Examiners’ reports 2015

Examiners’ reports 2015

LA3019 Family law – Zone B

Introduction
The strongest answers are able to ‘bridge the gap’ between knowledge of the law
and application of it to the question. For essay questions, this means identifying the
issue the question is raising and addressing it directly. For example, many
candidates saw ‘...parental responsibility’ in the question but then ignored the
context and the question itself (i.e. how parental responsibility relates to the actual
care of the child) and produced an answer merely describing parental responsibility
before, in the last paragraph, writing a hopeful conclusion ‘…therefore it can be
seen that...’
For problem questions, while most candidates picked up on the issues to be
addressed, many answers lacked detailed analysis. Problem questions give you the
chance to demonstrate your skills of legal analysis and good answers apply the law
to the facts of the case, identifying where there might be uncertainties. They usually
do not have clear answers; which is why they appear on examination papers! For
example, on Question 1, while many candidates showed knowledge of the relevant
law (Part IV FLA 1996) and were able to identify the relevant facts, many answers
also lacked detail. It is not enough to say simply that the balance of harm test will
apply. What is the balance of harm test? How, in the light of the case law will the
court apply it here? What if Wendy does not pass the test? How, in the light of the
case law, will the courts then interpret their discretionary power under s.33(6)? The
same problems arise with the non-molestation order. Stating that s.42 applies is a
good start, but is not sufficient for a strong answer. You need to give detail about
what a non-molestation order is, the grounds on which court makes them and
whether on these facts, Wendy will get one. Finally, how will the orders protect
Wendy and Alice and how can they be enforced?

Comments on specific questions

Question 1
Hugh and Wendy have been married for eight years. They have three children,
Alice, aged 5, Bella, aged 3 and Chas, aged 18 months. Wendy is a full time
carer and homemaker and Hugh is a bank clerk. Hugh is also a gambler.
Last month Wendy found condoms in Hugh's wallet as well as receipts from a
florist and a lingerie shop. She challenged Hugh, who admitted he was having
an affair, but denied that sexual intercourse had taken place.
Wendy tells you (her solicitor) that she can put up with Hugh’s infidelity, but not
his gambling (he recently lost a month's wages at a casino). When she

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confronted him about this last week, he punched her in the face and told her it
was none of her business. Alice witnessed this and is now frightened of Hugh.
Wendy wants your advice on the following questions:
(a) what remedies are available to her to protect her and the children from
Hugh; and
(b) how she can secure a divorce.
General remarks
It is important to discuss which sections of the FLA would apply and how they would
be applied on these facts. Wendy might be entitled to an occupation order but you
should explain why or how the balance of harm test would be applied in her case.
Further, on the divorce part, it is not necessary to discuss all of the facts, only those
of the five facts merited on the facts of the case.
Law cases, reports and other references the examiners would expect you to
use
Part IV FLA 1996, s.30 FLA 1996 on home rights.
At least: Grubb v Grubb, B v B on the balance of harm test, G v G, Chalmers v
Johns; C v C on non-molestation, Cleary v Cleary on adultery, Livingstone Stallard,
Buffery, Stringfellow on behaviour.
MCA 1973 ss.1, 2 and 3.
A good answer to this question would…
(a) assess the facts under Part IV FLA. Wendy may be entitled to an occupation
order and/or a non-molestation order. Her marriage gives her home rights in the
family home so she can apply as an entitled applicant under s.33, provoking the
balance of harm test under s.33(7). Good answers would consider how courts have
interpreted this test, from its Draconian roots (Chalmers v Johns) to a less rigorous
test in some circumstances now, to decide whether Wendy is likely to meet it. You
should also discuss where the discretionary test under s.33(6) comes into play
(Grubb; G v G; Corby; Re L). Some discussion of the requirements for non-
molestation orders is also required, and of the enforcement of these orders.
(b) discuss the ground for divorce and the facts required to establish it. Proving
adultery may be difficult and it is also arguable that the intolerability requirement is
not met. Some discussion of the behaviour ground in the light of Hugh’s gambling
and assault would be welcome.
Poor answers to this question…
missed the issue of occupation orders entirely. Poor answers also spent too much
time on the Protection from Harassment Act. While it is available in some instances
of domestic violence, its applicability on these facts is questionable.
Question 2
Critically assess the case law on prenuptial agreements.
General remarks
The law on pre-nuptial agreements is developing rapidly. The Supreme Court’s
decision in Radmacher v Granatino in some ways clarified the law and in others did
not amount to much change at all. It is a controversial decision and the courts are
still interpreting it. This question is meant to elicit candidates’ opinions about the
way the law is developing in the light of the Radmacher case.

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Law cases, reports and other references the examiners would expect you to
use
Cases preceding Radmacher (e.g. K v K, MacLeod, Xydhias, Edgar); Radmacher
itself; cases post-Radmacher (e.g. Z v Z, B v S, Kremen, Luckwell). A brief
discussion of the Law Commission report could also serve as a point of departure.
Common errors
Either restricting discussion exclusively to the Radmacher decision or (surprisingly)
not mentioning it all, but offering instead a history or review of the law on pre-nuptial
agreements before Radmacher was decided.
A good answer to this question would…
demonstrate understanding of why the Radmacher decision may be controversial or
at least why it is significant or how it changed or developed the law. Throughout, a
good answer would take a position on how successfully the cases are reconciling
the balance between autonomy and fairness – the question asks for a critical
assessment of the cases.
Poor answers to this question…
were descriptive rather than analytical or critical.
Student extract
In F v F the court had said that PNA is of little significance and its effect is not
enforceable. This illustrates court’s reluctance in validating and giving effect
to PNA. However, in the cases after, the court seems to be slowly accepting
PNA. In K v K it was held that PNA is enforceable as the parties had fully and
willingly enter into it and had full appreciation of the effect and impact of PNA.
This can be contrasted from J v J which the conduct of parties had made the
PNA invalid. The parties had signed on the eve of the wedding and the wife
did not have any legal advice and hence it would be unfair to give effect to
the PNA. In Macleod v Macleod the PC said that the law on PNA or any
reform on it should be the responsibility of Parliament ….
The landmark case is Radmacher v Granatino. [….goes on the describe facts
of R v G] …The SC held that there was no factors to show that the PNA was
unfair to deny its effect. SC held that not all PNA are binding but in the right
circumstances, there would be decisive weight given to it. The parties have
fully entered into the agreement and had full appreciation of the effect of the
agreement and had intended the agreement to be valid.
[The answer then talks about the dissent in R v G, the Luckwell case following it
and the Law Commission report.]
Comment on extract
This extract was part of a low 2:1 answer. It shows good understanding of the state
of the law and development of it up to R v G, but it lacks critical analysis, such as
the degree to which the law balances the principles of autonomy and fairness.
Question 3
To what extent is parental responsibility related to actual care of the child? To
what extent should it be?
General remarks
This question asks for an understanding of what parental responsibility means in
law, but importantly, also what it should mean. It requires a discussion on the cases
on parental responsibility and the extent to which the courts are concerned with
actual care of the child when they assess the welfare of the child and parental
responsibility for the child. Is the welfare of the child promoted simply by making a

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parental responsibility order even if there is no contact or care provided by the

parent?
Law cases, reports and other references the examiners would expect you to
use
CA 1989 ss.2, 3 and 4. Cases on disputed parental responsibility claims such as Re
S, Re P and Re H in which the CAR test was formulated. Cases such as Re C, Re
G, and the recent lesbian parent cases, beginning with Re D where parental
responsibility orders were made with little if any ability to exercise it. See however,
R v E and F (2010) where the decision contrasted with this line of reasoning and the
court asked who actually carried out the day to day care of the child, and most
recently A v B and C regarding a donor father’s parental responsibility application.
Common errors
Not addressing the question but simply describing what parental responsibility
means in law.
A good answer to this question would…
discuss the view that parental responsibility is conferred in the welfare of the child
and is seen often as conferral of a status rather than acknowledgement of actual
care of a child. It would address the cases on parental responsibility and make
reference to those cases where parental responsibility orders are made at the same
time as no contact orders or orders that the parental responsibility may be limited or
not exercised at all. It could refer to the lesbian parent cases in which parental
responsibility for the donor father is seen to disturb the nuclear family and assess
the court’s view of the child’s welfare in these cases. A good answer would take a
position on how welfare ought to be interpreted in these disputes about parental
responsibility.
Question 4
Mara and Norm are the parents of Oliver, who is 10 years old. Mara is eight
months pregnant. Oliver has never met Norm as he (Norm) is in prison
serving a sentence for attempted murder and will complete his sentence in
six months’ time. Oliver has lived all his life with his mother and her partner
Liam. Liam moved out of the house two months ago after Mara told him to
leave because she was now with Pete, the father of the baby she will soon
have. Liam has never seen Mara go to a doctor and believes that she has
fallen back into her old drug habit. Mara has never been very interested in
Oliver and either ignores him or shouts at him. It was only Liam who made
sure that Oliver was fed and went to school. An anonymous tip-off to the
Local Authority has suggested that Mara is taking drugs and goes out in the
evenings with her supplier, who is her new partner, Pete. This means that
Oliver is left at home alone. Oliver’s teacher has reported that he is often
absent at school, he is very small for his age, and he appears increasingly
withdrawn. Oliver has also told his teacher that he wishes he could just ‘fade
away’. Liam gets on well with Oliver and would like to care for him. Liam
currently lives with his parents. Norm has also been in touch with the Local
Authority saying he would like to care for Oliver when he completes his
prison sentence.
Advise the Local Authority who are concerned for Oliver and the baby they
expect Mara will have next month.
General remarks
On these facts, the local authority has grounds to be concerned about both Oliver and
the baby Mara will have in the future. While local authorities always have a general

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duty under s.17 to children in need, this question is not about that general duty. It is
about specific duties owed to children believed to be at risk of significant harm.
Law cases, reports and other references the examiners would expect you to
use
CA 1989 s.47 duty to investigate; perhaps s.43 Child Assessment Orders (although
the evidence we have so far is strong); CA 1989 s.31 threshold test, Re J (UKSC);
suffering significant harm, Re M (1994); is likely to suffer, Re B (2013) (UKSC);
removal at birth and Article 8 proportionality, Re J (2013) (UKSC); on the welfare
stage, Re B (2013) (UKSC).
Common errors
Setting out the scene of the local authority’s duty can be useful, but many
candidates spent too much time doing this. Further, many answers lacked detail on
the threshold test as it applied to both Oliver and Mara’s expected baby.
A good answer to this question would…
Oliver – the report to the local authority and information from the school will trigger a
s.47 investigation and the local authority will want to conduct medical and
psychological assessments on Oliver’s welfare. A child arrangements order might
be sought but if Mara and Pete are not cooperative then it may simply make an
application for a care or supervision order. All parties with parental responsibility
must be served with notice and it is open to others, such as Liam, to apply to be
joined. Alternatively, Liam might make an application for a child arrangements order
for residence. Norm is an unmarried father and even if he does not have parental
responsibility and will not automatically be a party, he should be given notice of the
proceedings. Careful discussion of the threshold test including the ‘is suffering’
significant harm and welfare parts and Supreme Court jurisprudence on care orders
– Re B and cases following. Difference between care order and supervision order
and some judgment as to which is more appropriate here, including considering
both Norm and Liam as possible carers.
Baby – the issue is whether Mara’s drug addiction and continuing to live with Pete is
sufficient to meet the threshold criteria for care or a supervision order: ‘is likely to
suffer’ significant harm. The human rights dimension is especially relevant here.
Poor answers to this question…
did not address the concern for the expected baby or simply assumed that the local
authority would be able to take the baby into care without an order after meeting the
threshold test.
Student extract
Local Authority got anonymous tip off about the issue. Under s 47 CA1989,
LA is under a duty to make enquiries, if they have reasonable grounds to
suspect. Here suspect does not require proven facts. … Such enquiry can
help LA to gather evidence to see what to do next, maybe a Further Child
Assessment Order (s 43) or emergency protection order s44 a care order or
supervision order s 31. ….
If there is reasonable cause to believe the child is suffering significant harm if
he is not removed, harm is defined in s 31(9), LA can apply for a care or
supervision order. Clearly Oliver’s truancy will harm his development, while
his health is also at risk as he is smaller. He is withdrawn so his mental
health is suffering. Putting all together, all the harm, it may be that all the
harm is significant as in Humberside (considerable, noteworthy, important).
Given the current situation, if Oliver is not in care, he is likely to suffer
significant harm in the future, a real possibility that cannot be ignored (Re H
and Re B) As to causation, his truancy, his health and Mara ignoring him

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satisfies s 31(b), lack of care that a reasonable parent would give him. If so,
the threshold is satisfied. Court can then proceed to welfare stage to consider
care orders or supervision orders or other alternative orders. As in Re B
(2013) and Re B-S (2013), always start with less interventionist order and
care order will be considered if nothing else will do.
Comment on extract
This extract is part of a low first class answer. It addresses all parts of the threshold
test and applies each part to the facts of the case.
Question 5
Alice and Bertha have been living together for six months. Alice is keen to
have a child but Bertha is less sure, particularly because that they have only
been together a short time. Bertha reluctantly agrees however, and they
arrange with Carl, a friend of theirs, to donate sperm to Alice who will carry
the child. The insemination is successful but, as the birth approaches, Alice
begins to have second thoughts about the plan because of Bertha’s apparent
lack of enthusiasm. She mentions this to Carl, who says that he and his civil
partner Don would love to raise the child with Alice. Relieved, Alice and
Bertha agree that the help will be welcome and the child will share his or her
time with Carl and Don who will each be known as ‘daddy’. When the child,
Elsie, is born Bertha and Alice are overwhelmed with affection for her and
agree that they now have the perfect family. They regret their agreement with
Carl and Don, but permit them to visit occasionally and to host Elsie’s first
birthday party. Shortly after the party, Carl and Don separate and Carl moves
to Scotland, several hundred miles away. He sends a letter to Alice and
Bertha saying that, when he is settled, he would like Elsie to stay with him on
weekends, as per their earlier agreement. Don also says that he does not
want to lose touch with Elsie, as he was also one of her daddies. In the
meantime, Carl’s letter has put a strain on Alice and Bertha’s relationship and
Bertha is considering leaving. She hopes they will be able to work things out,
but if they cannot, she wishes to continue to share care of Elsie.
(a) Advise Alice and Bertha about their position regarding Don’s
and Carl’s claims.
(b) Advise Bertha about any claim she may make for a child
arrangements order if she is not able to work out her relationship
with Alice.
General remarks
In this question you are required to sort out first who might be entitled to make a
claim for a child arrangements order regarding Elsie and second assess the
strength of that claim. The first step is to identify Elsie’s legal parents and anyone
else entitled to apply under the CA 1989. After that, the question calls for an
assessment of the strength of those potential claims with reference to the welfare
test. It is best to take each potential claim in turn.
Law cases, reports and other references the examiners would expect you to
use
CA 1989 ss.2 and 4 regarding parental responsibility for Alice, Bertha and Carl.
Regarding Carl’s claim, as father CA 1989 s.10(4) can apply for any s.8 order and
parental responsibility, cases such as Re D (2006), Re B (2007), Re P and L (2011)
and A v B and C (2012). Don has no standing and must obtain permission from
court to apply for a child arrangements order: CA 1989 s.10(1) and criteria for
granting leave s.10(8) and (9). Bertha may obtain parental responsibility: CA 1989

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s.4ZA, see also Re G regarding parental responsibility for unmarried/civilly

registered female partner by way of a shared residence order.
Common errors
Filing to discuss Bertha’s claim; weak discussion of Don’s claim.
A good answer to this question would…
(a) Alice is the legal mother with parental responsibility, Bertha has no parental
responsibility unless there is an agreement. Carl is an unmarried father with
no parental responsibility. Don has no status. Carl as father has standing to
bring application for parental responsibility and a child arrangements order
and the court will assess welfare. Cases such as Re D (2006), Re B (2007),
Re P and L (2011) and A v B and C (2012). The court will try to balance the
privacy of the child’s primary family unit with the need for a relationship with
their biological father. Don has no standing to apply and will need the
court’s permission. There should be a discussion of s.10 CA criteria and
whether Don will be permitted to apply.
(b) If Alice and Bertha cannot agree on sharing care by executing a parental
responsibility agreement and separation agreement, Bertha will also need
to apply for parental responsibility and a s.8 child arrangements order. This
application will also be determined on the basis of the welfare principle.
Poor answers to this question…
did not recognize Bertha’s status or did not discuss her claim.
Question 6
‘Sometimes cohabitants are treated the same as married or civilly registered
partners, at other times they are treated as legal strangers. This state of
affairs is unsatisfactory; it is time the law provided coherence to its approach
to cohabitation.’
Discuss.
General remarks
Here you must demonstrate knowledge of both the differences and similarities in
the way law treats formal and informal unions. The question implies that the legal
situation is incoherent; do you agree? The question then states that that
incoherence is unsatisfactory. Do you agree?
Law cases, reports and other references the examiners would expect you to
use
Examples of differences of legal treatment include: no financial support during or
after cohabitation (e.g. MCA 1973); different rules regarding parental responsibility
for children (CA 1989). Reference could also be made to the Law Commission
Report to discuss hardship at the end of cohabiting relationships.
Common errors
Providing only a description of the legal differences and similarities without relating
that description to the question about the need for coherence of treatment. Many
answers failed to make a sustained argument one way or the other.
A good answer to this question would…
first give examples of differences and similarities between the treatment of
cohabitants and formally recognised partnerships. The question asks about the lack
of coherence of treatment and so good answers should discuss whether one
general rule – either treat everyone the same or treat cohabitants always as legal
strangers – is more appropriate than the current situation. Or, they may disagree
about the need for coherence and make a case for continuing the case by case

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situation. Strong answers would offer evidence of thought about law’s role in
protecting the value of autonomy and the social value of marriage and refer to
ongoing calls for reform of the law on breakdown of cohabiting relationships.
Poor answers to this question…
misinterpreted this question as being about the differences between marriage and
civil partnership. Or were descriptive and offered no critical analysis of the legal
situation.
Question 7
Amina and Bjorn have been married for 10 years. They are both 38 years old.
Amina’s 12-year-old daughter Cissy lives with them. Amina and Bjorn met
when Bjorn began working as an assistant chef in Amina’s café of which she
is sole owner. Bjorn began to develop his own recipes and three years ago
opened his own restaurant, ‘Bjorn’s Place’, with Amina’s support. In fact, she
provided Bjorn with £100,000 as a deposit to buy the restaurant which they
agreed would be in his sole name. Over the three years, however, Amina
began spending more time assisting Bjorn in his restaurant than working in
hers, and combined with her care responsibilities for Cissy, her business
began to suffer. Bjorn’s, on the other hand, blossomed. In the last year,
‘Bjorn’s Place’ became London’s most popular restaurant and as a result
Bjorn was asked to star in a television cookery programme. He has since
become a celebrity chef.
Amina wants now to return to her café to try to save her business, but the
arthritis she has been suffering her whole adult life now renders her unable to
do so. Further, Bjorn tells her that he wants a divorce and is willing to give
her a lump sum of £100,000, the amount she provided for the initial deposit on
‘Bjorn’s Place’, plus an additional £100,000 for ‘all your help in setting me up’.
He says that because she still owns her café and he is not Cissy’s real father,
she does not need anything else from him. Amina knows that Bjorn bought a
seaside cottage for family holidays, even though the demands of their work
meant that she hasn’t yet seen it. Bjorn also tells Amina that he wants to sell
their jointly owned home and asks her and Cissy to move out as soon as she
can so that he can put it on the market. The kitchen in the home has been
modified to accommodate Amina’s arthritis and so she does not want to
leave. The house is valued at £600,000 and is subject to a £200,000 mortgage.
Amina is not concerned about the divorce, but seeks your advice on whether
she should accept Bjorn’s financial proposal.
General remarks
Problem questions like this on financial relief are difficult to answer. It is not always
clear whether one should proceed through the s.25 factors first before then applying
the fairness analysis/criteria from White, Miller/McFarlane and Charman, or whether
that overall discretionary judgment about fairness comes first, with the s.25 factors
then looked at after. For this question and on most examination questions about ‘big
money’, either approach is fine and it might be of some comfort to know that the
courts are not in agreement about the best way to proceed either. In big money
cases like this, however, it is important that you discuss both the three strands of
fairness in the context of the facts and also those s.25 factors that may influence
the overall determination of fairness.
Law cases, reports and other references the examiners would expect you to
use
On division of property and fairness: White v White, Miller v Miller, McFarlane v
McFarlane, Charman v Charman, Jones v Jones, perhaps also V v V; MCA s.25(2);

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Mesher v Mesher. There are a number of cases that could be cited to illustrate the
courts’ interpretations of the various factors in s.25(2), but White, Miller/MacFarlane
and Charman are required for discussion of the fairness principle.
Common errors
1. Simply running through each of the s.25 factors. Not all of them were
relevant to the facts of the case. And those that were relevant were not
always applied to the facts to show how/why they were relevant.
2. Not providing advice for Amina. What orders would she likely get? Why? No
conclusions were offered after a description of the statutory provisions.
3. Surprisingly, no mention of the objective of fairness at all.
A good answer to this question would…
address the following points:
 all assets go into the pot for distribution (house, both businesses, cottage)
 fairness (White)
 discretion
 three strands of fairness (Miller/McFarlane)
 needs (e.g. her arthritis)
 compensation (e.g. loss of her business due to concentrating on his)
 sharing (equal or departure from equality)
 perhaps fourth strand of fairness (autonomy, V v V)
 s.25 MCA factors; distinction between marital (family?) and non-marital
(non-family?) property in relation to cottage, restaurants and proceeds from
tv and effect of the distinction on how value of asset may be shared
 effect of special contribution on equality of sharing (Charman: his recipes,
personality/celebrity)
 reference to Jones v Jones: if all assets are necessary to meet needs, then
the nature or source of them is not relevant. If not, then there would usually
be equal division unless a departure from equality is justified, usually on the
basis of the nature or source of the asset or special contribution
 welfare of the child, including housing
 clean break
 regarding support for Cissy: her biological father has primary responsibility
for support, but if he is absent then Cissy is clearly a child of the family and
B can be liable for support for her (MCA).
Poor answers to this question…
missed entirely the court’s discretionary role; lacked detail about the nature/source
of the assets and why that might affect their distribution; described or gave an
overview of the law, but failed to outline the orders that might be appropriate in this
case, and explain why.

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Question 8
‘The law on adoption unduly interferes with the rights of parents.’
Discuss.
General remarks
Until recently, adoption law was thought to be human rights compliant on the basis
of its welfare imperative. Recent cases, importantly Re B and Re B-S have
discussed the human rights aspects in more detail, however, and added to the
welfare principle, thereby changing the landscape of adoption law, for example, in
situations where parents oppose adoption placements or when courts can dispense
with their consent. While English adoption law is still human rights compliant, this
question asks for an assessment of the developing law in this area.
Law cases, reports and other references the examiners would expect you to
use
At least Re B-S (EWCA) and Re B (UKSC); then also cases such as Re P (2008)
(on parental consent); Re S (proportionality); R and H v UK (ECtHR) (adoption can
only be made in exceptional circumstances); YC v UK (ECtHR) (2012); also cases
such as Re V (long term fostering or adoption); Re E (a child); Re M (residence
order or adoption) and Re R (2014) (Re B-S did not change the law, it merely
confirmed the existing principles).
Common errors
Failing to address the human rights aspects of adoption law and describing the
procedure only.
A good answer to this question would…
offer a close analysis of the Re B-S and Re B decisions in the context of English
adoption policy and Article 8 ECHR. It is clear that adoption interferes with a
parent’s Article 8 rights; the question is whether that interference is justified. If
adoption law is applied correctly, that is proportionately, to meet a pressing social
need, after considering other possible alternatives and under the welfare principle it
is human rights compliant. Good answers would refer also to more recent decisions
interpreting Re B-S such as Re R, CM v Blackburn and Re P (2014) on dispensing
with the consent of an unmarried father.
Poor answers to this question…
simply described adoption procedure and the effects of the order. Further, while
contact with birth parents after adoption could have formed a part of an answer to
this question, some candidates spent too much time on this aspect and failed to
address the effect of the Re B-S decision on making the order itself.

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