Family Report 2014 A

Examiners’ report 2014
LA3019 Family law – Zone A
Introduction
The problem questions were generally answered well; although while most picked
up on the issues to be addressed, many answers lacked detailed analysis.
Question 2 on the division of property, for example, required a discussion first of the
enforceability of the agreement and the interpretation of fairness as the court’s goal,
rather than simply a review of the general principles in the statute. Neither of these
issues is straightforward or easily resolvable from the case law, and the question
offered candidates the opportunity for analysis and judgment, which some but not
all answers displayed. In what seems to be a recurring difficulty in Family law
papers, answers to the essay questions tended to be weaker than those to the
problem questions. Some answers did not address the question at all or addressed
it only tangentially, while others touched on the issues, but failed to explore them in
sufficient detail. Essay questions usually raise controversial issues or claims and
answers must demonstrate an awareness of the controversy, an understanding of
why the claim is debatable and come to a conclusion about resolving it that is
supported by case law and/or the academic literature. Good answers usually
require reading and analysis beyond the basic text in the subject guide.
Overall, however, there were some excellent answers which demonstrated a very
good grasp of not only the law, but also the literature on it and debates and critiques
about the way in which it is constantly developing.
Specific comments on questions

Question 1
“The broad definition of parental responsibility set out in the Children Act
1989 not only fails to identify the types of rights and responsibilities that are
encompassed by the term, but also fails to indicate what parental
responsibility is for.”
Discuss.
General remarks
This answer required knowledge of the statutory definition of parental responsibility
(pr), some explanation and analysis of why it is so cursory and what courts and
academics say about what it means for parents and children. Both aspects of the
question needed to be addressed.
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LA3019 Family law
Law cases, reports and other references the Examiners would expect you to
use
The Children Act 1989 s.3(1), which defines pr; some reference to the Scottish
equivalent which lists the incidents of pr; the Gillick case; discussions by Reece
(2009) and Eekelaar (1991) and (2001) on the meaning of pr, and the case law on
how one can acquire it and why courts are and are not granting it to applicants; the
welfare test – Re H (the CAR test), Re D.
Common errors
Simply listing the incidents of pr and not commenting sufficiently on how the courts
may be shifting in their view of what it means.
A good answer to this question would…
include some discussion of the reasons why the legislation does not include a list of
the incidents of pr but merely leaves it as ‘all the rights and responsibilities…’; some
discussion of the incidents of pr, and how it is different from parental rights; how
Scarman in Gillick interpreted it; how courts have interpreted or added to the
meaning of pr, who has it, who can get it and the paramountcy of welfare in that
determination, and finally, some comment on the recent cases in which courts seem
to be treating it as a status for parents rather than an indicator of actual care of
children. Given the silence in the statue about what pr is for, the courts have had to
fill that in and a good answer would comment on that.
Poor answers to this question…
lack discussion of what pr means for the parents and the child and how
interpretation of the welfare test in awarding it has changed over the years.
Question 2
Herb, a 45-year-old solicitor, and Wendy, a 43-year-old copy editor, married in
2003. They moved into Herb’s home, which he inherited from his parents in
1995. Their daughter Clarice was born in 2008 and due to Herb’s long hours at
work, Wendy has been her primary carer.
One month before they married, Herb and Wendy signed an agreement which
stated, among other things, that because each was professionally and
gainfully employed, in the event of their divorce, neither would have any claim
against the other for any property or support, other than child support if they
were to have children. At the time they executed the agreement, the only
substantial property Herb owned was the house he inherited from his parents
(now their family home), some stocks and his occupational pension. Wendy
had an occupational pension. Herb drew up the agreement and Wendy signed
it without legal advice. After the marriage they purchased a small holiday
cottage in Cornwall, title to which is in Herb’s name.
Herb and Wendy have now decided to divorce and they have agreed the
arrangements for Clarice’s care and child support. They have also agreed that
no other support will be payable between them. Herb, however, has told
Wendy that he expects her and Clarice to move out of the home and that,
pursuant to their prenuptial agreement, neither will claim anything further
from the other.
For Clarice’s sake, Wendy wants to stay in the marital home, which is valued
at £850,000 and mortgage-free. Wendy is also aware that Herb’s stocks have
increased in value dramatically since 2003. She would like a full property
division and claims that she should not be held to the terms of the pre-nuptial
agreement.
Advise Wendy.
2
General remarks
The question required candidates to assess the ‘fairness’ of a property division in
the light of the ante-nuptial agreement, the MCA 1973 and the developing case law
on both.
use
On the enforceability of the agreement: the Supreme Court decision in Radmacher
and perhaps the Law Commission report. On division of property and fairness:
White v White, Miller v Miller, McFarlane v McFarlane, Charman v Charman,
perhaps also V v V; MCA s.25(2); Mesher v Mesher. There are a number of cases
that could be cited to illustrate the courts’ interpretations of the various factors in
s.25(2), but White, Miller/MacFarlane and Charman are the minimum.
Common errors
Somewhat surprisingly, many answers failed to discuss the issue of enforceability of
the agreement and did not discuss the Radmacher case at all. Many also went
straight to the list of factors in s.25 and did not address the fairness of any division
or whether any of the assets might be distinguished as ‘family’ or ‘non-family’
assets, and thus treated differently in any potential accounting.
discuss the enforceability/fairness of the agreement in the light of Radmacher, and
perhaps the Law Commission proposals; discuss the three (or four if you consider
V v V) strands of fairness (and in particular, the cases of White, Miller/McFarlane
and Charman); come to a conclusion on the likelihood of enforceability and in the
event the agreement is not enforced, the likelihood of division of each of the
assets, including a discussion of whether any of them might not be ‘family’ or
matrimonial assets (e.g. division of the home could depart from equality); pension
sharing; and whether a Mesher order might be appropriate. The answer would
demonstrate knowledge of the orders that are available under the MCA 1973 and
some assessment of which of them could be ordered and why.
missed discussion of Radmacher, missed discussion of the goal of fairness and
what it has come to mean in the case law.
Question 3
Eve would like a divorce from Ray who was convicted three months ago of
assaulting her. They have a child, Sid, who is now six-years-old. Ray left their
family home after his conviction to stay with his brother and until two weeks
ago did not contact Eve or Sid. Eve does not wish to have any contact with
him and Sid is afraid of him. Two weeks ago Ray began telephoning Eve
demanding that she speak with him. He told her that his brother had thrown
him out and that he had nowhere to live. He said he would never agree to a
divorce and begged her to take him back. Eve was unnerved by his telephone
calls but is now even more frightened, as she has seen him in her street and
outside Sid's school.
Advise Eve regarding her divorce and whether there is anything she can do to
have Ray kept away from her and Sid.
General remarks
Candidates should have considered the remedies available to Eve under the Family
Law Act 1996 and Protection from Harassment Act 1997 and an assessment of
whether she could apply successfully for any of them. A full assessment of the
criteria, eligibility and enforceability of the orders was needed. Eve also asked about
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LA3019 Family law
a divorce and so an assessment of the applicability of any of the five facts and the
ground for divorce in the MCA 1973 was also needed.
use
Section 33 FLA 1996 regarding occupation orders; ss.42 and 62 regarding non-
molestation orders; the PHA 1997. Cases include B v B; Grubb v Grubb and
Calmers v Johns; C v C. On divorce: Buffery v Buffery; Richards v Richards.
Common errors
Lack of discussion on the FLA 1996’s balance of harm test; failing to consider
enforceability of orders.
discuss why s.33 is the appropriate route (s.30 home rights = Eve as an entitled
applicant), apply the balance of harm test (s.33(7)) and the discretionary section
(s.33(6)) to the facts and discuss the terms an occupation order might include and
how it would be enforced. Reference to case law which shows that courts consider
these orders ‘draconian’, but that they may be making them more easily now. The
answer should also discuss the criteria for a non-molestation order, including the
associated person test, and enforcement of the order including offence of breach.
Finally, the answer should discuss the ground for divorce, Eve’s standing and
eligibility to apply for divorce, and whether or not she can provide evidence of
breakdown by establishing one of the five facts. In this case, the behaviour fact
looks most clear and candidates must discuss its objective/subjective meaning.
did not refer to the balance of harm test, did not discuss enforcement of protective
orders and spent far too much time on all the facts in the MCA 1973 regarding
divorce, whether they were indicated by the facts or not.
Student extract
As Eve and Ray were husband and wife the relevant section here is section
33 which provides occupation orders when an applicant has an estate or
interest, etc, or has home rights. […] Eve was an entitled person under
section 30… Under S33, the courts can make four types of orders. These
orders include regulatory orders, exclusion orders, mandatory order and
prohibitory order.
In order to provide Eve with an occupation order, the court will consider the
balance of harm test under S33 (7) of the FLA 1996. If it appears to the
court that the applicant or any relevant child is likely to suffer significant
harm, because of the conduct of the respondent, the court will make an
occupation order. However, the courts will apply the balance of harm test.
They will assess whether the petitioner and relevant child will suffer greater
harm if an order is not made, or on the balance of probabilities, the
respondent is likely to suffer greater harm. In this case, it is very likely that
more harm is to be suffered by Eve and Sid if an occupation order is not
made, and thus, this test is satisfied in Eve’s favour.
The court also looks into S33 (6) before making an occupation order [if the
balance of harm test is not satisfied]. S33(6) provides that the courts will
have regard to all the relevant circumstances including the housing needs
and resources of each of the parties and relevant children, the financial
resources of each of the parties (no mention of financial resources is made
in the question), the conduct of the parties, and the likely effect of any order
or of any decision by the court not to exercise its powers under subsection
3, on health, wellbeing, safety of the parties and any relevant child.
4
In this case, housing needs are greater of Eve and Sid as the Sid is a
minor. Also, as Ray was excluded from the house, this is relevant but he
might be housed by a local authority. Conduct of Ray was also bad, and, if
Eve and Sid are not allowed to live, this will affect their wellbeing. This, it is
very likely that courts will make an exclusion and prohibitory order to protect
Eve and Sid. Relevant cases for occupation order include BvB, Gerpton v
Gerpton and Re x (children). In Grubbs V Grubbs, the husband was a rich
man and court excluded him from home. This can be the case here,
however, as it was once said in Richards that these order are draconian
and should be exercised carefully, however, this view has changed now.
Thus Ray will be excluded here.
Comment on extract
This is a brief extract from an answer that received a low first class grade. It not
only sets out the appropriate sections that apply to Eve’s situation, but explains why
they are relevant. It explains the balance of harm test under s.33(7) and goes on to
discuss the discretionary section under s.33(6). Although it is not entirely clear
about when the discretionary section would apply, the answer shows a good
understanding of the types of orders that are available and which would likely be
ordered in this case. It applies the facts of the case to the law. It might have
discussed the cases in more detail to illustrate the statement that the courts are
retreating a bit from their view of these orders as draconian, but otherwise it is a
good example of an answer that identifies the relevant issues and the applicable
law and applies that law to the facts well.
Question 4
“Family relationships are different from commercial or other relationships.
There is no place for human rights in regulating them.”
Discuss.
General remarks
This question required candidates to assess the place of rights thinking and rights
enforcement in family relationships. Answers should take a stand and either agree
or disagree with the statement first, that family relationships are different from other
relationships and second, that family relationships should be regulated by principles
other than rights. Illustrations of cases that took a rights approach to family
regulations were required to make the case, one way or the other.
use
Article 8 ECHR, Article 14, as applicable to the Mendoza case regarding same sex
families, Articles 8 and 14 regarding parenthood and pr, B v UK; Article 8 regarding
care and adoption orders, Re B; Baroness Hale’s judgment in Radmacher on the
nature of marital and family relationships.
Common errors
Discussion only comparing family/intimate relationships with commercial
relationships and exclusive focus on Radmacher decision; listing/describing areas
of law where human rights have played a part with no critical engagement with or
analysis of those cases.
discuss the assumed nature of family relationships: altruism, affection, collectivity,
etc, and how that is said by many to make them inappropriate to subject to rights
discourse. Yet, human rights have played a part in defining and regulating family
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LA3019 Family law
relationships (Mendoza, ECHR cases regarding same sex families, Article 8

regarding parenthood and pr and Re B regarding adoption, for example) and a good
answer would discuss the pros and cons of this rights based approach. A
discussion of all of these areas is not necessary if there is a good in depth
discussion of one or two of them. A good answer must take a stand one way or the
other.
did not identify the controversy and take a stand on it, but simply reiterated
Baroness Hale’s views.
Question 5
“Because marriage is a contract, the law should ensure that it is entered into
by freely consenting adults.”
Assess the ways in which the law meets this requirement.
General remarks
This question asked candidates to assess the voluntariness of marriage as it is
required by the MCA 1973 and by other legal means. Candidates not only should
discuss the various legal provisions but assess how effective they are in ensuring
there has been real consent to marriage.
use
MCA s.11 regarding age and also why age is considered an indicator of consent;
s.12(c) and (d); the Forced Marriage (Civil Protection) Act 2007; Sheffield City
Council v E; NS v MI; Hirani v Hirani.
Common errors
Review of the entirety of ss.11 and 12 MCA on void and voidable marriages with
insufficient attention paid to the focus on the issue of consent; discussion only of
forced marriage and new legislation.
discuss why consent is required at all, what it means in the context of forming a
marriage, before going on to discuss how and how well the law enforces that
requirement. It would discuss MCA s.11 age requirements (including parent’s or
local authority’s ability to consent on behalf of a young person) and MCA s.12 cases
regarding duress, mistake and mental capacity to understand the nature of
marriage. It would discuss the court’s distinction between arranged and forced
marriage (NS v MI) and the court’s interpretation of what, exactly has to be
understood about the nature of marriage to supply consent (Sheffield case). It
would include some critical discussion of the legal responses to the phenomenon of
forced marriage, and perhaps, of ‘sham’ immigration marriages.
focused only on new forced marriage legislation without tying that discussion to the
question or lost focus on the question by reviewing the whole of ss.11 and 12
regarding the validity of marriage.
Student extract
Due to the fact that marriage is a contract, the law should and does ensure
that it is entered into by freely consenting adults. The first issue to address
in assessing this claim is that the law has established specific requirements
when it comes to age. The prohibited degrees such as parents not being
allowed to marry children; adopted parents not being allowed to marry
children also relates its age.
6
A marriage is void (as established in section 11 of the Matrimonial Causes

Act 1973) where either party is under the age of sixteen. Where the party is
between sixteen and eighteen, the need to receive written consent by their
parents.
As it relates to persons of age, this question addresses the issues of
duress, forced marriages and then distinction between forces marriages
and arranged marriages and how the law has evolved to consider this
distinction and provide relief for those who have been victims of duress.
In the case of NS v MI (2006), Lord Justice Munby distinguished between
forced and arranged marriages. He highlighted the fact, that under English
law, forced marriages were seen as abominations. Arranged marriages,
were seen a general custom in some cultures and religions. He urged the
court that if they equated forced and arranged marriages and did not
understand that simply because arranged marriages might have been a
concept unfamiliar to the average Englishman, to exist in ignorance was
stand to mount to discrimination.
In terms of duress, the party’s will must be eclipsed by fear instilled as a
consequence of not marrying. There is case law to support this assessment.
In Singh v Singh, the lady met her husband at the altar. In addition to
finding him repugnant and refusing to give him sex, she requested a
petition on the grounds that she married out of obedience to her parents
and commitment to her faith. She cited duress. The court rejected the
request. Although it was an arranged marriage, no evidence suggested that
she had been compelled or forced through duress to marry. Actually, had
she not found the man to be repugnant, the request for a petition would
never have existed.
A marriage becomes voidable in instances where there is a refusal to
consummate. On simple grounds, unless it is a ‘compassionate marriage’ sex
is a general expectation of most marriages. Refusal to consummate is an
indication that one of the parties does not consent to being in the marriage.
In Kaur v Singh, the wife has granted a decree of nullity after there was a
refusal by the husband to consummate the marriage.
Comment on extract
This is an extract from an answer that is a borderline fail. It shows some
understanding of the issues, but is too brief and loses its focus. Neither the
prohibited degrees or non-consummation have much to do with consent on their
surface, and without further making a case for why they might be relevant to the
issue of consent, this extract simply drops them in inappropriately.
Question 6
Blue is four-years-old. He attends nursery school every weekday morning. His
parents, Claire and Don, both work full-time outside the home and employ a
full-time nanny to look after Blue. They agreed that Blue be placed
temporarily in a foster home when one of his nursery carers expressed
concern about unexplained severe bruising on his body. The foster parents
are prepared to look after Blue on a long-term basis or at least while the local
authority investigates the bruises. After two weeks, however, and before Blue
is seen by a doctor, Claire and Don change their minds about the placement
and want Blue to come home. They say they have now fired the nanny.
Advise the local authority.
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LA3019 Family law
General remarks
This question looks for discussion of how Blue may be protected now that his parents
have withdrawn their consent to his accommodation. Answers should discuss the
criteria for a care order, supervision order, and possibly CAO or EPO and assess the
likelihood of the court making the order, which order would be most appropriate in the
light of the non-intervention principle and the Re B case on Article 8.
use
Section 20 CA 1989 regarding voluntary accommodation; s.31 regarding threshold
test for care or supervision order; s.1 regarding paramountcy of welfare; s.44
regarding EPO, Article 8 ECHR; Re B (2013); significant harm attributable to
parents; unknown perpetrator cases; Lancashire CC; Re O and N; Re SB.
Common errors
Discussion of s.17 children in need; too little treatment of unknown perpetrator
issue.
note that because Claire and Don have withdrawn their consent to Blue’s placement
(s.20), the local authority must proceed with compulsory arrangements if they think
Blue has suffered significant harm and do not want him to go home. The local
authority could apply for an EPO, CAO or care or supervision order. Regarding the
care or supervision order, a good answer would discuss all elements of the s.31
criteria and threshold test, including the unknown perpetrator cases
(e.g. Lancashire CC). Discussion of the welfare stage of the test is also required,
including the non-intervention principle (including Article 8, Re B) and relevance of
the unknown perpetrator at this welfare stage (Re O and N; Re SB). Which order
may be appropriate – care or supervision – in the light of the non-intervention
principle? Or would a CAO or EPO be appropriate?
missed entirely the unknown perpetrator issue and/or spent far too much time on
s.17 which is not relevant, instead of s.20 which is relevant.
Question 7
Anna and her civil partner, Laura, live with Anna’s two children: Ian, aged 5,
and Rob, aged 15. Rob’s father Jamal was married to Anna until they divorced
10 years ago. Jamal and Rob do not see each other very often these days, but
are in email and Skype contact. Ian was born as a result of assisted
reproduction treatment, which Anna underwent with the consent of her then
partner Maria, in a licensed clinic. Maria and Anna separated two years ago,
but Maria continues to play a full and active role in Ian’s life, seeing him each
alternate weekend (Friday 4pm to Sunday 5pm) and every Tuesday after
school for dinner. Maria also has a good relationship with Rob and plays an
active role in his life.
Anna and Laura are now planning to move to the USA where Laura has been
offered a job. They wish to visit the USA for two months this summer to
pursue the arrangements. Anna did not consult Maria about her plans but she
simply informed her five days ago that they were going to the USA ‘for a two-
month holiday’. Ian and Rob told Maria about the move and that they are not
happy about it. Rob has told Jamal the same thing.
Advise Maria and Jamal as to any action they may be able to take to prevent
the move, and their likelihood of success.
8
General remarks
Maria and Jamal want to prevent the children moving with Anna and Laura to the
USA. Candidates must canvas the orders available to stop the move and assess
the eligibility of each to apply for them. The CA 1989 s.8 orders are the issue here,
as is who has pr of the children. Candidates must discuss the HFEA 2008,
relocation and the welfare of the children.
use
HFEA 2008 s.43 regarding agreed female parenthood conditions; CA 1989 s.4
regarding pr of married fathers; CA 1989 s.8 regarding prohibited steps orders,
contact and specific issues orders; welfare checklist, including children’s wishes
and feelings; Payne v Payne and Re F regarding relocation.
Common errors
No discussion of Payne or relocation; no discussion of prohibited steps orders.
note that Anna has pr for both children. Laura probably does not, unless an
agreement or order is in effect. Jamal has pr for Rob, but is a legal stranger
regarding Ian. Maria may have pr for Ian if Anna’s treatment was pursuant to HFEA
2008 and Maria met the agreed female parenthood conditions. If not, then she does
not have pr of either child unless she has a residence order. There is no indication
of that and it seems that arrangements with the children so far have been informal.
In that case, Maria will require leave of the court to apply for a s.8 order (most likely
prohibited steps and ‘contact’) and this application will be determined under s.10(9)
(welfare is not the test). If she is successful, or if she already has pr, she can apply
for a s.8 order regarding Ian (probably a prohibited steps order and contact
arrangements order) and the welfare test will be used to determine who Ian will live
with, have contact with and whether to prohibit the move to the USA. Jamal as a
father with pr can also apply for a s.8 order to stop Rob’s move.
Anna’s pr of both children means she can exercise it, but if the others refuse to
permit her to relocate with the children to the USA, then she will need permission of
the court to do so by applying for a residence (now child arrangements) order. The
court makes its decision using the welfare test (Payne v Payne; Re K; Re F). There
should be some discussion of the welfare checklist, particularly the children’s
wishes and feelings as they have indicated they are not happy about the move.
simply discussed contact and the welfare checklist. While these are important, the
question requires much more than this, focusing particularly on relocation and
prohibited steps orders.
Question 8
Assess the paramountcy principle in section 1 of the Children Act 1989.
General remarks
This was an open ended question that required candidates to think about whether
the welfare of the child should be the paramount consideration in determining
questions of their upbringing. Candidates were offered the opportunity to explain
what ‘paramountcy’ means and then consider whether other alternative principles
might be better than welfare in making decisions about children. Some discussion
was necessary of the advantages and disadvantages of the paramountcy of
welfare.
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LA3019 Family law
use
CA 1989 s.1, including the checklist; J v C; Reece (1996), Eekelaar (2002, ‘Beyond
the welfare principle’) and Herring (1999 and 2003) all offer alternatives to welfare
as the way of deciding issues about children. In addition, there are a number of
cases to refer to in which courts outline why welfare ought to be paramount; the
most recent defining welfare and justifying its paramountcy is Munby J in Re G
(2012).
Common errors
Simply a review of the welfare checklist and little or no discussion of welfare’s
paramountcy.
include discussion of what the paramountcy of welfare means, and how it has been
applied. It means that welfare is more than just first on a list of considerations, it is
virtually determinative of the issue. The advantage of welfare as the sole
consideration include its focus on the individual vulnerable child, but criticisms
include its uncertainty, lack of transparency, value laden meaning and possible
conflict with child’s or parent’s rights. Should such a flawed concept be paramount?
Discussion of alternatives to welfare such as those set out in the Reece article and
in Eekelaar’s and Herring’s which suggest alternatives such as considering the
welfare of all in the family because child is a part of a relationship, adopting a
primary carer presumption, or a children’s rights approach being necessary in order
to ‘assess’ the paramountcy principle. Some discussion of the welfare checklist may
be helpful to illustrate arguments either in favour of or against the paramountcy of
welfare, but the checklist is not the focus of this question.
were merely descriptive and did not assess the value or otherwise of welfare as the
paramount or determining consideration in disputes about children. Poor answers
failed to see that the question was about welfare’s paramountcy, not simply about
its definition.
10

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Examiners’ report 2014

Examiners’ report 2014

LA3019 Family law – Zone A

Specific comments on questions

relationships (Mendoza, ECHR cases regarding same sex families, Article 8

A marriage is void (as established in section 11 of the Matrimonial Causes

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