Family Report 2018 B

Examiners’ reports 2018
LA2019 Family law – Zone B
Introduction
Overall, there were some very good answers in this exam. Strong answers were
able to demonstrate not only knowledge of the law but also to apply it to the specific
question. For essay questions, this means identifying the issue the question 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.
For problem questions, while most candidates picked up on the issues to be
addressed, many answers lacked detail of analysis. Here is where you have 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. Problem
questions usually do not have clear answers; that is why they appear on exams!
Further, there were 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.
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.
Comments on specific questions

Question 1
Greta and Harry married in 2006 and their daughter Fran was born in 2008.
Greta and Harry are both in full-time work in London and they have shared the
care of Fran equally between them since her birth, even after they divorced a
year ago. This shared care was the arrangement Fran said she wanted, but
recently she has begun to ask to spend more time with Harry.
Harry is also concerned about Fran’s school, which he says has increasing
bullying problems. Greta is less concerned and says that if those problems
exist, the school will deal with them. Fran, however, does not like going to
school and says she has no friends there. Her best friend moved away last
year and now lives in Manchester.
Harry is also concerned because Greta has started referring to Fran as Fran
Jones (Jones is Greta’s family name), rather than by his family name, which
they had always used before.
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A month ago, because of all these issues, Harry accepted a job in Manchester
and wishes to move there, taking Fran with him. He will stay with his brother,
Ian until he finds a new home. He promises Greta that he will continue to
promote Fran’s relationship with her and will pay for visits between them.
Greta does not believe it will be in Fran’s welfare to live with Harry and Ian in
Manchester because Fran will be miles away from her and Ian is an alcoholic
and was convicted of a number of assaults five years ago. Harry says that Ian
has not had a drink since he was released from jail last year and poses no
risk to Fran.
What orders, if any, will best satisfy Fran’s welfare?
General remarks
The question raises s.8 CA 1989 issues. You were required to go through the
issues on which G and H, F’s parents, disagree and consider whether it would be in
F’s welfare for a court to make orders resolving those issues. The paramountcy
principle and the no order principle are important here. Further, there is case law on
the issues of change of name, change of school and relocation to Manchester and it
was expected that that law be drawn upon. Unfortunately, many candidates did not
refer to it, and simply gave impressionistic views about whether changing names or
moving would be in Fan’s welfare. These answers achieved lower grades.
Law cases, reports and other references the examiners would expect you to use
CA 1989, ss.8 and 1; Re G (1994) on education, Re G (2012) on religious
education, Re S (change of name cultural factors), Dawson v Wearmouth on
relocation, Re C (2015), Payne v Payne and Re F.
Common errors
Lack of a detailed analysis of the cases on welfare was common. Instead, many
simply ran through the welfare checklist or gave impressionistic views of the issues.
A good answer to this question would…
discuss whether orders under s.8 CA 1989 to prohibit the change of name, require
the change of school and/or permit the move to Manchester would be granted and
who might apply for them. They may refer to cases interpreting the welfare
principle, such as Re G (1994) on education, Re G (2012) on religious education,
Re S (change of name cultural factors), Dawson v Wearmouth re surname along
with F’s views on all of these issues. Because it does not appear that a CAO –
residence order is in place, a good answer might suggest that G apply for one,
confirming the shared residence arrangement. Cases on shared residence orders
include T v T (2010) and Re W (2009). G may also wish an order prohibiting the
move to Manchester and good answers would refer to cases such as Re B (2008)
and more recently Re C (2015), which states that the principles from international
relocation cases now apply to internal relocation cases. On this, Payne v Payne and
Re F (2015) on international relocation would be discussed.
Poor answers to this question…
See common errors above.
Question 2
Herb, a 45-year-old solicitor, and Wendy, a 43-year-old copy editor, married in
2003. They moved in to Herb’s home, which he inherited from his parents in
1995. Their daughter Clarice was born in 2005 after which Wendy moved to
part-time employment so she could become Clarice’s primary carer.
One month before they married, Herb and Wendy signed an agreement which
stated, among other things, that because each was professionally and
gainfully employed, in the event of their divorce, neither would have any claim
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against the other for any property or support, other than child support if they
were to have children. At the time they executed the agreement, the only
substantial property each owned was the family home they now live in, some
stocks held by Herb, and Wendy’s pension from her employment. Herb drew
up the agreement and Wendy signed it without legal advice because she had
read in the newspaper that pre-nuptial agreements were not binding. After the
marriage they purchased a small holiday cottage in Cornwall, title to which is
in Herb’s name. It has recently been valued at £350,000.
Herb and Wendy have now decided to divorce. They have agreed that Clarice
will remain in Wendy’s primary care and Herb will provide payments for child
support. Herb, however, has told Wendy that he expects her and Clarice to
move out of the home and, pursuant to their prenuptial agreement, that
neither spouse would claim anything further from the other.
For Clarice’s sake, Wendy wants to stay in the marital home which is valued
at £850,000 and is mortgage-free. Wendy is also aware that Herb’s stocks
have increased in value dramatically since 2003. She would like a full property
division, claiming that the prenuptial agreement should not be enforced. She
also would like some support from Herb until she is able to return to work on
a full-time basis.
Advise Wendy on the financial consequences of her divorce.
General remarks
Problem questions like this on financial relief are sometimes difficult to answer. It is
not always clear whether one should proceed through the s.25 factors first before
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 exam 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 candidates 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.
Radmacher v Granatino and the cases following it on prenups; MCA, s.25; and at
least White v White, Miller/McFarlane and Charman on fairness.
Common errors
Failure to deal with all the marital assets and to identify whether they would be
considered matrimonial or non-matrimonial and why this designation matters.
Failure to deal in sufficient detail with the prenuptial agreement.
first deal with the prenup. Will it be given effect? Radmacher is the leading case that
sets out when a prenup may be considered to be unfair. The lack of legal advice
may not be sufficient but you would consider the fact that W did not believe she
would be bound by the agreement. See comments from the UKSC on these issues
and subsequent cases including those in which parties may not contract out of need
but may contract out of sharing non-family assets. Good answers would then
discuss how the family wealth may be distributed if the agreement is not given full
effect. They would first identify the assets and refer to the leading cases: White,
Miller, McFarlane, Charman on the three strands of fairness, the s.25 MCA factors,
identify if any of the assets are non-marital; Jones v Jones on how to approach a
case where there are non-marital assets that may justify a departure from equality.
Finally, is there any other reason to depart from equality, e.g. ‘special contribution’?
How might the court deal with marital home? Mesher case? What about support?
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Clean break? Good answers would ultimately put together an award that they feel is
fair and justify it according to case law.
did not discuss the three strands of fairness or identify the assets and simply ran
through the s.25 factors.
Student extract
From the discussion above, it is evident that the family’s assets exceed their
needs. In accordance with Jones v Jones it is important to identify whether
the surplus amounts to family asset based upon the distinction put forth by
Baroness Hale in Miller/McFarlane. The holiday home should be regarded as
a family asset too as it is to be used by the parties jointly for holiday purposes
(K v K). Therefore the holiday home should be distributed equally.
The next question is whether the fact that the existence of non-family assets
(the shares, Wendy’s pension before the marriage) should justify a departure
from equality in accordance with the principle in White and Charman. Here,
Herb will argue that it is his stellar contribution to the wealth of the family that
justifies it. Here he must show that the increase in value of his pre-acquired
shares is due to his spark of genius. He is unlikely to succeed as according to
Lambert v Lambert and Robertson v Robertson this is unfair for Wendy as
she has not had the opportunity to demonstrate comparable success.
Comments on extract
This extract discusses whether there are reasons to depart from equal sharing. It
does well to raise the Jones case and the fact that the assets are pre-acquired
means they may not be considered as family assets and therefore are not subject to
equal sharing. It also raises the stellar contribution argument, although it conflates
that potential reason for departure with the pre-acquired nature of the assets. It is a
very good discussion, however, and is part of a first-class answer.
Question 3
‘The weight accorded to property interests is inappropriate when considering
how to protect an applicant from domestic violence.’
Discuss.
General remarks
This question requires a discussion of occupation orders under the FLA 1996 and
the different tests and steps required for these orders for those who are entitled and
those who are not. It requires understanding of both the Act and the case law. While
many candidates properly discussed the draconian nature of the orders from the
point of view of removing the respondent, fewer discussed the relevance of the
applicant’s interest in the property in question.
FLA 1996 Part IV; Chalmers v Johns; Re Y (2000), G v G (2000), Dolan v Corby,
Grubb v Grubb and Re L (2012).
Common errors
Many interpreted this question to be about the difference in treatment between
married and unmarried applicants. While marriage may have some bearing on
one’s entitlement to the property, it was not the point of the question.
in a strong answer, discuss the importance of property interests to both the
applicant and the respondent and whether those interests should have any bearing
on protection from violence. They may refer to the Law Commission report
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recommending that property rights should not outweigh protection. All students
should mention the Chalmers v Johns case, the ‘draconian’ nature of the order and
the way in which it has been interpreted in more recent cases, such as Re Y (2000),
G v G (2000), Dolan v Corby, Grubb v Grubb and Re L (2012).Overall, strong
answers came to a reasoned conclusion about whether the weight accorded to
property interests is appropriate or not.
Student extract
After a discussion of the balance of harm test and the case law, including B v B, Re
Y, Chalmers v Johns and Grubb v Grubb the answer concludes:
In conclusion, from the case law it is clear that the courts had favoured the
protection of property interests against the protection from domestic violence.
The courts are in a dilemma to adopt this approach, as the Human Rights Act
requires the breach of Art 8 the right to respect for private and family life to be
justified, which means a decision which is incompatible with the Act can only
be made if it is necessary to protect an innocent person from risk of harm.
However, the case of Grubb v Grubb shows the willingness of the court to
remove the owner of property from his ancestral home even where there is
no violence. It seems that the court will adopt this approach where the
Respondent is wealthy compared to the applicant.
Comments on extract
This low 2:1 answer was a good review of the case law and the conclusion it
reached was a reasonable one. Raising the HRA was a nice touch and, although
not required, added something more to the answer.
Question 4
Lucy and Mark have two children, Nancy aged 12 and Olly aged 5. Olly has
been admitted to hospital with an unexplained fracture. Both parents deny
any responsibility for the injury, although Mark does admit to having hit Lucy
on two occasions. During the local authority investigation, Nancy tells the
social worker, Pamela, that it was Mark who injured Olly. Both Mark and Lucy
say Nancy is lying. On further investigation, Pamela discovers that Mark’s
previous partner, Ella, left him after alleging that he was violent towards her
and her young son.
Pamela is now worried for Nancy’s safety as Mark and Lucy are angry that
she implicated Mark in Olly’s injury. She is also worried because Lucy is
pregnant and Pamela is concerned that the baby might be at risk of harm after
the birth.
Lucy insists that she does not know how Olly was injured, but she says she is
prepared to ask Mark to leave the house if it would mean the local authority
would just leave them alone.
Advise Pamela of the availability of court orders to protect each of the
children, if necessary.
General remarks
This question is about Part IV CA 1989. The facts tell us that the LA has
investigated and is now wondering whether courts orders are available. O has
suffered significant harm (he has a fractured bone!) and the issue is whether the
rest of the threshold test can be met in respect of him where the perpetrator of his
injuries is uncertain and also whether N and the yet to be born baby are likely to
suffer significant harm. This is not, therefore, a question about Part III CA and the
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s.17 duty or about the LA’s investigatory duties. Many candidates spent too much
time on voluntary services and/or CAOs which meant they ran out of time
discussing the threshold test. When it did come to discussing the test, you might
have examined each part of it (e.g. the meaning of ‘significant harm’ the meaning of
‘likely to suffer’, the meaning of ‘attributable to the care …’) or you might have
looked at the test as a whole as it applies to each child.
Section 31 CA 1989; Humberside CC v B and Re B UKSC; Northamptonshire CC v
S; Re B (standard of proof); Re L (threshold criteria); Re J UKSC and Lancashire
CC v B; Re O and N; Re S-B.
Common errors
Simply stating that the threshold test would be met for all children without explaining
why or querying the unknown perpetrator was a common error. As was spending
too much time on the LA duty to investigate.
discuss the leading cases on interpreting the threshold test and identify that the
main problem is that the perpetrator of O’s injuries is uncertain. The Lancashire
case and Re S-B UKSC says if either Mark or Pamela is a possible perpetrator the
test is met re O. Re N and the baby, however, the question is whether P as a
possible perpetrator of the harm to O is enough to be the basis for a finding of
likelihood of future harm to N and the baby, neither of whom seems to have
suffered harm yet. Here, the Re J case is important: is being in a pool of possible
perpetrators of harm to one child sufficient to form the basis of a likelihood of harm
to another child? Good students discussed here the difference between sufficient
and relevant. Good answers also discussed the welfare part of the test and the
difference between a CO and a SO.
assumed that because Mark was accused as the perpetrator, the threshold test was
met. They failed to discuss the difficulty with unknown perpetrator situations.
Question 5
Discuss at least two of the ways in which parents may challenge local
authority decisions.
General remarks
This question primarily addresses LA decisions about children in need or local
authority care, but there is also scope to discuss challenges to decisions about
adoption decisions, such as those formulated in a care plan. It was not directed,
however, to issues of dispensing with consent to adoption, which is a court
decision. Parents may bring actions against the LA under the HRA, in negligence,
through an ombudsman, in the court by statute or by judicial review and each option
has its advantages and disadvantages. Overall, the question is meant to give you
the opportunity to assess the willingness of the courts to monitor LA’s carrying out
of their statutory duties.
CA 1989; HRA 1998; R v Barnet LBC, Re C (1999) and R v Southwark LBC (2009);
CA 1989 on children in need; Re M on care proceedings judicial review; Williams v
LB Hackney 2015; JD v East Berkshire NHS Trust re action of the child for
negligence or breach of statutory authority; or Northamptonshire CC v AS on claims
under the HRA.
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Common errors
Some candidates discussed only adoption disputes that, while potentially relevant,
did not answer the question set.
identify first the ways in which parents can challenge these decisions and then
choose two or more to discuss in detail. Strong answers could deal quickly with
parents’ disagreements with the LA about their children in need and may refer to R
v Barnet LBC, Re C (1999) and R v Southwark LBC (2009). Answers could have
focused upon challenging LA decisions about contact s.34 CA1989, applying for
judicial review of LA decisions (e.g. R v Lancashire CC (1992) but see Re M (Care
Proceedings: Judicial Review) (2004), starting civil actions against the LA for
negligence or breach of statutory authority (e.g. Williams v LB Hackney (2015), JD v
East Berkshire NHS Trust re action of the child, and bringing an action under the
HRA (e.g. Northamptonshire CC v AS (2015), C v Bury Met BC (2002). Strong
answers also discussed the ombudsman process.
Question 6
‘Marriage has lost so much of its legal significance that it should now be
regarded as simply a ‘lifestyle choice’.’ Do you agree? Give reasons for your
answer.
General remarks
A careful reading of the question shows that it refers to the legal significance of
marriage. While some candidates discussed the significance of marriage for law,
many did not. Many discussed instead the law of nullity. This was not an opportunity
to discuss how marriage becomes legally significant, validity of marriage and the
law of annulment, unless that discussion related to why marriage is legally
significant. Neither was this an opportunity simply to write about the social
significance of marriage – it was intended to draw the two together.
MCA 1973 on financial provision on divorce, Civil Partnership Act 2004; CA 1989 on
parental responsibility; and other provisions regulating the legal consequences of
marriage.
Common errors
As above – treating this question as one about the law of nullity.
discuss here the legal consequences of marriage and compare them with the
consequences of other relationship statuses such as CP or cohabitation. Compared
to cohabitation without marriage, for example, these include parental responsibility,
financial support during and after the end of the relationship, differences in
inheritance, matrimonial property and more. It was not necessary to compile an
exhaustive list, as long as the answer demonstrated understanding of the main
legal consequences of marriage. A good answer would then formulate some
arguments for or against the value of marriage as something more than a lifestyle
choice. If one can now choose between marriage, CP or cohabitation, for example,
why is marriage anything other than simply a lifestyle choice?
discussed neither the law of nullity nor the legal consequences of marriage but
simply discussed how marriage has changed socially over the years. While
discussion of these changes might be relevant to the question if it was directed to
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the impact the changes have had on the legal consequences of marriage, too many
were simply arguments for the sacred or social importance of marriage.
Question 7
Can a child be considered in law to be motherless? What about fatherless?
General remarks
This is a straightforward question, which primarily requires detailed discussion of
the HFEA 2008. It is about legal parenthood. Some, however, confused legal
parenthood with parental responsibility, which brought down their marks.
HFEA 2008; Ampthill Peerage case.
Common errors
Some candidates did not discuss motherhood other than to make reference to the
Ampthill Peerage Case. Many wrote about the difference between mothers’ and
fathers’ acquisition of parental responsibility.
deal quickly with the determination of motherhood: the legal mother is the woman
who gave birth to the child (Ampthill Peerage Case), even where assisted
reproduction was employed (HFEA), so a child may not be legally motherless at
birth. Strong answers might then discuss how this situation is different in other
jurisdictions (Odièvre case). But, where a court makes an adoption or parental order
subsequently in favour of two men, a child may then become legally motherless.
Children may be legally fatherless, however, from birth and strong answers
demonstrate that they are aware of these possibilities under the HFEA, as well as
after a court order.
focused exclusively on parental responsibility.
Question 8
Sophie and Tim have been married for five years. Over the last few months,
Sophie has noticed that Tim has started going to bed much earlier than
normal, without her. They went to a friend’s birthday party and Tim left, by
himself, at 9pm, after making snide comments about Sophie’s outfit. Sophie
says their friends found this strange, and she felt embarrassed. Tim has also
declined to go on their usual Friday night dates on a number of occasions
over the last couple of months, refusing to say more than that he is tired or
has had a difficult week at work. She is very hurt by Tim’s behaviour and does
not understand why he appears to be withdrawing from her.
Tim, meanwhile, is aware that Sophie has been having an affair with John, a
colleague from her work for the last year. Although he has known about it
since the affair started, he wishes now to end his marriage with Sophie.
Explain whether and on what grounds Tim and Sophie can obtain a divorce.
General remarks
This is a straightforward question about divorce and asks you to consider whether
either S or T can apply successfully. Questions like this want you to consider only
the relevant facts and not run through them all. The question also requires a good
understanding of the case law on divorce and the procedure. On S’s application, the
primary discussion should focus upon the Owens case and other cases about
behaviour, after outlining the preliminary requirement for an application under the
MCA (one year of marriage). On this point, it was surprising how many candidates
did not mention Owens.
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T’s application would be under s.1(2)(a) MCA but he might find it difficult to meet
the intolerability requirement. You should mention the Cleary case here; perhaps
the intolerability is only arising now and is not the result of the adultery? T would
also have to deal with the s.2(1) bar and establish that the last act of adultery
occurred less than six months ago.
MCA 1973, s.1 and 2; Owens v Owens and other cases on behaviour such as:
Buffery, Richards, Livingstone-Stallard, Pheasant. On adultery, at least Cleary v
Cleary.
Common errors
This popular question was done well, generally, and there were few errors. Some
common weaknesses, however, included discussing the possibility that, unless the
petitions were defended, it is likely that either S or T would succeed; it is only if they
were made to prove the facts they alleged, that the court might not grant the
petition.
deal with each party separately. First, S must establish the ground for divorce and
one of the five facts, here probably behaviour, but it is not clear that she would be
successful, particularly if T defended the petition. Strong answers would discuss the
special procedure and what might happen if T does not defend. Would her case be
made? A good knowledge of Owens is required here. An alternative would be for S
to wait until two years have elapsed and, if T agrees the marriage is over, petition
on the s.1(2)(d) fact of separation.
T’s application would be under s.1(2)(a) MCA but he might find it difficult to meet
the intolerability requirement and the s.2(1) bar. He may also find it difficult to prove
the adultery if S defends the petition. Again, if Sophie does not defend the petition,
he may be more likely to succeed.
If this fails, T also could wait for the two-year separation period.

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LA2019 Family law – Zone B

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