Family Law Revision Notes for LPC Exam. I achieved a distinction using these notes (70%). They are very simple to follow and are tailored to answer the LPC questions.
DETERMINING JURISDICTION FOR S8 ORDER APPLICATION
1. Under s2(1) FLA 1986, if applying for a s8 Order first step – determine whether
Court has jurisdiction under:
a) Brussels II Revised OR
b) The Hague Convention – used for abduction cases
2. Brussels II Revised:
Art 1 – For matters relating to PR – covers ‘rights of access’.
Art 8 – Jurisdiction for matters of PR lies with the Courts of the member
state where the child is habitually resident at the time of the application.
Art 12 – Court will have jurisdiction where both are satisfied:
a) Substantial connection… due to a spouse with PR habitually resident
there OR child being a national of that state AND
b) Jurisdiction has been accepted by all parties and is in the best interest
of the child – consider whether this is practically likely.
Funding:
SCOPE OF LEGAL AID
General Rule Legal aid is NOT available for family cases unless the case is specified
under LASPO 2012.
LASPO 2012 PERMITTED LEGAL AID CASES:
permitted a) Public law children proceedings;
cases b) Cases involving the obtaining of protective injunctions – e.g.,
NMOs, OOs, force marriage protection orders;
c) Cases where a child is under 18 is an Applicant, Respondent, or
joined as a party to the proceedings (legal aid is available to the
child);
d) Cases involving securing an order to prevent the unlawful
removal of a child from the UK, or to secure the return of a child
unlawfully removed from or within the UK.
e) STILL generally available for mediation.
Outside the OUTSIDE THE SCOPE OF LEGAL AID:
scope of a) Private children cases;
LASPO b) Financial applications; and
c) Divorce
UNLESS:
Client can demonstrate they have been a victim of or is at the
risk of DOMESTIC VIOLENCE; OR
A child is at risk of abuse and needs protecting.
1
, Domestic Violence:
‘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’ (LASPO 2012)
Evidence is needed from the client (or on child’s behalf) Sch 1
Civil Legal Aid (Procedure) Regulations 2012 – e.g.:
Evidence of arrest for a DV offence;
Protective injunction;
Health professional report showing injuries consistent with a
DV victim.
OTHER METHODS OF FUNDING
DEFERRED Rare and Risky option for the firm due to the uncertainty.
PAYMENT OF May be appropriate in cases where there is ‘substantial capital
LEGAL FEES but little or no income and/or liquid assets’.
Sears Tooth Agreement – ‘Agreement to assign any awarded
SEARS TOOTH financial relief or costs to the firm as far as necessary to pay the
AGREEMENT fees’ (Sears Tooth (A Firm) v Payne Hicks Beach (A Firm) and
Others [1997] – RARE.
COURT S22ZA MCA 1973:
ORDERS
Applies to only Divorce/CP and Financial applications related to
S22ZA them (future costs and not past costs).
Enables the Court to make ‘legal services orders’ – requires one
party to pay an amount for the purpose of the other party
obtaining legal services – RARE as Court are reluctant.
Court must be satisfied that:
a) Recipient would not obtain legal services without the order;
b) Obtaining a loan would not be reasonable;
c) Entering into a Sears Tooth Agreement would not be
reasonable.
Court should take into account when deciding the order -s22zb]:
a) Whether the other party is legally represented;
b) If the applicant has taken to avoid litigation i.e., Proposed
Mediation.
Sch 1 Children Act 1989:
Permitted for future costs and costs already incurred (BC v DE
[2016]).
LOANS Borrowing money from a third party, on a credit card, or from a
bank.
Conditions attached vary i.e., favourable opinion from Counsel,
or security.
LITIGATION Historically insurers were unwilling to provide cover for family
INSURANCE case legal fees.
However, litigation insurance is becoming more available.
CREATIVE Fixed Fees:
2
, FUNDING Used to primarily be used for just the initial interview.
OPTIONS Due to ‘unbundling’ (people conducting their own case and only
instructing lawyers for certain [arts) many firms extend fees
beyond initial interview.
Some accept ‘pay as you go’ basis.
Dispute Resolution:
o The Family Procedure Rules (FPR) 2010, Part 3: Court has the power to encourage
and facilitate the use of Dispute Resolution and is obliged to consider it at every
stage of proceedings.
o Most common processes are:- All interchangeable and should not be thought of in
isolation. All may be relevant to a singular client’s case
1) Mediation
2) Collaborative Law
3) Arbitration
METHODS OF DR
BEFORE Always write to the other side to attempt to negotiate before
APPLYING TO issuing S8 proceedings:
THE COURT FOR Will incur costs consequences if not and in any event, both
AN ORDER parties will be obliged to attend a MIAM before issuing an
application to the Court (S10 CFA 2014).
Negotiation is the next logical step after the client comes to
you.
Write to the other side’s solicitor to outline the issues.
Mediation – could be suggested in the letter – input from a
neutral third party – may help to refine the issues if not
fully resolve them.
MEDIATION WHAT IS IT?
One/two impartial mediators with no authority to
MIAM MUST be make decisions
attended Regulated by the Family Mediation Council
BEFORE Court Solicitor cannot act as mediator
proceedings can AIM:
be commenced Not to save the relationship BUT to deal with the
consequences of the breakdown through agreement.
PROCESS:
Parties will meet with the mediator(s) who will try help
them clarify and resolve their issues on a mutually
acceptable basis.
Mediator(s) may give information BUT will not advise
on which terms they should agree.
REQUIREMENTS:
3
, Anyone wishing to start Court proceedings in most
types of family cases (not including the divorce itself)
must FIRST attend a MIAM (S10 Children and Families
Act 2010).
But no compulsion to proceed with mediation following
the meeting.
MEDIATION AND LEGAL AID:
Legal Aid still available for mediation but will be merits
and means tested.
If client eligible to LA for mediation and attends
mediation, they will also be eligible for help with
mediation.
Limited, LA funded advice from a solicitor to support
mediation.
COLLABORATIV Operates as a series of meetings aimed at enabling the parties
E LAW to resolve the issues resulting from the breakdown of a
relationship.
Parties and their solicitors sign an agreement promising to try
and reach an amicable consensus WITHOUT Court
proceedings.
If it FAILS – parties must instruct new lawyers and the CL
lawyers will cease to act. Therefore, in both parties and CL
lawyers interests to reach amicable agreement.
ARBITRATION Independent 3rd party who makes a binding decision
Part 1 Arbitration Act 1996:
Family Arbitration Scheme
Children Arbitration Scheme
Allows parties to have confidentiality, informality and
flexibility.
Rare for Court to aware order not in compliance with
arbitrators award (S v S (Financial Remedies: Arbitration
Award) [2014]) – UNLESS there has been fraud, mistake or a
supervening event.
Parental Responsibility
4
, Children Act 1989 – amended by Children and Families Act 2014
Children and Family Court Advisory and Support Service (CAFCASS) was established by
Criminal Justice and Court Service Act 2000 – principle function of safeguarding and
promoting welfare of children.
PARENTAL RESPONSIBILITY
WHAT IS PR?
‘All the rights, duties, powers, responsibilities and authority
by which law a parent of a child has in relation to the child and
his property’ (S3(1) CA 1989).
Gives the parent responsibility for all of the important
decisions in the child’s life e.g.:
Medical care and religion;
Nutrition, recreation, and outings.
PR ceases when the child is sufficiently mature enough to
make decisions himself (Gillick v West Norfolk and Wisbech
Area Health Authority [1986]).
NO LIMIT to the number of people who can have PR at one
time (S2(5) CA 1989) – e.g.:
If a care order is made for the child to live with the
grandparents, PR will lie with:
a) Mother;
b) Father; and
c) Grandparent – MORE THAN 1 CAN HAVE PR AT
THE SAME TIME.
NOT possible to transfer OR surrender PR (S2(9) CA 1989).
WHO HAS PR? MARRIED Parents BOTH parents have JOINT PR.
UNMARRIED Parents ONLY MOTHER has PR.
FATHER must ACQUIRE PR.
Acquiring PR:
ACQUIRING PR
UNMARRIED An unmarried F can acquire PR in any one of six ways (S4(1) CA 1989):
FATHERS – 6 a) Registered on the birth certificate with M’s consent (after 1
ways for F to December 2003).
acquire PR b) Entering into a ‘PR agreement’ with the M (on the prescribed
form).
c) Applying to the Court for a ‘PR Order’.
d) Being appointed as guardian either by the M or the Court.
e) Obtaining a ‘CAO’ from the Court.
f) By marrying the M.
OPTIONS
‘Option (b)’ – Unmarried parents with F not on the birth certificate.
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