs in private law?’ Fam Law (2002) 852.
Sample examination question
Quentin and Rosemary married in 1993 and have two children, Sylvia, now aged 15,
and Timothy, aged 5. In 2004, Rosemary left Quentin to live in a lesbian relationship
with Ursula. She took the children with her but, thinking that their presence was
inhibiting the development of her new relationship, she placed them in the care of
neighbours, Mr and Mrs Perfect, who provided a comfortable home for the children.
In January 2008 Rosemary asked for the return of her children but Mr and Mrs
Perfect, who consider that they can provide a more stable home for the children,
refused her request. They also refused to allow Quentin to see the children.
Sylvia has become pregnant by her boyfriend and, since she does not want to have
the baby, Mr and Mrs Perfect have arranged for her to have an abortion. Quentin,
Rosemary and Sylvia’s boyfriend strongly object, on moral grounds, to Sylvia having
an abortion.
a. What procedures must Rosemary invoke if she wants her children returned to
her? Is she likely to be successful?
b. What procedures must Quentin invoke if he wishes to see his children? Is he
likely to be successful?
c. How would the disagreement about Sylvia’s abortion be resolved?
Advice on answering the question
a. Rosemary would be wise to apply for a residence order under s.8 CA. Such orders
are usually made in favour of one of the child’s parents. As a parent Rosemary has
an automatic right to apply without seeking leave. It is important to remember
that in granting such an order the courts would have to consider the children’s
welfare as their paramount concern under s.1(1) CA. The courts must consider
the welfare checklist under s.1(3) and there should be no delay under s.1(2). The
courts may consider that there doesn’t need to be an order (s.1(5)). As to whether
Rosemary will be successful, the factors in her favour are that she is a natural
parent and she is the children’s mother. There is also evidence to suggest that
page 202 University of London External System
there is a presumption that siblings should reside together. The mother’s sexual
orientation has, however, been used in other cases to deny residence. See C v C (A
Minor) (Custody: Appeal) [1991] 1 FLR 223 and B v B (Minors) (Custody: Care and Control)
[1991] 1 FLR 402. It will be for the courts to decide on the facts, mindful of the
existing legislation and the Human Rights Act 1998. Consideration of the current
judicial approach to contact/residence in these types of cases can be found in Re G
(2006).
b. Quentin would be wise to apply for a contact order under s.8 CA. Contact between
children and their natural parents is usually encouraged and certainly the courts
would not approve of the contact being blocked by Mr and Mrs Perfect. As a parent
Quentin has an automatic right to apply without seeking leave. It is important to
remember that in granting such an order the courts would have to consider the
children’s welfare as their paramount concern s.1(1) CA. The courts must consider
the welfare checklist under s.1(3) and there should be no delay under s.1(2). The
courts may consider there need be no order under s.1(5). As a natural parent
Quentin is unlikely, on these facts, to be denied contact. It will be for the courts to
decide on the facts mindful of the existing legislation and the Human Rights Act
1998.
c. The disagreement about Sylvia’s abortion could be resolved by either Quentin or
Rosemary applying for a s.8 order under the CA. They may find a specific issue order
is necessary, as the question of the child’s abortion is a specific question which has
arisen. As the dispute is not between the parents, it may be useful to look at Re R
(A Minor) (Blood Transfusion) [1993] 2 FLR 757. It is important to remember that in
granting such an order, the courts would have to consider Sylvia’s welfare as their
paramount concern (s.1(1) CA). The courts must consider the welfare checklist
under s.1(3) and there should be no delay under s.1(2). The courts may consider
that there doesn’t need to be an order (s.1(5)). While it may appear appropriate to
seek a prohibited steps order to prevent the abortion, it is important to remember
that such an order is to ‘provide that no step which could be taken by a parent
in meeting his parental responsibility for a child… shall be taken by any person
without consent of the court’. Mr and Mrs Perfect do not appear to have parental
responsibility and so cannot be prevented from seeking an abortion for Sylvia. Such
an order would be more useful if the parents were in dispute over the abortion. As
they are not, then the specific issues order is more relevant.
Family Law 12 The court’s powers in family proceedings page 203
Reflect and review
Look through the points listed below:
Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on
Need to
revise first
Need to
study again
I can state the meaning and scope of residence
orders; contact orders; specific issue orders and
prohibited steps orders.


¢


¢


¢
I can explain who is entitled as of right to apply for
these orders and who must seek leave of the court to
apply for these orders.


¢


¢


¢
I can list the orders which local authorities may, and
may not, apply for.

¢

¢

¢
I can describe the manner in which the court reaches
decisions.

¢

¢

¢
I can outline the extent to which the court will
consider the child’s wishes.

¢

¢

¢
If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
12.1 Orders available ¢ ¢
12.2 Restrictions on orders ¢ ¢
12.3 Who may apply for orders? ¢ ¢
page 204 University of London External System
Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
13.1 Philosophy of the Children Act . . . . . . . . . . . . . . . . . . . . . . 207
13.2 Local authority duties to children looked after by them . . . . . . . . . 210
13.3 Orders available . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
13.4 The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . 219
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
13 Children and local authorities
page 206 University of London External System
Introduction
Local authorities have a number of duties and powers towards children in need in their local
area. These duties and powers are now contained in the CA, which represented a major
review and reform of the law. The role of the law here is to engage in child protection but
this is no easy task. Herring (2007, pp.551–553) identifies four main concerns for the law in
this area.
First, there are the evidential concerns. In care cases Lord Nicholls identifies the task of the
judge having to ‘penetrate the fog of denials, evasions, lies and half truths which all too
often descends’. Professionals simply do not know the facts of what takes place within the
family home and so must use their judgment – no easy task. This can prove particularly
difficult if it would appear that the parents are also vulnerable (see Re L (Care Proceedings:
Significant Harm) [2006] EWCA Civ 1282).
Secondly, there is the concern as to how much a child should suffer before he or she
becomes eligible for protection by the state. If a child lives in a dirty house and has an
unhealthy diet, does this demand intervention? Some would say this is not serious enough.
Others would argue the state has a duty to intervene immediately.
Thirdly, even where protection is required because abuse has been proven, it is not clear
as to the response the law should take. Although it may be important to remove the child
from an abusive family, it must be asked if it is then appropriate to house them in local
authority care homes. Due to recent concern as to the provision of care in such homes,
it has been suggested that harm is heaped upon harm when children are placed in a
children’s home.
Finally, there is the key issue of financial resources. While the CA ensures that certain
services can be put in place to prevent significant harm to a child, these can only be
supported if the financial resources are made available to utilise these services. Responding
to a child’s needs is important to protect them, but very often local authorities have to
balance this with their powers and duties to other children. Resources are, after all, finite.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
u list the duties imposed on local authorities relating to children in need
u describe the range of services and assistance which a local authority may provide
u define the concept of voluntary accommodation
u state the meaning of ‘significant harm’
u explain the relationship between the threshold criteria and the basis for a care or
supervision order
u explain the differences between a care and a supervision order
u answer the question of who has parental responsibility for a child in care
u outline the extent to which local authorities may control contact between children
and their families
u outline the extent to which local authorities may, and may not, regulate the exercise
of a parent’s responsibility
u describe the rules relating to emergency protection of children
u explain the distinction between child assessment orders and emergency protection
orders
u consider what areas of controversy have been affected by the HRA.
Essential reading
¢ Herring, Chapter 10, pp.551–556; Chapter 11, pp.605–634.
¢ Masson et al., Chapter 21, pp.707–816.
¢ Probert, Chapter 13, pp.261–295.
¢ Standley, Chapter 15, pp.382–432.
Family Law 13 Children and local authorities page 207
13.1 Philosophy of the Children Act
13.1.1 The four key principles
There are four key principles that inform the public law relating to children and which
are manifested in the Act.
1. Non-intervention
According to Lord Mackay:
‘...the integrity and independence of the family is the basic building block of a free and
democratic society and the need to defend it should be clearly perceivable in the law.
Accordingly, unless there is evidence that a child is being or is likely to be positively
harmed because of a failure in the family, the state, whether in the guise of a local
authority or a court, should not intervene.’ (Joseph Jackson Memorial Lecture (1989) NLJ
505, 507)
Accordingly, compulsory measures can only be taken following a court order and
such an order may not be made unless the threshold in s.31(2) CA is established. It is
no longer possible for local authorities to bypass the statutory threshold by resorting
to wardship and no court may commit a child into the care of a local authority in
the absence of a formal application by the authority or the National Society for the
Prevention of Cruelty to Children (NSPCC). If a court in family proceedings is concerned
about the welfare of the child and is of the view that it might be appropriate for a care
or supervision order to be made with respect to him or her, it is limited to ordering a
local authority to investigate and report back (s.37 CA).
2. Support for families in difficulty
The Children Act tries to provide the necessary support for families who find
themselves in need of support.
3. Partnership between local authorities and parents
‘One of the key principles of the Children Act is that responsible authorities should work
in partnership with the parents of the child who is being looked after and also with the
child himself, where he is of sufficient understanding, provided that this approach will
not jeopardise his welfare. A second, closely related principle is that parents and children
should participate actively in the decision-making process… This new approach reflects
the fact that parents always retain their parental responsibility. A local authority may limit
parents’ exercise of that responsibility when a child is looked after by a local authority as
a result of a court order, but only if it is necessary to do so to safeguard and promote the
child’s welfare…’ (Department of Health, Guidance, Vol. 3, Family Placements, paragraphs
2.10 and 2.11)
4. Maintenance of links between the child and the family
Even when a child has been housed by the local authority, the local authority will,
where appropriate, be keen for the child to maintain links with their family in the hope
that either reconciliation can take place or the family can still play a positive part in
the child’s life.
These four key principles will now have to be considered alongside the Children Act
2004. This legislation creates clear accountability for children’s services, enables
better joint working and secures a better focus for safeguarding children.
The CA 2004 was largely developed in response to the tragic case of Victoria Climbié
and the Inquiry Report which followed. The Act also created the post of Children’s
Commissioner for England whose role it is to promote the full implementation of the
United Nations Convention on the Rights of the Child. There are now, through other
legislation, Children’s Commissioners for Scotland, Wales and Northern Ireland. It is
important for you to remember that the CA 2004 does NOT overrule the CA 1989 but it
does supplement it.
page 208 University of London External System
13.1.2 Local authority support for children and families
The general duty
CA s.17 sets out the general duty of the local authority as consisting of a two-fold
obligation:
‘a. to safeguard and promote the welfare of children within their area who are in
need; and
b. so far as is consistent with that duty, to promote the upbringing of such children
by their families, by providing a range and level of services appropriate to those
children’s needs.’
It is to be noted that this duty is confined to children in ‘need’. Section 17(10) defines
children to be in need if:
u they are unlikely to achieve or maintain, or to have the opportunity of achieving
or maintaining, a reasonable standard of health or development without the
provision of services by a local authority under this Part
u their health or development is likely to be significantly impaired, or further
impaired, without the provision of such services
u they are disabled.
For the purposes of the provision children are considered to be ‘disabled’ if they are
‘blind, deaf or dumb or suffer from mental disorder of any kind or [are] substantially
and permanently handicapped by illness, injury or congenital deformity or such other
disability as may be prescribed’. ‘Development’ means ‘physical, intellectual, social or
behavioural development’ and ‘health’ means ‘physical or mental health’ (s.17(1)).
Schedule 2, Part I expands s.17 by specifying the action local authorities must take to
identify children in need and discharge their general duty. Additionally, s.17(5) imposes
a duty on the local authority to facilitate the provision of services by others (it may
delegate provision to others). Services may include the giving of assistance in kind or,
exceptionally, in cash (s.17(6)). Assistance may be given subject to conditions (s.17(7))
and must be means tested (s.17(8)), while no repayments may be required from
persons in receipt of certain social security benefits (s.17(9)).
Note that a specific issue order cannot be used to require local authorities to exercise
their duties under this Part of the Act. See Re J (A Minor) (Specific Issue Order) (Leave to
Apply) [1995] 1 FLR 669.
Historically where a local authority failed to comply with its statutory duties under the
Act, it was unlikely that a cause of action would lie for breach of statutory duty or an
action in negligence in respect of an alleged failure (see TP and KM v UK [2001] 2 FLR 549
and U v Bedfordshire CC [1995] 3 All ER 353 (HL)). In recent years the courts have shown a
greater willingness to permit recovery under the civil law, although they are mindful of
the inherent problem of opening the floodgates to excessive claims which would lead
to defensive local authority practice.
It is important to note that the provisions of s.17 concern local authorities’ powers in
respect of, and duties to, children in need rather than the courts’ powers. However,
in the case of Re C’s Application for Judicial Review [1999] EWHC Admin 771 (30th July,
1999) a local authority’s decision – that a severely disabled child’s needs could be met
simply by adapting his present accommodation rather than rehousing him, his mother
and his brother – was subject to judicial review on the grounds that, in reaching its
decision, the authority had neither asked the right questions nor taken reasonable
steps to obtain sufficient information to reach a reasonable decision.
Family Law 13 Children and local authorities page 209
Accommodating children in need
The provisions within the CA relating to the accommodation of children in need
replace what was formerly known as ‘voluntary care’. Accommodation has the same
status as other services provided within Part III of the Act and is thus truly voluntary,
dependent on the willingness of the family to accept it. It is regulated by s.20(1).
Every local authority shall provide accommodation for all children within their area
who appear to them to require accommodation as a result of:
u there being no person with parental responsibility for them
u being lost or having been abandoned
u the person who has been caring for them being prevented (whether or not
permanently and for whatever reason) from providing them with suitable
accommodation or care.
The duty applies to all children under the age of 18, although s.20(3) appears to limit
the duty where the child has reached 16 to any child who the authority considers ‘is
likely to be seriously prejudiced if they do not provide him with accommodation’.
Local authorities are invested with the power to provide accommodation for any child
or young person who has not reached the age of 21 if they consider that to do so would
safeguard or promote the child’s welfare (see s.20(4) and (5)). Should they decide not
to accommodate under s.20 that decision is susceptible to judicial review. See Re T
[1995] 1 FLR 159, R v Tameside Metropolitan Borough Council, ex p J [2000] 1 FCR 173 and R
(on the application of G) v London Borough of Barnet [2001] 2 FLR 877.
It remains the case, however, that s.17 CA gives the local authority the power to assist
the family with the provision of accommodation, but the exercise of that power is a
matter of discretion (see R v Lambeth RBC [2002] 2 FLR 327).
Before accommodation is provided under this section, the local authority must, so far
as is practicable and consistent with the child’s welfare, ascertain the child’s wishes
and feelings about this and give due consideration to them (s.20(6)).
Provision of accommodation within the section is truly voluntary, which precludes
the local authority from providing accommodation for a child under 16 if any person
with parental responsibility, who is willing and able to provide accommodation for
them, objects. This is reinforced by s.20(8) which states that any person with parental
responsibility may remove a child under 16 years at any time. If there is a residence
order or an order giving care and control under the inherent jurisdiction of the court,
these decisions can only be made by a person in whose favour the order was made
(s.20(9)). If the order was made in favour of more than one person, all must agree
(s.20(10)), while children aged 16 or above may themselves decide about going in, or
remaining in, local authority accommodation (s.20(11)).
Local authorities and parents usually reach agreements about the terms of the
child’s accommodation. Such agreements are governed by the Arrangements for
Placement of Children (General) Regulations 1991 (SI 1991, No.890), which indicates
that agreements are to be made in writing between the authority and a person with
parental responsibility or, in the event of there being no such person, the child’s carer
or, where the child is over 16, the child. Various matters, set out in Schedules 1–3 of the
Regulations, must be included in the agreement.
Summary
There are four principles in the CA, which must be considered in the area of child
protection. These are non-intervention, support for families in difficulty, partnership
between local authorities and parents and maintenance of links between the child
and the family. There must also be, in accordance with the CA 2004, a greater emphasis
on joint working to ensure relevant agencies share information relevant to vulnerable
children. The local authority has a general statutory duty to support children and their
families and can, if necessary, accommodate children in need.
page 210 University of London External System
13.2 Local authority duties to children looked after by them
13.2.1 General duty
The general duty of local authorities to children looked after by them is set out in s.22
CA. This general duty pertains to all children looked after by authorities, both those
accommodated by them, if such accommodation exceeds 24 hours (s.22(2)), and those
who are looked after by them in pursuance of a care order. CA s.22(3) provides:
‘it shall be the duty of the local authority looking after any child:
a. to safeguard and promote his welfare and
b. to make use of such services available for children cared for by their own parents as
appears to the authority reasonable in his or her case.’
The authority must, before making any decision with respect to any children they are
looking after, so far as reasonably practicable, ascertain the wishes and feelings of:
u the child
u the child’s parents
u any person who is not the child’s parent, but has parental responsibility
u any other relevant individual (s.22(4)).
Considerations
Decisions must be made in the light of:
u the child’s age, understanding, wishes and feelings (so far as ascertainable)
u the wishes and feelings of the child’s parents, those with parental responsibility
with respect to the child and any other relevant individual; and
u the child’s religious persuasion, racial origin and cultural and linguistic background
(s.22(5)).
It is to be noted that for the purposes of s.22 a ‘parent’ includes a putative father
without parental responsibility, but not the biological parent of a child who is freed for
adoption. See M v C and Calderdale BC [1992] 2 FCR 141.
Other relevant individuals whose wishes may be material within s.22(4) and (5) might
include the child’s GP, the local authority in the area wherein the child is to be placed,
the district health authority, the local education authority, the child’s school, the
extended family, the guardian ad litem,

a worker in a voluntary agency concerned with
the child, former foster parents, the officer in charge of a residential home, a teacher
who has been involved with the child or a community leader (see Department of
Health Guidance, Vol. 3, paragraph 2.51).
It is to be noted that s.23, which imposes a duty on local authorities to provide
accommodation and to maintain children they are looking after, adds four specific,
but qualified, duties which underscore the general duty to consider rehabilitation
with the child’s family. Thus s.23(6) provides that, unless to do so would not be
reasonably practicable or consistent with the child’s welfare, the authority should
make arrangements for the child to live with his or her family. In any event the child
should be accommodated near his or her family home and in the company of his or
her siblings (s.23(7)). Where the child is disabled the authority is obliged to ensure that
accommodation is ‘not unsuitable to his needs’ (s.23(8)).

Ad litem (Latin) = ‘for
the purposes of the case’
meaning someone appointed
by the court for this purpose.
Now generally known as a
‘children’s guardian’.
Family Law 13 Children and local authorities page 211
13.2.2 Care and supervision
Grounds
The only way by which compulsory measures of care and supervision can be imposed
on children is by virtue of care proceedings, the grounds for which are to be found
in s.31(2) CA. This differs from the pre-Children Act 1989 law, where children could
come into care following parental rights resolutions, in the course of matrimonial
and other proceedings and wardship. Local authorities are now precluded by s.100
from obtaining care or any equivalent powers in wardship and through orders by
s.9. In other words, there is no ‘safety net’ of using wardship proceedings and vesting
these decisions in the court rather than the CA, as now children can and will only be
protected by an order if the preconditions in s.31(2) are satisfied.
Applications for care and supervision orders may be made by any local authority or
authorised person (s.31(1)), either on their own or in any other family proceedings
(s.31(4)). The court may not require a local authority to take proceedings and
cannot make an order under s.31 unless the authority has made an application. See
Nottingham CC v P [1993] 3 All ER 815 (CA) and Re A (Care: Asylum seekers) [2003] 2 FLR 921.
The care order can also only be made once the court is satisfied that the conditions
under s.31 have been met. Even where the parties to the proceedings agree to
the making of an order, the court must still be satisfied. See Re G (A Minor) (Care
Proceedings) [1994] 2 FLR 69.
Such orders may not be made with respect to any child who has reached the age of 16
or 17 or if the child is married (s.31(3)).
Section 31(2) provides that:
‘A court may only make a care or supervision order if it is satisfied:
a. that the child concerned is suffering, or likely to suffer, significant harm, and
b. that the harm, or likelihood of harm, is attributable to:
i. the care given to the child, or likely to be given to him if the order were not made,
not being what it would be reasonable to expect a parent to give to him; or
ii. the child’s being beyond parental control.’
Once the threshold test has been satisfied, the court must also apply the welfare
test using the checklist (s.1(3)) and may only make an order if it considers that doing
so would be better than making no order at all (s.1(5)). For an illustration of the
interrelationship between the threshold test and welfare, see Humberside CC v B [1993]
1 FLR 257 and Re FS [1996] 2 FLR 158.
Section 31(2) requires the establishment of two elements. That:
u the child is suffering significant harm
u the harm must be attributable to the care given or likely to be given not being
what a reasonable parent would give to the child or because the child is beyond
parental control.
‘Harm’ (s.31(9))
u ‘Harm’ means ‘ill-treatment or impairment of health or development’.
u ‘Development’ means ‘physical, intellectual, emotional, social or behavioural
development’.
u ‘Health’ means ‘physical or mental health’.
u ‘Ill-treatment’ includes sexual abuse and forms of ill-treatment that are not
physical’.
page 212 University of London External System
Lord Mackay LC said:
‘Ill-treatment is not a precise term and would include, for example, instances of verbal
abuse or unfairness falling a long way short of significant harm.’ (Hansard HL Vol. 503,
col. 354)
Issues that may prove problematic here are sexual abuse, which is an imprecise
concept (see, for example C v C [1988] 1 FLR 462), and corporal punishment, where
it is possible for parents to argue that the child’s treatment is appropriate. See R v
Derriviere [1969] 53 Cr App Rep 637 and Re H [1987] 2 FLR 12.
‘Significant’ harm
Where cases of health and development are concerned, but not cases of ill-treatment,
s.31(10) explains ‘significant’

by reference to what ‘could reasonably be expected’ of a
‘similar child’. According to Lord Mackay LC (Hansard HL Vol. 503 col. 345) this is a child
of the same physical attributes of the child concerned, not the same background. It
has been suggested that this ignores social and environmental factors.
The seminal case on significant harm is that of Re M (A Minor) (Care Order: Significant
Harm) [1994] 1 FLR 73; [1994] 2 FLR 577 (HL). In this case, the HL overruled a unanimous
decision of the Court of Appeal which had interpreted the words ‘is suffering or likely
to suffer significant harm’ as requiring a consideration of the state of affairs at the date
of the hearing. Here, M was four months old when his father murdered his mother in
his presence and that of his half-siblings. The local authority began care proceedings
with respect to M. Mrs W, who had cared for M as a foster mother, sought a residence
order and was supported by the local authority. The father wanted a care order made
in order that M could be adopted outside the family. The Court of Appeal held that the
relevant time in respect of harm was the date of the hearing. The HL overruled the Court
of Appeal, holding that the relevant date for applying the s.31(2) test was not the date
of the hearing, but an earlier point. The Court’s view was that to interpret the statutory
requirement of ‘is suffering’ as relating to the time when the court came to dispose of
the issue would be substantially to deprive that provision of any effect. This was taken a
step further in Re SH [1995] 1 FLR 746.
The decision in Northamptonshire CC v S and Others [1993] 1 FLR 554 states that the
words ‘is suffering’ referred to the period immediately preceding the process of first
protecting the child. Thus, in deciding whether the threshold criteria are made out,
the court must consider the position immediately before the emergency protection
order (if there is one) or interim care order, or whether the child went into voluntary
care. It is only permissible to look back to the date of the initiation of protection if
local authority arrangements had been continuously in place.
While this decision makes it easier to make out the threshold criteria, it must be
remembered that the threshold is not the criterion for an order. Once the court has
jurisdiction on meeting the threshold, it is a separate consideration as to how the
jurisdiction will be exercised. This is seen particularly in Re M (A Minor) (Appeal) (No.2)
[1994] 1 FLR 59 where the threshold was made out where the child was subject to
abuse, but no care order was granted as her welfare dictated that she remained with
her mother and her partner.
Risk of future harm
The authority must prove that future harm is likely. This requires more than a finding
that the harm may occur on the balance of probabilities (see Newham London Borough
v AG [1993] 1 FLR 281) and requires ‘a real significant likelihood of harm’ (Re MM [1996]
2 FLR 84) as confirmed in Re M (Children) (Care order: removal), The Times, November
11, 2005. It is clear that when proving the likelihood of this harm it is possible that
different conclusions can be reached in civil and criminal proceedings. See A Local
Authority v S [2004] 2 FLR 129.

For an example of what
‘significant harm’ is in the
context of educational
development see Re O (A
Minor) [1992] 2 FLR 7.
Family Law 13 Children and local authorities page 213
It has become clear that the time to consider whether a child is suffering significant
harm is when the local authority first intervenes. See Re G (Threshold Conditions) [2001]
2 FLR 1111 where the Court of Appeal held that, in establishing that the threshold had
been crossed at the date of intervention, the local authority was entitled to rely upon
information acquired after the date of intervention, and even on later events, if those
later events were capable of proving the state of affairs at the date of intervention.
Source of the harm
The harm must be attributable to the care given or likely to be given ‘not being what
a reasonable parent would give to the child’ or because the child is beyond parental
control. See Re O (A Minor) [1992] 2 FLR 7; Re SH [1995] 1 FLR 746; Re B (Minors: Case
Conduct) [1998] 2 FLR 211; Re B & W [2000] 1 FLR 833; Re O & N (Non-accidental Injury)
[2002] 3 FCR 418; Re A & D (Non-accidental Injury) [2002] 2 FLR 337 and North Yorkshire CC
v SA [2003] 2 FCR 118.
A particularly wide interpretation, it could be argued, was given to s.31 in the ‘Internet
twins adoption’ case of Flintshire CC v K [2001] 2 FLR 476. The twins, it was held, had
suffered significant harm within the meaning of s.31 due to the changes and turmoil
in their lives, as from birth they had sustained no consistency of carer. In addition, Mr
and Mrs K, the ‘adopters’ had placed them in the care of a variety of helpers while they
were preoccupied with media engagements and Mrs K had displayed considerable
volatility. On the date of the emergency protection application by the local authority,
the twins were suffering significant harm which was accumulating and continuing and
which had been contributed to by Mr and Mrs K and the mother. Further, Mr and Mrs
K courted media attention to the detriment of the twins and in doing so had failed to
give priority to the welfare of the twins. As a consequence, there existed a likelihood of
future harm to the twins in terms of impairment of their intellectual, emotional, social
and behavioural development.
Activity 13.1
What is the role of the threshold criteria? What is a reasonable parent?
Summary
The local authority has a general statutory duty to children looked after by them as set
out in s.22 CA. Any decisions made as to the child’s upbringing while the child is being
accommodated by the local authority must be made with due regard to the child’s
wishes. Compulsory care and supervision measures can only be utilised following
statutory guidance (set out in s.31) and only if a child is deemed to either be suffering,
or likely to suffer, significant harm. Harm is defined by the CA, but the term ‘significant’
remains undefined. This harm must be attributable to the care provided or likely to be
given by the parent. This has been widely interpreted.
13.3 Orders available
Where an application is made under s.31(2), the court may make the following orders.
u Section 31(5): care or supervision order.
u Section 38(1): interim care or supervision order. Such an order may be made in
cases where care or supervision proceedings are adjourned and in cases where
the court has ordered an investigation into the child’s circumstances under s.37(1).
Interim orders may be made for eight weeks only, with extensions of four weeks
(s.38(4) and (5)).
u Section 8 order: if a residence order is made in care proceedings, the court must
make an interim supervision order unless it is satisfied that the child’s welfare does
not require it (s.38(3)).
The court may, of course, decide to issue no order.
page 214 University of London External System
Activity 13.2
Are the criteria the same for both supervision and care orders? What differences, if
any, can you identify? Should the criteria be the same?
At this stage (the ‘welfare’ or ‘disposal’ stage) when the court considers s.1 CA 1989 and
the statutory checklist so as to decide which course to follow, difficulties can arise in
‘uncertain perpetrator’ cases.
In Re O & N [2003] 1 FLR 1169 the court had been unable to identify which parent had
been the perpetrator of a child’s injuries, or whether both had been perpetrators. The
threshold criteria for the making of a care order were met and it would not be right for
the possibility of the mother as perpetrator to be excluded from consideration at the
disposal hearing when the court considered s.1(3)(e) CA 1989.
13.3.1 Care and supervision orders
Where a care order is granted, the court has no power to attach conditions to the
order. Parliament has committed the operation of the care order to the local authority
and not the court. The court has a duty, however, to scrutinise the care plan of the
local authority before making an order pursuant to s.1(5) CA. See Re T (A Minor) (Care
Order: Conditions) [1994] 2 FLR 423. In Re G (Challenge to local authority’s decision) [2003]
2 FLR 42, the local authority decided, two years after making care orders, at a meeting
at which the parents were not present, that the children should not be rehabilitated
with their parents but would be removed from their care. This represented a complete
change in the care plan. The court held that Article 8 ECHR required that the parents
were properly involved in the decision-making process, before, during and after the
making of the care order. The authority had a duty to inform parents of any significant
changes to the care plan.
Effect of a care order
The local authority has parental responsibility and may determine the extent to which
parents may exercise parental responsibility, but the parents’ parental responsibility
is not removed (s.33(4) and (5)). The parental responsibility of the local authority is
limited: it cannot cause the child to be brought up in a different religion, agree to the
child’s adoption, freeing for adoption or appoint a guardian, but it may apply to have
an existing guardian removed.
If the local authority wishes to change the child’s surname or arrange for the child
to stay outside the UK for more than a month it must seek the consent of everyone
with parental responsibility or permission from the court (s.33(7) and (8)). If it wishes
to arrange for the child’s emigration, it must seek the court’s approval (Schedule 2,
paragraph 19).
Care orders last until a child is 18 or until the order is discharged, whichever is earlier
(s.91(12)). It is to be noted that a care order discharges any existing s.8 order (ss.12(2),
91(2)).
Effect of supervision orders
These orders, the conditions for which are identical to care orders (s.31(1)(b)), last
for one year but may be extended to three (Schedule 3 paragraph 6). They place the
child under the supervision of a social worker who is under a duty to advise, assist and
befriend him or her (Schedule 3 paragraph 9; s.35(1)(a)). The supervisor is required
to follow such steps as are reasonably necessary to give effect to the order (s.35(1)
(b)) and may require the child to live in a specified place, meet particular people and
participate in activities for up to 90 days (Schedule 3 paragraph 2). The order gives no
right to enter the child’s home or to remove him or her if he or she fails to attend a
medical examination or appears to be abused.
Family Law 13 Children and local authorities page 215
The difference between care and supervision orders
A care order has the advantage of conferring on the local authority parental
responsibility which is jointly shared by the parents or others with parental
responsibility. A supervision order does not confer parental responsibility. See Re T (A
Minor) (Care or Supervision Order) [1994] 1 FLR 103; Re D (Care Proceedings: Appropriate
Order) [1993] 2 FLR 423; Re V [1996] 1 FLR 776 and Re O [1996] 2 FLR 755.
Activity 13.3
Under what circumstances will a supervision order be more appropriate than a care
order?
Interim or final orders?
Since a final care order confers parental responsibility on the local authority, it is
essential that such an order be made only with the full facts before the court. See
Hounslow LBC v A [1993] 1 FLR 702; C v Solihull MBC [1993] 1 FLR 290 and Re C (Interim Care
Order) [1997] AC 489.
Where there is doubt and where there is a need for further investigation into the
circumstances, an interim order should be made pending a final decision. Interim
orders may be for care, supervision or residence. While delay is generally prejudicial
to the welfare of the child (s.1(12)), in some instances delay can prove beneficial in
ensuring that the appropriate order is made.
Local authorities and the inherent jurisdiction
See Chapter 10.
Discharge of care and supervision orders
CA s.39 allows the child, any person with parental responsibility and the local authority
to apply for discharge of a care or supervision order. Any other person who wishes to
have a care order discharged may seek a residence order, which has the same effect
(ss.8(1), 10, 91(1)).
CA s.1 applies to the question of discharge; thus, it will only occur if the court thinks
that this is in the child’s best interests.
The local authority is obliged under s.26(2) to review the care plan of any children in
care every six months and must consider whether the order should be discharged.
13.3.2 Contact with children in care
Local authorities must endeavour to promote contact between children they are
looking after and their families and friends unless this is not reasonably practicable or
consistent with the child’s welfare (Schedule 2, paragraph 15). See Re S (Care: Parental
Contact) [2004] EWCA Civ 1397. Contributions may be made towards the costs of visits
(Schedule 2, paragraph 16).
Before making a care order, s.34 CA requires the court to consider the local authority’s
arrangements for contact and allow the parties to comment on them. Where the child
is subject to a care order, the local authority must allow the child reasonable contact
with his or her parents, guardians and anyone who had parental responsibility or a
residence order or had care of the child by virtue of an order in wardship immediately
before the care order was made. Such people, the child and anyone else with the leave
of the court, may seek orders for contact. The child and the local authority may also
apply to have contact ended. The local authority may refuse contact for up to seven
days where this is necessary, as a matter of urgency, for the child’s welfare.
In Re S (A Minor) (Care; Contact Order) [1994] 2 FLR 222, the Court of Appeal reversed a
decision of the lower court granting a care order subject to reasonable contact and the
restoration of the question of contact for future directions. The Court of Appeal held
that an order for reasonable contact added nothing to s.34(1) and should not have been
page 216 University of London External System
made, while the order restoring contact for future directions was without jurisdiction
because it offended the principle that the local authority’s operation of the care order
was not to be supervised by the court. See Re T [1997] 1 FLR 517 and Re W [2000] 1 FLR 502.
The court does not have the power to impose any condition, nor to require a local
authority to place a child in a given setting. See Re T (A Minor) (Care Order; Conditions)
[1994] 2 FLR 423 (CA).
The local authority’s powers cannot be fettered by the court. See Kent CC v C [1993] 1
FLR 308 and Re B (A Minor) (Care Order Review) [1993] 1 FLR 421.
It should be noted that proceedings within s.34 are the only means by which local
authorities are empowered to regulate contact where children are in care. Care orders
may not be conditional. See Nottinghamshire CC v P (The Times, 2 November 1992, The
Times, 8 April 1993) and Leeds CC v C [1993] Fam Law 73.
13.3.3 Protection of children in emergencies
Emergency protection orders
CA ss.44 and 45 allow anyone to apply ex parte to the court for an emergency protection
order (EPO) which empowers them to remove or prevent the removal of the child
concerned. Such an order may be granted only where the court is satisfied that there
is reasonable cause to believe that the child is likely to suffer significant harm if he or
she is not removed or detained. In the case of applications by a local authority or the
National Society for the Prevention of Cruelty to Children (NSPCC), where enquiries are
being made, the order may only be granted when the applicant has reasonable cause to
suspect the child is suffering significant harm, or is likely to, and the enquiries are being
frustrated by lack of access to the child.
The emergency protection order:
u requires any person who is in a position to do so to produce the child
u empowers the applicant to remove the child or prevent their removal
u gives the applicant parental responsibility for the child.
The applicant may not remove or detain the child unless this is necessary to safeguard
his or her welfare. They may return him or her and remove him or her on more than
one occasion while the order is in force. In exercising parental responsibility, the
applicant may only do what is reasonably required to safeguard or promote the
child’s welfare. This would include consenting to required medical treatment, making
arrangements for the child’s care and maintaining links with the family. The court may
direct that either contact or assessment may or may not be allowed.
EPOs may last for up to eight days. They may be extended once for up to a further
seven days, but only where the court has reasonable cause to suspect that the child
will suffer significant harm if the order is not extended (s.45).
No challenge to the order is allowed during the first 72 hours but the child, a parent, a
person with parental responsibility or anyone with whom the child was living prior to
the order may seek its discharge unless either they had notice of the original hearing
and were present or the order has been extended. Appeal provisions are to be found
in s.45(10). The court can make a care order when an EPO comes to an end. See Re P
[1996] 1 FLR 482.
Under s.44A it is possible to exclude a third party (usually a suspected abuser) from the
family home so that the child could remain at home and be protected there. A power
of arrest may be attached to allow a police constable

to arrest, without warrant, any
person reasonably believed to be in breach.

Police constable is the
lowest rank in the police
force, but in legal parlance it
means a police officer of any
rank.
Family Law 13 Children and local authorities page 217
Child assessment orders
These are evidence-seeking orders that the court may grant if the local authority or
the NSPCC has reasonable cause to suspect that the child is suffering, or is likely to
suffer, significant harm. An assessment of the child is necessary to determine this and
the assessment is unlikely to be made without a court order (s.43). A child assessment
order may not be made when there are grounds for an EPO. Notice of the application
must be given. The order lasts for seven days and orders the persons named to
produce the child and comply with directions relating to assessment. It authorises
the child’s assessment and his or her removal from home, but only for the purposes of
assessment.
Police protection
CA s.46 provides that, where a police constable has reasonable cause to believe that
the child would otherwise be likely to suffer significant harm, he or she may remove
the child to suitable accommodation or prevent the child’s removal from hospital
or elsewhere. The child is under police protection and the constable must, as soon
as practicable, inform the local authority, the parents and the child and secure
both investigation by a designated officer and accommodation for the child. The
constable must also take steps to discover the child’s wishes and feelings. The police
do not acquire parental responsibility, but the designated officer has the duty to act
reasonably to safeguard and promote the child’s welfare. The family must be allowed
reasonable contact with the child, provided it is in the child’s best interests. The child
must be released after 72 hours or sooner if there is no longer cause for concern. Case
law suggests that this power should not be exercised unless there are compelling
reasons to do so. (See Langley v Liverpool City Council [2005] EWCA Civ 1173.)
Local authority duty to investigate
CA s.47 mandates a local authority to make enquiries to determine whether it should
take action to safeguard or promote the child’s welfare if they are informed that a
child that lives in, or is to be found in, its area and is the subject of an EPO, is in police
protection, has breached a curfew imposed under the Crime and Disorder Act 1998
or the authority has reasonable cause to suspect the child is suffering, or likely to
suffer, significant harm. The authority is directed, particularly, to establish whether
it should make any application to the court or exercise any of its powers under the
CA. In the case of a child subject to an EPO and who is not accommodated by it, the
authority is directed to determine whether it would be in the child’s best interests to
be accommodated by it. If the child is in police protection, it is directed to determine
whether his or her best interests require an application for an EPO.
The authority is mandated to take such steps as are reasonably practicable to gain
access to the child, unless it is satisfied that it has sufficient information with respect
to him or her. If refused access or denied information about the whereabouts of the
child, it must apply for an EPO, child assessment order or care or supervision order
unless satisfied that the child’s welfare is satisfactorily safeguarded.
Search warrants
If a court makes an EPO and it appears to it that adequate information as to the child’s
whereabouts is not available to the applicant for the order, but is available to another
person, it may include a provision directing the individual with such information to
disclose information concerning the child’s whereabouts. An EPO may also authorise
an applicant to enter premises and search for the child who is the subject of the order
and any other child on those premises in respect of whom an EPO ought to be made
(s.48).
page 218 University of London External System
Injunctions
Local authorities cannot apply for non-molestation and exclusion orders on behalf of
adults and children (see Law Commission Working Paper no. 113). Note, however, that
the FLA 1996 has introduced powers under which the court may, where it is necessary
for the protection or the welfare of the child, make exclusion orders when making
either interim care orders or emergency protection orders (see above). This reform
should remedy the defects apparent in Nottinghamshire CC v P [1993] 3 All ER 815 in
which the local authority was powerless to remove an abusing father from the home
and was effectively compelled to undertake care proceedings in order to protect the
children.
Section 9(5) restricts the use of s.8 orders by the local authority. The local authority
may apply for a specific issue or prohibited steps order but cannot apply for contact
or residence orders. An injunction is available to achieve the result of an s.8 order
and should be used. Further, the only way contact can be regulated where children
are in care is within s.34. There is a clear demarcation between public and private
proceedings in this context. See Nottinghamshire CC v P (see above for details).
Education supervision orders
Non-attendance at school can result, in extreme cases, in a care order: Re O [1996] 2 FLR
755. In general, however, truancy is dealt with by education supervision orders which
can be applied for by the local education authority only (s.36).
13.3.4 Challenging local authority decisions
Apart from applying for the discharge of a care order under s.39 or challenging a
decision about contact under s.34, local authority decisions can be challenged in the
following ways.
u Using the complaints procedure established under s.26 CA and Representations
Procedure (Children) Regulations 1991. See R v Kingston Upon Thames RB, ex parte T
[1994] 1 FLR 798.
u Enabling the Secretary of State to declare a local authority in default where he or
she is satisfied that it has, without reasonable cause, failed to comply with a duty
under the Act (based on s.84 CA).
u Using judicial review. Applicants must seek leave and this is not a formality. Three
cases provide examples.
u R v Lancashire CC ex parte M [1992] 1 FLR 109 in which it was stated that leave will
only be granted where there is a reasonable prospect of the court coming to
the decision that the local authority’s conclusion was so unreasonable that no
reasonable authority could ever have come to it. Actions for judicial review of
local authority decisions are not uncommon. In general, they are successful
where the authority has failed to give the complainant an opportunity to put his
or her side of the case or otherwise explain its reasons.
u R v Norfolk CC ex parte M [1989] 2 All ER 359. It is difficult to impugn the decisions
of the local authority in judicial review, as the court is of the view that
authorities should be able ‘to perform their task without having to look over
their shoulder all the time for the possible intervention of the court’. See: Butler
Sloss U R v Harrow LBC, ex parte D [1990] 3 All ER 12.
u It is important to remember that the court’s role in judicial review proceedings
(when it is interested in reviewing decisions on the basis of how they were
reached) is different to those taken in the exercising of the welfare jurisdiction
(where the court will act as a court of protection). See R (B by her litigation
friend MB) v London Borough of Lambeth [2006] EWHC 639 for a discussion of the
distinction between the two.
Family Law 13 Children and local authorities page 219
u Via residence orders. Such orders discharge care orders. It is open to any party
to seek leave to apply for a residence order within s.10 CA. It is to be noted here,
however, that s.10(9)(d)(i) expressly provides that the court is to have particular
regard to the local authority’s views when leave is sought. See Re A and W (Minors)
(Residence Order: Leave to Apply) [1992] 2 FLR 154.
u Through the ombudsman.
u Inherent jurisdiction of the court. See Re M (Care: Leave to Interview Child) [1995]
1 FLR 825.
u Via civil actions, e.g. for negligence or breach of statutory duty. When considering
civil actions for negligence or breach of statutory duty these claims will be subject
to the usual restraints of the Limitation Act 1980. This is a particularly difficult area
in which to impose restraints but the Judge has discretion under s.33 to allow
actions to proceed if it would be just and equitable to do so. Case law suggests
this discretion has been narrowly construed (see C v Middlesborough Council [2004]
EWCA Civ 1746; T v Boys & Girls Welfare Service [2004] EWCA Civ 1747 and AD and OH v
Bury Metropolitan Borough Council [2006] EWCA Civ 1).
u The National Care Standards Commission. This was created under the Care
Standards Act 2000 and its role is to supervise, register and inspect children’s
homes and care homes.
u With an action brought under the HRA to invoke the ECHR.
This plethora of options has been described by Rebecca Bailey-Harris and Martin Harris
as ‘a mosaic of accountability’.

Summary
If an application is made by the local authority under s.31(2), then the court can
award either a care order or a supervision order. These can be interim or final and an
application for discharge is possible. Contact between parents and children in care
is promoted by the local authority. In an emergency the local authority may apply
for an emergency protection order. Other emergency protection options include a
child assessment order, a search warrant or an injunction. There is a variety of ways to
challenge a local authority decision; some are more successful than others.
13.4 The Human Rights Act 1998
Incorporating the ECHR into domestic law has proven to be an important area for
consideration in family law. There is a genuine worry of a number of children getting ‘lost
in care’ because of a lack of forward planning. See F v Lambeth London Borough Council
[2001] 3 FCR 738.
Failure to protect
If a local authority, knowing the plight of children, fails to act to protect them from
serious harm, it may be in breach of Article 3: the absolute right to protection from
inhuman and degrading treatment. This question was considered in Z v UK [2001]
2 FLR 612 where a local authority had failed for five years to instigate care proceedings,
despite its knowledge of the children’s situation. The neglect and abuse suffered by
the children had reached the level prohibited by Article 3; accordingly, there was a
violation of Article 3.

Bailey-Harris, R. and Harris,
M. ‘Local authorities and child
protection – the mosaic of
accountability’ (2002) CFLQ
117.
page 220 University of London External System
The consequences of the HRA upon the court’s powers to make care orders, and the
local authorities’ responsibilities in effecting a care order, were considered in the
important case of Re W & B (Care Plan) [2001] 2 FLR 582. Hale LJ said:
‘A care order is a serious interference with the right to respect for family life, not only of
the parents, but also and more importantly of the child. It becomes more serious still
if only minimal contact is permitted between them or if the local authority are given
permission under Section 34(4) of the 1989 Act to refuse it altogether. The most serious
interference is an adoption order, which finally and irrevocably brings to an end, not only
the parents’ parental responsibility for the child but also the legal relationship between
the child and the whole of his family of birth.’
Right to respect for family life
A recognition of the right to respect for family life, which the making of a care order
must inevitably affect, could be achieved in two ways: one, in the type of order made
and two, in the courts’ powers once an order had been made. In Re W & B (Care Plan)
Thorpe LJ stated:
‘with regard to the first way: the judge at trial should have a wider discretion to make an
interim care order where the care plan seems inchoate or where the passage of a relatively
brief period seems bound to see the fulfilment of some event or process vital to planning
and deciding the future.’
With regard to the second way to recognise and safeguard Article 8 rights, Thorpe LJ
stated there should be ‘greater concentration on the quality of the care plan’ by the
court. A failure to achieve important steps in the plan – ‘starred milestones’ – within a
reasonable time of the date set at trial would reactivate the interdisciplinary process
that contributed to the creation of the care plan. At a minimum the local authority
must inform the guardian ad litem of the failure. Either the guardian or the local
authority should then have the right to apply to the trial court for further directions.
If for any reason the original guardian is not available, then the local authority must
apply to the court for directions.
The particular significance of the second point is that it appears to breach the
boundary between the courts’ power to make a care order and the authority’s
responsibilities in carrying out the care plan. Thorpe LJ said:
‘Clearly there must be a considerable responsibility on the courts to ensure that any
extension of function is used sparingly and collaboratively and not for the revival and
perpetuation of adversarial issues. The number of cases in which the duty to report and
the power to review will arise should prove to be comparatively rare, certainly in relation
to the number of applications for care orders that are issued. Obviously there would be a
need to monitor the advent of this development to test the reliability of the speculation
that only 200 applications a year would result.’
The House of Lords in Re S and W [2002] 1 FLR 815 was unable to agree with the Court
of Appeal that the introduction of a ‘starring system’ was justified as a legitimate
exercise in interpretation of the Children Act in accordance with s.3 of the HRA. The
HRA reserved the amendment of primary legislation to Parliament. A meaning that
departed substantially from a fundamental feature of an Act of Parliament was likely to
cross the boundary between interpretation and amendment.
The ‘starred milestones’ system proposed by the Court of Appeal departed
substantially from the cardinal principle in the CA that once a care order was made,
decisions concerning the child were to be made by the local authority, save where
specified by the CA (e.g. s.34). If an authority carried out its statutory duties under the
CA, there should be no question of infringement of the Article 8 rights of the child or
the parents. Failure by the state to provide an effective remedy for a violation of Article
8 was not itself a violation of Article 8. The House also held that interim care orders
could not be used to supervise care plans. Often difficult circumstances will require
the court to approve care plans (see Haringey London Borough Council v S [2006] EWHC
2001 (Fam)).
Family Law 13 Children and local authorities page 221
Consultation
This issue of altering care plans without giving notice was considered in Re C (Care
Proceedings) [2002] 2 FCR 673 where a local authority altered its care plan, rejecting
rehabilitation of the child with its mother in favour of adoption. The court held that to do
so without giving the mother an opportunity to be heard constituted breaches of Articles
6 and 8 ECHR. The courts continue to frown on alteration without consultation (see Re C
(A Child) [2007] EWCA Civ 2). They also frown on non-disclosure of case documents to a
parent. Even if documents were not subject to review it is an important part of the Article
6 commitment that suitably edited documents can be disclosed. See Kent County Council
v B (A Child) [2004] 2 FLR 142.
The differences between care and supervision orders, and the significance of the HRA
with regard to the invasive nature of the order, was considered in Re O (Supervision
Order: Future Harm) [2001] 1 FLR 923. Hale LJ said:
‘Proportionality, therefore, is the key. It will be the duty of everyone to ensure that, in
those cases where a supervision order is proportionate as a response to the risk presented,
a supervision order can be made to work, as indeed the framers of the Children Act 1989
always hoped that it would be made to work.’
Most issues raised under the HRA are likely to deal with breaches under Articles 3, 6
and 8. The key to understanding the willingness or not of the courts to uphold any
potential breaches is to see how the courts interpret the notion of proportionality. If
the state is to intervene in a child’s life then it must be shown that it is proportionate
to the risk that the child is suffering. It must be remembered that such questions
will be for the courts and not for the local authority to determine. The present
jurisprudence of the European Court when dealing with these dilemmas can be seen in
K and T v Finland [2000] 2 FLR 79 and K A v Finland [2003] 1 FLR 696.
The English courts tend to adopt the same view. The approach taken can be seen in Re
N (Leave to Withdraw Care Proceedings) [2000] 1 FLR 134 and P, C and S v United Kingdom
[2002] 2 FLR 631.
Self-assessment questions
1. What are the ‘four key principles that inform the public law relating to
children’?
2. What, according to Lord Mackay, should be the state’s attitude to intervening in
the family?
3. How does the Children Act define ‘children in need’?
4. On what conditions may a local authority provide accommodation for children
under s.20(1)?
5. Who may make an application for care and supervision orders?
6. What, according to the CA, is ‘harm’?
7. What rights does the NSPCC share with local authorities in respect of child
protection under the CA?
8. What is the effect of making a residency order on an existing care order?
Summary
In child protection cases there is a real concern that the ECHR should always be
upheld. Litigation thus far has concerned a local authority’s failure to protect and a
recognition of the right to respect for family life. Finally, consultation is highly prized
and the alteration of care plans without notification of the parents is likely to breach
the Convention.
Go to your study pack and
read ‘Issues in child abuse’ by
Christina Lyon and others.
Consider critically the current
issues in child abuse.
page 222 University of London External System
Useful further reading
¢ Bailey-Harris, R. and M. Harris ‘Local authorities and child protection – the
mosaic of accountability’ (2002) CFLQ 117.
¢ Brasse, G. ‘Section 34: A Trojan Horse?’ (1993) 23 Fam Law 55.
¢ Brennan, C. ‘“An instrument of injustice?” Child abuse and the reform of
limitation law.’ [2006] 18 CFLQ 67.
¢ Cobley, C. M. and N. V. Lowe ‘Ousting abusers – public or private solution?’ (1994)
110 LQR 38.
¢ Cobley, C. ‘Financial compensation for victims of child abuse’ (1998) 20 JSWFL 721.
¢ Fortin, J. ‘Significant harm revisited’, JCL (1993) 151.
¢ Hayes, M. ‘Reconciling protection of children with justice for parents in cases of
alleged child abuse’ (1997) 17 LS 1.
¢ Hayes, M. ‘The proper role of courts in child care cases’ (1996) 8 CFLQ 201.
¢ Masson, J. ‘Emergency intervention to protect children: using and avoiding legal
controls’ [2005] 17 CFLQ, 75.
¢ Mullis, A. ‘The abuse continues?’ (1997) 9 CFLQ 291.
¢ Wall, N. ‘Concurrent planning – a judicial perspective’ (1999) CFLQ 97.
¢ Williams, J. (2005) ‘Effective government structures for children?: The UK’s four
Children’s Commissioners’ (2005) 17,CFLQ, 37.
Sample examination questions
Question 1 Rosemary and Simon, who are unmarried, have two children, Tim, aged
14, and Ursula, aged four. In January 2008, Rosemary, a television presenter, who
was then three months’ pregnant, lost her job. Since that time, the family have
found it increasingly difficult to live on Simon’s salary and the couple have often
argued, sometimes in front of the children. Simon began to drink heavily and has
assaulted Rosemary.
In May 2008, Rosemary, who has become increasingly worried about the tension in
the household and is particularly concerned about the welfare of her unborn child,
sought the assistance of the helpful local authority social worker, Miss Vane.
Miss Vane, who visits regularly, has become aware that Tim rarely attends school,
although his parents insist that he does so, and that Ursula is withdrawn and tense.
She has noted that Ursula appears particularly upset during the frequent visits of
her 16-year-old cousin, Wilfred.
Advise Miss Vane of the procedures she can invoke to address the problems of Tim,
Ursula and the unborn child.
Question 2 Consider the extent to which judicial decisions concerned with care
and supervision orders have created a clear and coherent body of law. Has the
advent of the Human Rights Act 1998 added to clarity and coherence?
Advice on answering the questions
Question 1 When looking at the potential course of action for Miss Vane you must
remember that there exists a general duty to safeguard and promote the welfare
of children under s.17 CA. Miss Vane should attempt to work in partnership with the
parents under ss.20 and 23 CA, but she does have a duty to investigate under s.47
CA. She may find upon her investigations that it is necessary to seek an emergency
protection order or an interim care or supervision order. The longer term may demand
care or supervision orders.
When considering Tim you must consider his age, and if an order is made, the welfare
principle and checklist must apply. Tim is not attending school, so is an education
supervision order applicable? Is he beyond parental control? For an order to be
Family Law 13 Children and local authorities page 223
granted the court must be satisfied that the threshold criteria have been reached. This
applies to Ursula also. Her upset around her cousin may be because of sexual abuse,
but there is no evidence of this so you need to consider what powers and duties Miss
Vane has when considering the welfare of Ursula. Remember to consider the relative
merits of using the supervision order over the care order. However, if you decide
sexual abuse may be taking place then you should recommend a care order.
Respite is often recommended for the family to ‘take time out’ from each other. This is
satisfied when interim orders are granted. Protection of the unborn child can only take
place if the mother is protected and this may only be possible by utilising measures
under the FLA. A non-molestation order or an occupation order may be useful here.
Try to utilise all legal options with the four key principles of the CA in mind. Also stress
the importance of joint working since CA 2004 but remember that the welfare of the
children is paramount.
Question 2 This essay question demands a consideration of the relevant provisions
within part III and IV CA. You are asked to consider the extent, suggesting there is
no absolute answer here. Consider the threshold criteria in s.31 CA and look at the
concept of significant harm and how it has been explored in relevant cases. Look at the
consequences of granting care or supervision orders. Issues of contact can become
relevant and the role of the child’s guardian. You are being asked where the judicial
decisions have produced a clear and coherent body of law. The cases of Re M (A Minor)
(Care Order: Threshold Conditions) [1994] 2 FCR 871 and Re N (Leave to Withdraw Care
Proceedings) [2000] 1 FLR 134 offer an insight into definitions of aspects of the threshold
criteria. Also look at Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam) to
ascertain the view of the courts on how EPOs should be issued. As a guide it maybe
useful to focus on the threshold criteria, the standard of proof, the source of harm and
the issue of parental contact. Look at Re C and B (Care Order: Future Harm) [2001] 1 FLR
611 and Hale LJ’s concerns in relation to the Human Rights Act 1998. It would also be
worth considering the work of Judith Masson in this regard as to how legal controls
can be used or avoided for the purposes of emergency intervention.
Further examination questions (no feedback provided)
Question 3 Stella had a child four months ago. After giving birth at Camford
Hospital, she became ill and did not see the baby for two days. She soon recovered
and she and her husband Thor began life with their son Ulysses. A week ago the
baby developed an infection and needed a blood test, the result of which showed
that he could not be their son. They contacted Camford Hospital, to be told that
one other child was born on the same day as Ulysses. They are certain that child is
theirs. Stella has been told that the other child is in local authority care. They want
to continue caring for Ulysses but also want to bring up the other child as their ‘real’
child. They are anxious about what Ulysses’ mother might do when she discovers
‘the truth’ and about the role of the local authority.
Advise them.
Question 4 ‘If the Children Act 1989 introduced a ‘partnership’ between parents
and local authorities, it was one heavily balanced in favour of the coercive powers
of local authorities, a balance which cannot survive the advent of the Human Rights
Act 1998.’
Discuss.
You will improve your under-
standing of the issues if you
answer these additional
questions.
page 224 University of London External System
Reflect and review
Look through the points listed below:
Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on
Need to
revise first
Need to
study again
I can list the duties imposed on local authorities
relating to children in need.

¢

¢

¢
I can describe the range of services and assistance
which a local authority may provide.

¢

¢

¢
I can define the concept of voluntary
accommodation.

¢

¢

¢
I can state the meaning of ‘significant harm’. ¢ ¢ ¢
I can explain the relationship between the threshold
criteria and the basis for a care or supervision order.

¢

¢

¢
I can explain the differences between a care and a
supervision order.

¢

¢

¢
I can answer the question of who has parental
responsibility for a child in care.

¢

¢

¢
I can outline the extent to which local authorities
may control contact between children and their
families.

¢

¢

¢
I can outline the extent to which local authorities
may, and may not, regulate the exercise of a parent’s
responsibility.


¢


¢


¢
I can describe the rules relating to emergency
protection of children.

¢

¢

¢
I can explain the distinction between child
assessment orders and emergency protection
orders.


¢


¢


¢
I can consider what areas of controversy have been
affected by the HRA.

¢

¢

¢
If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
13.1 Philosophy of the Children Act ¢ ¢
13.2 Local authority duties to children looked after by them ¢ ¢
13.3 Orders available ¢ ¢
13.4 The Human Rights Act 1998 ¢ ¢
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
14.1 Adoption under the Adoption and Children Act 2002 . . . . . . . . . . 227
14.2 Adoption services . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
14.3 The adoption order . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
14.4 Placement and consent . . . . . . . . . . . . . . . . . . . . . . . . . 232
14.5 Contact and the child’s right to know . . . . . . . . . . . . . . . . . . 234
14.6 Adoption and the Human Rights Act 1998 . . . . . . . . . . . . . . . . 235
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
14 Adoption
page 226 University of London External System
Introduction
Adoption in England and Wales is entirely the creation of statute. The principal statute
governing adoption is now the Adoption and Children Act 2002 (ACA).
The effect of an adoption order is to irrevocably transfer the child from one family
to another by vesting parental responsibility for the child in the adopters (s.46(1)
ACA). From the date of the order the child is treated as if he or she had been born as
a child of the adopters’ marriage, and not the child of anyone else, and is classified as
legitimate (s.67 ACA).
The child becomes a member of his or her adoptive family, rather than his or her birth
family, for succession purposes and will gain British citizenship on adoption by a British
citizen if he or she does not already hold such citizenship (British Nationality Act 1981,
s.1(5)). Adoption does not serve as a complete transplant, however. It does not affect
the descent of any peerage or dignity or title of honour. Further, although the child
and his or her adoptive parents may not intermarry, no other adoptive relative is
deemed to come within the prohibited degrees for the purposes of marriage, while
the child remains within the prohibited degrees with respect to his or her birth family
(see Chapter 2).
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
u state the purpose and legal effects of adoption
u say who may adopt and who may be adopted
u understand how an agency or court will decide whether to place a child with a
prospective adopter and how consent is obtained or dispensed with by the birth
parents
u explain the powers of the court in adoption proceedings and the orders it may
make
u describe the circumstances under which it will be appropriate to attach
conditions to an adoption order
u outline the status of the unmarried father in adoption proceedings
u describe the impact of the HRA on adoption.
Essential reading
¢ Herring, Chapter 11, pp.635–662.
¢ Masson et al., Chapter 22, pp.817–883.
¢ Probert, Chapter 15, pp.335–365.
¢ Standley, Chapter 16, pp.433–467.
Family Law 14 Adoption page 227
14.1 Adoption under the Adoption and Children Act 2002
Over time adoption has become a much more regulated process and there are limits
placed on who can arrange adoptions and those who are eligible to adopt. It is worth
making a distinction immediately between those public law adoptions, which involve
children being adopted from state care with or without their parents’ agreement, and
private adoptions which are also termed ‘in family’ adoptions. These are adoptions which
involve family members so may see adoption by a parent and step-parent or an adoption
by grandparents or other relatives. Since 2002 the partner of the parent to adopt has
been able to adopt the child alone under s.52(2). These private adoptions have existed for
many years due to the informal arrangements within a family but the law has, at different
times, either chosen to relax its control over these adoptions or has increased its control
depending on the legal and social climate of the day.
The ACA 2002 was passed after a decade of reform suggestions, most particularly by the
Department of Health in 1992.
The Department of Health undertook an interdepartmental review of adoption law and
published its final paper in late 1992. Its central recommendations were as follows.
Recommendation 1
Adoption will continue to be a severance of legal links with one family and the joining
with a second and be irrevocable. Contact orders should be possible and the court
should continue to consider the viability of other orders under the CA. Where a
residence order is made to a person other than the child’s parent or step-parent, that
person should be appointed inter vivos

guardian of the child, with all the incidents of
parental responsibility, except the right to agree or withhold agreement to adoption
and the power to change the child’s surname. Agencies and courts will continue to be
governed by the welfare test, except where determining whether or not to make an
adoption order without agreement of the parent; the test would refer to welfare
during the minority and majority of the child. Agencies and courts will be governed by
a checklist similar to s.1 CA, the ‘no delay’ and ‘no order’ principle.
Recommendation 2
Where an adoptive child is over 12, the court should not make an order unless the child
has agreed, or his or her consent has been dispensed with. While parental agreement
should be to the particular adoption placement, the child’s agreement should be to the
making of an order. Only the first of the current grounds for dispensing with parental
agreement should be retained (i.e. the parent cannot be found or is incapable of giving
agreement). The balance should be replaced by a single test: the court must be satisfied
that the advantages to the child of becoming part of the new family are so significantly
greater than the advantages to the child of any alternative option as to justify overriding
the wishes of a parent or guardian. The only other ground of dispensing with consent
should be that the parent, who has agreed to the adoption when a placement order has
been made, has withdrawn that agreement and the court considers that there have not
been any significant changes since the order was made to justify a different outcome.
Recommendation 3
Freeing for adoption should be abolished and replaced by a ‘placement’ order, which
would give parental responsibility to prospective adopters, but would not remove the
parent’s parental responsibility.
Recommendation 4
A new type of order would be available for step-parents which could be undone by
divorce or death and there should be provision for parental responsibility orders
between parents and step-parents. Those with whom a child is living should be able
to apply for adoption orders with the agreement of those with parental responsibility.
Where such agreement has not been given, a person with whom the child has been living
should be able to apply if the child has lived with him or her for a cumulative period of
three years out of the past five.

inter vivos is Latin for
‘between the living’ and
means a transfer or a gift in
one’s lifetime.
page 228 University of London External System
Recommendation 5
The legislative framework should underline the child’s right to know. Children of 12
or older should automatically have party status; where they are under 12, all courts
should have power to add the child as a party in an appropriate case.
These suggestions were accompanied by the Performance Innovation Unit’s Adoption
Review in 2000.

They were concerned with promoting strategies to increase the
adoption rate of children in care, of whom only about four per cent were adopted at
the time. The strategies included identifying children who are suitable for adoption
early on, speeding up the process of adoption, improving standards for recruiting and
assessing prospective adopters and encouraging more single-person adoption. There
may well be tension between some of these strategies and the Children Act’s
promotion of the upbringing of children by their families (and, specifically, if early
identification and facilitation of adoption of children in care is an aim, with s.34). The
Review does not deal specifically with the question of parental agreement, but the
tone is consistent with the new Adoption and Children Act’s welfare principle in
dispensing with the need for parental agreement. The Act in full can be found at www.
statutelaw.gov.uk.
14.2 Adoption services
Adoption orders can only be made by an ‘authorised court’ (the magistrates’ family
proceeding court, the county court and the High Court), but the preliminaries are
carried out by adoption agencies. Section 3 ACA imposes a duty on local authorities to
provide an adoption service or to ensure that the necessary facilities are provided by
an approved adoption society.
Adoption agencies
Section 3 ACA requires each local authority to maintain an adoption service, provide
adoption support services and to make arrangements for adoption to take place. The
local authority is required to prepare and publish a plan under s.5 ACA which outlines
the adoption services provided by the local authority. This plan is under local control
but it is heavily prescribed by national standards. Targets are set by a government
department and the local authority adoption services are now inspected by the same
body that deals with school inspections (Ofsted).
Under ss.9 and 10 ACA voluntary organisations can also operate as adoption agencies
if they are registered under the Care Standards Act 2000. They usually work alongside
local authorities and can be involved in the placement of children. Adoption agencies
have to operate adoption panels. These are made up of independent members who
are tasked with considering adoption plans, the approval of prospective adopters
and the matching of children with them. Agencies are required to consider the
recommendations of the panel when making a decision as to whether a child should
be placed for adoption.
There has been some controversy in recent years concerning these adoption
agencies. The Equality Act 2006 and the Equality Act (Sexual Orientation) Regulations
2007 prohibits sexual orientation discrimination in the provision of goods, facilities
and services, in education and in the execution of public functions. This has been
controversial because Catholic adoption agencies have been lobbying, supported by
the Anglican church, for an opt-out clause as their religious beliefs prevent them from
placing a child in a homosexual family unit. This lobbying has been unsuccessful and
no opt-out clause has been made available. Instead, the Catholic adoption agencies
were given 21 months from the date of implementation to make provision for these
new arrangements. The Catholic church has argued in response that this will lead to
the closure of Catholic adoption agencies.

The full Review can be found
at:
http://www.cabinetoffice.
gov.uk/~/media/assets/www.
cabinetoffice.gov.uk/strategy/
adoption%20pdf.ashx
Family Law 14 Adoption page 229
Any private placement, other than that within the Act, constitutes a criminal offence
both on the part of the person placing the child and the person receiving the child
(ss.92 and 93 ACA). An unlawful placement, however, does not prevent an adoption
order being made, although it is necessary to obtain a High Court dispensation. See Re
C (A Minor) (Adoption Application) [1992] Fam Law 538; Re MW [1995] 2 FLR 759; Re G [1995]
1 FLR 403 and Re C (Adoption: Legality) [1999] 1 FLR 370.
14.2.1 Roles and responsibilities
Who may be adopted?
Any unmarried person under the age of 18 may be adopted, even if he or she has been
adopted before (see s.49(4) ACA). A child may be adopted even when he or she is very
nearly 18. See Re D (A Minor) (Adoption Order; Validity) [1991] 2 FLR 1215. An adoption order
cannot be made, however, if the child has reached 18 or has been married (ss.47(8)(9)).
Activity 14.1
Why is it that under English law, only a child may be adopted?
No feedback provided.
Who may adopt?
The Adoption Act 1976 proved to be quite restrictive as to who could and could not
adopt. The ACA 2002 permits a far wider range of applicants.
A couple can adopt. Under s.144(4) ACA the couple can be married, civil partners or
two people living as partners in an enduring relationship. A couple does not include
two people if one of the two is a close relative. Each applicant must be 21 under s.50(1)
unless one of the couple is the parent of the child, when they only need to be 18 under
s.50(2).
Under s.51(1) ACA an application can be made by a sole person as long as they are 21
and unmarried. An application can be made by one person who is married if the court
is satisfied that the applicant’s spouse cannot be found, or is incapable of applying
by reason of ill-health, or that the spouses have separated and are living apart and
the separation is likely to be permanent. An adoption order shall not be made on the
application of the mother or father of the child alone unless the court is satisfied that
the other natural parent is dead or cannot be found or there is some other reason
justifying the exclusion of the other natural parent. Where such an order is made, the
reason for justifying the exclusion of the other natural parent shall be recorded by
the court. See Re C [1986] Fam Law 360 and Re B (Adoption by one natural parent to the
exclusion of the other) [2001] 1 FLR 589.
Activity 14.2
Is the extension of who can adopt under the ACA a triumph for equality or a further
erosion of family values?
Preliminaries for adoption
Residence requirement
Under s.42 ACA the child must have had their home with the applicant(s) at all times
during the relevant period which preceded the application for the order. If the child
is an agency placement then they have to have had their home with the applicants
for the 10 weeks preceding the adoption application. If the adoption is a non-agency
placement which involves a step-parent or partner of the child’s parent then they
must have lived with the applicants for a continuous period of at least six months
prior to the application. If the applicants are local authority foster parents then this
period increases to one year. If the applicants are other relatives of the child then this
‘in family’ adoption requires a continuous period of at least three years within the
previous five year period.
page 230 University of London External System
Activity 14.3
Why do you think the ‘in family’ adoptions require such a long residence
requirement?
Notice requirements
If the adoption is being organised by an agency then the adoption agency must, under
s.43 ACA, submit a report to the court outlining the suitability of the applicants. The
report will be compiled by a CAFCASS (Children and Family Court Advisory Support
Service) officer. If the adoption is a non-agency case then the proposed adopters must
give notice under s.44(2)(3) ACA to the local authority of their intention to apply for
an adoption order not more than two years or less than three months before the date
on which the application is made. Once notice has been given the local authority will
investigate the matter and submit a report to the court.
Both reports will need to take account, under s.1(4) ACA, of any relevant welfare issues.
Suitability
The regulations which accompany the ACA make it clear that the adoption agency
must take into account various matters for determining the suitability of the
prospective adopters. This will then be a feature of the report compiled so the court
can make a decision.
‘Consent condition’ or ‘placement condition’ must be satisfied
Under s.47 ACA the consent condition or the placement condition must be satisfied.
This requires either that each parent or guardian gives consent, has given advance
consent or does not oppose the making of the adoption order. If the child has been
subject to a placement for adoption then the court must be satisfied that the child has
been placed for adoption with prospective adopters and this has been done with the
consent, advance consent or no opposition to the granting of the placement order.
14.3 The adoption order
Adoption orders are made under s.46(1) ACA 2002. The court will only grant an
adoption order if they think it is justified in all the circumstances of the case. The
welfare of the child is the paramount consideration under s.1(2) ACA. The adoption
order will only be granted if all preliminaries have been met and the applicants and
child are eligible. The consent and placement conditions must be met and once
an application has been made the child cannot, under s.37 ACA, be removed from
accommodation without the leave of the court. If an adoption order for a child has
already been refused then a re-application can only be made if there has been a
change in circumstances affecting the adoption (under s.48 ACA).
14.3.1 Principles guiding the making of an adoption order
When the adoption agency is considering the suitability of placement and the court
is considering the making of an adoption order they must both follow the welfare
principle as laid down in s.1 ACA 2002. The first principle is enshrined in s.1(2) which
states that the paramount consideration of the court will be the child’s welfare. This
applies to the child throughout their childhood. It does not apply to the whole of
their life. This is a change in principle. Under the AA 1976 the child’s welfare was the
first but not the paramount consideration. This change was made in 2002 to bring
adoption law in line with the CA 1989. This is now a well established principle under
international law and yet you will recall from your study of welfare that the operation
of the principle is often clouded in controversy.
Family Law 14 Adoption page 231
Activity 14.4
What difference will it make that the welfare of the child is now first and
paramount?
Section 1(3) ACA provides that the court or adoption agency must not delay
proceedings as any delay is likely to be prejudicial to the child’s welfare. This is in
accordance with Article 6 ECHR which requires cases to be heard promptly. It is also in
line with the ‘No delay’ principle under the CA 1989. See Re C (Adoption: Disclosure to
Father) [2005] EWHC 3385.
Section 1(4) ACA provides a list of factors which must be applied by the courts and
adoption agencies when determining the best interests of the child. This list echoes
the checklist of s.1(3) CA 1989. The list is more specific to the nature of adoption, so,
for example, in s.1(4)(f) ACA the court has to ask itself about the relationship that the
child has with its existing relatives prior to an adoption order being made. This is to
ask whether post-adoption contact with the birth family is possible or even desirable.
An interesting point to make here is that, although it is expected that parents should
consent to the adoption, there is no requirement that the child must consent to the
adoption. That said it is unlikely the adoption order will be granted if there is concern
about the child’s placement within the family. It is also unlikely to be a successful
adoption if, for example, older children do not support the placement.
Under s.1(5) ACA the adoption agency must bear a child’s religious, racial, cultural and
linguistic background in mind when determining a placement for adoption. This is
seen as an important dimension to the preservation of a child’s identity. However it
must not be allowed to outweigh s.1(2) because the child’s welfare is the paramount
consideration.
Under s.1(6) ACA the adoption agency and the court must consider the wide range of
prospective adopters available under the ACA and the CA and must decide that any
order will only be made if it is better for the child than no order being made. This is
known as the ‘No order’ principle and mirrors the provision in the CA. An example
of where this may prevail is where the court decides that another order (such as a
residence order or a special guardianship order (see below)) should be used.
14.3.2 Alternatives to the adoption order
The ACA 2002 created a new order which inserted statutory provisions (s.14A–G) into
the CA 1989. This order is termed a special guardianship order and the aim of it is to
be more secure than merely providing someone with a residence order for a child.
It does not have the same effect as an adoption order, though, as it does not end
the relationship between the child and birth family. The special guardian does have
parental responsibility and can exercise that to the exclusion of the birth parents or
anyone else with parental responsibility.
In deciding whether a special guardianship order is preferred to an adoption order the
court will consider which will better serve the welfare of the child. See Re S (Adoption
Order or Special Guardianship Order) [2007] EWCA Civ 54. Much of this is likely to depend
on whether post-adoption contact with the birth parents is desirable. Bearing in mind
the court has been reluctant to grant adoption orders for inter-family adoptions it
would appear the special guardianship order (SGO) is a preferred option. See S v B and
Newport City Council: Re K [2007] FLR 1116; Re AJ (Adoption Order of Special Guardianship
Order) [2007] EWCA Civ 55 and Re M-J (A Child) [2007] EWCA Civ 56.
To grant an SGO will depend on s.14B(1) CA 1989. This means that the CA applies rather
than the ACA. This reminds us that the SGO is quite different to adoption under the ACA
and in fact can be likened as a halfway house between adoption and residence (under
s.8 CA 1989). If a less permanent status to a SGO is required then residence orders and
extended residence orders under s.8 CA 1989 can be granted (see Chapter 12). It is also
possible for a step-parent to acquire parental responsibility under s.4 ACA. This is a
new provision which will reduce the number of step-parent adoptions.
Go to your study pack and
read ‘The need for reform:
issues of child welfare’ by
Caroline Bridge and Heather
Swindells.
Consider why consistency in
the approach to welfare is so
highly prized.
page 232 University of London External System
Summary
Adoption agencies and the courts have to guide their decisions in accordance with
certain statutory principles. Of all those principles the most important is that the
child’s welfare in all matters will be the court’s paramount concern. This means that
the child’s best interests will prevail over all other concerns. Other principles guiding
the agency or court decisions are found in the welfare checklist and consideration is
given to a child’s religious, racial, cultural and linguistic background. There should be
no delay in reaching a decision as this may prejudice the child’s welfare but if the court
decides that no order should be made then no order will be made. If an adoption
order is not required then a special guardianship order has been created under the
ACA. It serves as a halfway house position between an ordinary residence order and
an adoption order. It is especially useful if post-adoption contact with birth parents is
required and also if inter-family adoption has been considered. Other less permanent
alternatives to adoption include the residence order and the allocation of parental
responsibility under s.4 ACA 1989.
14.4 Placement and consent
14.4.1 Placement
Historically a child was ‘freed’ for adoption. This concept of ‘freeing’ was never popular
as it seemed to come too late in the process and so now a concept of placement has
been developed for agency placements. This securing, at an earlier stage, of consent
aims to provide greater certainty and stability for the child who is to be adopted. It will
also reduce uncertainty for prospective adopters. The agency must be satisfied that
a placement should take place. Children can either be placed for adoption with the
parents’ consent or by way of a placement order. See Re P-B (Placement Order) [2006]
EWCA Civ 1016.
Placements by consent operate under s.19 ACA and they apply to all children except
for those who are babies under the age of six weeks. This placement takes place when
the agency is satisfied that each parent or guardian has consented to the placement
and this consent has not been withdrawn. Consent for these purposes is defined under
s.52 ACA and it requires unconditional consent. A form must be signed and when
the parent or guardian provides that consent to placement they may also provide
advanced consent for the making of a future adoption order.
Up until the point at which an application for the adoption order has been made the
birth parents can withdraw their consent. If this takes place after placement then
the child must be returned to the birth parents within 14 days. If it takes place before
placement then the return takes place within seven days. Under s.47(5) and (7) ACA the
birth parents, who have not withdrawn their consent, can still defend an application
for an adoption order but only with leave of the court.
Activity 14.5
Read Re P (Adoption: Leave provisions) [2007] EWCA Civ 616 and consider whether, in
these circumstances, you believe that leave for defending an adoption order should
have been granted.
If the child has been placed under s.19 ACA then parental responsibility passes to
the adoption agency. If the child is placed with prospective adopters then parental
responsibility is granted to them as well as the agency. Parental responsibility of the
birth parents is not extinguished until the final adoption order is made.
The court can also, under s.21 ACA, make a placement order where the local authority
is able to place a child for adoption with any prospective adopters who may be chosen
by the local authority. This is only usually undertaken where the child is subject to
a care order and there is no parent or guardian. It can only be made if the threshold
conditions for making a care order under s.31(2) CA 1989 are satisfied. The court
must also be satisfied that each of the child’s parents or guardians have consented
Family Law 14 Adoption page 233
to the child being placed for adoption. The local authority may sometimes have a
duty to apply for a placement order under s.22(1) ACA or they may be exercising their
discretion to apply under s.22(3) ACA.
Activity 14.6
Read s.22 ACA and consider what the difference is between the local authority
having a duty to apply for a placement order and a discretion to apply for a
placement order.
If a placement order is made then it remains in force until it is revoked. The child is
party to placement order proceedings and so a Children’s Guardian will be appointed
to safeguard the child’s interests. Placement orders can be varied on the application of
two local authorities. This usually takes place where one local authority is substituted
for another. The placement order gives parental responsibility to the local authority
and any prospective adopters.
If the placement is failing then the adoption agency or local authority can remove
the child from the placement. This is not in response to birth parent satisfaction
under s.30 ACA and whilst the placement order is in force no one can cause the child
to be known by a new surname or remove the child from the UK (unless it is for up
to one month with permission) under s.28(2) and s.28(3) ACA. Following removal of a
placement order, any care order ceases to have any effect (s.29 ACA), any s.8 CA order
ceases to have any effect and a s.8 CA order cannot be made.
If a baby of less than six weeks is to be placed then an agency can place the baby with
the voluntary agreement of the parent or guardian. The agency though has no power
to determine the extent of parental responsibility for either birth or prospective
adoptive parents. This is restricted under s.25(4) ACA.
14.4.2 Consent
Consent is an important part of adoption. Images of baby-snatching from ‘fallen’
mothers have long haunted literature dealing with adoption and arguably the system
is far more open than it used to be. Under the ACA consent as an issue is resolved
far earlier in the process than it used to be. The rationale for this is to create more
certainty and stability for both children and prospective adopters. It is also meant
to prevent birth families from being left with no choice about adoption and being
‘bounced’ into consenting – supporting any placement if it meant the adoption
was confirmed. Consent for these purposes is defined under s.52(2). The ACA 2002
introduces the concept of advance consent, where birth parents give consent
unconditionally without knowing the identity of the persons in whose favour the
adoption order will be made. This is provided for under s.20 ACA and it enables birth
parents to relinquish their child and have nothing further to do with the process. It
replaces the old freeing process under the 1976 Act.
Under s.19(1) ACA consent is required before placement is made. This consent
should be obtained from any parent with parental responsibility. The consent of the
unmarried father is not required unless he has parental responsibility. When the
unmarried mother consents to adoption the unmarried father who then obtains
parental responsibility will be treated as though he gave consent at the same time as
the mother. Where a father obtains parental responsibility after the application for
an order has been made the father can, under s.46 ACA, with the leave of the court,
oppose the order on the basis there has been a change of circumstances. We have
seen, however, the courts do not grant this leave readily.
page 234 University of London External System
Activity 14.7
What rights does an unmarried father have under adoption law? What case is there
for giving him additional rights?
If consent is given in respect of an adoption order within the first six weeks of birth
then this will be viewed under s.52(3) as being ineffective. If the consent is simply for
a placement order then the consent will be effective. Under s.52(3) ACA consent must
be given in a prescribed form and if consent has been given then under s.30 ACA it is an
offence for birth parents to then remove the child from the prospective adopters. Once
consent has been obtained it cannot be withdrawn although leave can be obtained by
the court to oppose the final awarding of an adoption order.
Under s.52 ACA there are two grounds for dispensing with consent to adoption and to
placement for adoption. This is where the parent or guardian cannot be found or is
incapable of giving consent (s.52(1)(a)) or where the welfare of the child requires the
consent to be dispensed with (s.52(1)(b)). When dispensing with consent the court must
have the child’s welfare and the welfare checklist in mind. This is, at best, controversial
because arguably the pendulum has now swung against the birth parents’ right to a
family life under Article 8, ECHR.
Activity 14.8
Does the law adequately protect the interests of the birth parents? Does it protect
their interests too much?
No feedback provided.
Summary
Placement orders are made which involve the child living with the prospective adopters
as a trial run. Children can only be placed if certain criteria are met. One of these
criteria is consent of the birth parents. This must take a prescribed form and in certain
circumstances it can be dispensed with.
14.5 Contact and the child’s right to know
Historically adoption involved the child being removed from the birth mother and
transplanted into the new adoptive family. Although there are still examples of this,
the decline in baby adoptions and the more common adoption of older children has
meant that older children have more memories of their past. This means it may, in some
circumstances, be appropriate for them to stay in touch with their birth family. Unlike the
CA 1989, however, the ACA 2002 does not provide a presumption in favour of contact.
Prior to the placement order being made the court must consider whether there are
any arrangements in place for contact with the birth family. Once this authorisation
moves to the adoption agency they must take responsibility for this task. Once a
placement order has been made it is not possible for another party to obtain a contact
order under s.8 CA 1989. It is, however, possible under s.26 ACA to compel the person
with whom the child lives to allow that child to visit or stay with the person identified
in the placement order. When this s.26 order is being made the court must consider
the child’s welfare, as with all proceedings, and the other principles for adoption (as
discussed earlier) must also be considered.
Once the final adoption order has been made a s.8 CA 1989 order can be applied for
and so post-adoption contact can take a legal form. If the adopters object it is unlikely
the court will be willing to grant a s.8 order. Many of the adoptions are of children in
care and in some cases it may be in their best interests for their relationships with
their birth parents not to be severed. Once the adoption order is complete the birth
parents must apply to the court for leave to apply for a s.8 contact order as they lost
their automatic right to apply. The courts will consider the birth parents’ wishes but
will be more concerned with the potential disruption to the adopters and child. Post-
adoption contact is desirable in some circumstances but is not required in all.
Family Law 14 Adoption page 235
14.5.1 The child’s right to know
Adults who were adopted as children are allowed to obtain a copy of their original
birth certificate and to apply to the court for the name of the agency which arranged
the placement and the local authority which supervised it. The statutory right may be
denied in appropriate circumstances. See R v Register General, ex parte Smith [1991] 1 FLR
255.
Sections 77 and 78 AA require the Registrar General to maintain an Adoption Children
Register where relatives of an adopted person who wish to contact him or her can
have their details recorded.

The information will be passed on if the adopted person
has given a notice indicating a wish to contact relatives. These documents are not to
open to public inspection. See D v Registrar General [1997] 1 FLR 715.
Activity 14.9
Should a child have an unlimited right to know the identity of his or her natural
parents?
Summary
Historically post-adoption contact with the birth parent was unheard of. Worries that
the parent would not want contact or the child’s life would be disrupted by the arrival
of a birth parent meant the process was shrouded in secrecy. There are now provisions
which permit children to gain, once they reach adulthood, information concerning
their heritage and this is consistent with a child’s right to know. Some adoptions are
not that straightforward and involve children who have strong memories of their birth
parents and the law now requires the adoption agency and court to consider provision
for post-adoption contact.
14.6 Adoption and the Human Rights Act 1998
The major question that emerges when considering the compatibility of present
adoption law and the European Convention on Human Rights concerns the
interference by a public authority with the exercise of the right to respect for family
life.
Initially, it was thought that adoption could only be justified if the motivation was
overridingly the child’s best interests (see Johansen v Norway (1996) 23 EHRR 33). More
recent cases have suggested that adoption is permitted within the Convention. See
Soderback v Sweden (1999) 1 FLR 250 and Scott v UK [2000] 1 FLR 958.
Following the implementation of the 1998 Act, the question of compatibility was asked
specifically in Re B (Adoption by One Natural Parent to the Exclusion of the Other) [2001]
1 FLR 589 where, on final analysis, the HL decided that an adoption order made in
circumstances of the exclusion of the other parent was not a breach of Article 8. Lord
Nicholls said:
‘There is no need to have recourse to the Human Rights Act 1998. I do not see how an
adoption order made in this way can infringe the child’s rights under Article 8. Under
Article 8 the adoption order must meet a pressing social need and be a proportionate
response to that need. Inherent in both these Convention concepts is a balancing
exercise, weighing the advantages and the disadvantages. But this balancing exercise,
required by Article 8, does not differ in substance from the like balancing exercise
undertaken by a court when deciding whether, in the conventional phraseology of English
law, adoption would be in the best interests of the child. The like considerations fall to
be taken into account. Although the phraseology is different, the criteria to be applied in
deciding whether an adoption order is justified under Article 8(2) lead to the same result
as the conventional tests applied by English law.’

For a detailed discussion of
this issue, see Van Bueren, G.
‘Children’s access to adoption
records – state discretion or
an enforceable international
right?’ (1995) 58 MLR 37.
page 236 University of London External System
The failure to notify a father of a pending adoption order has also raised questions
as to the compatibility of the present law and the Convention. See Re H (Consultation of
Unmarried Father) [2001] 1 FLR 646 where it was suggested that, although the consent of
an unmarried father to the adoption of his child was not required by the ACA unless he
had parental responsibility, where he had shown commitment to the child, to make an
order without notifying him of the proceedings would be a breach of his rights under
Article 8. Even where no issue of Article 8 arose, as a matter of general practice, judges
would be expected to inform natural fathers of the proceedings unless, for good reason,
it was inappropriate to do so. Although a mother’s desire for confidentiality might carry
more weight in some cases than in others, it ought not to deprive the father of his right
to be informed and consulted about his child in the majority of cases. This position was
confirmed in PC and S v UK [2002] 2 FLR 631.
However, see the contrast in Re M (Rights of Natural Father) [2001] 1 FLR 745 where the
court concluded that, given the mother’s fear (for both herself and her first child) of the
risk of violence from the father were he to be contacted and informed of the adoption
proceedings in respect of her second child (the mother had decided at the time of the
child’s birth that she wished the child to be adopted), the court held it was not incumbent
upon the local authority to locate and contact the father. On the facts, there would be no
breach of his Article 8 rights as there was no family life to regard. However, even if Article 8
had been relevant, such interference would be justified, exceptionally, on the basis of the
need to protect the rights of the mother and the two children and in particular the health
of the mother and the older child.
The most controversial aspect of present adoption law is dispensing with a parent’s
consent. From the above authority it would appear that this is unlikely to be successfully
challenged under the Human Rights Act. The ACA places the child’s welfare as being the
paramount concern for the courts. This means that if there is even the slightest sense that
the birth parents will disrupt the adoption then the courts will prioritise the interests of
the child over those of the birth parents. This would suggest that unlike the old law, which
often attempted to balance interests, the new law makes the position of the birth parents
more vulnerable than ever.
Summary
The current law on adoption would appear to raise human rights concerns for those birth
families who do not provide the requisite consent. As the welfare of the child is used to
defend the dispensing of consent it is largely thought that the law on adoption is human
rights compliant.
Further reading
¢ Bainham, A. ‘Gay survivors and lesbian parents’ (1998) CLJ 42.
¢ Ball, C. ‘The Adoption and Children Act 2002 – A Critical examination’, (2005)
Adoption and Fostering 29, 6.
¢ Choudhry, S. ‘The Adoption and Children Act 2002, the welfare principle and the
Human Rights Act 1998 – A missed opportunity’ (2003) CFLQ 119.
¢ Cullen, H. ‘Adoption – a (fairly) new approach’, (2005) CFLQ 475.
¢ Gallagher, P. ‘Adopting your own child – all the way to the Lords’ (2002) Fam Law 548.
¢ Harris-Short, S. ‘The Adoption and Children Bill – a fast track to failure?’ (2001) CFLQ
405.
¢ Hitchings, E. and T. Seager (2007) ‘The Adoption and Children Act 2002: a level
playing field for same-sex adopters?’ CFLQ, Volume 19, Issue 1, 60.
¢ Mahmood, s ‘2001 Adoption and Children Bill’ (2002) Fam Law 439.
¢ Richards, M. ‘Relinquishment, freeing or abandonment?’ (1997) CFLQ 313.
¢ Ryburn, M. ‘In whose best interest? – post-adoption contact with the birth family’
(1998) CFLQ 53.
Family Law 14 Adoption page 237
¢ Tasker, F. and C. Bellamy (2007) ‘Reviewing Lesbian and Gay Adoption and Foster
Care: The Developmental Outcomes for Children’, Fam Law, 37, 524.
¢ Van Bueren, G. ‘Children’s access to adoption records – state discretion or an
enforceable international right?’ (1995) 58 MLR 37.
Sample examination questions
Question 1 At the age of 16, and with the support of her parents, Alison had a baby.
Alison continued her education and the baby, Jason, was looked after by Alison’s
parents, Mr and Mrs Smith, until she left school. Unknown to her parents, Alison
had applied for and been offered a place at university far from home. When Alison
told her parents, she also announced that she wanted to have Jason adopted by
strangers, since in the long term she had no intention of caring for him and thought
they were too old to bear the responsibility. Her parents were heartbroken when
in 2008 Alison insisted that Jason move to another family with a view to adoption.
In her first university year, Alison again became pregnant. Unwilling to have an
abortion, Alison left university and again turned to her parents for help. She also
decided that she wanted Jason back. Meanwhile Jason has been living with Mr and
Mrs Brown, who are keen to adopt him and have the support of the local authority.
Advise Alison, Mr and Mrs Smith and Mr and Mrs Brown as to their respective legal
rights and the likely outcome of legal proceedings to adopt Jason.
Question 2 Pippa, who is now 20, gave birth to a daughter Zoë in June 2007. As
she was unemployed and homeless, she decided to give Zoë to her godmother,
Rebecca, who is 30 years of age, comfortably off and separated from her husband,
Nathan. It was agreed that Rebecca would adopt Zoë and she would give Pippa
£5,000 to help her ‘adjust’.
Advise Rebecca, who now wishes to make a formal application to adopt Zoë, but
who tells you that Pippa, who is now employed and living with her fiancé, Tony, has
demanded the return of Zoë.
Advice on answering the questions
Question 1 First, it would appear that the placement of Jason with the Browns
is unlawful as ss.92 and 93 ACA make it clear that you can only place a child for
adoption with non-relatives through an adoption order. This crime will not prevent
adoption, but could influence any application for it. The Browns will have to meet
the requirements to adopt under the 2002 Act. The illegal activities will not help the
Browns’ case.
Jason’s welfare under the 2002 Act is the first and the paramount concern and as Alison
is refusing consent, the Browns will have to hope that the courts will dispense with her
consent under s.52 ACA. The courts will consider whether Alison’s denial of consent is
unreasonable. Will her indecision on whether to look after Jason count against her?
These are factors considered by the court when dispensing with the mother’s consent.
Alison wants Jason back. She will therefore need to seek a residence order under s.8
CA. Jason’s welfare will be paramount once more and the courts will work through the
welfare checklist in deciding whether to return Jason to his mother. As Jason is quite
settled with the Browns, the courts will consider his move may be detrimental. But in
view of his young age and the general view that children are better off with their birth
parents, he will probably be returned. If the courts were so minded, an alternative
arrangement may be a special guardianship order under s.14A CA 1989. This would not
permanently sever Jason’s contact with Alison but it may provide more stability for the
Browns as any application for an adoption order is unlikely to proceed especially as the
existing placement is unlawful.
Should Mr and Mrs Smith wish to apply for a residence order, they would require leave
to apply if they did not have Alison’s consent. If they did apply the same law would
apply to them as to Alison. If there is a choice between Mr and Mrs Smith and Alison,
then on the given facts Alison will probably succeed.
page 238 University of London External System
Question 2 In this question you need to consider the status of the donation of the
child. Adoption must take place within the legal parameters. Children are not, after
all, gifts! The payment made to Pippa of £5,000 to help her adjust is questionable. If
this is construed in any way to be a payment for the child, then this is against the law
under s.95 ACA 2002. This could go against her in any adoption proceedings. If Rebecca
wishes to adopt Zoë she will have to meet the requirements to adopt under the ACA
2002.
Zoë’s welfare under the 2002 Act is the first and paramount concern and as Pippa is
refusing consent, Rebecca will have to hope that the courts will dispense with her
consent under s.52 ACA. Will Rebecca’s denial of consent be deemed unreasonable?
Will her indecision on whether to look after Zoë count against her? These are factors
considered by the court when dispensing with the mother’s consent.
As Pippa wants Zoë back, she will need to seek for a residence order under s.8 CA. This
will enforce Zoë’s return. Zoë’s welfare will be the paramount consideration and the
courts will work through the welfare checklist in deciding whether to return Zoë to
her mother. As Zoë is quite settled with Rebecca the courts will consider her move as
being detrimental. But in view of her young age and the general view of children being
better off with their birth parents she will probably be returned.
Family Law 14 Adoption page 239
Reflect and review
Look through the points listed below:
Are you ready to start revising this guide?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to revise the whole subject.
Need to revise first = There are one or two areas in this chapter I am unsure about and
need to revise before I go on to wider revision.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on
Need to
revise first
Need to
study again
I can state the purpose and legal effects of adoption. ¢ ¢ ¢
I can say who may adopt and who may be adopted. ¢ ¢ ¢
I can understand how an agency or court will decide
whether to place a child with a prospective adopter
and how consent is obtained or dispensed with by
the birth parents.



¢



¢



¢
I can explain the powers of the court in adoption
proceedings and the orders it may make.

¢

¢

¢
I can describe the circumstances under which it will
be appropriate to attach conditions to an adoption
order.


¢


¢


¢
I can outline the status of the unmarried father in
adoption proceedings.

¢

¢

¢
I can describe the impact of the HRA on adoption. ¢ ¢ ¢
If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
14.1 Adoption under the Adoption and Children Act 2002 ¢ ¢
14.2 Adoption services ¢ ¢
14.3 The adoption order ¢ ¢
14.4 Placement and consent ¢ ¢
14.5 Contact and the child’s right to know ¢ ¢
14.6 Adoption and the Human Rights Act 1998 ¢ ¢
page 240 University of London External System
Notes
Contents
Chapter 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246
Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251
Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
Chapter 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
Chapter 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257
Chapter 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258
Chapter 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
Feedback to activities
page 242 University of London External System
Using feedback
Feedback is designed to help you judge how well you have answered the activities in
the text. It will show you whether you have understood the question, and chosen the
correct solutions.
Do not look at the feedback until you have answered the questions. To do so
beforehand would be pointless, and even counter-productive. Completing the
activities helps you to learn. Checking the feedback helps you learn more. Remember
that ‘doing’ activities teaches you more than reading does.
You should reflect on what the feedback tells you, and note down your thoughts in
your Portfolio.
Family Law Feedback to activities page 243
Chapter 2
Activity 2.1
There are three possible arguments to justify these restrictions. The first is the general
moral objection to incest of any type. The second is that it might send a message to
children of a couple who had married within the prohibited degrees to view it as
acceptable to have sexual relations with members of your family. The last justification
is medical. However, scientific advances and genetic screening have undermined the
traditional view that children born to same-family couples are usually deformed in
some way.
Activity 2.2
Every country fixes a minimum age for marriage and in English law this is fixed at 16 in
accordance with our age of consent. It is consistent with English criminal law as well as
the fact that if children were married at a younger age and had children they may not
be able to care for them, which would increase the state burden. The period between
16 and 18 demands parental consent although, as seen, the requirement gives the
Registrar the opportunity to refuse to conduct the marriage rather than invalidating it.
Activity 2.3
The formalities of marriage are useful in that they require individuals to understand
the solemnity of the occasion and require advanced thought and preparation. The
formalities ensure that there is a clear state record that the wedding has taken
place and that these formalities do draw a clear line between a marriage and an
engagement. Also the formalities allow an individual to object to the wedding should
they choose to. It should be noted that recent case law, most notably CAO v Bath
[2000], has suggested that the law is not always overly concerned with the formalities
of marriage. Unless people marry with knowledge of a defect in the formalities they
are not likely to find the validity of their marriage questioned.
Activity 2.4
No feedback provided.
Activity 2.5
Historically the definition of duress was that which existed in criminal law where the
will was overborne because the threat was to life and/or limb of the party or their
close family. The threat itself was key; then in the case of Hirani v Hirani [1982] the
threat of disgrace and ostracism was held to mean that there was no genuine consent.
However, in Singh v Singh [1971] the courts suggested that as the daughter entered the
marriage out of a sense of duty rather than fear there was no duress. These decisions
suggest that in these cases the definition of what amounts to duress is not settled.
This may prove advantageous as a lack of settled definition does allow the courts to
be pragmatic and to treat cases on their own facts. A settled definition may allow for
more certainty, but it would appear such certainty would either demand a return to
the original strict definition (where Hirani would not have been successful) or we have
a position which is no more than a friendly suggestion as to support of the marriage.
Such a move would make the nature of duress farcical. In a very wide definition, a
father or mother suggesting their child marry someone would be construed as duress.
In a narrow definition, the party would have to be saying yes to the wedding with
a knife to their throats. It does appear that with the arrival of the Forced Marriage
Act 2007 the courts will be rather more concerned about cases where questions of
duress have been raised alongside issues of capacity. The key is to be pragmatic. What
evidence would there be of duress? Of a forced marriage? As ever, flexibility in family
law does allow for a pragmatic and arguably more just response.
page 244 University of London External System
Activity 2.6
A ‘sham’ marriage is one where a couple, perhaps for immigration purposes, marries
in order that one party gains residence in the UK. Historically the validity of these
marriages was not questioned and this was confirmed in Vervaeke v Smith [1983] 1
AC 145. The government has tried to clamp down on ‘sham’ marriages, in the belief
that the purpose is to secure residence in this country. Various preliminaries in civil
weddings have been introduced. These have not been well-received by the courts as
they only apply to civil and non-Anglican preliminaries to the wedding ceremony. If
no suspicion has been raised by the Superintendent Registrar of the district where
marriage is being sought and certain immigration requirements have been met then it
does not appear to matter if you marry a stranger, as the motivation for marriage is not
relevant for the purposes of either s.11 or s.12 MCA. Historically such marriages were
popular among the aristocracy. They were never labelled ‘sham’ marriages and even if
couples choose never to live together this will not deem the marriage to be invalid.
Activity 2.7
Fact Void? Voidable?
a Peter marries Shelley, having already married Lucy. Yes
s.11(b) MCA
b Lofty marries Michelle despite the fact that she is
pregnant by Dennis.
Yes
s.12 (f) MCA
c Hayley marries Roy despite the fact she was born male
and has had gender reassignment surgery.
Yes
s.11(c) MCA
d Salma, a devout Muslim, marries Adi because her
parents suggest that they will kill her if she refuses.
Yes
s.12(c) MCA
Chapter 3
Activity 3.1
Both of these decisions supported the view that you must establish one of the five
facts in order to prove that a marriage has irretrievably broken down. In both cases
there was clear evidence that the marriages had irretrievably broken down but the
evidence did not support a finding of any one of the five facts. The justification for
these decisions appears to be that as the divorce generally requires fault in some way,
then a growing apart over nothing in particular does not allow for fault to be found.
Activity 3.2
In Le Marchant there was a discussion of the statutory provision under s.5 MCA,
which prevents a divorce decree being granted in the case of grave financial or other
hardship. The decree was refused in Le Marchant because it was held that the loss of a
contingent right to an index-linked pension was prima facie grave financial hardship
to a wife. Such a decision may be difficult to sustain today in light of pension-sharing
legislation.
Activity 3.3
In Roper it was made clear that the construction of the adultery provision for divorce
demanded that the petitioner would have to prove one act of adultery which meant
the petitioner found it intolerable to live with the respondent. This is a cause-and-
effect argument. There need be no causal link between the act of adultery and the
intolerability-to-live-with fact. The fact that adultery has taken place means that under
Roper it is quite simply satisfactory to divorce your partner because as well as one act
of adultery he blew his nose more than she liked. The nose blowing may have caused
much dissatisfaction for many years but the one act of adultery gave the wife an
opportunity to divorce her husband. The law is clear on this matter: that adultery may
simply be a symptom rather than a cause of marital breakdown.
Family Law Feedback to activities page 245
Activity 3.4
This Activity asks you to consider the discussions that emerged in Thurlow v Thurlow
[1976] where the ‘human vegetable’ respondent would still be able to argue that their
behaviour made it impossible to live with them. This seems a harsh approach but,
while there may exist a moral obligation to stay with your partner who is ‘a human
vegetable’, the law does not demand that you stay.
Activity 3.5
After Thurlow it became apparent that the courts were prepared to grant a decree
when it ‘would take full account of the obligations of the married life’. There are
arguments in support of the idea that when people marry fit, healthy people with all
the usual desires that human beings have, then there is a legitimate expectation that
these needs will be met by the other party. The problem, from a moral perspective, is
that most people agree in their wedding vows that they will take the other party ‘in
sickness and in health, till death us do part’. Difficult decisions face the courts and we
should be balanced in our critique of the operation of these powers.
Activity 3.6
In Le Brocq v Le Brocq the wife chose to exclude her husband from the matrimonial
bedroom by putting a bolt on the inside of the door. Did this bolt allow for the fact
of separation? Harmna LJ decided not, suggesting that ‘separation of bedrooms,
separation of hearts, separation of speaking…but one household was carried on…’.
Activity 3.7
In Mouncer it was decided that, as the parties lived under the same roof, the ‘fact’
of living apart could not be sustained. The couple ‘shared separate bedrooms and
separate lives’ in Mouncer. In Fuller they argued that while he had spent lots of time
with his wife, she was acting in the capacity of being his carer and so a divorce was
granted. This decision can be distinguished. In Mouncer they still lived as ‘man and
wife’ albeit that they lived in ‘what only the most determined pessimist could regard
as a normal married life’ (Barton LJ). In Fuller they lived together, but they did so as
patient and carer and the courts have felt there was a difference.
Activity 3.8
The present law does maintain ‘fault’ as a basis for default. The petitioner alleges
that the respondent has been adulterous, acts with unreasonable behaviour or has
deserted them. The remaining two facts refer to living apart but they must endure
this with consent for two years and without for five years and still, if the divorce would
result in grave financial hardship, there will be no decree granted. This demonstrates,
in some ways, the importance that English law places on marriage and the solemnity
of the institution. It is not to be got out of easily and there are many who would
support such a system. There is, however, an alternative view. It has been argued
that if one spouse wishes to divorce then there really is no point in staying married.
Just because you put hurdles in the way of divorce it does not necessarily make the
marriage any happier. In fact, it makes it worse. It could be argued that there should
be a right to divorce, although as you will see there is no mention of this in the ECHR.
A fault system promotes bitterness. It focuses the parties on the past and does not
necessarily help them deal with the future. Alternatively, you will see from some of
the case law that sometimes people just do not wish to be together and they live
very separate lives, but still the law insists they remain married because there is no
fault! Revisit Buffery v Buffery [1988] and Richards v Richards [1972] once more. In these
cases there was no opportunity to allocate blame but still the couples had to endure
each other. Most countries around the world are moving towards a ‘no fault’ divorce
system.
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Chapter 4
Activity 4.1
Richards appears to have narrowed the availability of ouster orders on the basis that
the balance of harm test showed that the harm caused to the wife and child by their
poor living conditions was not caused by Mr Richard’s conduct. To require such a
causal link suggests a further criterion which would, by definition, act as a further
obstacle to an ouster order – or occupation order, as they are now known.
Activity 4.2
Your definition could be a dictionary definition, which suggests it is to interfere with
sexually, to injure or to annoy. You should note that it is not defined by statute, but
case law has argued that it is not just violence. It can include pestering, harassment
and threatening behaviour. You may think it would be more appropriate for
consistency’s sake to provide a statutory definition. This would be prescriptive and
would ensure that either people were molesting the victim or they were not. The
problem with any statutory definition is that it would be unlikely to define all areas of
behaviour that could be described as ‘molestation’. To leave it to case law is to allow
each case to be decided on its own facts.
Activity 4.3
An exclusion (or ouster) order

should only be seen to be a ‘first aid’ rather than a
long-term solution because it is usually awarded for a limited amount of time. A s.33
order can be made for an unlimited amount of time but this is only until the court next
hears the matter. A s.35 order is more limited: it is usually made for six months but can
be extended for further six-month periods. As the order denies a party his or her
proprietary rights, it is not surprising that the Law Commission saw the occupation
order for non-entitled applicants as a short-term solution which would enable the
party to find alternative accommodation. Those who are entitled applicants under s.33
could see the order as a longer-term solution, but they must still go to court to argue
why the order should remain.
Activity 4.4
a. A power of arrest is usually attached to a non-molestation or occupation order
because usually there has to be a threat of violence for the court to grant the order
in the first place. The practical value of having a power of arrest attached to the
order is that if a person breaches the order the police automatically have the
power to arrest him or her.

If the power of arrest is not attached then the victim
would have to apply to the court for a warrant for arrest (see s.47(9)).
b. Due to the practical value of a power of arrest it would, from the victim’s point
of view, be better to routinely attach such a power to the order. In some respects
this is more likely to ensure compliance. A respondent can give an undertaking, or
a promise, to comply with the order but this is not possible if there is a threat of
violence, which is where a power of arrest will be attached to the order.
Activity 4.5
The case law, historically, demonstrated a judicial unwillingness to grant an ouster
order which would undermine the respondent’s right to occupy their own house.
Such a deference has been qualified by decisions which have not only awarded
proprietary rights more readily to victims (in the form of constructive trusts) but
have been more prepared to protect people over property. That said, the distinction
between those with proprietary rights and those without remains. Since FLA came
into force in 1997 the case law has not presumed in favour of the victim. Chalmers v
Johns [1999] continued the pre-Act approach to ouster orders, counselling caution. The
balance of harm test was considered in Gripton (1999) and judicial discretion appeared
to triumph. To grant occupation orders and undermine proprietary rights without

Ouster and exclusion orders
are all now called occupation
orders under the FLA 1996 as
amended.

‘Him or her…’: not all
molestation, harassment
and violence is carried out by
men.
Family Law Feedback to activities page 247
caution would not be a desirable trend. The ‘victim’ has to ask the court to balance
the harms and therefore the court must be vigilant. The Human Rights Act 1998 also
demands caution for the Convention rights that can potentially be breached.
Activity 4.6
Following the enactment of the FLA Tony would not have been able, under s.42, to
apply for a non-molestation order. He has been in a relationship with Alistair for five
years, but they have never lived together. As a partner in a same-sex relationship,
therefore, Tony could not have historically applied for a non-molestation order
because he was not ‘an associated person’ for the purposes of the Act. Following the
enactment of the DVCVA the concept of ‘associated person’ has now been extended
and would now include Tony.
Activity 4.7
No feedback provided.
Chapter 5
Activity 5.1
In Titheradge look at the initial adjustment from £14 to £80 per week and then a
substitution for £35 per week. Did this meet the family’s reasonable needs? The
courts were aware that any reduction in payment would be topped up by welfare
benefit entitlement. Should this be the case? Does this encourage judges to be
lenient in assessment for all parties as the state will step in to assist? Is this potentially
discriminatory to those who would not be entitled to welfare benefit provision?
In E v C look at the removal of the £5 charge in the light of the father’s dependence on
welfare benefit provision. This £5 per week was deemed to be ‘crippling’ as he had a
new family to support and if he had been subject to Child Support legislation he would
have returned a nil assessment. Should we ask why an assessment by the courts took
place at all? Costs were incurred that could never be recovered.
In B v B notice how the court is criticised for making an order which involved a father’s
new partner’s income being assessed for the purposes of maintenance for his children.
The father had been out of work for more than two months and had a significant
overdraft. Should his new partner be liable for her partner’s children? The court did
not think so. Do you agree? The dissolution of one family unit in favour of the creation
of another may bring with it responsibilities which need to be met by all parties.
Activity 5.2
No feedback provided.
Chapter 6
Activity 6.1
This is a focus for substantial academic debate. It has been suggested that a marriage
should be viewed as a contract and if there is a breach of that contract then damages
should be paid. Others have argued that, as marriage is an equal partnership, husbands
and wives should split everything equally upon marital breakdown.
Some argue that people should walk away from a marriage on the basis of what they
arrived with. This is unrealistic where couples have children and have been married for
a significant length of time. The economic realities of divorce very often mean that one
party is economically weaker (usually the wife, but not always) and this is due to family
dynamics. After the birth of children, mothers are often encouraged to leave work or
reduce their working hours. This results in a reduction in their financial autonomy.
While the wife is at home looking after the home and the children, the father may be
earning lots of money as a result of his wife’s position of support. It would be grossly
page 248 University of London External System
unfair if a husband, upon divorce, could walk away leaving his wife destitute with no
financial support. She has, after all, assisted in his financial success. If the marriage is
ended, she ought perhaps to be compensated – or at the very least should be treated
equally.
As with many issues in family law, extremes are not the norm and it often becomes
a question for the courts as to how much they ought to award the mother/wife in
financial support. Is the one-third rule appropriate? Should there be a 50/50 split?
These dilemmas are at the centre of financial support upon divorce, nullity or
separation.
Activity 6.2
The advantage of a lump sum order is that it can be used to effect a clean break,
which means the party receives one capital payment and that is the end of the
financial support. It can be used to offset the other party’s staying in the matrimonial
home. For example, A and B divorce. B stays in the house and pays A ‘their share’. The
disadvantage of a lump sum order is that it is only available for spousal support and
not for child support. There can be no clean break where children are concerned.
Activity 6.3
In White Lord Nicholls acknowledged that there were both advantages and
disadvantages of unfettered judicial discretion in financial support cases. Judicial
discretion often leads to a greater amount of uncertainty and flexibility which would
limit the ability to advise clients as to what the outcome of any given case is likely
to be. It may depend on how the particular judge decides to exercise his or her
discretion. There is, however, a framework and general principles which judges must
adhere to for fear of appeal so in real terms their discretion is not that unfettered.
There are also concerns with unfettered judicial discretion that it is more difficult
to enforce court decisions which are often seen to be arbitrary and lacking any
consistency. ‘Justice by geography’ becomes a problem where people feel aggrieved
that like is not always treated with like. This is clearly not the case with Child Support,
which is far more mathematical in its calculation.
This system of mathematical calculation, as in the old Duxbury method of assessment,
is not without its critics. Equality does not always result in justice and sometimes
justice is better maintained with a pragmatic response to every case. Baroness Hale
observed in Miller and McFarlane (2006) that ‘the ultimate objective is to give each
party an equal start on the road to independent living’.
If the dissatisfaction with discretion is an exception rather than the norm then many
would argue that justice is better served on that basis.
Activity 6.4
The justification for this distinction can be seen if you look at the facts of Suter v Suter
and Jones [1987] 2 FLR 232. In this case the wife remained in the family home with the
two children. The wife’s younger lover, who was in receipt of a respectable income,
stayed at the house every night. At the court of first instance the judge had made the
father transfer his interest in the home to the wife and he had to make periodical
payments to her to cover the mortgage repayments. This action was justified as it
secured housing for the children and their welfare was important. The CA held the
judge had been wrong to exercise his discretion in this way as he had clearly placed
too much emphasis on the children’s welfare in this equation. There was no reason
why the lover could not make a contribution to the household and for the court to
be unfair to the father in the name of the children was wrong. The children should be
considered but they should not be the most important consideration at the expense
of other factors. These facts show that on some occasions it would be wrong to look
just at the children. They must always appear in the equation and chances are judges
will make decisions that do put them first, but a judge must not justify his or her
decisions simply on the basis of the welfare of the child.
Family Law Feedback to activities page 249
Activity 6.5
This is an area of particular dispute. The dispute appears to hinge on two important
questions. First, does the dependent spouse have any earning potential? The second
is a question of judgment as to what would it be ‘reasonable’ to expect? The popular
figure in these disputes is the middle-aged mother who gave up work to bring up the
children and look after the home. Her potential for income generation should not,
in accordance with the case law, be overestimated. At the same time consider the
difference in view adopted in Barrett v Barrett [1988] 2 FLR 516 and T v T (Financial Relief:
Pensions) [1998] 1 FLR 1072. In Barrett the years of care had made it more difficult for
the spouse to find work and so periodical payments were awarded for an indefinite
period. In T, however, the couple were childless and the woman had worked in a bank
for the first half of the marriage. The court felt she should make an effort to find work
even if the location is not ideal, the work is not what she would prefer and she would
prefer not to have to do it. In ‘big money cases’, such as Parlour (2005), we can now
see that spouses can secure periodic payments on the basis of their wealthy spouse’s
future income. This would certainly undermine any notion of ‘clean break’ but does
assist the home maker towards independent living.
Activity 6.6
The ‘reasonable needs’ of the wealthy spouse are likely to be assessed as greater
than those of the less affluent. These are what family law calls the ‘big money’
cases. In Dart v Dart [1996] it was made clear that if the couple are wealthy then the
spouse’s reasonable requirements will be calculated by considering the expenditure
during the marriage. The standard of life to which one has become accustomed is,
where possible, to be sustained. In Conran the wife was awarded £10.5 million for
her financial settlement. Such large sums are confirmed in the case of White and in
Charman the wife managed to secure 36.5 per cent of the assets which amounted to
£48 million.
Activity 6.7
There is no doubt that White moved the goalposts with regard to financial provision.
It opened the door to equality even if Mrs White herself did not receive 50 per cent of
the couple’s assets. That said the door to equality was only opened slightly because
the cases which have followed (most notably McFarlane and Charman) have continued
to apply s.25 – albeit in a different spirit to how they once did. The application of s.25
is a two-stage process. Judges add up the pot of assets and then, applying the criteria
in s.25, they divide it up to achieve fairness. ‘Fairness, like beauty, may lie in the eyes of
the beholder’ and so this does lend itself to an individualised, custom-made approach.
There is still no automatic 50/50 split. The interpretation of s.25 today is different to
what it what it was in 1973, but most statutory provisions in family law are interpreted
to represent the society in which they operate. Certainty may be desirable, but never
at the cost of justice and fairness.
Activity 6.8
a. This is a matter of opinion as the courts have already made it clear that the former
standard of living will be considered when reasonable needs are being assessed.
In reality this ideal will be difficult to sustain unless it is a ‘big money’ case. Going
from running one house to running two may well involve greater expenditure
and such expenditure will involve downsizing. The courts will consider the former
standard of living, as perhaps they should, but they will not be a slave to them. It
would be unfair if a 48-year-old woman who has brought up three children while
her husband worked outside the home finds her husband is guilty of adultery
and divorces him only to discover her previous comfortable living standards are
undermined. The law tries to deal with this problem. However, often in these cases
discovery is the biggest problem as crafty spouses can become very adept at hiding
their assets.
page 250 University of London External System
b. In the big money cases the courts give substantial consideration to the former
standard of living. But there is no absolute requirement that it should be replicated
upon divorce. The courts suggest they give such information ‘adequate
recognition’. Two cases offer an interesting contrast. In R v R (Financial Provision:
Reasonable Needs) [1994] 2 FLR 1044, a Queen Anne House

with 30 acres of ground,
hard tennis courts and a swimming pool was clearly beyond the spouse’s
reasonable needs but the courts felt it would be unreasonable to ask her to leave
this house as she had been there for 17 years. In Wells v Wells [2002] EWCA Civ 478,
however, the courts made it clear that as the finances were dependent on the
family business, then the good as well as the bad times had to feature in any
assessment. In Charman (2007) Mrs Charman did not appear to suffer in the
calculations and was awarded £48 million.
Activity 6.9
No feedback provided.
Activity 6.10
As one of the policy aims of divorce law is not to apportion blame it would be wrong
for the courts to take conduct into account unless it was particularly extreme. If a
spouse commits adultery and the petitioner wants a divorce then this is fair. There is
no need for the financial support to be presented in a framework of punitive damages.
Case law that involves extreme conduct has included inciting a spouse’s murder,
stabbing a spouse and alcoholism causing disagreeable behaviour and neglect of
the home. The debate appears to revolve around two arguments. To achieve a sense
of justice, gross and obvious conduct ought to be considered. Others suggest that if
we are to accept no-fault divorce it does not make any sense in any circumstances to
inflict punishment when financial support is being considered.
Activity 6.11
a. A ‘clean break’ order is an order which will end any continuing obligation between
the spouses. The advantage of such an order is that the parties can get on with
their lives free from further reminders of the marriage. On a more practical level
it allows a lump sum order to be made which means that if a spouse wants to
remarry or start a new career, he or she will not have to worry that the providing
spouse will apply to the court to vary maintenance due to new circumstances. The
main disadvantage of a ‘clean break’ order is its finality. Whatever happens, the
court cannot reopen the order. If an order is granted on the basis of a particular
set of financial circumstances and some months later those circumstances have
changed, there is no room for manoeuvre. Courts are willing to make ‘clean break’
orders in ‘big money’ cases and where any continuing support offers no benefit
to the dependent spouse. If a marriage has been short and childless this makes a
‘clean break’ order a popular choice. If there are children involved, there has been
a lengthy marriage or there is uncertainty as to the dependants’ financial future,
then the courts will be reluctant to make such a ‘clean break’ order as in Parlour
(2005).
b. These facts are similar to the case of Burgess v Burgess [1996] 2 FLR 34. At first glance
you may think that a ‘clean break’ order is not appropriate because Janet and
Michael have had a lengthy marriage. This was a consideration in Burgess but the
stronger circumstance which supported a ‘clean break’ order was the fact that
both of the parties had good well-established careers. Andrea and Simon are no
longer in need of housing. If Janet and Michael’s assets are divided equally then
both parties can get on with their lives and enjoy financial security because of
their jobs. Finally, Janet and Michael will not have to worry that, should there be a
change in their financial arrangements, one of them would be back at court asking
for a variation in maintenance.

A Queen Anne house dates
from the reign of Queen Anne
(1702–14) and by implication
is a large and valuable
property.
Family Law Feedback to activities page 251
Chapter 7
Activity 7.1
The question is asked because you will discover that the law is not entirely consistent
on the issue of stepchildren. Probert notes that under the CSA only biological parents
are expected to pay; however, orders can be made against step-, or what Probert terms
‘social’, parents. The stepchild is provided for in some instances under the MCA 1973.
Activity 7.2
Unlike other areas of the Children Act, where s.1(1) makes it clear that the child’s
welfare is the paramount consideration, in the granting of property orders the
court has always made it clear that the welfare of the child is not the paramount
consideration. As confirmed in J v J (Child: Financial Provision) [1999] 1 FLR 152 property
orders are not deemed to be concerned with the upbringing of the child.
Activity 7.3
Mary may have to make an application against John to the Child Support Agency under
CSA 1991 for child support because the Agency has almost exclusive jurisdiction for the
maintenance of children. If she can come to an arrangement with John, then the Child
Support Agency may not have to get involved. They will have jurisdiction if Mary claims
any form of state benefit.
Activity 7.4
David is not a ‘parent’ for the purpose of the CSA 1991 s.1. The Act only covers those
who are the mother or father of the child in law. Therefore, there is no point in Anne
applying to the Child Support Agency. Equally, as an unmarried cohabitant of Anne,
David will not be liable under the CA 1989 (see J v J (A Minor: Property Transfer) [1993] 1
FCR 471). The MCA 1973 would also be of no help to Anne as she and David were never
married. This means the courts would be of no assistance either. Anne should apply
to the Child Support Agency to seek assistance from the natural father of the two
children.
Activity 7.5
This is an argument presented by the Child Poverty Action Group. They have suggested
that the CSA 1991 put the Treasury rather than the child first. The payments are made
to the Child Support Agency. This means that the residential parent or child does
not actually benefit. The payment to the Child Support Agency merely results in a
pound-for-pound reduction in the financial support they receive from the state.
For example, if a residential parent or child is paid £40 per week from the state and
the non-residential parent contributes £30, then the residential parent or child still
only receives £40 with the state ‘topping up’ the remaining £10. It is only if the non-
residential parent pays more than the state benefit that any increase in support will be
felt by the residential parent or child. If the aim of the CSA was to recoup the Treasury’s
losses, the questions must be asked: at what price? See Logan v UK (1994) 22 EHRR 178.
Activity 7.6
a. The ‘clean break’ philosophy is used in divorce law to enable couples to sort out
their finances in such a way that they can split from each other and no longer be
reliant on each other. Such a philosophy has always been difficult to sustain when
children have been involved as they must be maintained until their minority is
over.
b. The Divorce Court has always had wide powers to redistribute the parties’ property
under the MCA 1973. As with the CA 1989, however, any order cannot be made if the
Child Support Agency has jurisdiction to make an assessment.
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Chapter 8
Activity 8.1
Under the test in Kimber v Kimber there does seem to be some evidence of
cohabitation. Sue and Julian have lived in the same house for eight years suggesting
some stability and permanence. They often gain public acknowledgement in terms
of being ‘the perfect couple’. Sue is not, it appears, the mother of Little Tim but does
engage in the tasks and duties of daily life as she collects Little Tim from school and
does the household shopping. Would the reasonable person with normal perceptions
look at the couple’s life together and regard them as husband and wife? On this basis
the courts may decide to take Julian’s income into account as Sue is claiming for state
benefit and the state may assess her as living together as if they were husband and
wife.
Be careful, though, in automatically reaching this conclusion. Julian and Sue have
separate bedrooms, indicating no sexual relationship, and while there may be public
acknowledgement this appears to be from people who do not know them. We are told
Sue picks up Little Tim from school so does this mean she is acting towards the child
in a parental way? Would the reasonable person with normal perceptions now doubt
they were living as man and wife?
What if Sue were Julian’s sister? Nothing in the question refutes that and yet obviously
they could never be seen as living as husband and wife as they would be committing
the crime of incest if they were having sexual relations and the law would not permit
them to marry under the MCA. What if Sue were just a friend of Julian’s? We have
assumed that because they are friends and do engage in household tasks that they are
cohabiting. If she is just a friend, would they be living as husband and wife? In all but
having sexual relations they would be. Are we not allowed to live with people and do
these things with them? Bear in mind that appearances can be misleading.
Activity 8.2
No feedback provided.
Activity 8.3
The three problems focus on Marcus’s rights over Trisha’s property, any claim under
the Fatal Accidents Act 1976 and his rights over his child Ben.
With reference to the property, if Trisha and Marcus were married the flat would
automatically become his upon her death if she dies intestate. But as they are not,
there will be no automatic passing of the property to Marcus. Marcus would have to
apply for an order under the Inheritance (Provision for Family and Dependents) Act
1975 but he may be restricted because he may not have lived with Trisha for two years
and this is required for cohabitants.
The same criteria will be used to decide whether he can recover compensation under
the Fatal Accidents Act 1976. They must have been cohabitants for two years prior to
the accident.
Does Marcus have a parental responsibility order? Is he registered on Ben’s birth
certificate? Without the parental responsibility order he may not be able to consent to
Ben’s medical treatment (see Chapter 9).
Activity 8.4
George has forced his wife Jane to have sexual intercourse with him. This is rape and
since R v R (1991) he will not be able to rely on the marital exemption bar. He may
receive a lesser sentence if convicted but his status of being married to Jane will have
no impact on the charge.
Jane has stolen the watch from David (at this time it also belongs to Ray but that is
not important for this question). She is guilty of theft. As she has been told by George
to ‘get that watch for him’ we need to ask whether she can rely upon the defence of
Family Law Feedback to activities page 253
coercion under s.47 Criminal Justice Act 1925. Such a defence would only be available
because she is being coerced by her spouse. She could not rely upon the defence
of coercion under any other circumstance. Frances agrees with David to try and
persuade the local mechanic to tamper with George’s brakes to make sure he is at
least injured in a car accident. They would, under the normal ambit of the law, be
guilty of a conspiracy to injure George and commit criminal damage to his brakes.
The substantive offence is not important here but Frances and David are married and
under s.2(2)(a) Criminal Law Act 1977 a person cannot be guilty of conspiracy if the
only person they have an agreement with is their spouse. Once they have invited the
mechanic and if he agrees, then a conspiracy is committed, which is subject to the
criminal law.
When Sue takes Ray’s watch to give it to David she commits theft under the
Theft Act 1968. As she is committing theft against her spouse, there is a special
protection afforded which means that under s.30 Theft Act 1968 the Director of
Public Prosecutions must consent to the prosecution. This may prove to be of little
significance but it is a further hurdle enjoyed exclusively because of the status of
marriage.
Mark has put a plastic bag over Angela’s head which would seriously restrict her
breathing and he has set fire to her left breast with lighter fluid. Angela would argue
that she consented and, following the decision in R v Wilson, it could be argued by
Mark that what takes place between a husband and wife when it is purely consensual
cannot be considered to be a criminal offence. Unfortunately for Mark, the facts of this
are very similar to the case of R v Emmett where the level of injury was felt to be too
much to consent to. Mark would be charged at least with actual bodily harm, if not
inflicting grievous bodily harm. His status as her husband is irrelevant and she cannot
consent to that level of injury as it does not, in accordance with R v Brown, fit into one
of the lawful exceptions.
Activity 8.5
In criminal proceedings Soriya is usually competent but not compellable. She cannot
be compelled to give evidence for the prosecution concerning the theft of the car.
However, as Amandeep is charged with a sexual assault on an under 16-year-old Soriya
will be compellable under s.80 Police and Criminal Evidence Act 1984.
If Soriya and Amandeep were unmarried, then Soriya would be an ordinary witness
and so would be competent and compellable.
Activity 8.6
The children of Sophie and Gerald, Max and Helena, are currently living with Sophie. To
have the children live with him Gerald will have to apply to the court for a residence
order under s.8 CA 1989. The issue of importance here is how the courts view parents
who leave a marriage to enter into a homosexual relationship. You will need to look
at the cases of C v C (A Minor) (Custody: Appeal) [1991], B v B (Minors)(Custody; Care and
Control) [1991], Da Silva Mouta v Portugal [2001] and Re G (Children) [2006] UKHL 43 to
help advise Sophie and Gerald of the likelihood of the children’s residence changing.
Under the Adoption Act 1976 Brett and Anton would not have been able to adopt
jointly. However under the Children and Adoption Act 2002 they, as a same-sex couple,
are now eligible to adopt. They must be cautious, though, as the welfare of the child
will be the paramount consideration. This may allow judges to exercise their own
prejudices behind a smokescreen to prevent adoption. The 2002 Act does at least give
Brett and Anton the opportunity to adopt a child.
Jane has to consider whether she can take out a non-molestation order under s.42A
Family Law Act 1996. Crystal is clearly molesting her as there is evidence of her being
harassed. However, to apply for an order the two parties must be ‘associated’. Spouses
or former spouses and cohabitants and former cohabitants are included under s.62(3)
of the FLA 1996. Other injunctive relief may also be possible. See Supreme Court Act
1981 and Protection from Harassment Act 1997.
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As Nathan has died intestate, Derek will encounter problems inheriting his estate. As
a cohabitant Derek would have applied for an order under the Inheritance (Provision
for Family and Dependents) Act 1975 Act. Post Ghaidan v Godin-Mendoza [2004]
discriminating between same-sex and opposite-sex couples is unlikely.
Activity 8.7
This collection of short articles will allow you to consider why reform is viewed as
necessary and what form that reform may take. Under the new scheme you will
note that there would be a remedy available for cohabiting couples who satisfied
certain eligibility requirements and who had not agreed to disapply the scheme.
Cohabitants would only be entitled to recover under the remedy available if they
had made qualifying contributions to the relationship giving rise to certain enduring
consequences at the point of separation. The cohabitation period appears to be 2
to 5 years and the opting-out process is seen as a necessity in line with preserving
couple autonomy. Importantly a qualifying contribution is not just limited to financial
contributions and would recognise those of a home maker.
Activity 8.8
No feedback provided.
Chapter 9
Activity 9.1
a. Under s.28(2) HFEA Niall will not be presumed to be the father of the child as he has
not consented to the treatment and he is not the genetic father. That said, Niall will
have to rebut the presumption of parentage on the basis of him being married to
Marianne. If he chooses not to, then the law presumes he is the father. The sperm
donor would not be the father of the child if Niall does rebut this presumption. The
HFEA makes it clear under s.28(6) that a man who donates his sperm to a licensed
clinic is not the father of any child born using that sperm as long as the sperm is
used in accordance with his consent. The child is fatherless.
b. The mother of a child is the woman who gives birth to the child and so Susan
would be the mother. It would appear from the scenario that this is a ‘do-it-
yourself’ assisted reproduction as there is no mention of a licensed clinic assisting
reproduction. The father would be David as his sperm is used. If Susan had been
inseminated by another man, then the other man would be the father. If the
process had taken place in a HFEA licensed clinic and the other man was simply a
sperm donor, then under s.28(6) the other man would not be the father. To protect
their surrogacy rights, Mary and David could apply to a court for a parenting order
which will allow them to be treated as the parents of the child. If this is successful,
then the parental status and parental responsibility of Susan will be extinguished.
This order will be given if David provided the sperm and the treatment took place
in a licensed clinic. If this is not the case, then David and Mary can attempt to adopt
the child or apply for a residence order so the child can live with them.
Activity 9.2
The welfare of the child would become an issue when scientific tests are being
administered to prove paternity. Unless the child’s upbringing is at issue, the child’s
welfare will not be the paramount consideration for the courts. However Lord Reid
commented in S v McC, W v Official Solicitor [1972] AC 24 that the ‘interests of the child
must not be neglected’. If the outcome would be the same regardless of the test or the
test is clearly being used as a ‘fishing’ exercise (i.e. where paternity is not in issue) then
they will be refused by the courts. Look at the recent case law to see how the impact
on the family is now considered when the truth is sought.
Family Law Feedback to activities page 255
Activity 9.3
As the legal significance of legitimacy and illegitimacy has been reduced in recent
years, it would appear that it ought to be abolished. Any distinction between the
two may infringe Article 8 of the European Convention on Human Rights unless it can
be justified in accordance with that article. No distinction appears to be justifiable,
although Herring notes that the House of Lords still refer to ‘illegitimate’ children.
Activity 9.4
Your response to this question depends on your faith in the common law to describe
and prescribe, when required, what the rights, duties, powers, responsibilities and
authorities of a parent are over their child. The law currently favours this approach. To
be more prescriptive would allow a more certain list of what parental responsibility
was, but it would then lead to further litigation to discover what it ought to be!
Activity 9.5
At first glance it may appear outrageous that an unmarried father does not
automatically acquire parental responsibility. However, the arguments against
awarding automatic parental responsibility to unmarried fathers are powerful.
First, there is a concern that it could lead to misuse by the unmarried father. It could
be a tool to continue to exercise power over the unmarried mother. This would impact
upon the balance of power between mothers and fathers (Herring asks why a father
would need parental responsibility). The suspicion is that it would only be used to
undermine the unmarried mother.
There is also a concern about the ‘rapist father’. This is clearly a rare occurrence but
was a particularly powerful issue during the parliamentary discussions on the issue.
Should a woman who has given birth as a result of a rape be forced to persuade a
court to remove the automatically acquired parental responsibility from the rapist
father? Another argument against automatic award of parental responsibility is the
uncertainty it may result in. The law presumes paternity for married fathers, and an
unmarried father can produce documentation to show he has parental responsibility.
In the event of automatic award, it would be difficult, without potentially invasive
biological tests, to ascertain who was the child’s father. Finally, it has been argued that
the current law promotes marriage and any automatic award would further undermine
the institution of marriage.
Arguments in favour of the automatic award of parental responsibility to fathers
include a suggestion that it would reflect the social reality that increasing numbers
of couples are not getting married and thus do not automatically acquire parental
responsibility. It has also been argued that a child should have the right to have the
responsibilities of parenthood imposed on both his or her mother and father. It is also
contended that the present law is discriminatory on the basis of sex and on the basis of
marital status, contrary to Article 14 of the ECHR. It can also be argued that the present
distinction breaches Article 8 of the ECHR and the right to a family life. These suggested
breaches have not been sustained in litigation for a variety of reasons. In terms of
efficiency, it has been argued that, as it is so easy to acquire parental responsibility, why
not just grant it automatically? Finally, a more convincing argument is presented on
the basis that it is wrong to impose responsibilities under CSA 1991 and yet receive no
automatic rights. The unmarried father is liable to pay child support under the Act, but
does not automatically acquire the rights enjoyed by those with parental responsibility.
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Chapter 10
Activity 10.1
As soon as an application for wardship is made, the child becomes a ward of court. This
means that wardship can offer immediate and effective protection of children. This
may be required where there is a danger that potentially irreversible damage might be
done to a child’s welfare. It may protect a child from being removed from the country
or prevent medical treatment being withdrawn. The case of Re M (Medical Treatment:
Consent) [1999] 2 FLR 1097 provides an example of where wardship is useful in urgent
cases. This does have its disadvantages. As it is immediate, a disgruntled parent could
prevent a child from being taken on holiday based on suggestions that the child is
being removed from the jurisdiction. The freezing nature of the power means the child
could not go on holiday for fear of removal being permanent. While later investigations
may show it was a temporary removal for a holiday, the opportunity for that holiday
will have passed.
Activity 10.2
Wardship was useful in these cases as follows.
In Re C (A Baby) wardship was useful because urgent decisions needed to be made
about an abandoned child’s long-term health and no parent could be discovered to
seek their consent.
In Re W (Wardship: Discharge: Publicity) a father permitted his four young sons to
speak to the press and changed the children’s schooling without consultation of the
mother. Due to the unpredictability of the father’s behaviour, neither specific issues or
prohibited step orders were appropriate.
In Re KR (Abduction: Forcible Removal by Parents) wardship was seen as useful to protect
a child who it was thought was about to be removed from the country to be forced to
enter into an arranged marriage.
Activity 10.3
The inherent jurisdiction has a residual role and since CA 1989 it has been made very
clear by the courts that the inherent jurisdiction can only be used by local authorities
to fill in any statutory gaps under s.100(2) CA. In some circumstances a local authority
can still invoke the inherent jurisdiction. To do so they must obtain leave and
demonstrate to the court that they are only invoking the residual inherent jurisdiction
because an order cannot be made using the statutory code. They must also show
that there is reasonable cause to believe that if the court’s inherent jurisdiction is not
exercised then the child is likely to suffer from significant harm. See Re W (A Minor)
(Consent to Medical Treatment) [1993] 1 FLR 1 CA.
Chapter 11
Activity 11.1
Lowe and Douglas have argued that parents are not bound to consider their children’s
welfare in deciding whether to move house, separate or divorce. This would arguably
prove to be too great a restriction upon choice within the familial setting. You may
think this is appropriate. As long as the child is not at risk of suffering significant harm
as a result of these difficult choices, why should the law become involved? Equally,
you may think that it is important for parents to think more carefully about the child’s
welfare before embarking upon a separation or divorce. It seems likely that many
parents already do consider such matters and it would be very onerous for the law
to regulate such decision-making. If a child is old enough, you may think informal
consultation is a moral obligation upon parents, but it is unlikely the law would take a
more interventionist approach.
Family Law Feedback to activities page 257
Activity 11.2
You would need to ask yourself what decisions were taken in the conjoined twins case.
This requires you to examine both the court of first instance and the Court of Appeal.
What is your understanding of the term ‘right’? ‘Right’ for whom? Mary was incapable
of independent existence so a surgical operation to separate them was not ‘right’ for
Mary as it would result in her certain death.
The court of first instance decided it would be in the best interests of Mary for the
operation to take place. You may ask how can it be in the best interests of Mary to have
an operation that would almost certainly result in death? The judge also said Mary’s
life was not worth living. Do you think this was an acceptable criteria for authorising
the operation? Is anyone’s life more valuable than another’s? The law would never
openly state this to be the case, but for example, in the allocation of medical
resources, hospitals are mindful of the age of their patients. A 65-year-old is far less
likely to receive organ donation than a 19-year-old. A difficult ethical dilemma exists
but one which is inevitable when resources are finite. Here, then, you could argue the
wrong decision was reached for the wrong reason.
When looking at the decision of the Court of Appeal you can ask once more if the
right decision was made. It was the same decision, but certainly the arguments were
more defensible. The court recognised the balancing act required and the fact that
one person’s welfare was compromised for the sake of another’s. It was the lesser
evil – arguably a far more palatable reason for making such a difficult ethical decision.
In such a question you should be familiar with the speeches made by the appellate
judges and the importance of constructing a balanced argument. You should consider
why the judges chose those particular words.
Activity 11.3
By reading these three cases you should be able to trace differing judicial views as to
the merits and usefulness of the welfare checklist in deciding upon issues relating to a
child’s upbringing.
In Southwood, Waite LJ refers to the checklist as an aide-memoire. This means the
checklist acts as a useful prompt to any judge considering questions of welfare. In
H v H, Staughton LJ refers to the checklist being different to the one that ‘an airline
pilot has to make with his co-pilot, aloud one to the other before he takes off’. This
therefore suggests the spirit rather than the substance needs to be considered when
making these decisions. Finally, in B v B, it was felt that going through each of the
individual items on the checklist was a good discipline – therefore suggesting slavish
observance necessary in reaching a satisfactory decision. The differing views certainly
suggest a difference from judge to judge.
Chapter 12
Activity 12.1
The courts may grant a ‘shared’ residence order in favour of two or more people who
live in different households under s.11(4) CA. This means that Gillian and James will be
able to ‘share’ the residence of their children. This means the children could spend
alternate weeks with their parents or they could spend 70 per cent of their time with
Gillian and the other 30 per cent of their time with James. This approach was approved
of in Re F (Children) (Shared Residence Order) [2003] 2 FCR 164.
Activity 12.2
Contact is traditionally thought to involve face-to-face meetings. This may not always
be desirable: the child may be endangered or it may not be feasible because one of the
parents is in prison as in A v L (Contact) [1998] 1 FLR 361. Should this happen, the courts
can order an indirect contact order, for example, if they do not feel a contact order
would be appropriate; the courts are unlikely ever to decide that indirect contact
is inappropriate. An indirect contact order has been granted when the relationship
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between the parent and the child has broken down and it is hoped that such an order
will allow for a slow re-establishment of links between both parties. This was the view
taken in the case of Re L (Contact: Transsexual Applicant) [1995] 2 FLR 404 where two
teenage boys found it very uncomfortable visiting a father who had had a ‘sex change’.
The order was granted to maintain the links with the hope that once the boys got used
to their father’s change of sex, they could move on to direct contact. Indirect contact
usually takes the form of telephone calls or letters and are especially common in cases of
domestic violence (see Re F (Indirect Contact) (2006). It may also be useful to consider Re
C (Contact: Moratorium: Change of Gender) [2006] as a gauge of current judicial opinion. If
there is a concern as to an endangered child, the courts may order contact but it must be
supervised by the social services.
Activity 12.3
Cases which identify the type of issues dealt with by prohibited steps orders include: Re
H (Minors) (Prohibited Steps Order) [1995] 4 All ER 110; Re D (Prohibited Steps Order) [1996] 2
FLR 273; Re J ( A Minor) (Prohibited Steps Order: Circumcision) [2000] 1 FLR 571; Re L (Contact:
Genuine Fear) [2002] 1 FLR 621.
Activity 12.4
It may be appropriate for Imogen to apply to the courts for a specific issue order which is
designed to deal with a particular one-off issue relating to the child’s upbringing. In the
case of Re C (A Child) (HIV test) [1999] 2 FLR 1004 CA, a specific issue order was made that a
baby be tested for HIV. It would appear the same order could be available for Imogen.
Imogen may seek a prohibited steps order which is entirely negative to allow the court
to prevent Jonty being sent off to boarding school. Each case will be decided on its own
facts, but in Re G (Parental Responsibility: Education) [1994] 2 FLR 964 the application was
turned down. This also happened in M v M (Specific Issue: Choice of School) [2005] when
a father wanted to take his son to a singing audition for the purposes of obtaining a
scholarship to attend a fee-paying school. The mother objected. Her application was
refused.
Activity 12.5

Who is applying? Automatic right to apply? Requires leave to apply?
Mother 
Child 
Father 
Guardian 
Local authority foster parent 
Chapter 13
Activity 13.1
It has been suggested that the threshold criteria are there to uphold the welfare
principle. They remind the courts that children are usually best brought up by their
natural parents and only if the child is in real danger will it be appropriate to make a care
order.
Another justification for the threshold criteria is advanced by Lord Nicholls in Re O and
N [2003] 1 FCR 673 where he says it is ‘to protect families, both adults and children, from
inappropriate interference in their lives by public authorities through the making of care
and supervision orders’.
Finally, it could be argued that the threshold criteria exist to protect parental rights.
Unless the threshold is reached it is argued the state will not intervene in the way the
child is being brought up.
In deciding what is expected of a reasonable parent the court will look at the child’s
needs and measure these against the level of parenting that can be offered.
Family Law Feedback to activities page 259
Activity 13.2
The threshold criteria are the same for awarding either supervision or care orders but
there are significant differences. If you wish to remove a child from the home then you
must apply for a care order. This cannot be done under a supervision order. If a care order
is made then a child can remain with its family but can still be removed from the home at
any time. Again this cannot happen under a supervision order where a fresh application
for a care order would have to be made. When deciding on which order is preferred, a
supervision order, coupled with the power of an EPO can be a coercive force. However, if
there is evidence of serious harm then a care order should be sought. Supervision orders
tend to require co-operation from the parents and if they are happier with this than
with a care order, then this ought to be applied for. If, however, the local authority wants
parental responsibility then a care order should be sought. It could be argued that as the
supervision order is less invasive than the care order, it ought to have different criteria
for operation. However, entering into a person’s home and supervising the way in which
they bring up their children is still invasive and is a decision which should not be taken
lightly.
Activity 13.3
If it is felt that a parent would react very negatively to the making of a care order then
it may be appropriate to seek a supervision order. If an incident of injury to a child was
thought to be out of character, then a supervision order may be more appropriate than
a care order. The underlying message is that supervision orders may be better all round
as they have the same coercive feel as the care order but still promote partnership with
parents which is, in the long run, in the best interests of the child.
Chapter 14
Activity 14.1
No feedback provided.
Activity 14.2
On the face of it this change under the ACA is a triumph for equality. No couples are
now formally excluded from adopting simply on the basis of their status as being
unmarried or a same-sex couple. A cynic may suggest that this actually changes things
in name only. Any adoption will still be governed by the welfare principle and you
should recall from your earlier study that such a principle can cover a multitude of
prejudice by the judiciary. Any suggestion that the recent reforms erode family values
tends to depend on your view of what constitutes a family. If a ‘family’ is a unit of
people who love and support their kin then it is difficult to see what erosion has taken
place. If, however, you prefer to see a family as a unit which has a prescribed form of
a mother and a father who are married then clearly the recent changes will add to
your view that family values have been eroded. It depends on whether you prefer
arguments in support of form over substance.
Activity 14.3
The law is trying to provide a disincentive to ‘in family’ adoptions because they have
the potential to distort family relationships. For example, if A is a cousin of the much
older C and A is adopted by C and his wife D when A’s parents die, she then becomes
the daughter of C and D. This would change the family dynamics and would change
the prohibited degrees of relationship. For example if C, once a cousin but now the
adoptive father, decided he wanted to marry A then the marriage would now be void.
It would not have been void under existing prohibited degrees in the MCA.
Activity 14.4
Historically the law on adoption under the 1976 Act held the welfare of the child to be
the first but not the paramount consideration. This was in contrast to the CA where
the child’s welfare is the paramount consideration. The 2002 Act changed this to bring
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it in line with the CA. The child’s welfare is now the paramount consideration. This
would appear to be a welcome move. It will remove the existing tendency to refuse
adoptions because of the rights of the birth family. It is felt child-centred adoption will
make it far more successful.
Activity 14.5
For those who believe the ACA does not give sufficient weight to the views of birth
parents this case is a blow. It suggests that, because the welfare of the child is the
paramount consideration, the courts can refuse leave to defend an adoption order
if they believe it is not in the child’s best interests, even if there have been changes
in the birth parent’s circumstances. This does raise the question of whether the
paramountcy principle is appropriate in adoption proceedings. For those who believe
that the child should always take priority then this is a case supporting that view. Even
if the parents had made these changes the court felt that no defence was necessary.
The parents may have changed their mind but the agencies and the courts had not
changed theirs. The application for the adoption order would take place without the
birth parents raising objections.
Activity 14.6
Under s.22(1) ACA the local authority must apply for a placement order if the child has
been placed with them for adoption and no adoption agency has been authorised to
place them for adoption or the child is being accommodated by them. The child must
have no parent or guardian or the threshold criteria for a care order are met and the
local authority are satisfied that the child ought to be placed for adoption. The local
authority may apply for a placement order under s.22(3) ACA if the child is subject to a
care order and they are authorised to place the child for adoption under s.19 ACA.
Activity 14.7
Under the old law the unmarried father of the child had very few rights over the
child. This has changed slightly over time but if an unmarried father has not acquired
parental responsibility under the CA, then there will be no need to have the consent
of the unmarried father for the placement order to be executed. That said, in Re H
(Minors) (Local Authority: Parental Responsibility) (no 3) [1991] FLR 214 it was made clear
that a court should be considering the position of the father where appropriate.
In Re H (Minors) the court did dispense with the father’s consent even though they
had granted him parental responsibility. The justification was that he would be in a
position to speak at the freeing hearing. This freeing process no longer exists under
the ACA 2002 but the unmarried father who obtains parental responsibility can ask
the court for leave to oppose the making of the adoption order. It is still not clear this
will always happen (see Re C (A Child) [2007] EWCA Civ 1206) and in this case the CA
held that they would only inform the father if this was in the best interests of the child
to do so. The issue of unmarried fathers having more rights over their children is still
an important political issue and the arguments supporting change are perhaps even
more important when it comes to the irrevocable issue of adoption. In any discussion
of extending these rights, the spectre of the ‘rapist father’ is presented as a horror
story in what is clearly a rare case.
Activity 14.8
No feedback provided.
Activity 14.9
The right to know about one’s identity is seen to have four benefits. First, from a
psychological perspective it is thought that knowledge of biological origins gives
a person a social context. This allows the person to have a sense of self and to
understand their past, which in turn helps them settle into their future. Secondly,
knowledge of genetic history may prove useful if there is a health concern. Thirdly,
it has been argued that knowledge of birth parents can assist a child in obtaining a
sense of cultural identity. Finally, it has been argued that if children are denied this
information and discover it much later, it can cause irrevocable harm.
Family Law Feedback to activities page 261
As a consequence of these arguments there are provisions within the ACA 2002 for
a person who is 18 or over to obtain a copy of their original birth certificate. The
Registrar General keeps a register of adoptions and can provide some basic details of
the adoption. There also exists an adoption contact register which allows adopted
children and birth parents to leave messages for each other. It is hard to justify the
denial of such information for those who have been adopted. After all, you are unable
to discover details until you reach adulthood and the choice would appear to be an
inviolable right.
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Notes