Examiners’ reports 2019

Examiners’ reports 2019

LA2019 Family law – Zone B

Introduction
As in previous years, there were some very good answers in this examination.
Strong answers were able to demonstrate not only knowledge of the law but also to
apply it to the specific question.
For the problem questions, it is useful to remember that they often do not have clear
answers; that is why they appear on exams. That said, most candidates were able
to pick up on the key issues to be addressed but some were unable to provide a
detailed level of analysis. There were also some examples of candidates missing or
misunderstanding the significance of crucial factual information. It is good policy to
assume that if a fact is specified in a problem question, it is there for a reason. On
some occasions, candidates also missed the alternate questions posed. This meant
their answers inevitably suffered.
Fort the essay questions, it is important to identify which issue(s) the question itself
is raising and addressing it directly. Essay questions are directed toward a
particular problem or controversy and only rarely require candidates to describe the
general state of the law. It is important to be able to demonstrate knowledge of the
law but we are also interested in your critical assessment of it and your ability to
spot the issue raised. Essay questions usually raise or identify controversial issues
and allow you to demonstrate your understanding of the controversy. They also
enable you to demonstrate the range of commentary you have engaged in
throughout your studies, which does raise the impact of the answers presented.
For both essays and problem questions, you must use relevant authority to support
your arguments. Remember, in a common law system there will be cases or
legislation on most issues covered and knowledge of this authority is important.
Finally, it was also clear in this diet of exams that timing was a crucial issue for
some candidates. It is important to stick to roughly the same amount of time per
question. Too many candidates ran out of time on the last question and this again
impacted on their overall level of attainment.

Comments on specific questions

Question 1
‘There is urgent need for legislative reform for unmarried cohabiting couples.’
Discuss.
General remarks
This essay question required candidates to discuss whether legislative reform for
cohabiting couples was an ‘urgent need’. It was a popular question and was well

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answered by some candidates who were able to situate the dilemma of how the law
might respond to those who may choose not to marry and secure the recognition for
their relationship by the state and yet find themselves in difficulties particularly when
that relationship comes to an end.
Law cases, reports and other references the examiners would expect you to use
Fitzpatrick (2000); Kimber (2000); Ghaidan (2004) and Re P (2008). Law
Commission Report (2007). HL Debates contrasting the views of Baroness Butler
Sloss and Baroness Deech. Commentary provided by Professor Douglas et al.
(2009). Report by the National Centre for Social Research (Jan 2019). Reference to
other jurisdictions (Australia and New Zealand, specifically).
Common errors
There was either a tendency to simply write about cohabitation broadly with no
context or for candidates to see this (erroneously) as a question concerning the law
of nullity and for candidates to then explore the relevance of ss.11 and 12 of the
MCA 1973 in Family Law.
A good answer to this question would…
begin by exploring the definition of cohabiting for this purpose. As Lord Hoffmann
stated, these relationships can be ‘quasi marital to ephemeral’. This means that
there is no ‘one size fits all’ approach. A good answer will then look at Kimber to
think about the factors to be considered by the court as to whether a couple can be
said to be cohabiting. Good candidates will also note how this has changed over
time looking at Fitzpatrick and Ghaidan. A comparison between spouses/civil
partners and cohabiting couples can then follow, which explore the impact of the
choice made not to marry or register a civil partnership. Then the essay can move
on to the ‘legislative reform for’ part and here candidates should look at reform
proposals from both the Law Commission and the Cohabitation Rights Bill 2017–19.
Good candidates will explain that there is division among legislators for change. On
the one hand, Baroness Butler Sloss in HL Debates argues for legislation as a way
of protecting children of such couples and the couples own status and, in contrast,
Baroness Deech’s position on cohabitation is that it is about choice (therefore
autonomy) and in the 2016–17 HL Debates even says that imposing any framework
on cohabitants amounts to ‘forced marriage’. Those that support changes in the
law, focus on its current injustices (Douglas et al.) and some candidates may
enquire whether any legislative development would work or would be marriage by
any other name. A good answer would also consider other jurisdictions where
cohabitation agreements are in place (Australia and New Zealand, for example).
One key recent concern is the argument that reform is desirable because of the
‘common law marriage myth’. A recent report by the National Centre for Social
Research (Jan 2019) as referenced in the Pre-exam update is a useful resource.
The area is quite wide-ranging so some careful selection of material would be
advisable for a good answer.
Poor answers to this question…
discussed the law of marriage and formalities and then identified a group of people
who do not choose to marry and made some general references to how the law
differentiates between married and unmarried couples.
Question 2
‘The impact of the case of Owens v Owens (2018) will be to ensure reform of
an unreasonable and outdated law.’
Discuss.

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General remarks
Unsurprisingly, this was a very popular essay question. This was because
candidates generally like writing about the law of divorce but also because the case
of Owens has been much discussed during the 2018–19 period. It also featured in
the vlog during spring 2019. The question did require candidates to forecast the
impact of the case on divorce law reform and this was sometimes missing from the
answers presented.
Law cases, reports and other references the examiners would expect you to use
Matrimonial Causes Act 1973, Family Law Act 1996, Divorce (etc.) Law Review Bill
2018–2019. Owens (2018). Commentary provided by Reece (2003) and Professor
Trinder et al. (2017). Also vlog ‘Surely this time?’ on the VLE (2019).
Common errors
It was not unusual for answers to wade through the different statutory provisions
and cases in a rote learned way but never really engage with the core question of
whether the law was unreasonable and whether reform was required. Other
answers did consider reform but did not state what the law was to reform in the first
place.
A good answer to this question would…
think about the current law of divorce and the potential impact of the case of Owens
v Owens (2018). Using Owens as a lens, a good answer would evaluate the
present law on divorce under the Matrimonial Causes Act 1973 and consider
whether the mixed system of fault and non-fault facts is unreasonable and outdated
or not. Generally, candidates may consider some of the oddities (which may render
it outdated), which can emerge from the five facts (decision to divorce by no
evidence of irretrievable breakdown, etc.) and the impact of the special procedure.
Then using Owens, candidates may think it strange that everyone appears to think
that Mrs Owens should be able to obtain a divorce but the judge at first instance did
not think Mr Owens’ behaviour was both unreasonable and intolerable and so she
must wait until 2020. Baroness Hale would have preferred a retrial given her views
on the cumulative unreasonableness of Mr Owens’ behaviour but this was not
requested. That then leads to a discussion of reform where a good answer can
point out this is not the first time reform has been advocated and this enables a
review of the reform that never was under the Family Law Act 1996. When looking
at the more recent reform debate, a good answer can consider the work of
Professor Trinder et al. and the Finding fault, no contest and taking notice reports.
Candidates may also discuss the Divorce (etc.) Law Review Bill 2018–2019. This
will inform the discussion as to whether the fault element should remain (is this
outdated?) or be replaced by non-fault only with the aim of reducing the bitterness,
etc. associated with the current law. Finally, what might this reform look like? A
good answer would ask if we should tinker with, rather than overhaul the current
system. A good answer will realise the problems associated with divorce reform and
the balancing act that needs to be struck between the role of the state regulating
formal relationships and the need to ensure autonomy of individuals but will also
note the overwhelming response in favour of reform after the Owens decision.
Candidates may conclude that reform is now likely. This is, in part, due to the case
of Owens.
Poor answers to this question…
tended to write all about the current law of divorce and then ignored any discussion
of reform.

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Student extract
As the society view is more towards autonomy it is submitted that people
should divorce freely as if it is their right to do so. However, it should be noted
that family is a stone to form a society, it can’t be like a toy which can be
entered into and snuffed out without limitation. The fault based divorce here
has maintained a bit over as it is very difficult to establish. As s.1(2)(a) is
concerned, there must be adultery and the petitioner find it intolerable to live
with the respondent. The adultery here voluntary sexual intercourse would
amount to adultery. How about other behaviour which beyond the friend will
do but is not sexual intercourse? The intolerable does not need to be relevant
with the adultery. S.1(2)(b) issue was discussed recently in Owens v Owens
(2018).
Comments on extract
This extract on why it might be important to consider a different range of views as to
divorce reform shows that the candidate understands why family is important and
why a marriage should not necessarily be easy to exit. The response then moves
on to explain how adultery works and identifies a problem with the current law. The
response then moves on to identify behaviour and identifies Owens (2018) as the
key case. The use of metaphor is useful in this extract and the discussion is
generally well considered. At times, the style needs work and there were further
omissions in the analysis but for what did appear the candidate attained a high 2:1
mark for this answer.
Question 3
Pamela and Glenn have been married for 25 years and have no children.
When they married, Glenn asked Pamela to sign a prenuptial agreement
which stated that should they ever divorce she would receive a sum of
£15,000 in full and final settlement. Pamela signed the agreement at the time
because she thought it had no legal effect and would ensure that Glenn still
married her.
Pamela used to work as a librarian, but she gave up work 10 years ago when
Glenn had a health scare and she had also been caring for Glenn’s mother
until she died a few months ago. Glenn is a civil servant who currently earns
£250,000 per year. Pamela is a keen collector of antique pottery and the
collection is currently worth around £150,000. Glenn will also acquire a
pension of £80,000 per year in three years’ time. The couple live in a house
now valued at £1,000,000 for which Pamela’s father provided a deposit of
£50,000, 20 years ago.
Glenn has recently decided to divorce Pamela because he has fallen in love
with Rosa. Glenn has also said that he has just won £45,000 on the lottery
which he intended to give to Rosa. Pamela is very unhappy about divorce but
accepts the marriage is over. She is more concerned as to how the couple’s
finances will be divided up given the prenuptial agreement.
Advise Pamela.
General remarks
This problem question was a standard one on divorce and financial provision, which
are usually popular on exam papers. Candidates are asked to advise Frank so it is
important for candidates to deal with the matter of divorce first and then look at
financial provision. When looking at financial provision, there is no correct structure
but candidates often find it easier to consider the s.25 factors first and then consider
the discretionary exercise through the principles. That said, it is crucial in these

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responses that candidates do consider both the statutory factors and the common
law principles to reach some conclusion (albeit not always determinative).
Law cases, reports and other references the examiners would expect you to use
Sections 1 and 25 Matrimonial Causes Act 1973. Cleary (1974); White (2001);
Parlour (2004); Sorrell (2006); Miller: MacFarlane (2006); Charman (2007);
Radmacher v Granatino (2010); Z v Z (2011); SA v PA (2014); BD v FD (2016);
Luckwell (2014); Brack (2018); KA v MA (2018); Owens (2018).
Common errors
Some responses just focused on the law of divorce and spent an inordinate amount
of time considering the different divorce facts and then ran out of time to consider
the s.25 factors. Other responses looked at child support (when the children have
all left home) and the home-maker activities of Frank but ignored the divorce and
the other assets.
A good answer to this question would…
first discuss divorce. For the divorce part, candidates need to think about whether
the s.1 Matrimonial Causes Act 1973 ground is made out. Given the facts, suggest
that there has been adultery (Cleary (1974)) on Frank’s part but he cannot rely on
his own adultery under s.1(2)(a) and it would appear Gilda does not find it
intolerable and so she may not wish to divorce. On that basis, she could refuse to
grant the divorce under s.1(2)(e) and defend the petition as in Owens (2018) did. If
she did then Frank will have to wait five years. Given the focus of the question, a
good answer will move on to explore s.25 MCA 1973 and see which factors are
important. Having looked at factors such as needs, standard of living, duration of
marriage, contributions to family (Frank’s caring for the family), earning capacity
(gave up work 28 years ago), a good answer then needs to look at the principles
emerging from the cases (White (2001); Parlour (2004); Sorrell (2006); Miller
(2006), MacFarlane (2006)). This is a long marriage so White (2001) should be the
starting point. However, is it likely to be a 50/50 split? Given Frank’s contribution to
the house purchase (similar to Mr White’s contribution). It may be that when having
considered needs (BD v FD (2016)) and sharing (Charman (2007)) the answer then
moves to compensation and McFarlane (2006) although good candidates may
consult SA v PA (2014) and query compensation? Candidates need to add up the
pot of available resources (candidates need to focus on the house and then
consider Gilda’s successful career as a possible exception under Charman (2006))
and then divide it as part of the discretionary exercise. Candidates also need to
think about the pre-marital agreement (this can be dealt with at the beginning or the
end) so a discussion of Radmacher v Granatino (2010) and subsequent cases such
as Z (2011) and Luckwell (2014) and Brack (2018) are crucial. Would its terms be
unfair under KA v MA (2018)? Given Frank’s contribution to the house purchase,
this is likely to be unenforceable. The key to a good answer is for candidates to
structure their responses sensibly and to keep task-focused.
Poor answers to this question…
just listed the s.25 factors as a rote learned response and did not consider the
discretionary exercise as a way of achieving fairness. The factors were copied out
and the case law noted but it was not directly relevant to this question.
Student extract
Finally the relevance of the pre nup and the principle of autonomy is key.
Radmacher v Granatino (2010) held that pre nups may be legally enforceable
and there has been a growing recognition of them as evidenced by the cases
of Z v Z (2011), Luckwell v Limata (2014) and Brack (2018). Luckwell (2014)
argues that pre nups may be given decisive wright [sic] where both parties
are aware of the legal consequences. Due to the circumstances in which the

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 pre nup was signed here and the fact that Pamela received no legal advice
and was worried that Glenn would no longer marry her if she didn’t sign it the
pre nup may be deemed unenforceable. This lack of enforceability is
important for Pamela as it would mean the marital assets as identified would
be available as part of the pot of resource and not limited to the £15,000
originally signed for.
Comments on extract
This is a very well-considered response. The candidate has identified the pre-
nuptial issue (dealing with it at the end) and has then explained the significance of a
range of case law. Importantly, the candidate has explained that, as Pamela did not
receive any legal advice and the circumstances of this signing indicate, it may not
be enforceable. The candidate also explains why it not being enforceable is
important and this is significant. To limit Pamela’s recovery of assets to £15,000 in
the circumstances would be unfair and indicates why the court must consider a
range of factors before giving effect to a pre-nup. The candidate is also current with
their selection of case law, which is important as it shows they have consulted the
Pre-exam update. Given the candidate presented a detailed response (about six
sides of exam booklet) and covered all the case law identified above, the answer
received a first-class mark.
Question 4
What is the legal significance of having parental responsibility?
General remarks
This essay question was not particularly popular. Essay questions on aspects of the
law relating to children are often only answered by candidates who are either very
confident about their selection of material or are trying to locate a final topic that
they know something about. The responses to this question tended to fall into one
of these two categories. The key was to explore both what parental responsibility
means and what the legal significance of it is.
Law cases, reports and other references the examiners would expect you to use
Sections 2, 3 and 4 Children Act 1989. Gillick (1986); B v B (1992); Re S (1995); Re
H (1998); Dawson v Wearmouth (1997); Re J (2000); Re W (2012).
Common errors
There was a tendency for candidates to focus on s.4 and the acquisition of parental
responsibility via an order, usually for an unmarried father and then focus on
legislative changes for unmarried fathers who register the birth and the apparent
inequality that remains, without thinking about the wider context of the significance
of having parental responsibility.
A good answer to this question would…
show a good knowledge of the case law on parental responsibility. Candidates
should make it clear that parental responsibility is different from parenthood: one
may be a parent but not have parental responsibility; or have parental responsibility
but not be a parent. A good answer will explore the nature of parental responsibility
under the Children Act 1989 and the case law on when a parental responsibility
order will be granted (Re H (1998), with the somewhat conflicting messages as to
whether parental responsibility is merely a ‘stamp of approval’ (Re S (1995)) or
grants real rights (B v B (1992)). A good answer should also explore the practical
impact on having parental responsibility. Good answers might explore the way
parental responsibility is seen as a ‘flak jacket’ (see Re W (2012), interpreting Gillick
(1986), which authorises third parties to act in a way that would be otherwise
unlawful. Candidates should also explore the circumstances in which those with
parental responsibility are required to consult about important issues (e.g.

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circumcision, Re J (2000), name change, Dawson v Wearmouth (1997). The best

answers might explore the circumstances in which the court can restrict the
exercise of parental responsibility.
Poor answers to this question…
tended to write about parents in a very general way and explain how the balance
between parents’ rights and children’s rights had developed post Gillick (1986) in an
unhelpful way.
Question 5
Trevor and Maureen have been married for 18 years and live together with
their twin children Eric and Sarah, aged 14, in a property they own. Trevor has
always been keen to ensure that he protects his family from outside
influences believing he can keep them all safe from harm. Trevor regularly
checks Maureen’s phone bill and they discuss the calls she makes so that he
can feel he is helping Maureen to use her phone sensibly. Trevor also
regularly uses corporal punishment to chastise the children if they
misbehave.
Last month Trevor suffered a head injury at work, and this appears to have
made him more aggressive. He is now absent from work on sick leave. Trevor
now regularly shouts at the twins and has been threatening Maureen that he
is going to punch her if she does not follow his instructions around managing
the household finances and keeping the house clean and tidy. Last night, for
the first time, Trevor punched Maureen and Eric during the course of an
argument and shouted at Sarah that he would be keeping an eye on her, as he
does Maureen, from now on.
Maureen and the twins are now very frightened as to what might happen in
the future. Maureen wants Trevor to leave the family home but is convinced
that if he ever left, he would still try to control their lives from afar.
Advise Maureen.
How might your answer differ, if at all, if Eric and Sarah were not Trevor’s
children and Maureen had moved in with them two months ago as part of a
casual, non-committed relationship?
General remarks
Problem questions on protection from domestic violence and abuse are common on
exam papers. In recent years, there has been an increase in the focus of protective
orders both in civil and criminal law settings. Against that backdrop, this question
did require a confident grasp of the different remedies available. It was also
important for candidates to consider the later developments here with recent
attention focusing on controlling and coercive behaviour.
Law cases, reports and other references the examiners would expect you to use
Articles 3, 6, 8 and 14 of the Convention and Article 1 of the first Protocol of the
European Convention on Human Rights 1950. Sections 33–37, 42 and 62 Family
Law Act 1996; ss.24–33 Crime and Security Act 2010; s.76 Serious Crime Act
2015. Chalmers v Johns (1999); B v B (1999); Banks v Banks (1999); Yemshaw
(2011); Grubb v Grubb (2009) and Dolan v Corby (2011).
Common errors
Candidates often only focused on the civil law remedies of occupation orders and
non-molestation orders, which limited the discussion given the urgency of the
situation. There was also a tendency for candidates to miss the alternate question,
which enabled good candidates to demonstrate their grasp of the relevant statutory
framework.

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A good answer to this question would…

identify that the area for this question concerns protection from domestic violence
and abuse. Given that these circumstances would appear quite urgent, the first
point of call may be a Domestic Violence Protection Notice and Domestic Violence
Protection Order under ss.24–33 Crime and Security Act 2010. A good answer
should then consider the statutory provisions relating to non-molestation orders
(s.42) and occupation orders (s.33) Family Law Act 1996. Trevor and Maureen are
clearly associated persons. Candidates need to explain how s.33 Family Law Act
1996 applies for occupation orders. Then candidates need to think about the factors
to be taken into account, which would include Eric and Sarah. The balance of harm
test should be considered. Good candidates will pick this up and consider the case
law of B v B (1999) and Banks v Banks (1999) to explore the fact that Trevor is
clearly controlling and abusive but has also suffered a head injury. Candidates may
also consider or discount the power of arrest, undertakings and ex parte orders
(given the urgency here), where necessary. Clearly, there has been a pattern of
controlling and coercive behaviour in an intimate relationship here so a good
answer will explore the ambit of s.76 Serious Crime Act 2015. Good candidates will
also pick up on the financial abuse, which is included in the Home Office (2012)
definition of domestic abuse. Should Maureen end up declaring herself homeless
then candidates could consider Yemshaw (2011), which suggests that
unintentionally homeless can be very easily made out if this case is to be followed.
In the alternative facts, candidates should consider whether s.36 Family Law Act
1996 applies and explore the factors listed in ss.33(6), 33(7) and 36(6), noting the
significant harm questions and the differences with the significant harm test. Here,
given the draconian nature of occupation orders, good candidates will consider
Chalmers v Johns (1999), Grubb v Grubb (2009) and Dolan v Corby (2011). The
key to a good answer is to ensure the response is structured effectively to deal with
both short and long-term planning. A good answer considers all this against a
Human Rights Act 1998 backdrop and the applicability or not of Articles 3, 6, 8, 14
of the Convention and Article 1 of the first Protocol.
Poor answers to this question…
tended to present general accounts of how to acquire an occupation order and a
non-molestation order and did not refer to the specifics of the question. These
answers missed the complexities of Trevor’s behaviour.
Question 6
Jacky and Michael have two children: Tina, aged 14 and Susan, aged 10. Tina
is very keen on tennis and wants to go to a school which specialises in tennis
tuition. Jacky, who is a keen tennis player herself, is very supportive of Tina’s
decision. Michael is strongly opposed. He thinks Tina needs to make sure she
excels in her academic studies and that Tina is not doing so well in her
studies because she is spending so much time playing tennis. Michael also
argues the specialist tennis school is expensive and, although the family
could afford it, it would cause severe financial strain.
Susan is aged 10 and is due for vaccinations. Jacky joined an organisation
which oppose vaccinations after reading on the internet that vaccinations can
have harmful side effects and so is opposed to Susan receiving these
vaccinations. Michael supports the vaccinations and emphasises that
Susan’s doctor is very supportive of them, as is the Government. Susan is
not sure what she thinks but hates her parents arguing about the issue and
because her mother has such strong views thinks it best if she does not have
the vaccinations.
Jacky and Michael cannot resolve their disagreements.

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Consider what applications they may make and what orders a court might
make.
General remarks
This was a problem question that required a discussion of the law relating to the
resolution of parental disputes. It requires a good grasp of how Parts I and II of the
Children Act 1989 works and the s.8 suite of orders.
Law cases, reports and other references the examiners would expect you to use
Sections1 and 8 Children Act 1989. Gillick (1986); Re G (2012), F v F (2013), Re M
(2017), reference might be made to GSOH v Yates and Gard (2017) and Alder Hey
v Evans (2018) as some candidates may have noted these two cases from the
news.
Common errors
It was quite common for some candidates to write very generally about welfare
without looking at the specifics of the factual scenario presented. Sometimes case
law was quite old relative to later developments in this area and sometimes there
was no specific reference to s.1 Children Act 1989.
A good answer to this question would…
consider s.8 Children Act 1989 orders and the importance of children’s wishes. The
issue of the tennis school could arise as either an application for a prohibited steps
order from Michael to prevent Tina attending the school or an order from Jacky to
attend the school. The welfare principle in s.1(1) Children Act 1989 will also need to
be considered. A good answer should discuss how the factors listed in s.1(3) might
apply. They should also consider whether the ‘no order’ principle in s.1(5) might be
relevant here. A good knowledge of the case law will be helpful. Candidates could
discuss Re G (2012) on religious schooling. Good candidates will explore the
similarities and differences between the issues in that case and the one set in the
problem. The concept of the ‘reasonable twenty first century parent’ discussed in
Re G (2012) and Re M (2017) should be explored. Candidates should also discuss
the importance of Tina’s views as a 14-year-old and the case law on taking into
account the wishes of children in interpreting the welfare principle (Gillick (1986)). In
relation to Susan, the issue can again arise as either a specific issue order or
prohibited steps order and the welfare principle will apply. The case law on disputes
over vaccination as in F v F (2013), could be discussed by the strongest
candidates. Candidates might also want to discuss the Charlie Gard and Alfie
Evans litigation and consider whether it has application here. This may have been
picked up from the news as it was a newsworthy item. The importance of Jacky’s
views should be considered here, too, although her young age and the reasons
behind her views will mean less weight will be applied than in Tina’s case.
Poor answers to this question…
tended to present an essay-type response to the question, focusing on children’s
rights and the need for either the children’s views always to be followed or the
parents’ views always to be followed without an understanding of the nuances
present.
Question 7
A local authority is concerned about three children in their area. They seek
your advice as to their legal responsibilities and what applications they
should make to the court. The three children are:
a) Lu, aged seven, who is very thin and is often tired at school. Her
parents are strict vegans and only allow Lu vegan food. Lu loves the
food and is very happy with the care offered by her parents. Lu’s

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doctor and teacher are very worried that Lu is not getting an

adequate diet.
b) Steven, aged 12, has been very aggressive to girls in his school and
he repeatedly makes sexually suggestive remarks to them. His
parents say he is just being a typical 12-year-old. The school is
concerned his behaviour might indicate that Steven has suffered
sexual abuse. A specialist report indicates this is possible but is not
proved. Steven insists he has not been abused.
c) Micha, aged 14, lives with her mother. She repeatedly hits her mother
and the police have been called on a couple of occasions. Micha is
very apologetic, and her mother insists that Micha will grow out of
this and does not want any interference by the local authority.
General remarks
Problem questions on the role of the local authority and protection of children are
standard on exam papers and this question raised familiar issues around children in
need and the threshold criteria for a care order. Most candidates who attempted this
question performed reasonably well. The key here is to have a good grasp of both
the legal provisions and the factual scenario to ensure the response does not look
rote learned but sufficiently specific to the task set. The unusual part of this question
was the last part, which good candidates would have noted may not involve child
protection provisions at all as it was more likely to be a situation of domestic
violence.
Law cases, reports and other references the examiners would expect you to use
Sections 1, 17 and 31 Children Act 1989; s.42 Family Law Act 1996. Re H (1996);
Re B (2008); Re R (2013) and Re L (2013).
Common errors
When answering this question, some candidates tended to explore s.31 but ignored
s.1 Children Act 1989 and, therefore, as soon as threshold was met so an order
was made. This is not an automatic approach and any order should be
proportionate to the issue identified in accordance with the Human Rights Act 1998.
A good answer to this question would…
deal with each scenario separately. In the case of Lu, candidates should discuss
whether Lu is a child in need and therefore has the benefit of s.17 Children Act
1989. Candidates will spend most time exploring whether or not the threshold
criteria in s.31 Children Act 1989 are met. Points to note in particular are whether
the harm here is significant; the courts’ willingness to accept diversity in quality of
parenting as considered in Re L (2013) and consideration of cultural/religious
issues in interpreting s.31. Even if the threshold criteria are met the court will
consider whether it would be in the welfare of the child to make an order, applying
s.1 Children Act 1989 and the concept of proportionality. In this case, if any order is
made it is likely to be a supervision order and candidates should show the
understanding of the effect of such orders. The case concerning Stephen is likely to
focus on s.31 Children Act 1989. There are two issues here. The first is whether his
harmful behaviour to girls can be considered significant harm to himself. Note, a
care order cannot be made to protect other people. It is worth noting, too, that a
comparison is required between the child in question and a ‘similar child’. The
second is the possibility of sexual abuse. A good answer would show an awareness
of the case law, which states that only facts can be relied upon to make out the s.31
criteria so a discussion of Re H (1996) and Re B (2008) should follow. However, if
the facts indicate that there is a real risk of significant harm then that is sufficient for
establishing the care order (Re H (1996) and Re R (2013)). In relation to Micha, a
good answer would consider the possibility of criminal proceedings (this would be at
least an assault) or a non-molestation order (s.42 Family Law Act 1996) against

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Micha. This is not a case where care proceedings can be brought, unless there is
evidence that Micha’s behaviour is causing Micha significant harm.
Poor answers to this question…
tended to present a rote-learned answer, which described the child protection
arrangements in family law without explaining how this applied to these particular
facts. Poor answers also tended to assume the threshold was met in all cases and
a care order was necessary or legal in all areas.
Question 8
‘The law on adoption is designed to meet the needs of adoptive parents,
rather than the rights of children and their birth families.’
Discuss.
General remarks
This was not a popular question and responses tended not to deal with the specific
focus of the question, which was to understand how the current law deals with
balancing the needs of adoptive parents when pitched against the rights of children
and their birth families. Clearly, sometimes these can all coincide but sometimes
they do not and the best responses looked at how the law operates in situations of
conflict.
Law cases, reports and other references the examiners would expect you to use
Sections 1, 46 and 51A Adoption and Children Act 2002. Re C (1989); Registrar
General ex p Smith (1991); Re R (2005); Down Lisburn Heath and Social Services
Trust v H (2006); Re P (2010); Re B-S (2013). Commentary of Guggenheim (2005)
and Herring (1999) and work of Reece (1996) on welfare.
Common errors
Sometimes candidates saw this as a question about adoption versus special
guardianship, which it clearly was not. As it was not a commonly responded to
question, the answers tended to be generally accurate.
A good answer to this question would…
think about the current law of adoption. A discussion of the Adoption and Children
Act 2002 should follow and some discussion of this being a creature of statute may
proceed (1926 Act onwards). This is important because historically the law was
particularly interested in securing the child’s future at the expense of the child’s past
in terms of identity, etc. and this focused on the adoptive parents rather than the
child’s needs. A good answer would recognise that the future may only be
effectively secured if connections with the past are maintained. A review of s.1
Adoption and Children Act 2002 will look at welfare in this context and following a
review of adoption law (who can adopt, effect of adoption, etc. that can involve a
discussion of dispensing with the birth parents’ consent). A good answer should
then focus on focus on whether the law promotes openness and on-going contact
or whether there is a tendency to support the adoptive parents at the expense of the
other parties. A good answer will put adoption in the context of alternatives for long-
term care: special guardianship order and long-term foster arrangements. A
discussion of proportionality will also be central after Re B-S (2013). A good answer
might look at s.80 Adoption and Children Act 2002, which promotes access to
information and a discussion of R v Registrar General ex p Smith may follow along
with Down Lisburn Heath and Social Services Trust v H. A good answer should
think about the merits of openness here and some may refer to the international
human right of knowing one’s parentage. A discussion of s.46 and s.51A Adoption
and Children Act 2002 may follow and the issue of post adoption contact and Re R
(a Child) (Adoption: Contact) shows the courts unwillingness to promote contact if it
unsettles the placement and this supports the argument presented by the question.

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 Examiners’ reports 2019

In terms of commentary, a good answer may think about other work critical of the
welfare principle generally and acknowledge it may not necessarily always be
appropriate to be just about the child. This will require some consideration of the
work of Reece and Guggenheim against and Herring in favour.
Poor answers to this question…
just explained how the law of adoption generally works and reproduced
much of the detail in the module guide to offer a standard but non-specific
response to the question set.

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