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Summary *DISTINCTION ACHIEVED* Family Law Elective Revision Summaries (Ulaw)

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HIGH DISTINCTION ACHIEVED Hi Family Law revision notes covering the following topics: 1. Tax on marriage breakdown 2. ADR 3. Legal Help and Funding 4.The Statutory Charge 5. Divorce 6. Pre-marital agreements 7. Financial orders 8.Enforcement, appeals and setting aside orders 9. Dealin...

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  • March 27, 2021
  • 84
  • 2020/2021
  • Summary

Subjects

  • family law
  • lpc
  • divorce
  • child maintenance
  • enforcement
  • financial orders
  • section 8 orders
  • spousal maintenance

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  • LPC - Legal Practice Course
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PARENTAL RESPONSIBILITY
• S.3(1) CA 1989 – ‘All the rights, duties, powers, responsibilities and authority which by law a parent of a child
has in relation to the child and his property’
• In reality, it gives the parent responsibility for taking all the important decisions in the child’s life e.g.
WHAT IS education, religion, medical care
PARENTAL • It also enables a parent to take day-to-day decisions e.g. in relation to nutrition
RESPONSIBILITY? • Will change and vary with the age and maturity of the child
• Gillick v West Norfolk and Wisbech Area Health Authority – ‘parental authority ceases in respect of any
aspect of a child’s upbringing about which the child himself is sufficiently mature to make decisions for
himself’
• Married parents have joint parental responsibility. If parents are not married, only the mother has parental
WHO HAS responsibility.
• s.2(5) CA 1989) - There is no limit to the number of people who can have parental responsibility at any one
PARENTAL time, and no one will lose parental responsibility just because another acquires it
RESPONSIBILITY? • it is not possible to transfer or surrender parental responsibility (CA 1989 s2(9)) but parents can delegate
responsibility for a child on a temporary basis
v Unmarried father
An unmarried partner can acquire parental responsibility in any 1 of 6 ways:
1. By being registered as the father on the child’s birth certificate with the consent of the mother (after
1/12/03) (s.4(1)(a) CA 1989);
2. By entering into a ‘parental responsibility agreement’ with the mother (s.4(1)(b) CA 1989);
3. By applying to the court for a parental responsibility order (s.4(1)(c) CA 1989);
4. By being appointed a guardian either by the mother or by the court, although in these cases he will
assume parental responsibility only on the mother’s death;
5. By obtaining a child arrangements order from the court
6. By marrying the mother

v Step parents and civil partners
HOW CAN YOU • s.4A CA 1989 allows step-parents and civil partners to obtain parental responsibility agreements with the
consent of all parents with parental responsibility or to apply to the court for a parental responsibility order.
ACQUIRE • Step parents can also acquire parental responsibility if the court makes a child arrangements order in their
PARENTAL favour
RESPONSIBILITY?
v Others
• A local authority will acquire parental responsibility if a care order is made in relation to the child
• Anyone who is granted a residence order in relation to the child
• If the child is made a ward of court, the court
• Anyone obtaining a new special guardianship order will acquire parental responsibility
• Female same sex couples who have not entered into a civil partnership and who are having a child conceived
at a licensed clinic by IVF – the natural mother can nominate her same sex partner as the parent of the child
• Where a child arrangement order is make in favour of a person who is not a parent or guardian and that
person is named as the person with whom the child shall live that person shall have parental responsibility
• If child arrangement order names a non-parent or non-guardian as a person with who a child should spend
time or otherwise have contact, but not live with, then the court may provide for that person to have parental
responsibility for the duration of the order.
1. If, on divorce, a child arrangements order is made with a provision that the child is to live with a
grandparent, this will mean that the child’s mother, father and grandparent will all have parental responsibility.
The parents ‘lose’ the responsibility of having the child living with them but retain all other responsibilities

2. If a care order is made, the local authority acquires parental responsibility but the parents still in theory retain
parental responsibility. However, in practice, the local authority is given the discretion to determine the extent
to which a parent may meet his or her parental responsibility (s.33(3) CA 1989)

3. Two situations in which parents lose parental responsibility:
HOW CAN YOU v The parents death; and
LOSE PARENTAL v The child’s adoption
RESPONSIBILITY?
4. An unmarried father or second female parent who has acquired PR by a PR order or PR agreement, or by
registration on birth certificate, can lose it if the court makes further order ending it (Re P (Terminating
Parental Responsibility [1995])

5. A step-parent or civil partner who acquires PR under s4A CA 1989 can have it removed by the court

6. Anyone other than an unmarried father or second female parent, who has acquired parental responsibility by
being granted a child arrangements order will lose it automatically when the child arrangements order
terminated
• Even though several people may have PR, in theory it is possible for each to act alone with no duty to consult
EXERCISING anyone else (CA 1989 s2(7))
PARENTAL • Subject to exceptions, one parent can determine questions such as medical treatment and religion without
RESPONSIBILITY consulting the other

, SECTION 8 ORDERS
Three different types of orders in relation to children:
(a) child arrangements orders;
(b) prohibited steps orders;
(c) specific issue orders.

Each of these orders determine a particular matter relating to the child’s upbringing.
OVERVIEW
CA 1989, s.91(10) – a s.8 order lasts until the child reaches the age of 16 (or 18, in exceptional cases)

All orders contain conditions and directions. This could be used to build up contact gradually between a
young child and a parent who had not seen the child for a while, or to ensure supervised contact to protect the
child.

CHILD ARRANGEMENTS ORDER

Relate to:
a) with whom a child is to live, spend time or otherwise have contact; and
b) when a child is to live, spend time or otherwise have contact with any person.
• Re B (a child) (residence order) (2009) – the child’s welfare is the paramount concern when deciding with
whom the child should live.
• Can be made for shared living arrangements in favour of two or more persons who do not all live together
– order can specify the period during which the child is to live in different households involved.
• Flexible power which can be adapted to the needs of a particular family.

When a child arrangements order has been made regulating with whom the child is should live, two aspects of
parental responsibility are automatically affected:

1. Change of surname
No person can cause the child to be known by a new surname without either:
a) The written consent of every person who has parental responsibility; or
b) The leave of the court (CA 1989, s.13(1))

CHILD If a mother wants to change her child’s surname, she will have to obtain the permission of the child’s father and
ARRANGEMENTS if this is not given, she will have to apply to the court.
ORDER
REGULATING The court will be reluctant to authorise change of surname unless it is in the interests of the child to do so.
WITH WHOM AND Factors to weigh up include:
WHEN A CHILD ¾ embarrassment to the child and parent of having different surnames;
SHALL LIVE ¾ the child’s wishes; and
WITH ANY ¾ the extent to which the child’s surname is important to maintain links with the parents and other relatives
PERSON
Re F (Child Surname) (1991) – allowing a child to be known by a different surname is an important matter
which is not be undertaken lightly.

2. Leaving the UK
o Child arrangements orders regulating with whom the child shall live in force
No person may remove the child from the UK without either:
a) the written consent of every person who has parental responsibility; or
b) leave of the court (CA 1989, s.13(1))

o No child arrangements order regulating with whom the child shall live in force
In theory either parent can take the child abroad without any restriction/need for consent under the
CA 1989.
The parent proposing the trip may be prevented from going by the other parent obtaining a prohibited
steps or specific issue order forbidding the child being taken abroad.

o Application to court to remove
Parent needs to apply to court to seek permission to take the child abroad, the court will base its
decision on the welfare principle.

o Relocation within the UK
Does not require the consent of the court. If a resident parent’s plans to relocate are opposed by the
non-resident parent, an application may be made to the court.

, Regulates with whom a child spends time or otherwise has contact, and when.

Such order can authorise:
• Physical contact
• Contact by letter, e-mail or telephone

May specify the amount of time or the order could be for ‘reasonable contact’, and can be made in respect of a
parent or any other person.

Court’s Approach: the child has a right to know both parents

Under s.1(2A) CA 1989 it is presumed that involvement of each parent is in the child’s best interests, unless the
contrary is shown. The child should therefore have contact with the non-resident parent.
CHILD
ARRANGEMENTS Re Q (A Child) (2015) – confirmed the principles set out in Re C (A Child) (Suspension of Contact) (2011):
ORDER • Contact between parent and child is a fundamental element of family life and is almost always in the
REGULATING interests of the child.
WITH WHOM A • Contact between parent and child is to be terminated only in exceptional cases, only if it will be detrimental
CHILD IS TO to the child’s welfare.
SPEND TIME OR • Positive obligation on the state to attempt to promote contact – must grapple with all available options before
OTHERWISE abandoning hope of achieving contact.
HAVE CONTACT • The court should take both a medium-term and long-term view and should not put too much weight on what
is likely to be short-term/transient problems.
• The court must consider if all necessary steps have been taken to facilitate contact based on the
circumstances of the case.

Domestic violence:
The court should consider the following points:
a) The past and present conduct of both parties;
b) The effect of the violence on the child and the residential parent;
c) The motivation of the parent seeking contact; and
d) In the cases of serious domestic violence, the ability of the offending parent to recognise his past
conduct, be aware of the need to change and make genuine efforts to do so.



PROHIBITED STEPS ORDER


An order that no step that could be taken by a parent in meeting his or her parental responsibilities for a child which is of a kind
specified by the order, shall be taken by any person without the consent of the court.
• Cannot overlap with a child arrangements order
• CA 1989, s.9(5) – the court cannot make a prohibited steps order or specific issue order with a view of achieving a result that
could be achieved by a child arrangements order.

Can only relate to matters that are included within parental responsibility. If an order is needed to restrict publicity, for example, the
wider powers of wardship are needed, as this is not one of the matters included within parental responsibility.


SPECIFIC ISSUE ORDER


A specific issue order is an order giving directions for the purpose of determining a specific question that has arisen, or which may
arise in connection with any aspect of parental responsibility for a child.

Examples of use:
• To decide which school a child should attend
• Whether a child should have a particular operation or course of treatment/immunisation
• The religion a child should adopt

, WELFARE PRINCIPLE
s.1(1) CA 1989 – when a court determines any question with respect to –
a) the upbringing of a child; or
b) the administration of the child’s property or the application of any income arising out from it,
the child’s welfare shall be the court’s paramount consideration.

Gillick v West Norfolk and Wisbech Area Health Authority (1986) – Parental authority ceases in respect of any aspect of a
child’s upbringing about which the child himself is sufficiently mature to make decisions for himself


CHECKLIST OF FACTORS TO BE TAKEN INTO ACCOUNT IN APPLYING THE WELFARE PRINCIPLE
Re DW (A Minor) (1984) – a child’s wishes do not necessarily always take precedence and the court may sometimes feel
s.1(3)(a) – the that the children’s wishes are not in their best interests.
ascertainable wishes
and feelings of the Re S (Contact: Children’s Views) (2002) – if young people are able to respect the law, the law has to respect them and
child concerned their wishes, even to the extent of allowing them, as occasionally they may do, to make mistakes.
(considered in the
light of his age and The court will place great importance on the welfare report prepared by the children and family reporter, considers the
understanding) child’s wishes/majority of the child.

Focuses on the child accommodation, medical needs and education, as well as how close the child is to siblings and others
with whom he may lose touch is a particular order is made.

Re H (A Minor) (Custody: Interim Care and Control) (1991) – when the court decide between placing a child with a
parent or another carer, there is a strong supposition is it is in the interests of the child to remain with his natural parents.
s.1(3)(b) – the child’s
physical, emotional The court will not equate welfare with material advantages – this could be compensated for when making financial orders.
and educational
needs C v C (Minors: Custody) (1988) – the court will consider the circumstances very carefully before splitting brothers and
sisters.

Age may be important i.e. young babies tend to need to live with their mothers.
s.1(3)(c) – the child’s
age sex, background The sex of the child may be taken into account e.g. the needs of a teenager may be best met by living with a parent of the
and any same sex.
characteristics of the
child which the court
considers relevant

Covers any past/future harm to the child.
s.1(3)(d) – any harm
that the child has
Re S (Minors: Access) (1990) – court considers any harm caused to the child by not seeing both parents, it is the right of
suffered or is at risk
the child and not the parent.
of suffering
Court considers the parent or other proposed carers to assess their ability to care for the child.
Any criminal record i.e. for violence or dishonesty, will be relevant/

s.1(3)(e) – how Re G (2006) – in a dispute between a natural parent and another, there is no presumption as such that it is better for the
capable of meeting child to live with his natural parent.
the child’s needs is
each of the child’s The welfare test is the paramount consideration and should encompass any special contribution natural parents make to
parents and any the emotional needs of their child.
other person to
whom the court Whether a parent works will influence the child, along with the parent’s lifestyle and sexual orientation, although this is now
considers the likely to carry less weight.
question relevant
A parent who suffers from mental/physical illness and subject to long-term stays in hospital may be less suitable as a full-
time carer.

Encourages the court to think laterally and consider every option available to it.
s.1(3)(f) – the range
of powers available The court has the power to make any order in favour of any person, irrespective of who has applied and for what.
to the court under
this Act in the The court may also adjourn s.8 proceedings brought by a parent if it felt that a care or supervision order would be the best
proceedings in thing for the child (CA 1989, s.37(1))
question

, PROCEDURE FOR s.8 ORDERS

• Governed by FPR 2010
• Supplemented by Practice Direction 12B
• Requirement under s.10 of Children and Families Act 2014 to attend a MIAM before issuing most private
children law applications
• MIAM – Family Mediation Information and Assessment Meetings


Now only available for private Children Act proceedings where domestic violence can be
shown.

LEGAL AID Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1)
Order 2013 (SI 2013/748) – any incident, or pattern of incidents, of controlling, coercive or
threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial
or emotional) between individuals who are associated with each other’.

The client must be able to provide evidence of the violence.


• Can be made within any family proceedings
JURISDICTION • Family proceedings cover divorce, nullity or judicial separation, financial orders
applications (MCA 1973, DPMCA 1978) and domestic abuse applications under FLA
1996


The following may apply for any s.8 order WITHOUT permission of the court:
(a) A parent;
(b) A step-parent or civil partner who has parental responsibility for the child;
(c) A guardian or special guardian; or
(d) Any person who is named in a child arrangements order as a person with whom the child
is to live.

The following may apply for a child arrangements order ONLY without permission:
(a) A step-parent/civil partner who has treated the child as a child of the family;
(b) Any person with whom the child has lived for at least three years out of the last five years
(period must not have ended more than three months before the application is made)
(c) Any person who has obtained the consent of all those people whose legal position would
WHO CAN be affected i.e. anyone with parental responsibility etc.
APPLY FOR A (d) Any person who has been awarded parental responsibility by virtue of the court’s
s.8 ORDER discretion in s.12(2A)

Application by the child: A child can apply for their own s.8 order but permission of the court
is required CA 1989, s.10.

There are four hurdles to overcome:
(a) To obtain a solicitor to act for him – a minor can start proceedings without a litigation
friend with leave of the court or a solicitor considers that the child has sufficient
understanding to give instructions in relation to proceedings (FPR 2010, r.16.6)
The court will base its decision on whether the child is mature enough to exercise a wise
choice in his own interests in the circumstances that exist (Re S (A Minor) (Independent
Representation) (1993))

(b) To obtain public funding – A child will usually need public funding and will have to
convince the Legal Services Commission that his application has merit.

(c) To obtain the court’s permission – the child will need to obtain permission of the court
start s.8 proceedings (CA 1989, s.10(8))

(d) To show that the merits of the case justify the order sought – at the eventual hearing
the court will consider the child’s welfare and the statutory checklist when deciding
whether to grant the order sought.

, CALCULATING CHILD MAINTENANCE
• Approach under the Child Support Act 1991 (CSA 1991) is entirely different to the statutory criteria used when
considering applications for child maintenance under the MCA 1973
OVERVIEW • CSA assess maintenance using a formula
• The current scheme is administered by the Child Maintenance Service (CMS)

• s.11 CSA 1991 – ‘each parent of a qualifying child is responsible for maintaining him’

1 s.55(1) CSA 1991 – ‘child’ is an unmarried person under 16, or under 20 receiving full time education which is not
advanced education
2 s.3(1) CSA 1991 – ‘qualifying child’ if:
a. one of his parents is in relation to him a non-resident parent; or
b. both of his parents are, in relation to him, non-resident parents.

3 s.3(2) CSA 1991 – ‘non-resident parent’ is one who is not living in the same household as the child
WHEN DOES 4 s.3(3) CSA 1991 – ‘person with care’ is the one with whom the child lives and who usually provides the child’s day-
THE CSA 1991 to-day care.
APPLY? 5 ‘parent’ takes its usual meaning of being a person who is in law the mother or father of the child, i.e. the natural
parent or adoptive parent of the child. The definition does not extend to a step-parent.

• In cases where there is dispute over percentage, the CMS may make a maintenance calculation only in certain cases,
e.g. where the alleged father was married to the mother throughout the period of conception to birth. In other cases, the
CMS may not make a maintenance calculation until the court has determined percentage.
• CMS has jurisdiction to make a maintenance calculation only if the qualifying child, the person with care and the non-
resident parent are all habitually resident in the UK, but this is subject to exceptions under s.44(2A) CSA 1991, relating
to certain non-resident parents who are not habitually resident in the UK.

• s.8 CSA 1991 – DWP rather than the court has exclusive jurisdiction to deal with child maintenance
• If an application can be dealt with by the CMS, it must be pursued there
• The court retains jurisdiction to deal with cases in which the CMS has no jurisdiction – the court deals with maintenance
for step-children who are children of the family
• The court retains jurisdiction to make capital orders on behalf of children, i.e. a lump sum or property adjustment order
• The court has the power to very or revoke existing maintenance orders in all cases (s8(3A) and (4) CSA 1991)
• Where the court retains jurisdiction, it has the widest discretion to determine the amount of a child’s periodical payments.
It will consider the factors listed in s25(3) and (4) MCA 1973 giving first consideration to the child’s welfare as directed in
s25(1) MCA 1973
• In practice the court will almost invariably take as its starting point for a child maintenance order the figure produced by a
maintenance calculation under the CSA 1991 – (TW v TM (Minors))

As well as dealing with those cases which cannot be deal with by the CMS, the court retains jurisdiction to make maintenance
orders for children in three circumstances, specified in s.8:
JURISDICTION
OF THE
• s.8(6) – the court will have jurisdiction if it is of the view that maintenance should be paid in addition
COURT
to that assessed by CMS
Supplementary
• Applies to wealthy families only
maintenance
• Courts will rarely be persuaded that further sums should be paid

• s.8(7) – the court may exercise its jurisdiction if the child is in education and provision is required
to meet some/all the expenses connected to it
Educational
expenses • Applications are made to cover school fees which are not met by the maintenance calculation –
may also cover payment of school uniforms etc.

• If a child has a disability, this is not accounted for by CMS
• s.8(8) – the court is able to make an order to supplement the maintenance calculation to meet the
Children with a expenses attributable to that disability
disability • s.8(9) – a child is disabled if he is blind, deaf or dumb or is substantially and permanently
handicapped by illness, injury, mental disorder or congenital deformity, or such other disability as
may be prescribed
• s.8(3) restricts the jurisdiction of the court to determine maintenance for children, however, parents are still able to arrange
maintenance for children without going to CMS.
• A voluntary maintenance arrangement – proforma available from the Child Maintenance Options
Family-based
MAINTENANCE arrangements
website, however, not legally binding and unenforceable – proforma is only a ‘statement of
AGREEMENTS commitment’.
AND CONSENT • Freq. used by those who are unable/do not wish to obtain a court order and have agreed their own
ORDERS arrangements and wish to put their agreements in writing.
Maintenance
• Not a court order but is enforceable in the same way as any other binding contract.
agreements
• Following CSA 1991, parents can still make maint’ce agreements – s.9(2) preserves this right
• May be converted into a court order in the same terms

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