Examiners' Reports 2018: LA2019 Family Law - Zone A

Examiners’ reports 2018
LA2019 Family law – Zone A
Introduction
Overall, there were some very good answers in this exam. Strong answers were
able to demonstrate not only knowledge of the law but also to apply it to the specific
question. For essay questions, this means identifying the issue the question 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.
For problem questions, while most candidates picked up on the issues to be
addressed, many answers lacked detail of analysis. Here is where you have the
chance to demonstrate your skills of legal analysis and good answers apply the law
to the facts of the case, identifying where there might be uncertainties. Problem
questions usually do not have clear answers; that is why they appear on exams!
Further, there were 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.
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.
Comments on specific questions

Question 1
Anna lives with her two children: lan aged 5 and Robby aged 15. lan was born
as a result of assisted reproduction treatment which Anna underwent in a
licensed clinic with the consent of her then partner Maria. Anna and Maria
separated two years ago at which time Anna moved in with Laura. Maria
continues to play a full and active role in lan’s life seeing him each alternate
weekend from Friday 4pm to Sunday 5pm. She also sees him each Tuesday
after school because they both attend a music course. Maria also has a good
relationship with Robby and plays an active role in his life as well.
Anna and Laura have converted to the ‘Sun Religion’. In order to find true
enlightenment, the whole family must go on a retreat to Indonesia for six
months and they all, including the children, must also adopt new names in
line with their new religion. The children must also be educated in the Sun’s
special school. Anna has not consulted Maria about her plans; she simply
informed her five days ago that they were off to Indonesia and that the
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children on their return would be changing schools. lan and Robby have told
Maria that they are not happy about the forthcoming trip or about any of the
proposed changes in their lives.
Advise Maria on what action she may be able to take.
General remarks
Here you are asked to advise Maria, so you must first determine if she is able to
bring any claims in respect of I or R or both. The question raises issues of legal
parentage, parental responsibility and section 8 orders. You may assume that as I
and R’s biological mother, A has parental responsibility (pr) for them, but you then
must also determine who, if anyone else may have pr. Does M have it? And, why is
pr important? How is it linked to legal parentage? What orders are available to M
under s.8 CA 1989 to prohibit the change of names, schools and religion? How will
the court determine applications for these orders? There are a lot of issues here,
yet most of them are linked to the paramountcy of welfare.
Law cases, reports and other references the examiners would expect you to use
HFEA 2008 re legal parentage; s.8 CA 1989; Cases interpreting the welfare
principle, such as Re G (1994) (education), Re G (2012) (religious education), Re S
(change of name cultural factors), Dawson v Wearmouth (re surname) and Re H (re
first names might be referred to), along with the children’s views on all of these
issues. Because it does not appear that a CAO – residence order is in place, A may
be able to take the children out of the jurisdiction for over one month – s.13, CA.
Common errors
General discussion of welfare without sufficient detail on the case law was a
common error, in addition to the failure to determine the parental status of the
parties.
A good answer to this question would…
in addition to a clear analysis of the specific issues and prohibited steps disputes,
query whether M may wish to apply for an order of shared residence of I and R, for I
as his parent and for R perhaps if she was someone with whom he lived for more
than three years. If she is not, she may apply to the court for leave to apply for this
CAO.
Poor answers to this question…
assumed M could make an application for pr for R as an unmarried father would.
Question 2
Herb, a 45-year-old solicitor, and Wendy, a 43-year-old copy editor, married in
2003. They moved in to Herb’s home, which he inherited from his parents in
1995. Their daughter Clarice was born in 2005 after which Wendy moved to
part-time employment so she could become Clarice’s 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 each owned was the family home they now live in, some
stocks held by Herb, and Wendy’s pension from her employment. Herb drew
up the agreement and Wendy signed it without legal advice because she had
read in the newspaper that pre-nuptial agreements were not binding. After the
marriage they purchased a small holiday cottage in Cornwall, title to which is
in Herb’s name. It has recently been valued at £350,000.
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Herb and Wendy have now decided to divorce. They have agreed that Clarice
will remain in Wendy’s primary care and Herb will provide payments for child
support. Herb, however, has told Wendy that he expects her and Clarice to
move out of the home and, pursuant to their prenuptial agreement, that
neither spouse would 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 is mortgage-free. Wendy is also aware that Herb’s stocks
have increased in value dramatically since 2003. She would like a full property
division, claiming that the prenuptial agreement should not be enforced. She
also would like some support from Herb until she is able to return to work on
a full-time basis.
Advise Wendy on the financial consequences of her divorce.
General remarks
Problem questions like this on financial relief are sometimes difficult to answer. It is
not always clear whether one should proceed through the s.25 factors first before
applying the fairness analysis/criteria from White, Miller/McFarlane and Charman,
or whether that overall discretionary judgment about fairness comes first, with the
s.25 factors then looked at after. For this question and on most exam questions
about ‘big money’, either approach is fine and it might be of some comfort to know
that the courts are not in agreement about the best way to proceed either. In big
money cases like this, however, it is important that candidates discuss both the
three strands of fairness in the context of the facts and also those s.25 factors that
may influence the overall determination of fairness.
Radmacher v Granatino and the cases following it on prenups; MCA, s.25; and at
least White v White, Miller/McFarlane and Charman on fairness.
Common errors
Failure to deal with all the marital assets and to identify whether they would be
considered matrimonial or non-matrimonial and why this designation matters.
Failure to deal in sufficient detail with the prenuptial agreement.
first deal with the prenup. Will it be given effect? Radmacher is the leading case that
sets out when a prenup may be considered to be unfair. The lack of legal advice
may not be sufficient but you would consider the fact that W did not believe she
would be bound by the agreement. See comments from the UKSC on these issues
and subsequent cases including those in which parties may not contract out of need
but may contract out of sharing non-family assets. Good answers would then
discuss how the family wealth may be distributed if the agreement is not given full
effect. They would first identify the assets and refer to the leading cases: White,
Miller, McFarlane, Charman on the three strands of fairness, the s.25 MCA factors,
identify if any of the assets are non-marital; Jones v Jones on how to approach a
case where there are non-marital assets that may justify a departure from equality.
Finally, is there any other reason to depart from equality, e.g. ‘special contribution’?
How might the court deal with marital home? Mesher case? What about support?
Clean break? Good answers would ultimately put together an award that they feel is
fair and justify it according to case law.
did not discuss the three strands of fairness or identify the assets and simply ran
through the s.25 factors.
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Student extract
Since Radmacher v Granatino PNAs are now being enforced. Subsequent
cases like Luckwell v Limata. Z v Z and Kremen and Agrest have shown just
how much the court has changed its thinking on the subject if [sic] PNAs.
Now the court will give decisive weight to PNAs barring any vitiating elements
such as duress, undue influence and lack of legal counsel. … Herb and
Wendy are professional adults and based upon the facts she does not seem
to be under duress or undue influence. However, Herb is a solicitor and she
is not and she did not seek independent legal advice although she had
sufficient time to do so before the wedding. W also seemed misinformed
about PNAs’ legal status after reading the newspaper article on PNAs. It is
unlikely the court would give significant weight to the PNA as there was a
vitiating factor; no legal advice was given to W and she did not intend to be
bound by its terms.
Comments on extract
This extract on the prenup shows that the candidate understands how prenups may
be given effect to and identifies the relevant case law. But it is a cursory discussion
only and, after discussing the lack of vitiating factors, does not discuss the next
stage in the court’s determination – is the agreement unfair? The UKSC in
Radmacher gives examples of when an agreement may be unfair and lack of
intention to be bound combined with lack of legal advice may be sufficient, as might
leaving W in real need. More detailed discussion of these issues would have raised
this answer from its 2:2 level.
Question 3
Alma and Bennie were married for 10 years before they separated six months
ago after Bennie struck Alma across the face. They have one child, Cindy
aged nine, who lives with Alma in the former family home. Since the
separation, and because Bennie and Cindy were close, Cindy has been
seeing Bennie every other weekend. Last weekend, after one of her visits with
Bennie, Cindy returned home crying and with a bruise on her wrist. She said
that Bennie had smacked her and twisted her wrist when she reached for the
toast at breakfast. Cindy told Alma that she has been afraid of Bennie during
her last few visits. He has been drinking a lot and this was not the first time
he had smacked her. When Alma phoned Bennie to discuss the situation, he
shouted at her and said that what happened to Cindy was Alma’s fault
because she should not have kicked him out of his house. He said that he
wanted to move back in and that if Alma did not let him, both she and Cindy
‘would be sorry’. Alma is now afraid for both her own and Cindy's safety,
particularly since she has seen Bennie outside the house on three occasions
this week.
Alma now wishes to proceed with a divorce from Bennie. She wants your
advice regarding her divorce and also whether she can take any steps to
protect herself and Cindy from Bennie.
General remarks
This question raises issues of divorce and domestic violence. The divorce issue
was more straightforward than the protection issue. If A wants to stay in the home
she must apply for an occupation order. A has not suffered violence yet but there
have been threats. Is this enough for an occupation order? What about the violence
to C?
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MCA, s.1 and case law such as Livingstone-Stallard and Bannister are relevant to
divorce; FLA 1996, s.33 and cases such as B v B, Chalmers v Johns and Dolan v
Corby on these orders; s.42 FLA on NMOs.
Common errors
Failure to discuss the balance of harm test. Many candidates simply said A would
be entitled to an occupation order but did not explain why or how the court
approaches these applications. Some discussion of how any order would be
enforced was also lacking in many papers.
Deal with the divorce issue quickly and then identify the correct section of the FLA
1996 and explain the balance of harm test the court will apply to A’s application.
Reference to the draconian nature of the order and also to the terms of order she
could get. There is no violence yet, but threats – will the court make the order? She
wants him prohibited from entering and also probably from a defined area around
the flat. Power of arrest? Discuss also s.42, associated persons and non-
molestation of her and C.
spent too much time on a general discussion of domestic violence and the
developments in the law. A short intro setting out the area of law raised by the
question is fine but remember that problem questions need to be answered in their
specifics.
Question 4
Lucy and Mark have two children, Nancy aged 12 and Olly aged 5. Olly has
been admitted to hospital with an unexplained fracture. Both parents deny
any responsibility for the injury, although Mark does admit to having hit Lucy
on two occasions. During the local authority investigation, Nancy tells the
social worker, Pamela, that it was Mark who injured Olly. Both Mark and Lucy
say Nancy is lying. On further investigation, Pamela discovers that Mark’s
previous partner, Ella, left him after alleging that he was violent towards her
and her young son.
Pamela is now worried for Nancy’s safety as Mark and Lucy are angry that
she implicated Mark in Olly’s injury. She is also worried because Lucy is
pregnant and Pamela is concerned that the baby might be at risk of harm after
the birth.
Lucy insists that she does not know how Olly was injured, but she says she is
prepared to ask Mark to leave the house if it would mean the local authority
would just leave them alone.
Advise Pamela of the availability of court orders to protect each of the
children, if necessary.
General remarks
This question is about Part IV CA 1989. The facts tell us that the LA has
investigated and is now wondering whether courts orders are available. O has
suffered significant harm (he has a fractured bone!) and the issue is whether the
rest of the threshold test can be met in respect of him where the perpetrator of his
injuries is uncertain and also whether N and the yet to be born baby are likely to
suffer significant harm. This is not, therefore, a question about Part III CA and the
s.17 duty or about the LA’s investigatory duties. Many candidates spent too much
time on voluntary services and/or CAOs which meant they ran out of time
discussing the threshold test. When it did come to discussing the test, you might
have examined each part of it (e.g. the meaning of ‘significant harm’ the meaning of
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‘likely to suffer’, the meaning of ‘attributable to the care …’) or you might have
looked at the test as a whole as it applies to each child.
Section 31 CA 1989; Humberside CC v B and Re B UKSC; Northamptonshire CC v
S; Re B (standard of proof); Re L (threshold criteria); Re J UKSC and Lancashire
CC v B; Re O and N; Re S-B.
Common errors
Simply stating that the threshold test would be met for all children without explaining
why or querying the unknown perpetrator was a common error. As was spending
too much time on the LA duty to investigate.
discuss the leading cases on interpreting the threshold test and identify that the
main problem is that the perpetrator of O’s injuries is uncertain. The Lancashire
case and Re S-B UKSC says if either Mark or Pamela is a possible perpetrator the
test is met re O. Re N and the baby, however, the question is whether P as a
possible perpetrator of the harm to O is enough to be the basis for a finding of
likelihood of future harm to N and the baby, neither of whom seems to have
suffered harm yet. Here, the Re J case is important: is being in a pool of possible
perpetrators of harm to one child sufficient to form the basis of a likelihood of harm
to another child? Good students discussed here the difference between sufficient
and relevant. Good answers also discussed the welfare part of the test and the
difference between a CO and a SO.
assumed that because Mark was accused as the perpetrator, the threshold test was
met. They failed to discuss the difficulty with unknown perpetrator situations.
Question 5
‘Adoption is only one of the ways the state may arrange for the care of
children whose parents are unable or unwilling to care for them.’
Consider the advantages and disadvantages of adoption over at least one
alternative to it.
General remarks
This question was an opportunity for candidates to write about adoption but also to
examine other ways the state arranges for children to be cared for outside their
families of origin. Many candidates took the opportunity, however, to describe in
detail the law of adoption before simply adding one or two sentences at the end
about its advantages and disadvantages. Any one (or more) of Care Orders,
Special Guardianship Orders, fostering or even CAOs or institutional care might
have been discussed as alternatives to adoption.
ACA 2002; CA 1989; Re S (2007) and Re AJ on special guardianship, Re B-S on
adoption.
Common errors
Many offered descriptions only, sometimes quite detailed of the law of adoption but
did not discuss alternatives to it.
show good understanding of what adoption is and when it may be ordered. Make
reference to ACA 2002 and the draconian nature of adoption – Re B-S and Re B.
Discuss one or more alternatives to adoption for the long-term care of children,
such as special guardianship, a CAO with another family member or long-term
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foster care. Good answers would address questions like: what do the alternatives
offer that adoption might not and vice versa? In what circumstances may one serve
the welfare of the child better than the other?
did not discuss the law at all but simply wrote about how children must be cared for
in families. A number of candidates opted for this approach and these answers
were waffly and generally lacked substance.
Question 6
‘Marriage has lost so much of its legal significance that it should now be
regarded as simply a ‘lifestyle choice’.’ Do you agree? Give reasons for your
answer.
General remarks
A careful reading of the question shows that it refers to the legal significance of
marriage. While some candidates discussed the significance of marriage for law,
many did not. Many discussed instead the law of nullity. This was not an opportunity
to discuss how marriage becomes legally significant, validity of marriage and the
law of annulment, unless that discussion related to why marriage is legally
significant. Neither was this an opportunity simply to write about the social
significance of marriage – it was intended to draw the two together.
MCA 1973 on financial provision on divorce, Civil Partnership Act 2004; CA 1989 on
parental responsibility; and other provisions regulating the legal consequences of
marriage.
Common errors
As above – treating this question as one about the law of nullity.
discuss here the legal consequences of marriage and compare them with the
consequences of other relationship statuses such as CP or cohabitation. Compared
to cohabitation without marriage, for example, these include parental responsibility,
financial support during and after the end of the relationship, differences in
inheritance, matrimonial property and more. It was not necessary to compile an
exhaustive list, as long as the answer demonstrated understanding of the main
legal consequences of marriage. A good answer would then formulate some
arguments for or against the value of marriage as something more than a lifestyle
choice. If one can now choose between marriage, CP or cohabitation, for example,
why is marriage anything other than simply a lifestyle choice?
discussed neither the law of nullity nor the legal consequences of marriage but
simply discussed how marriage has changed socially over the years. While
discussion of these changes might be relevant to the question if it was directed to
the impact the changes have had on the legal consequences of marriage, too many
were simply arguments for the sacred or social importance of marriage.
Student extract
In 2013 the Same Sex Marriage Act allowed same sex couples to get married
just as a heterosexual couple would. They can now solemnise their marriage
in a registered place or building with the exception of the Church of England
and Wales. Same sex couples are now able to legally get married, however,
they are also able to still enter into a civil partnership or convert a civil
partnership into a marriage. It appears to be somewhat unfair to heterosexual
couples who are barred from entering a civil partnership... The expectancy of
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such an option seems apparent in the near future however. Marriage has
clearly lost its substance and meaning as the government continue to
legislate on these grounds and soon enough there may be few weddings.
Comments on extract
This extract is comparing the availability of marriage with the availability of civil
partnership. If it had done more to explain that the legal consequences of each are
not that different then it would have taken a position on the question – marriage is
really only a lifestyle choice, because soon one will be able to choose between it
and CP. As it is here, however, that position is not made clearly enough. This
question was graded at a low 2:1.
Question 7
‘The welfare principle prevails at the expense of children’s rights in parental
disputes about their children’s upbringing.’
Discuss.
General remarks
This question invites discussion of the welfare principle, including criticisms of it.
One of those criticisms is that it fails to take sufficient account of children’s rights.
We were looking here for an understanding of the welfare principle and for an
understanding of how children’s rights are considered in s.8 disputes. We wanted
you to take a position on the statement – does welfare prevail over rights? Should
it?
HRA 1998; UNCRC; Gillick; Mabon; and any cases in which courts discuss the
compatibility or otherwise of welfare and rights.
Common errors
Many candidates simply discussed the welfare principle and gave short shrift to
children’s rights.
either enter a discussion here of children’s rights and welfare in the abstract, or
stronger answers would focus on the welfare checklist and specific cases including
those implicating the HRA, the UNCRC, the Gillick case and other cases about
medical treatment, children’s voices/rights in court (Mabon case), corporal
punishment of children or the way in which the wishes and feelings of the child are
sometimes interpreted as expressing their rights. On this view, you may say that it
makes little difference whether we think in terms of children’s rights or their welfare,
the same solution ultimately would follow. Alternatively, you might say that one must
prevail over the other and give reasons to support your conclusion.
see common errors above.
Question 8
How has the principle of equality influenced the law on financial provision
and property allocation on divorce?
General remarks
Most of this discussion is likely to focus upon the White decision and its aftermath,
including equal sharing as one of the three stands of fairness. There are, however,
additional ways in which equality has influenced the law, including in the treatment
of prenuptial agreements and interpretation of the clean break principle. The answer
to this question, in other words, was not found in one case or another but by
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thinking generally around the way the law has developed with an idea of equality as
its basis. Many candidates did very well on this question as a consequence. Others,
however, treated it more narrowly and discussed only White and Miller/MacFarlane.
This approach, while solid, did not achieve as high a grade as those who were
rewarded by thinking outside the box.
At least White v White; Miller/McFarlane; Charman v Charman; Radmacher;
Lambert v Lambert.
Common errors
There were no ‘errors’ as such in this question, the most common reason for less
than outstanding marks was a failure to go beyond the obvious case of White v
White.
discuss the way in which ‘fairness’ has elements of equality in it: from the yardstick
of equality, to equal value attributed to different roles in the home, to equal sharing
as one of the strands of fairness (Miller/McFarlane), to Charman’s idea that equality
become a starting point, only to be departed from for good reason. Further,
marriage has also been called a ‘partnership of equals’ and the principle of equality
informs the autonomy at the heart of the Radmacher decision on prenups. Equality
has also influenced interpretation of the ‘stellar contribution’ idea such that too easy
application of stellar contribution may lead to discrimination. Strong answers may
also discuss the 1984 amendments to the MCA, including clean break that assumes
a formal equality of the parties.
see common errors above.

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