Family Law
- Marriage & cohabitation
- Domestic violence
- Divorce & mediation
- Child support
- Property division on divorce
- Parenthood
- The welfare principle
- Children and private ordering
- Child protection
- Issues in child protection
- Adoption
- International influences
New: Autumn 1998 cd
This work book aims to encourage you to consider the concept of 'the family' in our society today, and how this relates to the legal recognition of different family types and the role of family law.
It is often said that the family is the basic unit of society, yet what is understood by this basic unit has changed over time and will continue to do so. It will also vary from culture to culture. As Wilson, a sociologist, (in Family, 1985, p.5) states:
"Family forms vary according to the traditions and culture of particular societies... Each is a product of a particular culture at a particular time in history."
Thus defining 'the family' for the purpose of family law is a critical if difficult task, which may both reflect and shape social attitudes. Furthermore the role of family law, in identifying, regulating and protecting families, is itself often seen as a controversial form of state intervention in the private and personal sphere of life.
In this workbook we will therefore:
(a) firstly consider the background to legal intervention in family life in our jurisdiction and the role of family law today;
(b) next consider how best to define the concept of 'family' for the purposes of family law, given the different family structures found in our society today;
(c) examine the current law of marriage and the implications of this legal status;
(d) and finally contrast the legal regulation of married and unmarried cohabiting families.
Last updated: Autumn 2000 cd
Domestic violence is now recognised as a major social problem. See, for example, Harriet Harman's speech on 21 October 1997, and the report of Home Office initiatives.
It is difficult to measure the extent of the problem.
In this workbook we will begin by looking at the response of the criminal justice system to domestic violence. We will then consider the availability of civil remedies. These are now governed primarily by Part IV of the Family Law Act 1996.
We will consider the various remedies, and some of the practical difficulties raised by the law's response to domestic violence, by considered a series of case studies. At the end of the workbook, we will review the law, and consider options for the reform of the law.
Last updated: Autumn 1999 cd
The phenomenon of divorce in both its social and legal contexts is much debated in our society at the present time. Marriage is still the state's preferred method of organising family life, yet it has long been recognised that marriage for life cannot always be sustained. Marriage potentially for life, coupled with the availability of divorce, is the compromise solution adopted.
According to analysis carried out by the Office for National Statistics, two in five marriages will now end in divorce, with 155,000 divorces granted in England and Wales in 1995 affecting some 161,000 children (Social Trends 29, 1998, p.51). As you see from the chart, the United Kingdom also has the dubious distinction of having the highest divorce rate in the European Union.
So how easy or difficult should divorce be? Whose interests should be taken into account? What do you think?
In this workbook we therefore aim to do the following:-
1. Look at the history of fault-based divorce in England and Wales and the origins of idea of no-fault divorce.
2. Examine the policy and practice of the current mixed fault and no-fault based divorce law, contained in the Matrimonial Causes Act 1973.
3. Consider and explore the objectives of 'good divorce law' and the impetus for further reform.
4. Assess the strengths and weaknesses of the unimplemented mediation-based divorce legislation in Parts I-III Family Law Act 1996.
First Draft: Autumn 1999 cd
Child support, until the implementation of the Child Support Act 1991 (CSA 1991), was a matter dealt with by the courts. The courts still do have jurisdiction if it is not over-ridden by the CSA 1991. On the break up of a marriage, the parent who is left with the children can apply to the court for an order for the children. The most common application is made within divorce proceedings under s.21 of the Matrimonial Causes Act 1973 (MCA).
There are two other ways of obtaining support for the children, Under s.27 MCA an application may be made where a spouse has failed to provide support for the children and/or the other spouse. This does not need divorce proceedings. A spouse may also apply to the Magistrates' Court under the Domestic Proceedings and Magistrates' Courts Act 1978, without starting divorce proceedings. Both these latter remedies are very rarely used in practice.
If the couple have not been married then child support may be applied for under Schedule 1 of the Children Act 1989.
The CSA 1991 has come to dominate the law surrounding child support. It was a controversial Act from the outset and there has been enormous legal and general opposition to the way in which it has operated. This has been exacerbated by the inefficiency of the Child Support Agency itself which has not been able to deal with the huge number of cases that should have fallen within its jurisdiction.
For this reason this workbook is dominated by the effect of the CSA 1991 which has had a profound effect on the way in which the question of children's maintenance is considered even if the Act does not apply to every case.
The first pages of the workbook deal with the law as it still stands under the MCA, so that you can see what the law was before the CSA 1991 changed it and how it remains for cases where the Agency does not have jurisdiction.
New: Autumn 1998 cd
The purpose of this workbook is to look at what happens to financial arrangements when marriages break down. We will consider:
a. what the parties can do to make claims for financial relief, both before proceedings have started, and once they have been filed at the court;
b. what the factors are that the court has to take into consideration and how the court deals with the various assets of the marriage;
c. the mechanics of the financial claim; how it is made and how the financial position of the parties is established;
d. the question of costs; how the parties pay for the legal action that they have had to take and how this influence the court.
We will use a case study of Mrs Randall to illustrate the legal principles as we go through the law.
New: Autumn 1998 cd
This workbook will analyse the concept of 'parenthood' in English law.
The concept of parenthood is more complex than it might appear. In one case, a judge said:
'The term 'parent' must be given its natural and ordinary meaning. It does not follow, however, that that meaning will always include the natural parents. The natural and ordinary meaning of a word in not fixed, but changes according to the context in which a word is used. Thus the meaning of 'parent' in a school prospectus will include a person with de facto parental responsibility even if not a natural parent, but exclude a natural parent who has no contact with the child. On the other hand, the meaning of 'parent' in a work on genetics will be the biological parents, including a father who has no more connection than the initial act of fertilisation.' (Butler-Sloss LJ in Re C [1994] Fam 1 at p 7; M v C and Calderdale MBC [1993] 1 FLR 505, at pp 509)
In this case, the court decided that the father of a child ceased to be a 'parent' for the purpose of the Children Act 1989 once the child has been adopted or 'freed for adoption'. Adoption, and freeing for adoption, are considered in the workbook on adoption.
For another example, consider the following situation:
Jane is married to Bob. Bob is infertile, so they agree that Jane will become pregnant using artificial insemination with sperm donated by Bob's brother, Frank. After Jane becomes pregnant, Bob decides to leave her and goes off to live with his secretary. Jane meets Kevin, and falls in love with him. Jane gives birth to a little girl, Louise. Louise grows up calling Kevin 'Daddy', and she has no contact with Bob or Frank.
In this workbook, we will consider how the law decides who are the legal parents of a child like Louise, and how the law allocates 'parental responsibility'. This workbook will not consider the separate, but related, questions of where the child should live, and how much contact the child should have with parents and other people.
New: Autumn 1998 cd
The aim of this workbook is to introduce you to the Welfare principle contained in s.1 of the Children Act, 1989. According to that section the child's welfare is the paramount consideration whenever the court is asked to determine the upbringing of a child or the administration of a child's property or the application of any income arising from it.
First of all we will look at how the welfare principle has developed and then we will consider in detail the welfare principle enshrined in the Children Act, 1989, and how it operates in practice.
New: Autumn 1998 cd
The aim of this workbook is to introduce you to private ordering in children cases. To gain the maximum benefit from this workbook it is recommended that you read the Welfare workbook first as the court's paramount consideration is the welfare of the child. Thus before any order can be made the welfare principle, set out in s.1(1) Children Act, 1989, must be considered.
This workbook will concentrate upon the four section 8 orders, looking at what the effects of such an order are, when such an order can be made, who can apply for such an order and how such orders can be enforced. There is also a section dealing with section 8 orders and the welfare of the child.
There are four separate section 8 orders in the Children Act 1989: the residence, contact, specific issue and prohibited steps orders.
These section 8 orders can be made in the course of any family proceeding, defined in s.8(3)(4) Children Act 1989. As we shall see some applicants can apply without gaining leave for any section 8 order; others can only apply as of right for a residence or contact order, whilst anyone else, including the child him or herself, must obtain the leave of the court in order to apply for a section 8 order.
Before a section 8 order may be made the welfare principle (s.1(1) Children Act, 1989) must be applied. According to this principle the welfare of the child is the court's paramount consideration. If the proceedings are disputed the welfare checklist will apply, s.1(4) Children Act 1989. In addition the courts must consider the non-intervention principle, s.1(5) Children Act 1989. Therefore no order should be made unless it is required by the child's welfare. This principle is supposed to encourage cooperation between parents, parental responsibility holders and others, but there is an inevitable tension between the paramountcy of the child's welfare and the non-intervention principle, because of course if the parents etc. can agree between themselves no decision will be taken by the court as to whether or not that decision serves the best interests of the child. Moreover the principle against delay must be considered, s.1(2) Children Act 1989, whereby delay is assumed to be generally prejudicial to the child's welfare. Of course this presumption may be rebutted, the best example being where a welfare report is required to determine the best interests of the child. Further information on all of these requirements can be found in the Welfare Principle workbook.
New: Autumn 1998 cd
In this workbook we will consider the role of the state in protecting children from abuse and neglect and in promoting their welfare. In order to do this we will consider the law in the context of a number of scenarios covering the very varied problems that could (and do) occur in practice, and the various outcomes that are legally possible.
At the end of each section there will be a summary of the law discussed in the resolution of the problems.
In the introduction there is a simple outline of the family to be considered in this workbook. On succeeding pages different 'problem events' will be posited for that family. While the story will, for the most part, be progressive, some scenarios posited will be entirely independent of one another. The object of the exercise will be to explore the legal ramifications of the various events that could occur to unsettle children in their homes.
New: Autumn 1998 cd
In this workbook we will consider a number of issues that complicate the protection that the state is able to offer to children who are being, or may be, subject to abuse or neglect.
Perhaps most fundamental to this project will be the way in which those terms are defined, perceived and understood in law. We will consider what unacceptable behaviour is, and what the response of the state is and should be towards the perpetrators of that behaviour. Thus, instead of focussing on what the state does in respect of the child in order to protect her, we will consider its attitude towards wrongdoers. In pursuing this project we will consider the extent to which action taken against perpetrators of violence and neglect against children is complementary to the work undertaken to protect children.
Of course, in analysing the parameters of child abuse and neglect we will also have to consider the circumstances in which our behaviour towards children is permissibly different from the behaviour we adopt towards adults. Simply stated, we must understand the circumstances in which violence towards children is legally (and socially) permissible.
The workbook will, finally, go on to consider a number of miscellaneous issues. We will consider the way in which information about children is put before the courts. We will also deal with the power that courts have over local authorities when they care for children and the ability of anyone to challenge the inadequacies of local authority action in respect of children.
New: Autumn 1998 cd
The focus of this workbook is on whether the current regulation of adoption law 'fits' the changes that have taken place in the frequency of adoption, and in the age and background of adoptees.
It runs thorough the 'Gift/Donation Model'; the Changing Face of Adoption; Stages in the Adoption Process (Contested adoptions, Freeing for adoption, and Changing one's mind); the 'Contract/Services Model', before finally concluding.
New: Autumn 2000 cd
International Family Law has only recently been recognised as a subject in its own right rather than as a footnote to either a family law or an international law textbook. International instruments affecting the family are not, however, a new phenomenon: there have been international instruments affecting the family for decades.
If International Family Law is taken to mean those international instruments affecting the family, these can be categorised according to their purpose. For example, they may be designed to 1) set normative standards; 2) encourage international co-operation or 3) encourage the harmonisation of different approaches to family-related issues.
This workbook deals in the main with international child abduction law, which falls under the second purposive category. It also touches on the United Nations Convention on the Rights of the Child (category 1 above) and cross-border adoption (category 2 above).