Examiners’ reports 2019

Examiners’ reports 2019

LA2019 Family law – Zone A

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 are not, and there should not be, any differences in the way the law
treats a cohabiting couple who is married, and one who is not married.’
Discuss.

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General remarks
This essay question required candidates to discuss whether there are and should
be any differences in the way the law treats those who are married and those who
are not. It was a popular question and was well answered by some candidates who
were able to situate the dilemma of how the law might response 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. Clearly, there are differences and candidates were able to explore these
differences in some detail.
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…
decide whether there is or should be any differences in the way the law treats
married or unmarried cohabitants. Although some candidates might get distracted
by a discussion of the law on marriage they should really be focusing on the areas
that the law differentiates between cohabitating non-married and married couples.
First, candidates can begin by exploring the definition of cohabiting couples who are
not married for this purpose. As Lord Hoffmann stated in Re P (2008) 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 (2000) 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 (2000) and Ghaidan (2004). 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. This would enable a
discussion of the differences and whether they can be justified. If candidates
identify that there are differences and there shouldn’t be then the answer can move
on to look at the move for legislative reform. 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 (Professor Douglas et al.) and some candidates
may enquire whether any legislative development would work or would be marriage
by any other name. It would be good if the answer considered 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’. In the Pre-exam update, candidates were
directed to a recent report by the National Centre for Social Research (Jan 2019).
The area is quite wide-ranging so some selection of material would be advisable.
Ultimately, a good answer does need to take a view as per the question.

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 Examiners’ reports 2019

Poor answers to this question…

would discuss the law of marriage and formalities and then identify a group of
people who do not choose to marry and then make some general references to how
the law differentiates between married and unmarried couples, which largely
reproduces the details in the module guide.
Question 2
‘The case of Owens v Owens (2018) demonstrates that the current law of
divorce is unreasonable and in need of reform.’
Discuss.
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 v Owens (2018) has been much discussed during the 2018–19 period. It
also featured in the vlog during spring 2019. The question did require candidates
consider whether the case demonstrates that the current law requires reform and
some candidates did miss both the reform agenda but also the nuance of the
question, which described the law as unreasonable when Mrs Owens was arguing
her husband’s behaviour was unreasonable.
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…
explore the current law of divorce and think about whether the case of Owens
(2018) demonstrates the need for reform. 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
or not. Generally, a good answer may consider some of the oddities, 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. If
the good answer explains the need for reform this then leads to a discussion of
what reform might look like where candidates can point out this is not the first time
reform has been advocated and can look at the reform that never was under the
Family Law Act 1996. When looking at the more recent reform debate, candidates
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 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? Should we tinker with, rather than overhaul the current system? Good answers

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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.
Poor answers to this question…
tended to write all about the current law of divorce and then ignore any discussion
of reform. These answers demonstrated some knowledge of the current law but
they ignored both the reform agenda and the Owens case.
Student extract
Nevertheless it has also been argued that the law on divorce is not always
unreasonable as by retaining a fault element it ensures people to not walk
away too easily from solemn promises as argued by Williams. It can also be
argued that the fault element may have a psychological benefit as making
allegations may be cathartic for the parties. Therefore suggesting that the
fault element of divorce law is not always unreasonable. The Coalition for
Marriage (2018) argue that if we were to introduce no-fault divorce over
10,000 marriages would be lost a year and marriage would be reduced to a
mere tenancy contract putting the vulnerable at risk. Rowthorn endorses this
view arguing that if we make divorce too easy people would find it easier to
walk away which would make those who are economically dependent more
vulnerable. This suggests that whilst it might be inconvenient for Mrs Owens
to stay married to Mr Owens until 2020 there may be more at stake if law
reform were to take place simply to accommodate her exit.
Comments on extract
While this view may not be shared with a number of candidates, this extract does
sensibly consider an alternative view. It is well argued and well considered and
uses a range of sources to support the argument being presented. There was no
reference in the standard readings to the Coalition for Marriage or the work of
Rowthorn, which shows the candidate has undertaken some independent study and
the caution around law reform on the basis of one case is well expressed. It is of
course important that one case does not result in wholesale law reform. However,
the candidate does go on to explain that the results of the consultation exercise do
suggest that there is a thirst for reform. The key will be the balance that is struck
between commitment to marriage and ease of exit. This candidate’s response was
detailed and informed and also raised the concern in the vlog that just because
divorce reform will probably happen does not mean it will work. On that basis, the
answer received a first class mark.
Question 3
Gilda and Frank have been married for the past 30 years. Gilda is a successful
accountant. Frank left his job as a nurse when Gilda gave birth to their first
child 28 years ago. Gilda and Frank agreed that Frank would give up his job
and look after the home and children because Gilda was able to earn more
money than him. The couple have four children who have now all left home.
Over the years Gilda and Frank have drifted apart and Gilda now sees Frank
as her housekeeper. The couple live in a house valued at £3,000,000. Frank
used his inheritance of £250,000 back in 1990 to contribute 40% towards the
cost of the house. Frank is a very keen entertainer and has organised lavish
dinner parties for Gilda’s clients over the years.
Frank has recently met a new partner whom he wishes to marry but Gilda has
said that she would like to remain married to Frank. Frank is now concerned

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that Gilda will not agree to a divorce and he is worried as to how the court
might allocate financial provision in these circumstances.
Advise Frank.
How might your answer differ, if at all, if Gilda asked Frank to sign a pre-
marital agreement when they married which stated that, upon divorce, Frank
would receive a lump sum payment of £10,000?
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
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,

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this is likely to be unenforceable. We have no details on legal advice, etc. 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.
Question 4
Critically evaluate the law’s distinctions between parentage and parenthood.
General remarks
This was not a very popular question. Those who did answer it were able to make
some general comments about how parentage is established but then struggled
more with parenthood section. This serves as a useful reminder that candidates
should only respond to questions that they feel confident they can answer fully.
Law cases, reports and other references the examiners would expect you to use
Sections 20 and 26 Family Law Reform Act 1969; s.28 Human Fertilisation and
Embryology Act 1990 and s.33 Human Fertilisation and Embryology Act 2008.
Brierly (1918); Re F (1993); Re H and A (2002); Rose (2002); Mikulic (2002);
Lambeth London Borough v S, C, V (2006); Re D (Paternity) (2006); J v C (2006);
Re G (Children) (2006); Re Z (2014) and Re X (2015). Article 8 European
Convention on Human Rights 1950 and Article 7 United Nations Convention on the
Rights of the Child. Commentary would include work by Bainham (2006); Jackson
(2006) and Callus (2012).
Common errors
There were a limited number of common errors because it was not a common
question but some candidates provided very general accounts, which only focused
on where the allocation of parentage went wrong (see Leeds Teaching Hospitals v
A (2003) but with no context as to the distinctions drawn in law between parentage
and parenthood.
A good answer to this question would…
look at both the concepts of parentage and parenthood. First, answers would note
Bainham’s three distinctions in terminology and here reference can be made to
parentage, parenthood and parental responsibility. However, this essay is focusing
on parentage and parenthood. Candidates can then move on to consider parentage
and explain that parentage focuses on genetic truth or presumed genetic truth and
examination of s.26 Family Law Reform Act 1969 and Re H and A (2002). A
discussion of how parentage is proved may follow, which could include a discussion
of Brierly (1918) and s.20 Family Law Reform Act 1969 for directions. A good
answer will explain that Article 7 UNCRC explains a child’s right to know its genetic
origins and Article 8 ECHR as incorporated. Reference can then be made to Rose
(2002) and Mikulic (2002) and Lambeth London Borough v S, C, V (2006) and Re F
(1993) to assist the discussion. When it comes to disclosure, candidates might look
at Re D (Paternity) (2006) and any concern about a blanket rule and the
peculiarities of J v C (2006). Candidates can then move on to look at legal
parenthood for mothers and fathers and a discussion of s.28 Human Fertilisation
and Embryology Act 1990 and s33 Human Fertilisation and Embryology Act 2008
and Re G (Children) (2006) can follow. A good answer can then consider whether
the default position of biology is appropriate and then look at where persons are not
regarded in law as a parent (anonymous sperm donors). Reference may be made
to parenthood and surrogacy and parental orders (Re Z (2014) and Re X (2015)) as
a way of demonstrating the very complex allocation of parenthood, etc. that

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suggests that it may not, according to Callus (2012) be altogether just or certain and
reference to the commentary of Bainham (2006) and Jackson (2006) are also
critical. The key to the discussion is to explain and evaluate the distinctions using
the full range of statute, case law and commentary.
Poor answers to this question…
mentioned parents and provided a discussion of how the law allocates parental
responsibility and then discussed parentage and also parents’ rights but made no
mention of parenthood.
Question 5
Lukas and Enid married five years ago, and they live together in a house they
jointly own. They live with their two children Alexis, aged four and Ben, aged
three. Lukas and Enid have always had a volatile relationship and have both
seen this as a symbol of their passion for each other. Lukas has always been
a jealous husband and becomes angry with Enid if she ever speaks to other
men. Lukas also supervises all financial transactions within the home and
provides Enid with £100 per week to feed and clothe the children. Enid has
gradually become very depressed as a result of this and rarely leaves the
house unless she is taking the children to nursery school.
Last night, Lukas saw Enid speaking and laughing with the grocery delivery
man, Oliver. Lukas flew into a rage and started to shout at Enid. He told her
that he would make sure she and the children would never speak to anyone
again if he ever saw her speaking to another man. This outburst took place in
front of the children.
Enid is very scared after Lukas’ latest outburst and desperately wants Lukas
to leave the house, but she is worried that he will still try and control her and
never leave her and the children alone.
Advise Enid as to what legal action she can take in both the short and the
long term.
How might your answer differ, if at all, if neither Lukas nor Enid had a right to
occupy the house having been squatters for the past six months?
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. Lukas and Enid 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 the couple’s children. 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) and see how they might be
relevant here. 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 (mention is made of the control of the finances and Lukas’
jealousy) so a good answer will explore the ambit of s.76 Serious Crime Act 2015.
Should Enid 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.37 Family Law Act 1996 applies and explore the factors listed in
s.33(6) and s.33(7), noting the limitations of the remedy under this section. 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 and
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 Lukas’ behaviour.
Student extract
The next issue is whether Enid can secure an order to prohibit Lukas from
controlling their lives. The relevant provision here is s.42 Family Law Act
1996 which prohibits a person from molesting another person who is
associated with the respondent under s.62 Family Law Act 1996 and
s.62(1)(b) prevents respondent from molesting a relevant child. Here the
issue would be whether Enid is ‘associated’ with Lukas. The word
‘associated’ is defined in s.62(3). Based on the facts Enid is clearly
associated with Lukas. The word molestations has been defined by
Parliament as they did not do so to prevent the limitation of the claim (Davis v
Johnson). In C v C molestation was defined as deliberate conduct which
would affect the health and wellbeing of the applicant and relevant child. The
question further explains that Lukas is jealous and supervises all financial
transactions in the home and Enid’s allowance is limited. This could be
evidence of financial abuse which could be controlling and coercive
behaviour under s.76 Serious Crime Act 2015. Enid may feel she has no
choice but to leave and housing should be available. She can rely on the
case of Yemshaw (2011).
Comments on extract
This is a generally good effort in terms of spotting the relevant issues here. The
candidate is able to see that a non-molestation order might be suitable and explains

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in some detail the test in terms of Lukas and Enid being associated and the
molestation she has suffered. The candidate could have explained with reference to
the question how Lukas’ behaviour has impacted on Enid’s mental health and
wellbeing. The candidate does pick up on the financial abuse and the controlling
and coercive behaviour point, which is good although it would have been useful to
explain why Yemshaw (2011) was relevant in this context. The response to the
question was generally good. It could have been tighter in presentation so it might
have been useful to have used fewer words to explain how molestation and
associated person works here but then expand on the importance of Yemshaw
(2011) given we are not told that Lukas has ever struck Enid. That said, the
response obtained a high 2:1 mark as it was generally comprehensive and packed
with statutory provisions and relevant case law. Candidate would have done well to
do more with the case law identified, on occasions.
Question 6
Yarek and Jane were married for 18 years and have a daughter Kendra, aged
15, and twin boys Tristan and Stuart, aged 10. Yarek and Jane have recently
divorced and the children currently live with Jane.
Kendra has recently told her parents she wishes to start taking the
contraceptive pill. Yarek strongly objects to her doing so.
Yarek and Jane cannot agree on the High School that the twins should attend.
Yarek wishes them to attend a school which is strictly religious, and Jane has
indicated she wishes the twins to attend a less strict, secular school.
Jane has just announced she is getting married to Patrick and wants the
children to take Patrick’s surname. Yarek is opposed to the change of
surname and has decided that the three children must now live with him and
relocate to Australia where a job opportunity has emerged.
Advise Yarek.
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
Sections 1, 8 and 13 Children Act 1989. Gillick (1986); Dawson v Wearmouth
(1999); Re R (2001); Payne v Payne (2001); M v M (2005); Axon (2006); J v S
(2010); Re W (2011); Re F (2011); Re G (2012), F v F (2013) and Re M (2017).
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 how the courts resolve private disputes among parents. This will require a
discussion of the range of s.8 Children Act 1989 orders, as amended by Children
and Families Act 2014, available in line with the scenario. It is easiest to take each
child who has an issue and work through them referring to relevant case law. The
question suggests advising Yarek. If Yarek does not approve of Kendra taking the
contraceptive pill then following Gillick (1986) and Axon (2006) there is unlikely to
be very much he can do about it. If Yarek does not approve of the new school then
Jane will need to apply for a s.8 Specific Issue Order and here candidates may
make reference to M v M (2005) and Re G (2012). If Yarek wishes to have the

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children living with him then he will need to apply for a s.8 Child Arrangements
Order: lives with. It is not clear that Jane has a Child Arrangements Order (lives
with) made in her favour. If there is no such order in force (if the question is silent
we can assume this is the case) then candidates need to consider Dawson v
Wearmouth (1999) and the need for the agreement of both parents. If Yarek does
not agree then the court will need to approve and will consider the views of the
children and the strength of the relationship between the children and their parents.
There are no cultural factors suggested to push for a change. Maybe double-
barrelled names are appropriate under Re R (2001). If some candidates assume
there is a s.8 Child Arrangements Order (lives with) in force in favour of Jane then
s.13(1) Children Act 1989 will apply. For the relocation then, as both parents have
parental responsibility, under s.13(1)(b) the children cannot be removed from the
UK for longer than one month unless there is the written consent of both parents or
the leave of the court. Given Jane is likely to object, the leave option will require
candidates to consider Payne v Payne (2001); Re F (2011); Re W (2011) and J v S
(2010) and the tests suggested.
Throughout a good answer, candidates should note that the courts will attach
weight to the children’s views, if appropriate, when deciding what, if any order, will
promote their welfare. A good answer will need to demonstrate how s.1(1), s.1(3)
and s.1(5) Children Act 1989 applies here. Also, a good answer will remember the
relevance of s.1(2)A Children Act 1989 and the presumption of the involvement of
both parents.
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
Sophie and Lysander have three children Bryony, aged ten, Rory, aged eight
and Will, aged six. Sophie and Lysander have always used drugs and alcohol
for recreational purposes but have not done so in front of the children.
Recently Lysander lost his job. Since then he has been spending a lot more
time at home and using drugs and alcohol in front of the children. Sophie and
Lysander are also constantly arguing and physically fighting with each other.
This is usually triggered by disagreements over their current poor financial
position and Lysander’s inability to find a new job.
All three children have recently been attending school looking tired and have
lost weight and their teachers have all commented on how aggressive the
children appear to be with other children. Bryony’s teacher decides to make a
referral to the local authority.
Hannah, a social worker, visits the family home when Sophie is away, visiting
her mother, and sees the house in a state of disrepair and empty bottles of
alcohol and used needles lying around the house. She explains to Lysander
that she is going to take the children away for a little while to look after them.
Lysander is intoxicated and tells Hannah to take them away as then he will
have more money to look after his own needs. The three children all go with
Hannah and are accommodated in local authority foster care.
Sophie returned to the family home yesterday to find Lysander living there
without the children. Because Sophie loves Lysander, she does not wish to
leave him, but she also wants the children back. Sophie and Lysander decide
that they will go the children’s school and collect them as they leave at the

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end of the school day and bring them back home. Lysander telephones
Hannah and leaves a voicemail saying ‘Tell the foster carers that we are going
to collect our children this evening’.
Advise Hannah.
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, the role of voluntary accommodation, the threshold criteria for a care order
and what to do in an emergency situation. 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.
Law cases, reports and other references the examiners would expect you to use
Articles 3, 6 and 8 of the European Convention on Human Rights 1950, ss.1, 16,
17, 20, 31, 43–47 Children Act 1989. Re G (1993); Re M (1994); Re H (1996);
Lancashire CC v B (2000); Re B (2008); Re R (2013); Re L (2013); Re B (2013); Re
B-S (2013) and Williams and another v London Borough of Hackney (2018).
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.
Other candidates missed the s.20 voluntary accommodation point entirely, which
was crucial to the question.
A good answer to this question would…
consider the range of action that could be taken on behalf of the children. From the
question, it would appear that Bryony, Rory and Will are currently being voluntarily
accommodated under s.20. There has been some controversy about how s.20 has
been used in recent years and candidates may note the decision in Williams and
another v London Borough of Hackney (2018). Given the parents now want the
children back in their care, it may be that Hannah has to mobilise more formal
orders. Candidates should therefore consider briefly the general duties owed by the
local authority under ss.17 and 47 and, in particular, which of the emergency
provisions under ss.43, 44, 45, and 46 of the Children Act 1989 may be appropriate
and satisfied under the circumstances. Given the parents are planning to take the
children from school, this may mean an Emergency Protection Order under s.44 or
an Interim Care Order under s.31 are required. Candidates should outline the basis
of this application, including grounds, etc. with reference to the facts given and
relevant case law (Re M (1994); Re H (1996); Re B (2013); Lancashire CC v B
(2000)). A good answer may note that assistance may be required rather than the
full force of the care process in some of these circumstances, although most will be
concerned at the deteriorating position of the children and the couple’s spiralling
situation involving Lysander’s abuse of drugs and alcohol, which is now impacting
on his parental abilities. Hannah may decide a s.16 Children Act 1989 order is
required but that seems too light a touch in these circumstances. This will require a
discussion of care versus supervision orders depending on whether the parents are
willing to work with Hannah. A good answer would ensure a discussion of threshold,
welfare under s.1(1) Children Act 1989 and the Human Rights Act 1998 under Re
B-S (2013) would also be expected.
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 applies to these particular

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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. No reference was made to the
emergency orders.
Question 8
‘The law relating to adoption now unduly favours the rights of the child over
the rights of the parents. This is an unsatisfactory state of affairs.’
Discuss.
General remarks
This was not a popular question and responses tended not to tackle the specific
focus of the question, which was to understand how the current law deals with
balancing the rights of the child over the rights of the parents. Clearly, sometimes
these will complement each other 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 and certainly there was limited interest in the birth parents’ rights. A
good answer would recognise that the future for the child 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
how the law might unduly favour the child over the parents (and both birth and
adoptive parents might be dealt with differently here). This might involve a
discussion of whether the law does promote openness and on-going contact or
whether there is a tendency to support the adoptive parents and/or child at the
expense of the birth parents. 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 (1991) may follow along with Down Lisburn Heath and Social Services Trust
v H (2006) and how this benefits the child. A discussion of ss.46 and 51A Adoption
and Children Act 2002 may follow and the issue of post-adoption contact and Re R
(2005) shows the courts unwillingness to promote contact if it unsettles the
placement and whether this supports the argument presented by the question if
parents include birth parents. 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

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some consideration of the work of Reece and Guggenheim against and Herring in
favour. The key is to point out the centrality of the child’s welfare here and that the
birth parents do surrender (or have it taken away) parental responsibility and the
adoptive parents are choosing to adopt and the focus is arguably correctly on the
rights of the child.
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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