Family Law Revision Notes (Units 6 – 10)

Family Law Revision Notes (Units 6 – 10)

UNIT 6

1. What powers does the court have to redistribute the parties’ money and property on
divorce?

If the parties cannot reach agreement outside court, or if there are good reasons not to try, then it is
open to either party to apply to court for a financial remedy order. Financial remedy is the new name
for ‘ancillary relief’, the financial settlement being ancillary to the main suit, which is the divorce—
hence the fact that divorce proceedings must have been issued for a financial remedy application to
be made. The application triggers a contested litigation process that will ultimately result in the
judge deciding who gets what and imposing that on the parties by way of order.

The claims that each party has against the other on divorce are not terminated by decree absolute
(the final divorce decree), but only by so-called ‘clean break’ provisions in a financial remedy order.
If there is no order, it is quite possible to be long divorced and for a former spouse to come back
years later and seek financial support—even if the parties had informally agreed at the time who
was to have what asset and had put that into effect.

2. What statutory guidance exists to determine how the court should exercise its powers?

Whether the judge is making the order on a joint application by parties who have reached
agreement or the judge is rendering a decision following a contested hearing, the court can only
order something if it has the power to do so under Part II of the Matrimonial Causes Act 1973,
namely:
● order a party to pay the other a lump sum or sums;
● order a party to make periodical payments to the other party (spousal maintenance);
● order a party to make periodical payments for the benefit of a child (child maintenance—
limited powers here because of the existence of a separate child maintenance scheme);
● order the transfer of ownership of property. Property in this context means any type of
asset, not merely real property (houses);
● order the sale of property and decide how the proceeds should be shared out;
● order that property be held on trust for use by the other party or a child;
● order a pension provider to share a party’s pension fund or to send a proportion of the
pension income, when it is in payment, to the other party;
● vary a prenuptial or postnuptial agreement.

Matrimonial Causes Act 1973, s. 25

1. (2) [In deciding whether to exercise its powers] the court shall in particular have regard to the
following matters—
1. (a) the income, earning capacity, property and other financial resources which each of the parties
to the marriage has or is likely to have in the foreseeable future, including in the case of earning
capacity any increase in that capacity which it would in the opinion of the court be reasonable to
expect a party to the marriage to take steps to acquire;
2. (b) the financial needs, obligations and responsibilities which each of the parties to the marriage
has or is likely to have in the foreseeable future;
3. (c) the standard of living enjoyed by the family before the breakdown of
the marriage;
4. (d) the age of each party to the marriage and the duration of the marriage;
5. (e) any physical or mental disability of either of the parties to the marriage;
6. (f) the contributions which each of the parties has made or is likely in the foreseeable future to
make to the welfare of the family, including any contribution by looking after the home or caring for
the family;

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7. (g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the
court be inequitable to disregard it;
8. (h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to
the marriage of any benefit ... which, by reason of the dissolution or annulment of the marriage, that
party will lose the chance of acquiring.

A lump sum order (s. 23(1)(c)) simply requires one party to pay an amount or amounts to the other
party. This is usually within specified time after the decree absolute, often 56 days (and interest is
chargeable on late payments), but you could have instalments on agreed future dates. Under s.
31(1) the court has power to vary or discharge an order for the payment of a lump sum by
instalments ‘or to suspend any provision thereof temporarily’.

Under s. 23(1)(a) of the Matrimonial Causes Act 1973, the court can order one party to make
regular (usually monthly) payments to the other party post-divorce. It is useful for ensuring each
party has enough money to live on. Where there is sufficient capital to meet a party’s housing and
income needs, it may not be necessary to have periodical payments.

3. How have the courts interpreted the statutory guidance?

In Wyatt v Vince, the wife applied for a financial remedy order nearly 20 years after decree absolute.
The Supreme Court held that: ‘[c]onsistently with the potentially life-long obligations which attend a
marriage, there is no time-limit for seeking orders for financial provision’. The wife’s claim may have
had little value in the circumstances, but she was entitled to pursue it.

Miller/McFarlane (Key Case 2): the principles of meeting needs and providing compensation
identified in that case do not lend themselves to an arbitrary one-size-fits-all figure.

Lord Scarman noted in Minton v Minton: ‘[a]n object of the modern law is to encourage each to put
the past behind them and to begin a new life which is not over-shadowed by the relationship which
has broken down’. A clean break recognises that the marriage is at an end, and so are the mutual
rights and responsibilities that existed with it.

4. In what circumstances can financial orders be varied or set aside?

Where the order is wrong

The Appeal Courts have deliberately refused to define ‘wrong’ but in this context it essentially
means this: either the District Judge has ordered something that he had no power to order, or
arrived at a conclusion on the basis of no evidence, those being two examples, or in exercising the
discretionary powers under the Matrimonial Causes Act in identifying the parties’ assets and
incomes and in carrying out the re-distributed phase of the exercise, he has come to a conclusion
that is so wide of the mark as to be outside the wide ambit of reasonable conclusions that would
amount to a fair outcome.

Where there has been misrepresentation, fraud, duress, or mistake

‘Even innocent misrepresentation as to a material fact can be a vitiating factor if the undisclosed fact
was material to the decision which the court made at the time and/or if it undermines the basis on
which the order was made’. The parties can challenge an order either by way of an appeal or by
way of an application to a first instance judge to set aside the order.

Where the rationale for the order has been invalidated by a supervening event

In the leading case, Barder v Barder (Caluori Intervening), the order provided that the matrimonial
home be retained by the wife for herself and the two children. Approximately one month after the

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consent order was approved, the wife killed herself and the children, and the husband applied for
leave to appeal out of time against the terms of the order. The House of Lords set four conditions for
a successful application out of time:

(1) new events have occurred since the making of the order which invalidate the basis, or
fundamental assumption, upon which the order was made, so that, if leave to appeal out of
time were to be given, the appeal would be certain, or very likely, to succeed; (2) the new
events should have occurred within a relatively short time of the order having been made; (3)
the application for leave to appeal out of time should be made reasonably promptly in the
circumstances of the case; (4) the grant of leave to appeal out of time should not prejudice
third parties who have acquired, in good faith and for valuable consideration, interests in
property which is the subject matter of the relevant order.

The objective that courts have identified—‘to do that which is fair, just and reasonable between the
parties in rearranging the family finances’—has developed over decades of case law. Fairness itself
is not mentioned in the Matrimonial Causes Act 1973 or its antecedents. Yet the idea that a
financial settlement should be fair is not contentious.

In Miller/McFarlane, equality had three strands:

Three strands in Miller/McFarlane

Fairness here meant equality. In Miller/McFarlane, equality had three strands. First, it involved
understanding that formal equality of division is not the same as substantive equality if decisions
made by the parties during the marriage have disparate consequences post-divorce.

5. How do the courts take account of pre-marital agreements?

An agreement made before the marriage is a prenuptial agreement, sometimes called an

‘antenuptial’ agreement. An agreement made during the marriage but before it has broken down is a
postnuptial agreement. They are not very common but might be drawn up because the parties ran
out of time to draw up a prenuptial agreement, or had a crisis in their marriage, as in NA v MA.

Another form of private ordering is where the parties agree before the marriage how their property
and assets should be split in the event of their marriage breaking down (a pre-nuptial agreement).
Historically, such agreements, being in anticipation of, and thereby possibly encouraging,
separation and divorce, were considered void as contrary to public policy. While this is no longer the
case, the status of pre-nuptial agreements can be a little complex to discern. The leading case is
the Supreme Court decision in Radmacher v Granatino.

Radmacher v Granatino

The appellant, Mr Granatino, a French national, and Ms Radmacher, a German national, signed a
pre-nuptial agreement in Germany in August 1998. Mr Granatino did not take advantage of the wish
of the German notary who had drafted the agreement, to postpone execution of the agreement until
after Mr Granatino had taken advice, and neither did Mr Granatino take any advice after signing but
prior to the marriage. Despite the terms of the agreement, the husband sought periodical payments
and a lump sum against the wife ancillary to the divorce. Mr Granatino appealed to the Supreme
Court, where the issue was what weight should be given to the pre-nuptial agreement.

As to factors enhancing the weight to be given to the agreement, the court commented that the ‘fact
of the agreement is capable of altering what is fair. It is an important factor to be weighed in the
balance’. The court explained that the circumstances in which it will not be fair to hold the parties to
their agreement will depend on the particular facts of the case. However, the court gave the
following guidance:

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1. (i) A nuptial agreement cannot be allowed to prejudice the reasonable requirements of any
children of the family.
2. (ii) The court should accord respect to the parties’ autonomy, and should not override the
agreement simply on the basis that the court knows best.
3. (iii) There is nothing inherently unfair in an agreement which seeks to preserve non-matrimonial
property for one party.
4. (iv) There is scope for what happens to the parties over time to make it unfair to hold them to an
agreement. It is unlikely that the parties will have intended that one party should be left in a
predicament of real need.
5. (v) It is in relation to the sharing of assets beyond those addressing need that the court will be
most likely to make an order in the terms of the nuptial agreement.

In V v V, the court attached weight to the agreement even though it was made in the absence of
legal advice, and Kremen was distinguished in DB v PB (Pre-nuptial agreement: Jurisdiction). She
subsequently claimed that the agreements should not be upheld on the basis of misrepresentation
by the husband that they would never be implemented and on the ground that abiding by the terms
would cause unfairness.

Is it unfair to hold the parties to the agreement?

A pre-nuptial agreement can also be challenged on the ground that its terms are unfair.
In Versteegh v Versteegh, King LJ referred to this as providing a ‘protective safety net’. It is clear
from Radmacher that an agreement cannot ‘prejudice the reasonable requirements of any children
of the family’. Cases have also deemed an agreement unfair if it would leave one party in severe
financial need. This can be seen in Luckwell v Limata where the pre- nuptial agreement was
overridden by the court in order to meet the husband’s housing needs.

Z v Z (No 2)

In Z v Z (No 2), the parties, a French couple, were married for 14 years and had three children.
Before marrying, they entered into a standard pre-nuptial agreement in France (known as a
separation de biens). When the marriage broke down, the weight to be given to the pre-nuptial
agreement had to be decided according to the principles of English law. The parties’ assets totalled
£15m and the wife argued that it would be unjust to hold the parties to the French agreement and
that everything should be shared equally. Moor J held that this would have been an appropriate
case for equal division of the assets in the absence of the French agreement. However, he upheld
the agreement insofar as it excluded the equal sharing principle and awarded the wife 40 per cent of
the assets which was held to be a suitable departure from equality to reflect the agreement.

VvV

In V v V a pregnant 24-year-old wife who was married to a man ten years older, signed a pre-nuptial
agreement which allowed the husband to retain all of the property that he had acquired prior to the
marriage. The estimated value of this property was £1m. On the question of whether there were any
factors which made the agreement unfair, Charles J held that the mere fact that the wife was in the
weaker bargaining position did not limit the effect of the agreement in this case. The court therefore
held that in the application of the section 25 exercise, in particular, ‘when assessing the sharing
principle and the impact of contributions, the marriage settlement provides a good and powerful
reason for departing from an equal division of the assets that are now available’.

Ipekçi v McConnell

In Ipekçi v McConnell the court found it unfair to hold the husband to the terms of a pre-nuptial
agreement signed with his wealthy heiress wife in New York as it would have left him with nothing

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and thus clearly did not meet his needs. One of the questions which tends to arise where there is a
valid pre-nuptial agreement is how to assess needs: should the assessment of needs be
constrained by the existence of a pre-nuptial agreement?

Brack v Brack

As King LJ pointed out in Brack v Brack, ‘even where the court considers a needs-based approach
to be fair, it still retains a degree of latitude when assessing those needs’. The Court of Appeal went
even further in this case by saying that the existence of a valid pre-nuptial agreement does not
necessarily lead to a needs-based outcome. Rather, the existence of a pre-nuptial agreement,
autonomously entered into by the parties, is one of the factors to balance in the court’s overall
search for a fair outcome which could result in an award in excess of needs. Thus, while a needs-
based award may be the most likely outcome where an agreement has sought to exclude the equal
sharing principle, the court retains its wide discretion and can make an order in excess of needs.

6. How is child maintenance dealt with on divorce?

Child support maintenance

A person with care or a non-resident parent may apply under section 4 for a calculation of
maintenance for the child under the provisions of the Act (known as a maintenance calculation). A
non-resident parent has a duty to make—and meets his or her responsibility under section 1(1) by
making—any periodical payments determined in accordance with a maintenance calculation under
the Act. Such payments are called ‘child support maintenance’.

The basic rate

Where the non-resident parent’s weekly income is £200 or more, the basic rate is applied. The
following percentage of the non-resident parent’s gross weekly income is applied up to a ceiling of
£800 weekly income:
● 12 per cent for one qualifying child;
● 16 per cent for two qualifying children;
● 19 per cent for three or more qualifying children.

If the non-resident parent also has one or more relevant other children, gross weekly income used
for these calculations is treated as reduced by the following percentage:
● 11 per cent where the non-resident parent has one relevant other child;
● 14 per cent where the non-resident parent has two relevant other children;
● 16 per cent where the non-resident parent has three or more relevant other children.

Reduced rate
A reduced rate (determined in accordance with regulations) is payable where the non-resident
parent’s income is less than £200 but more than £100, but the reduced rate may not be less than
£7.

Flat rate
Where the non-resident parent’s weekly income is £100 or less or he or she, or his or her partner, is
receiving prescribed benefits or a pension, a flat rate of £7 is payable.

Nil rate
A nil rate is payable where the non-resident parent is of a prescribed description or has a gross
weekly income below £7.

Reduction for shared care

If the overnight care of a qualifying child is, or is to be, shared between a non-resident parent and
the person with care, in the case of the basic or reduced rates there is a decrease in maintenance

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payable according to the number of such nights which the CMS determines there to have been, or
expects there to be, or both during a prescribed 12-month period. The amount of that decrease for
one child is set out in Table 6.1 (although the amount payable can never fall below £7 per week).

Variation

It is possible for either parent to apply to obtain a variation from the usual calculation in certain
circumstances under section 28F and Part 1 of Schedule 4B. The making of a variation is
informed by the general principles that parents should be responsible for maintaining their children
whenever they can afford to do so; and where a parent has more than one child, his obligation to
maintain any one of them should be no less of an obligation than his obligation to maintain any
other of them. Under s. 23(1)(b) the order can be secured against assets of the payer (usually a
house) if there is a risk of non-payment, but this is not common.

Duxbury tables

Where the maintenance is lifetime, the parties may refer to the Duxbury tables to work out how big a
sum is needed. These are actuarial tables that take into account average life expectancy, state
pension drawdown, tax rates, interest rates, and inflation to come to a guesstimated capital sum
that, if invested, could yield the income required and be entirely used up at the end of the recipient’s
actuarial life expectancy.

Financial support for children

The Child Support Act 1991 created a scheme for the payment of child maintenance.
Consequently, judges retain only limited powers to make orders under the Matrimonial Causes Act
1973, either by agreement or where the child support scheme does not apply. Courts also have
some powers to order financial provision for children under Sch 1 of the Children Act 1989.

Property adjustment orders

A property adjustment order is an order changing the parties’ interests in property of any kind (e.g.
house, savings/investments, cars, furniture) whether owned in possession or reversion. There are
two types. The first type is a property transfer order under s. 24(1)(a). This provides that a party
transfer specified property into the name of the other spouse, a child of the family, or any other
person specified in the order. The second type is a settlement order under s. 24(1)(b). This provides
that property be held on trust for the parties. Common triggers for both types are: the youngest child
turning 18 (known as a Mesher order); the death, remarriage, or cohabitation of the occupying party,
if these do not happen, the occupier potentially therefore has the use of the property for life (known
as a Martin order); or a combination of both, as in Sawden v Sawden.

Property sale orders

Under s. 24A of the Matrimonial Causes Act 1973, the court has the power to order the sale of
property when, in the same order or a previous order, it has ordered secured periodical payments,
lump sum, or property adjustment. Property sale can be a useful back-up plan: for example, default
sale of the matrimonial home can be triggered when a party fails to raise the funds to ‘buy out’ the
other’s interest.

Pension orders

It is never sensible to overlook pensions on divorce, even if retirement is some time away, as this is
a potentially valuable resource. The court can make two kinds of orders, a pension sharing order or
an attachment order. Alternatively, it is possible to offset one party’s entitlement to a pension share
by giving that person more of the other assets instead. A pension sharing order (s. 24B) requires

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the trustees of one party’s pension fund to transfer a percentage of his or her pension fund to a fund
in the other party’s name. There are pension sharing compensation orders (s. 24E) to share
compensation received from the Pension Protection Fund in relation to an insolvent scheme.

An attachment order (ss. 25B–25D of the Matrimonial Causes Act 1973) directs the pension
scheme trustees to give x percent of each payment (or any lump sum) to the pensioner’s ex-spouse
from whenever the pension starts to be drawn. The beneficiary of the order will only receive
payments once the pension holder draws the pension, and only for as long as the pension holder is
alive and the recipient has not remarried (s. 28)—all things that do not affect a pension share.

Undertakings

In the event that the parties want to do something that is not within the court’s powers to order, then
that party may give an undertaking—put simply, a solemn promise to the court—and that
undertaking can be recorded as a recital to the order. Although a party cannot be forced to give an
undertaking, they are enforceable like an order.

7. How do the powers of the court and the Child Maintenance Service inter-relate?

Enforcement

The 1991 Act provides the CMS with wide powers of collection and enforcement. Section 31
enables it to order a non-resident parent’s employers to deduct child support directly from earnings
or from accounts. If this proves impossible or ineffective, the Service can apply to the magistrates’
court for a liability order.

The courts’ residual role with respect to child maintenance

In order to give effect to the Child Support Act’s policy of a general administrative scheme for
calculation and collection of child support maintenance, it was necessary to limit the exercise of the
courts’ powers to make orders for maintenance which still exist in various statutes. Section 8(1) and
(3) of the CSA 1991 read together provide that in any case where the CMS would have jurisdiction
to make a maintenance calculation with respect to a qualifying child and a non-resident parent ‘no
court shall exercise any power which it would otherwise have to make, vary or revive any
maintenance order in relation to the child and non-resident parent concerned’.

Section 8(3A): existing maintenance orders

Where there is a pre-March 2003 maintenance order and by reason of that order an application for
a maintenance calculation is prevented, the courts retain jurisdiction to vary the maintenance order.
The courts also retain jurisdiction to vary a maintenance order which was made on or after 3 March
2003 provided no maintenance calculation has actually been made. Where the court makes a child
maintenance order, ‘the appropriate starting point should almost invariably be the amount arrived at
by application of the Child Support Rules’.

In GW v RW (Financial Provision: Departure from Equality) that the starting point for calculating
child maintenance payments is the calculation under Schedule 1 to the CSA 1991. His lordship
suggested that the formula should apply as a starting point even when the payer’s earnings are in
excess of the maximum £3,000 under the formula. If the earnings were very much in excess of the
maximum then there would be a good reason to depart from the formula downwards.

UNIT 7

1. What are the differences in the legal treatment of cohabitants and married couples/civil
partners?

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Unmarried and unregistered cohabitants face a host of practical issues on relationship breakdown
which are identical to those confronting spouses on divorce or civil partners dissolving their
relationship. Spouses and civil partners have the benefit of a statutory regime which takes regard of
their formalised relationship status and which allows courts to respond flexibly to their specific
circumstances. Corresponding provisions also apply to civil partners.

There is no such statutory right of occupation or property adjustment regime available to unmarried
or unregistered couples. As we have seen, a cohabitant can apply under Part IV of the Family Law
Act 1996 for an occupation order in relation to the family home but, if successful, this will only
confer short-term occupancy rights.

2. What is the rationale behind those differences?

That there are no specially designed family law principles to govern these situations has attracted
considerable criticism from scholars and practitioners. While the Law Commission has, in the past,
made recommendations for reform, there is still no sign of legislation to remedy the inadequacies of
the current law. It remains the case that when the court is called upon to resolve a property dispute
between unmarried cohabitants on relationship breakdown, the ‘focus is on determining who owns
what as a strict matter of property law, rather than to whom it should in fairness be given’.

3. How do land law and equitable principles apply in the context of cohabitation?

Before discussing these property law principles, it is worth highlighting the situations to which they
apply. As already stated, the main ‘domestic’ situation which falls prey to the inadequacies of trust
law is when unmarried couples separate and there is a dispute concerning ownership of the former
family home. However, on some occasions, a spouse must also have recourse to these general
principles. While disputes between spouses on divorce are resolved by the flexible and
discretionary-based financial regime, if a spouse wishes to establish their interest in the family home
during the marriage, the financial regime has no jurisdiction. Instead, ordinary property law
principles will determine the matter.

A basic rule of property law is that: all conveyances of land or of any interest therein are void for the
purpose of conveying or creating a legal estate unless made by deed. However, establishing the
identity of the legal owner is not the end of the matter because the whereabouts of the beneficial
ownership in the property must also be considered. The person who has the legal title may hold the
property on trust for another person who will have a beneficial interest in the property. It is here that
the law becomes more complex because a trust may be created expressly (express trusts), or by
implication (implied trusts).

The law of implied trusts enables equity to require the legal owner of land to hold the property on
trust for another where it would be inequitable to allow him or her to deny the other a beneficial
interest in the land. The broad determining principle is that equity will step in and impose a trust
where not to do so would allow the legal owner to become unjustly enriched at the expense of the
other. Even if it is clear that the parties neither discussed nor intended any agreement as to how the
beneficial interest was to be shared, this does not prevent the court from inferring, on general
equitable principles, that such an agreement existed, see Midland Bank plc v Cooke [1995] 4 All ER
562 at 574–5; and Stack v Dowden [2007] UKHL 17.

4. What was the rationale behind the court’s decision in Stack v Dowden [2007] UKHL 17?

One might assume that if property is held legally in the parties’ joint names, then the beneficial
interests will automatically, as a matter of logic, be shared equally between them. However, prior to
the House of Lords’ decision in Stack v Dowden, this was not the case. The whereabouts of the
beneficial interest was determined by the application of ordinary trust principles and case law

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suggested that if one party had made a greater financial contribution to the purchase price of the
property, they would, under the presumption of a resulting trust, receive a share of the beneficial
interest which was proportionate to their contribution.

Stack v Dowden

This all changed when the House of Lords in Stack v Dowden, which was the first case concerning
a property dispute between unmarried cohabitants to reach the House of Lords, set out a new set of
principles to determine the quantification of the beneficial interests in joint names cases. The
Supreme Court had the opportunity to consider the position once again in 2011 in Jones v Kernott.

The parties (an unmarried couple with four children) purchased a home in joint names. The
purchase of the property was financed primarily by Ms Dowden who earned more than her partner,
Mr Stack. In particular, it was funded by the sale of another property, which had been in Ms
Dowden’s sole name, plus savings in her sole name as well as a mortgage held in joint names. At
the time of the purchase, the parties had already been living together for around ten years and had
four children. Nine years later the relationship broke down and Mr Stack applied to the court for an
order for sale of the property and an equal division of the proceeds. While the property was
registered in joint names, there was no declaration of trust specifying how the beneficial interest
was to be shared. In the Court of Appeal, Mr Stack was awarded just 35 per cent of the value of the
property and he appealed to the House of Lords. The House of Lords upheld the decision of the
Court of Appeal.

Equity follows the law

The Lords confirmed that in all cases where there is no express declaration of the beneficial
interests in the family home, the starting presumption is that equity follows the law and the beneficial
interests will reflect the legal interests in the property. this means that where there is joint legal
ownership, the starting point is joint beneficial ownership. The presumption of joint beneficial
ownership will not be rebutted by the mere fact that the parties have made unequal financial
contributions to the acquisition of the property.

The House of Lords made it clear in Stack that the presumption will only be rebutted if there is
evidence that the parties had a shared intention to hold the property in unequal shares. If there is no
evidence of an express agreement between the parties, the task of the court is to undertake a
survey of the parties’ whole course of dealing taking account of their conduct insofar as it throws
light on the question of what they must ‘be taken to have intended’. According to Baroness Hale,
these include:

● any advice or discussions at the time of the transfer;

● the reasons why the home was acquired in the parties’ joint names;
● the reasons why (if this is the case) the survivor was authorised to give a valid receipt for the
capital moneys;
● the purpose for which the home was acquired; ● the nature of the parties’ relationship;
● whether they have children for whom they had a responsibility to provide a home;
● how the purchase was financed, both initially and subsequently; ● how the parties arranged their
finances;
● how the parties discharged the outgoings on the property and their other household expenses.

The core issue in Stack was the test adopted by the House of Lords for quantifying the parties’
shares in joint names cases. The majority concluded that if there is no evidence of an express
agreement between the parties, then the task of the court is to ascertain the parties’ shared
intention from their whole course of conduct.

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In Stack v Dowden, Baroness Hale preferred the ‘holistic’ approach to quantification advocated by
the Law Commission in its 2002 Discussion Paper, Sharing Homes, where they said that: there is
much to be said for adopting what has been called a ‘holistic approach’ to quantification,
undertaking a survey of the whole course of dealing between the parties and taking account of all
conduct which throws light on the question what shares were intended.

Inferring vs imputing an intention

Lord Neuberger (dissenting in Stack) described the distinction as follows:

An inferred intention is one which is objectively deduced to be the subjective actual intention
of the parties, in the light of their actions and statements. An imputed intention is one which
is attributed to the parties, even though no such actual intention can be deduced from their
actions and statements, and even though they had no such intention.

Piska observes that an imputed intention is not regarded as representing the parties’ actual
intentions at all. Rather, it is ‘the court’s estimation of what is fair’.

Which inferences can be drawn in relation to the parties’ intentions is conduct relating to the
property.

5. What financial obligations do cohabitants have towards their children?

Re S (Unmarried Parents: Financial Provisions)

In Re S (Unmarried Parents: Financial Provisions) the Court of Appeal made clear that Re P should
not be interpreted as setting a benchmark for assessment of quantum in future cases. In Re S there
was a dispute as to quantum of a housing trust fund; the mother was seeking to remain in
Kensington, London at a suggested cost of £1.6–2 million, while the father suggested more modest
accommodation in Parsons Green/Fulham. The Court of Appeal held that that was an erroneous
fetter on the wide discretionary exercise required by Schedule 1.

Re C (Financial Provision)

In Re C (Financial Provision) District Judge Million, sitting in the Family Division, explained that Re
P did not establish a rule of law that housing provision must be by way of a settlement; the
distinction made in Re P was between outright transfer and a settlement. The judge held that on the
facts the mother’s objections did not provide a rational basis for rejecting a trust, as the father was
content for the mother to have a choice as to the trustees, the trust document could include the
ability to move home, and the child’s familiarity with the home was over exaggerated.

F v G (Child: Financial Provision)

The facts in F v G (Child: Financial Provision) differed from Re P in that the couple had cohabited
until the child was 2 years old. Singer J held that statements in Re P211 endorsing the view
expressed in J v C that the considerations as to the length and nature of the parents’ relationship
are generally of little if any relevance, had to be viewed in the context of the facts of that case.
Singer J held in F v G that although ‘standard of living’ is not one of the specific considerations in
paragraph 4(1) of Schedule 1, ‘the extent to which the unit of primary carer and child have become
accustomed to a particular level of lifestyle can impact legitimately on an evaluation of the child’s
needs, reasonably to be viewed against his or her history’.

6. What are the arguments for and against reform of the law relating to cohabitation?

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Family Law Revision Notes (Units 6 – 10)

That there are no specially designed family law principles to govern these situations has attracted
considerable criticism from scholars and practitioners. While the Law Commission has, in the past,
made recommendations for reform, there is still no sign of legislation to remedy the inadequacies of
the current law. It remains the case that when the court is called upon to resolve a property dispute
between unmarried cohabitants on relationship breakdown, the ‘focus is on determining who owns
what as a strict matter of property law, rather than to whom it should in fairness be given’.

Some argue that as cohabitants choose not to marry or enter into a civil partnership, this should be
respected and thus the law should not impose a regulatory regime to govern their affairs. For some,
the fact that opposite-sex couples can now enter into a civil partnership strengthens this argument.
Baroness Deech, for example, has said that in light of this development, it is no longer necessary to
reform the law of cohabitation. According to Baroness Deech: ‘there ought to be be a corner of
freedom for such couples to which they can escape and avoid family law’.

UNIT 8

1. Generally on domestic abuse.

The civil law provides remedies principally under the Family Law Act 1996 (FLA 1996). The family
courts can make non-molestation orders and occupation orders between parties to a wide range of
domestic relationships. The family courts have strong powers to enforce orders made under the
FLA 1996. Controversially, breach of a non-molestation order is also a criminal offence. Police
powers under the Crime and Security Act 2010 (CSA 2010) to require alleged perpetrators to
leave the home and then to apply for a court order to extend that removal for up to 28 days without
victims’ consent raise questions about how best to prevent abuse whilst respecting victim
autonomy. Formerly commonly referred to as ‘domestic violence’, the term ‘domestic abuse’ is now
widely preferred to describe the phenomenon under discussion, in recognition of the range of
concerning behaviours increasingly understood to fall within its ambit. The term does not yet have
any general legal meaning, but all government agencies dealing with the problem share a definition,
which the government intends to put on a statutory footing.

HM Government, Transforming the Response to Domestic Abuse:

Government Consultation (2018), 13

Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence

or abuse between those aged 16 or over who are, or have been, intimate partners or family
members regardless of gender or sexual identity. The abuse can encompass, but is not
limited to:

 psychological
 physical
 sexual
 economic
 emotional ...

Controlling behaviour is a range of acts designed to make a person subordinate and/or

dependent by isolating them from sources of support, exploiting their resources and
capacities for personal gain, depriving them of the means needed for independence,
resistance and escape and regulating their everyday behaviour. ...”

Coercive behaviour is an act or a pattern of acts of assault, threats, humiliation and

intimidation or other abuse that is used to harm, punish, or frighten their victim.

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Family Law Revision Notes (Units 6 – 10)

The inclusion of family members as perpetrators (as well as partners in couple-relationships)

brings activities such as elder abuse, forced marriages, and ‘honour crimes’ within domestic
abuse policy.

2. The human rights implications.

The Human Rights Dimension

One relatively new arrival in legal discourse about domestic abuse is human rights law. Until
recently, human rights arguments in this sphere tended to focus on proportionate and fair p. 213
treatment of perpetrators (especially under Articles 6 and 8 of the European Convention on
Human Rights (ECHR)). However, the European Court of Human Rights was invited to consider
domestic violence itself as a human rights violation in several cases, notably Opuz v Turkey.

Opuz v Turkey

The applicant’s husband in Opuz had over several years perpetrated serious attacks on the
applicant and her mother, threatening to kill them. The police arrested the husband but released
him, the women withdrew their complaints (under threat from the husband), and the prosecutor
dropped the charges. He was later convicted for a multiple stabbing of the applicant but sentenced
only to pay a fine. Despite the women’s appeals for further action, nothing was done. Shortly
afterwards, the husband killed the mother, claiming that he had to do so to protect his ‘honour’. He
was again released pending an appeal, going on to threaten again to kill the applicant and her new
partner.

The applicant successfully claimed violations of Articles 2, 3, and 14 ECHR, arguing that the
Turkish state had breached its positive obligations to protect her and her mother, and that its
lacklustre policing, prosecution, and sentencing of domestic violence constituted discrimination
against women, the principal victims of that official inactivity. The response of police and
prosecutors was found ‘manifestly inadequate’, having no impact on the husband’s behaviour; the
few judicial interventions were chastised for exhibiting ‘a certain degree of tolerance’ of his conduct.

Owing to the seriousness of the abuse in that case, Opuz did not address the state’s obligation to
protect victims under Article 8. However, less serious abuse may fall within the scope of p. 216
victims’ right to respect for private and family life, and state inactivity may accordingly violate Article
8 (and Article 14 in conjunction with it). The key difference between Article 8 and Articles 2 and 3,
however, is that Article 8 is a qualified right.

In Opuz, the Turkish authorities were found to have breached both Articles 2 and 3 through their
approach to victim withdrawal: they had failed to explore why the victims withdrew their complaints,
had not weighed up countervailing factors that favoured continuing the prosecution without them,
and had instead ‘given exclusive weight to the need to refrain from interfering in what they
perceived to be a “family matter”’. Under current guidance, the starting point is that it will be rare for
the public interest not to require prosecution. Factors to be weighed include: the seriousness of the
offence, factors relating to the defendant’s culpability, the circumstances of and harm caused to the
victim, the effect on any children in the household, the risk of recurrence, the history and current
state of the parties’ relationship, and so on.

3. Non-molestation orders and occupation orders.

The FLA 1996 is the principal source of remedies for domestic abuse in the family court. It provides
two types of order: non-molestation orders and occupation orders. These respectively protect
victims from physical and other forms of abuse, and offer victims security in the home.

G v F (Non-Molestation Order: Jurisdiction)

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Family Law Revision Notes (Units 6 – 10)

The facts of leading case, G v F (Non-Molestation Order: Jurisdiction), demonstrate the difficulties of
categorizing relationships that are neither formalized in marriage or civil partnership nor based on
blood relationship. When the parties’ sexual relationship began, they had separate homes but spent
most nights together. Two years later, they discussed marriage. When the man had to sell his
home, he deposited the proceeds in the parties’ joint account and most of that money was spent
improving the woman’s house, the anticipated matrimonial home. Only weeks later, he moved out,
withdrawing his funds (and his name) from the joint account. When the case was decided, had the
parties not been regarded as ‘cohabitants’ or as having ‘lived in the same household’ (s 62(3)(c)),
and if the court had found no evidence of an agreement to marry, that would have been the end of
it; the applicant would have been left to the general law, including the PHA 1997. However, s 62(3)
(ea) now brings non-cohabiting but intimate relationships within the Act.

4. Enforcement.

Enforcement of Orders Under the FLA 1996, Part 4

Breach of an occupation order is a contempt of court, exclusively a matter for the family court. There
are two routes to arrest: either the applicant may return to court for a warrant; or the family court can
attach a power of arrest to the original order. The latter permits the police to arrest the respondent
without returning to court for a warrant where the officer has reasonable cause to suspect a breach.
Where a warrant is sought, the court must be satisfied that there are reasonable grounds for
believing that a breach has occurred.

Under the 1970s legislation, powers of arrest were rarely attached to orders, but the FLA 1996
requires their use in certain situations:

Family Law Act 1996

47 Arrest for Breach of Order
If—the court makes an occupation order; and
(2)(a)(b) it appears to the court that the respondent has used or threatened violence
against the applicant or relevant child,
it shall attach a power of arrest to one or more provisions of the order unless satisfied that in all the
circumstances of the case the applicant or child will be adequately protected without such a power
of arrest.

Subsection (2) does not apply [to ex parte orders], but in such a case
the court may attach a power of arrest to one or more provisions of the order if it appears to it—
(a) that the respondent has used or threatened violence against the applicant or
a relevant child; and
(b) that there is a risk of significant harm to the applicant or child, attributable to conduct of the
respondent, if the power of arrest is not attached to those
provisions immediately.

Powers of arrest and undertakings

Since undertakings are voluntary, no power of arrest can be attached to them. In order to ensure
that a power of arrest is available wherever one would be appropriate, the court cannot accept an
undertaking instead of making an occupation order if, were it to make an order, it would be obliged
to attach a power of arrest. Wherever courts consider accepting undertakings, they must therefore
ensure that a power of arrest is unnecessary.

Duration of powers of arrest

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Family Law Revision Notes (Units 6 – 10)

Where a power of arrest is attached to an occupation order, the court must decide how long that
power should last. The Act specifically provides that the power of arrest attached to an ex parte
order may last a shorter period than the order itself but says nothing about orders made at an inter
partes hearing. Before breach of non-molestation orders was criminalized, powers of arrest would
commonly be attached to non-molestation orders of indefinite duration.

Enforcement of provisions ancillary to occupation orders under s 40

An important limitation on the courts’ powers was exposed in Nwogbe v Nwogbe. The court had
made an occupation order with s 40 provisions requiring the respondent to pay the rent and other
outgoings on the property from which he had been excluded. He failed to pay. The wife brought
contempt proceedings. Without some other basis on which the respondent can be ordered to pay
money directly to the applicant, who can then pass it on to the third party, this form of s 40 provision
is useless.

Non-Molestation Orders

Breach of non-molestation orders is no longer exclusively a matter for the family court which made
them. The PHA 1997’s novel combination of civil and criminal law for the enforcement of its
injunctions against harassment was replicated in reform of the FLA 1996. This development was
controversial, particularly for what it signalled about the treatment of domestic abuse as a public or
private issue.

Criminalizing breach of non-molestation orders

Non-molestation orders were originally enforced like occupation orders. Now, although breach of a
non-molestation order is still a contempt of the family court that made it, that court cannot attach a
power of arrest to its order (though a warrant can later be issued). Crucially, breach of a non-
molestation order is now also a criminal offence.

Family Law Act 1996

42A Offence of breaching non-molestation order

“A person who without reasonable excuse does anything that he is prohibited from doing by a non-
molestation order is guilty of an offence.
In the case of an [ex parte order], a person can be guilty of an offence under
this section only in respect of conduct engaged in at a time when he was aware of the existence of
the order.
(3) Where a person is convicted of an offence under this section in respect of
any conduct, that conduct is not punishable as contempt of court.
A person cannot be convicted of an offence under this section in respect of
any conduct which has been punished as a contempt of court. A person guilty of an offence under
this section is liable—
(5) (a) on conviction on indictment, to imprisonment for a term not exceeding five
years, or a fine, or both; and
(b) on summary conviction, to imprisonment for a term not exceeding
twelve months, or a fine ..., or both. ...”

5. Forced marriage.

Forced Marriage Protection Orders

While arranged marriages are seen as perfectly acceptable, forced marriages are an abuse of
human rights. Recognition that this constitutes a serious problem resulted in the introduction of a
private members’ bill by Lord Lester of Herne Hill in 2006. There was wide parliamentary support for

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Family Law Revision Notes (Units 6 – 10)

this and the Government took over the bill, which was enacted as the Forced Marriage (Civil
Protection) Act 2007. This inserted Part 4A into the Family Law Act 1996 to enable courts to
make ‘forced marriage protection orders’.

(a) The order

Under s 63A, a court may make a forced marriage protection order: for the purposes of protecting—
(a) a person from being forced into a marriage or from any attempt to be forced
into a marriage; or
(b) a person who has been forced into a marriage.

Section 63A(4) provides that ‘a person (“A”) is forced into a marriage if another person (“B”) forces
A to enter into a marriage (whether with B or another person) without A’s free and full consent.’ The
conduct forcing A to enter into the marriage need not be directed against A her- or himself and
‘force’ includes to ‘coerce by threats or other psychological means’ so that a threat that a sibling will
be prevented from continuing their education, or that a parent will be shamed before the community,
if the victim does not go through with the marriage could amount to sufficient coercion. The burden
of proof is on the applicant and the standard of proof is the simple balance of probabilities.

As with non-molestation orders under s 42, in deciding whether to make an order, the court must
have regard to all the circumstances including the need to secure the health, safety and well-being
of the person to be protected and in ‘ascertaining that person’s well-being, the court must, in
particular, have such regard to the person’s wishes and feelings (so far as they are reasonably
ascertainable) as the court considers appropriate in the light of the person’s age and
understanding.’

An order made under the section may contain such prohibitions, restrictions or requirements (which
could include prohibitions on travel abroad or surrender of passports, or an order to reveal the
whereabouts of the victim) and such other terms as the court considers appropriate and may in
particular, ‘relate to conduct outside England and Wales as well as (or instead of) conduct within
England and Wales’. Respondents may include those who aid, abet, counsel, procure, encourage,
assist or conspire to force, or attempt to force, a person into a marriage.

Who can apply?

Importantly, under s 63C, a court may make an order on application or when already hearing family
proceedings in which the respondent to the order is a party. An application may be made by the
victim, a ‘relevant third party’ (specified by the Lord Chancellor as a local authority) or any other
person who is given leave, such as a concerned family member. In deciding whether to grant leave,
the court:

must have regard to all the circumstances including—

 the applicant’s connection with the person to be protected;
 the applicant’s knowledge of the circumstances of the person to be protected; and
 the wishes and feelings of the person to be protected so far as they are
 reasonably ascertainable and so far as the court considers it appropriate, in the light of the
person’s age and understanding, to have regard to them.

Power of arrest

Under the Anti-Social Behaviour, Crime and Policing Act 2014, Part 10, breach of an order has
become a criminal offence so that a power of arrest automatically exists and these provisions have
been repealed.

Effectiveness

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Family Law Revision Notes (Units 6 – 10)

Bedfordshire Police v U and another

In Bedfordshire Police v U and another Holman J, in holding that the police had no standing to
commit persons suspected of breach of an order for contempt of court, concluded that in his view,
the case revealed ‘a grave weakness in the existing forced marriage protection order machinery’.
He called on the Government to give urgent consideration to improving the effectiveness of forced
marriage protection orders and the means of their enforcement but noted that it was not for him to
suggest how that should be done.

The Anti-Social Behaviour, Crime and Policing Act 2014 s 121 provides that a person commits
an offence if he or she:

uses violence, threats or any other form of coercion for the purpose of
causing another person to enter into a marriage, and
(b) believes, or ought reasonably to believe, that the conduct may cause the
other person to enter into the marriage without free and full consent.
(3)(a) practises any form of deception with the intention of causing another person
to leave the United Kingdom, and
(b) intends the other person to be subjected to conduct outside the United
Kingdom that is an offence under subsection (1) or would be an offence under that subsection of the
victim were in England and Wales.

Section 121(4) provides that ‘marriage’ ‘means any religious or civil ceremony of marriage (whether
or not legally binding)’. Some people (particularly in the Muslim community) may hold a religious
wedding which is not recognised under the civil law, leaving them without the protections that
accrue to spouses (for example, if the relationship breaks down and financial support is needed).
The status of the marriage has not been discussed in any reported decision on the making of a
forced marriage protection order, but the same definition applies to the Family Law Act under s 63S.

UNIT 9

1. The impact of the Human Rights Act on Children Law

Beginning with the Universal Declaration of Human Rights (1948), which, in Article 16(3),
provides that the family ‘is the natural and fundamental group unit of society and is entitled to
protection by society and the State’ there has been increasing attention paid to mechanisms for
enhancing the position of the family.

The American Convention on Human Rights (1969) attempts, perhaps not wholly successfully, to
deal with this problem by heading its Art 17 ‘Rights of the Family’ and then including within that
Article the rights of individuals within the family. Nonetheless, international efforts to support
families, and to protect family members, have grown apace. These have manifested themselves in
a variety of international instruments. Some of these can be seen as ‘norm-setting’, such as the
Universal Declaration itself or the European Convention on Human Rights, and the United
Nations Convention on the Rights of the Child (UNCRC), which sets out an extensive list of the
rights, both civil and political, and social and economic, which a child should enjoy.

At the global level, the most important of the international instruments may be seen as the UNCRC
of 1989, now signed by over 200 states, including the United Kingdom in 1991. This Convention
sets out a variety of rights which must be safeguarded by signatory States through their internal
laws. While focusing upon the rights of the child, both within the family, and in relation to the State, it
marks an important stage in the international recognition of the family as a distinct unit.

European Convention on Human Rights

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Family Law Revision Notes (Units 6 – 10)

Although the United Kingdom was one of the original signatories to the European Convention for
the Protection of Human Rights and Fundamental Freedoms (having ratified it in 1951) and,
since 1966, has allowed individuals to take their complaints to the European Court of Human Rights
in Strasbourg, the Convention remained solely an international obligation until its incorporation by
the Human Rights Act 1998 which came into force in October 2000.

So far as family law is concerned, the two key Articles of substantive relevance are Art 8, which
provides that everyone has the right to respect for his private and family life, his home and his
correspondence, and Art 12, which provides that men and women of marriageable age have the
right to marry and to found a family according to the national laws governing the exercise of this
right. Four other Articles of substantive relevance are Art 3 relating to the right not to be tortured or
be subject to inhuman and degrading treatment or punishment, Art 5 which provides for the right to
liberty and security of person, Art 14 which provides that the enjoyment of the rights prescribed by
the Convention shall be secured without discrimination, and, of major procedural relevance, Art 6,
under which in the determination of civil rights everyone is entitled to a fair and public hearing within
a reasonable time. The 1998 Act is without prejudice to the right of any individual alleging a
violation of a Convention right to apply to the European Court of Human Rights in Strasbourg after
exhausting local remedies. So far as (a) is concerned, s 2 only requires case-law to be taken into
account but the jurisprudence is not binding in any strict sense of precedent, and indeed it is open
to the English courts to go further than the European Court of Human Rights.

Section 4 declarations

Once it has been concluded that it is not possible to read and give effect to legislation in a way that
is compatible with the Conventions, then, but only then, under s 4 is it open to the High Court and
the appellate courts to make a formal declaration of incompatibility.

Section 4 declarations have been relatively rarely made but one example is Bellinger v Bellinger in
which the House of Lords declared s 11(c) of the Matrimonial Causes Act 1973 (which required
the parties to the marriage to be respectively male and female) to be incompatible with Arts 8 and
12. It seems that declarations can only be made in respect of specific provisions; it is not therefore
possible to make a declaration of incompatibility against the scheme of a whole Act.

Sections 7 and 8 of the Human Rights Act 1998 have conferred extended powers on the courts.
Section 6 makes it unlawful for a public authority to act in a way which is incompatible with a
Convention right. Section 7 enables victims of conduct made unlawful by section 6 to bring court
proceedings against the public authority in question. Section 8 spells out, in wide terms, the relief a
court may grant in those proceedings. The court may grant such relief or remedy, or make such
order, within its powers as it considers just and appropriate. Thus, if a local authority conducts itself
in a manner which infringes the Article 8 rights of a parent or child, the court may grant appropriate
relief on the application of a victim of the unlawful act.

2. The definition of children in need, the local authority’s duties and responsibilities to
children in need and to children in their area including the provision of accommodation
under s20 Children Act.

Who are ‘children in need’?

Section 17(10) provides that a child shall be taken to be in need if:

(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving
or maintaining, a reasonable standard of health or development without the provision for him of
services by a local authority under this Part;
(b) his health or development is likely to be significantly impaired, or further
impaired, without the provision for him of such services; or

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Family Law Revision Notes (Units 6 – 10)

(c) he is disabled, and ‘family’, in relation to such a child, includes any person who has parental
responsibility for the child and any other person with whom he has been living.

Section 17(11) explains what is meant by ‘disabled’, ‘development’, and ‘health’.1

R (G) v Barnet London Borough Council; R (W) v Lambeth London Borough Council; R (A) v
Lambeth London Borough Council

The nature of the duty in section 17(1) was explored by the House of Lords in three conjoined
appeals, R (G) v Barnet London Borough Council; R (W) v Lambeth London Borough Council; R (A)
v Lambeth London Borough Council. In each case the claimants were single parent mothers. In
each case, it was argued that the effect of section 17(1) of the Children Act 1989 was that the
respondent local authorities owed a duty to each individual child in need to provide that child with
residential accommodation to enable the child to live with his or her mother if an assessment
showed that that was required to meet the children’s needs. However, the House of Lords held that
section 17(1) is a general ‘framework’ duty ‘owed to the local population and did not result in a
mandatory duty to meet the assessed needs of every individual child regardless of resources’.

Schedule 2 to the Children Act 1989

Schedule 2 supplements section 17, providing that local authorities ‘shall make such provision as
they consider appropriate’ for the following services: advice, guidance and counselling;
occupational, social, cultural, or recreational activities; home help; assistance with travelling; or to
enable the child concerned and his family to have a holiday.

In relation to disabled children, paragraph 6 of Schedule 2 provides that every local authority shall
provide services designed to minimise the effect on disabled children within its area of their
disabilities; and to give such children the opportunity to lead lives which are as normal as possible;
and to assist individuals who provide care for such children to continue to do so, or to do so more
effectively, by giving them breaks from caring. Under section 18, a local authority ‘shall’ provide day
care for pre-school children in need as is appropriate; it ‘may’ provide such care for other children.

Several provisions within Schedule 2 to the Act are concerned with providing services to avoid the
need for compulsory intervention in the family. Schedule 2, paragraph 4(1) provides that every
local authority ‘shall take reasonable steps, through the provision of services under Part III of this
Act, to prevent children within their area suffering ill-treatment or neglect’.

Provision of accommodation for children

Local authorities have a general duty to take steps, so far as reasonably practicable, to secure
sufficient appropriate accommodation for the children whom the local authority may need to look
after. Like section 17, this is a duty to children in need in general.

Key legislation

In addition, section 20(1) of the Children Act 1989 provides:

Every local authority shall provide accommodation for any child in need within their area who
appears to them to require accommodation as a result of—
there being no person who has parental responsibility for him;

1
It provides:
For the purposes of this Part, a child is disabled if he is blind, deaf or dumb or suffers from mental disorder of
any kind or is substantially and permanently handicapped by illness, injury or congenital deformity or such
other disability as may be prescribed; and in this Part— ‘development’ means physical, intellectual, emotional,
social or behavioural development; and ‘health’ means physical or mental health.

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Family Law Revision Notes (Units 6 – 10)

his being lost or having been abandoned; or

the person who has been caring for him being prevented (whether or not permanently, and for
whatever reason) from providing him with suitable accommodation or care.
Section 20(6) of the Children Act 1989 specifically provides that:
Before providing accommodation under this section, a local authority shall, so far as is reasonably
practicable and consistent with the child’s welfare—
(a) ascertain the child’s wishes and feelings regarding the provision of accommodation; and
(b) give due consideration (having regard to his age and understanding) to such
wishes and feelings of the child as they have been able to ascertain.

Unlike the duty in section 17 of the Children Act 1989, this duty is owed to individual children. In R
(G) v Southwark London Borough Council (the facts of which are discussed later in this chapter),
the House of Lords indicated that applying section 20(1) ‘involves an evaluative judgment on some
matters but not a discretion’. Baroness Hale of Richmond, who delivered the leading opinion, set out
the following series of questions which must be considered when deciding whether s. 20 applies.

Is the applicant a child?

The first question is whether the local authority is dealing with a child. In most cases it will be clear
from a person’s birth certificate or other formal documentation that a person is under 18 and
therefore a child for the purpose of the Children Act 1989, as defined in section 105(1) of the Act.

Such questions arose in R (On the application of A) v Croydon London Borough Council; R (On the
application of M) v Lambeth London Borough Council. The Supreme Court held that the term ‘child’
within the Children Act 1989 is ‘defined in wholly objective terms’ and is not simply a matter of a
local authority’s opinion as to whether a person is a child. In other words, it is a jurisdictional fact
going to the operation of the Children Act 1989.

Is the applicant a child ‘in need’?

By contrast, whether a child is ‘in need’ within the meaning of the Act is a question of judgement to
be left to the relevant local authority. The local authority’s judgement can only be interfered with on
the principle set out in Associated Provincial Picture Houses Ltd v Wednesbury Corp (ie, if no local
authority could rationally have reached that conclusion). In most cases in which a child is without a
home, he or she is likely to be ‘in need’.

Is the child within the local authority’s area?

Does he or she appear to the local authority to require accommodation?

Is the need the result of the various factors set out in section 20(1)(a)–(c)? The child’s situation
must fall within one of the paragraphs within section 20(1). An example of the use of section 20(1)
might be where a single parent mother is taken ill and admitted to hospital and thus prevented from
looking after her child. However, section 20(1) would not apply, for example, where a child has
been living independently for some time and may lose his or her accommodation. The words ‘being
prevented from providing him with suitable accommodation or care’ in section 20(1)(c) have been
given a wide construction.

Lord Hope of Craighead commented in R (G) v Barnet London Borough Council; R (W) v Lambeth
London Borough Council; R (A) v Lambeth London Borough Council the words ‘for whatever
reason’ indicate that the widest possible scope must be given to this provision. So, this paragraph
would embrace a child who has been excluded from home by a parent or a situation where a parent
is intentionally homeless.

What are the child’s wishes and feelings regarding the provision of accommodation?

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Family Law Revision Notes (Units 6 – 10)

And the linked question: having regard to the child’s age and understanding, what due consideration
is to be given to those wishes and feelings? In R (G) v Southwark London Borough Council
Baroness Hale of Richmond made clear that ‘there is nothing in s 20 which allows the local authority
to force their services upon older and competent children who do not want them’.

R(M) v Hammersmith and Fulham London Borough Council

Her Ladyship had commented in the earlier case of R(M) v Hammersmith and Fulham London
Borough Council that: there may well be cases in which there is a choice between s 17 and s 20,
where the wishes of the child, at least of an older child who is fully informed of the consequences of
the choices before her, may determine the matter. It is most unlikely that s 20 was intended to
operate compulsorily against a child who is competent to decide for herself.

Ways in which the child can be accommodated

The ways in which a child may be accommodated are set out in section 22C of the Children Act
1989. This provides that unless it would not be consistent with the child’s welfare or would not be
reasonably practicable, the child should be placed with a parent or someone who has parental
responsibility.

It will be recalled that in the cases R (G) v Barnet London Borough Council; R (W) v Lambeth
London Borough Council; R(A) v Lambeth London Borough Council which were discussed earlier in
relation to section 17 of the Children Act 1989, the mothers of the children concerned were
arguing that they should be provided with accommodation together with their children.

The House of Lords indicated that such provisions are concerned with placement, not housing, and
assume that a parent of the child already has accommodation which the child might share.

3. The local authority’s duty to investigate whether the child is suffering or likely to suffer
significant harm.

Investigating whether a child is suffering, or is likely to suffer, significant harm

A local authority have a duty in section 47 of the Children Act 1989 to investigate cases in which it
is suspected that a child may be suffering or likely to suffer significant harm.

Key legislation

Section 47(1) provides: Where a local authority—

are informed that a child who lives, or is found, in their area—
is the subject of an emergency protection order; or is in police protection; ...
have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is
likely to suffer, significant harm,
the authority shall make, or cause to be made, such enquiries as they consider necessary to enable
them to decide whether they should take any action to safeguard or promote the child’s welfare.

There is an identical duty where the local authority itself has obtained an emergency protection
order with respect to a child. The duty in section 47(1)(b) is triggered when the local authority has
reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm.

R(S) v Swindon Borough Council and another

In R(S) v Swindon Borough Council and another Scott Baker J commented that:

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the threshold is quite low. The claimant was found not guilty on seven charges of the indecent
assault of K over an 18-month period.

Enquiries under section 47 are in particular directed towards establishing three things: whether the
authority should make any application to the court, or exercise any of their other powers under the
Children Act 1989 with respect to the child; whether it would be in the best interests of a child who
is the subject of emergency protection to be in local authority accommodation; and whether, in the
case of a child who has been taken into police protection, it would be in the child’s best interests for
the local authority to ask for an application to be made for an emergency protection order under
section 46(7).

By section 47(4) the local authority is under a duty to take such steps as are reasonably practicable
to obtain access to the child ‘unless they are satisfied that they already have sufficient information
with respect to him’. Section 47(6) follows up this provision by providing that where, in the course of
the section 47 enquiries, any officer of the local authority concerned is refused access to the child
concerned or is denied information as to his whereabouts, ‘the authority shall apply for an
emergency protection order, a child assessment order, a care order or a supervision order with
respect to the child unless they are satisfied that his welfare can be satisfactorily safeguarded
without their doing so’.

Section 47(9) emphasises the importance of inter-agency cooperation by placing a duty on

specified persons (listed in s 47(11)) to assist the local authority in conducting its enquiries unless it
would be unreasonable in all the circumstances of the case. Of course, the value of different
agencies working together in the early detection and prevention of child abuse is emphasised in the
guidance issued under the Act. The conduct of an investigation under section 47 requires not only
the cooperation of other agencies, but also the cooperation of persons with parental responsibility
for the child. Section 47 does not give a local authority any coercive powers and nothing in section
47 empowers a local authority to enter premises.

4. Emergency protection orders and child assessment orders and police protection.

Key legislation

Section 47(1) provides: Where a local authority—

are informed that a child who lives, or is found, in their area—
is the subject of an emergency protection order; or is in police protection; ...
have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is
likely to suffer, significant harm,
the authority shall make, or cause to be made, such enquiries as they consider necessary to enable
them to decide whether they should take any action to safeguard or promote the child’s welfare.

There is an identical duty where the local authority itself has obtained an emergency protection
order with respect to a child. The duty in section 47(1)(b) is triggered when the local authority has
reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm.

Where an assessment of the child is being frustrated in this way, the most appropriate response
might be for a local authority or the NSPCC to apply for a child assessment order under section 43
of the Children Act 1989.

Key legislation

Section 43(1) provides that a child assessment order may be made if, but only if, the court is
satisfied that:
(a) the applicant has reasonable cause to suspect that the child is suffering, or
is likely to suffer, significant harm;

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(b) an assessment of the child’s health or development, or the way in which he

has been treated, is required to enable the applicant to determine whether or not the child is
suffering, or is likely to suffer, significant harm; and
it is unlikely that such an assessment will be made, or be satisfactory, in the absence of an order
under this section.

It is important to appreciate that a child assessment order is not the appropriate order in a case in
which a child requires emergency protection. Section 43(4) provides that no court shall make a
child assessment order if it is satisfied that there are grounds for making an emergency protection
order and that it ought to make such an order rather than a child assessment order.

Police protection: Children Act 1989, section 46

Section 46, together with Home Office Circular 017/2008, provides a code of guidance on how the
police should exercise their powers, and how they should inform the parents and liaise with the local
authority once they have taken the child into police protection. No child may be kept in police
protection for more than 72 hours. However, while a p. 694↵child is being kept in police protection, a
designated officer may apply on behalf of the appropriate authority for an EPO to be made under
section 44 with respect to the child.

Langley v Liverpool City Council

In Langley v Liverpool City Council the Court of Appeal considered the relationship between an
EPO and the use of police protection. The judge had held that, if an EPO is in force, the police
cannot invoke section 46, and the only part that the police can play is by assisting, authorised by a
warrant under section 48(9). The Court of Appeal disagreed with this analysis, holding that there ‘is
nothing in the language of the Act which compels the conclusion that s 46 cannot be invoked where
an EPO is in force’. However, the court held that ‘discretionary statutory powers must be exercised
to promote the policy and objects of the statute’ and that ‘the statutory scheme clearly accords
primacy to s 44’. The court therefore held that ‘where a police officer knows that an EPO is in force,
he should not exercise the power of removing a child under s 46, unless there are compelling
reasons to do so’.

The court explained that: ‘(i) removal of children should usually be effected pursuant to an EPO; and
(ii) s 46 should be invoked only where it is not practicable to execute an EPO. In deciding whether it
is practicable to execute an EPO, the police must always have regard to the paramount need to
protect children from significant harm’.

A v East Sussex County Council and Chief Constable of Sussex Police

Langley was applied in A v East Sussex County Council and Chief Constable of Sussex Police. A
baby was admitted to hospital after the mother alerted the emergency services to the fact that the
child had stopped breathing. The child was removed into foster care using the power of police
protection in section 46. The mother subsequently agreed to go with the child to a mother and baby
unit and following a positive assessment the mother and baby were allowed to go home.
Proceedings were discontinued.

The mother then brought a claim under section 7 of the Human Rights Act 1998 against the police
and East Sussex County Council, the issue being whether the actions of the respondents were
lawful and proportionate. The judge dismissed the claim and the mother’s appeal to the Court of
Appeal was dismissed. The Court of Appeal held that in the circumstances the judge had been
entitled to reach the view that the respondents’ actions were lawful. Applying Langley v Liverpool
City Council, the court held that on the facts as honestly and reasonably believed by the
respondents at the time it had not been practicable to execute an EPO.

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Re D (Unborn Baby)

In Re D (Unborn Baby) the question arose as to whether it was lawful for the local authority to
conceal from a pregnant mother and her partner its plan to remove the child immediately upon birth
under section 46 of the Children Act 1989. On an occasion of supervised contact, the mother had
blindfolded and gagged the child before threatening her with a knife over a period of 15 minutes. As
the child was not yet born, the court did not have any powers under the Children Act 1989 nor
could the court exercise its inherent jurisdiction. Munby J held that the same principles that apply
regarding the necessity and proportionality of state intervention in family life applied to the question
before him. The test is therefore: ‘Is the step which the local authority is proposing to take, that is,
the step of not involving the parents in its planning and not communicating to the parents its plan for
immediate removal at birth, something which is justified by “the overriding necessity of the interests
of the child” or something which is “essential to secure [the child’s] safety”?’

5. Interim care and supervision orders and the court’s powers to order assessment of the
child.

Interim care and supervision orders

Where the local authority concludes that the only way to provide the child with the protection
needed is for it either to share parental responsibility with his or her parents or to have the power
formally to supervise the child’s upbringing, it must bring an application for a care order or
supervision order.

Key legislation

Section 31(2) of the Children Act 1989 provides:

A court may only make a care order or supervision order if it is satisfied—
(a) that the child concerned is suffering, or is likely to suffer, significant harm;
and that the harm, or likelihood of harm, is attributable to—
(b) (i) the care given to the child, or likely to be given to him if the order were not
made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child’s being beyond parental control.

Section 38(1) provides that where in any proceedings for a care order or supervision order the
proceedings are adjourned, the court may make an interim care order or an interim supervision
order. There is also power to make an interim order where the court gives a direction under section
37(1) that the local authority should investigate the child’s circumstances.

Duration of interim orders

Section 38 makes provision for various time limits to be imposed when an interim order is made.
The temporary nature of an interim order allows the court to maintain a degree of control over the
steps taken by the local authority in the interim period. Issues can be raised about how the local
authority is exercising its parental responsibility under the order each time an application is made for
the renewal of the order. Where the court is dissatisfied with action taken by the local authority it
can refuse to make a further interim order.

Re Q (Child—Interim Care Order—Jurisdiction)

In Re Q (Child—Interim Care Order—Jurisdiction) Knowles J held that no interim care or

supervision order can endure beyond the date of a child’s 17th birthday or the date of a child’s
marriage, if aged 16 and thus she could not make an interim order in respect of one of the children
before her in care proceedings. Noting that the court in public law proceedings need not make a
care or supervision order and could, for example, make an order under section 8 of the Children

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Act 1989, Knowles J was not convinced that proceedings at the welfare stage ‘would necessarily
lack purpose and must fall away once the jurisdiction to make either interim or final public law orders
is lost’.

A City Council v A Mother and others

Indeed, subsequently following up this decision, in A City Council v A Mother and others her
ladyship exceptionally permitted the proceedings in respect of the 17-year-old to continue and,
because of concerns about risks to her from travelling abroad, made an order under the inherent
jurisdiction that the child’s passport be held by the local authority until her 18th birthday.

Interim care and supervision orders: the threshold

An application for an interim care or supervision order ‘must be approached in two stages’. The first
stage is the threshold contained in section 38(2) of the Children Act 1989, which provides that a
court shall not make an interim care order or an interim supervision order unless it is satisfied that
there are reasonable grounds for believing that the circumstances with respect to the child are as
mentioned in section 31(2). This means that the court does not have to be satisfied in fact that the
grounds exist but simply that there are reasonable grounds for believing that they do.

Deciding whether or not to grant the order and whether immediate removal is necessary

If the threshold is passed, the court must then go on to consider as a discrete issue whether or not
to grant the order. This is a question to which section 1 of the Children Act 1989 applies, which
must be applied having regard to the purpose of an interim order, which is to ‘establish a holding
position pending a full hearing’. As the Court of Appeal put it in Re G (Minors) (Interim Care Order),
the ‘making of an interim care order is an essentially impartial step, favouring neither one side nor
the other, and affording no one, least of all the local authority in whose favour it is made, an
opportunity for tactical or adventitious advantage’.

Re G (Minors) (Interim Care Order)

As the Court of Appeal put it in Re G (Minors) (Interim Care Order), the ‘making of an interim care
order is an essentially impartial step, favouring neither one side nor the other, and affording no one,
least of all the local authority in whose favour it is made, an opportunity for tactical or adventitious
advantage’.

Re LA (Care: Chronic Neglect)

Thorpe LJ explained in Re LA (Care: Chronic Neglect) that p. 699↵‘the decision taken by the court
on an interim care order application must necessarily be limited to issues that cannot await the
fixture and must not extend to issues that are being prepared for determination at that fixture’. An
application for an interim order is not a trial run for the final hearing, and the courts have ruled that
evidence, and the cross-examination of witnesses, should be restricted to the issues which are
essential at the interim stage.

UNIT 10

1. The threshold criteria test in s31 Children Act 1989

At the final hearing, the court considers the issues in two stages:
1. Meeting the threshold criteria under s. 31(2) of the Children Act 1989;
2. If the threshold criteria is met, assessing the welfare of the child to determine what should
happen in the best interests of the child.

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The first stage is the threshold criteria. In this stage, the court must be satisfied that, on the balance
of probabilities, all parts of the threshold criteria in s. 31(2) of the Children Act 1989 are met. If they
are not all met, the court cannot intervene. In the recent case of Re B (A Child) (Care Proceedings:
Appeal) the Supreme Court gave lengthy guidance on the nature of the court’s evaluation. The
decision whether all parts of the threshold are crossed is a value judgement which must be made on
the basis of established facts. The welfare principle is not relevant and the family’s rights under
Article 8 ECHR have no part to play in deciding whether the threshold is crossed.

The second stage is the welfare assessment. This takes place only if all parts of the threshold
criteria have been met. The court will decide what order to make, using the principles in the
Children Act 1989, with the child’s welfare being the paramount consideration, and taking into
account the family’s Convention rights. The order could be a care order, a supervision order, a
Children Act 1989, s. 8 order or no order at all. Even if the threshold criteria are met, there is no
obligation on the court to make a care order: in the House of Lords case of Lancashire County
Council v B (A Child) (Care Orders: Significant Harm) Lord Clyde said that ‘the section merely
opens the way to the possibility that an order may be made’.

Final hearing: threshold criteria

The first stage for the court in care proceedings is to establish whether all parts of the threshold
criteria set out in s. 31(2) of the Children Act 1989 are met.

2: Key Legislation s. 31(2)

A court may only make a care order or supervision order if it is satisfied—
(a) that the child concerned is suffering, or is likely to suffer, significant harm;
and that the harm, or likelihood of harm, is attributable to—
(b) (i) the care given to the child, or likely to be given to him if the order were not
made, not being what it would be reasonable to expect a parent to give to him; or
the child’s being beyond parental control.

Case Re M (A Minor) (Care Order: Threshold Conditions) [1994] 2 AC 424

This case concerned a little boy whose mother had been brutally stabbed to death by his father
when he was 4 months old. The murder took place in the family home in front of him and his three
half-siblings. By the time of the appeal hearing before the House of Lords, the boy had spent the
past seven months living with his brothers and sisters, cared for by his mother’s cousin. The Court
of Appeal had held that the court had no jurisdiction to make a care order because the ‘is suffering’
requirement in the threshold criteria was not met as the little boy was no longer suffering harm. The
House of Lords unanimously held that the court did have jurisdiction to make a care order even
though, by the date of the hearing, the boy was a boisterous, happy and healthy child.

In Re G (Children) (Care Order: Evidence), the Court of Appeal held that the local authority can rely
on information acquired after the date that the local authority first intervened. Lady Hale said that
later information may throw light on the facts known at the relevant date and gave the following
examples: ‘further medical evidence on the interpretation of X-rays and scans, further complaints by
the children, or confessions by the parents’. These types of later information can show what the
situation was at the relevant date and so can be relied upon at the hearing.

Re L (Children) (Care Proceedings: Threshold Criteria)

In Re L (Children) (Care Proceedings: Threshold Criteria) the local authority had started the
proceedings on the basis that the children had been whipped but, on realising that evidence was
lacking, then sought to rely on other allegations that the father was aggressive, that he had failed to
protect the daughter from a sexual assault, and that the children were at risk of emotional harm

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because of the parents’ severe learning difficulties. In fact, although allowed to introduce a different
basis, the local authority’s evidence did not satisfy the court and the parents’ appeal was allowed.

Key Case Re R (A Child) (Care Order: Threshold Criteria) [2009] EWCA Civ 942

This case concerned two girls: one a baby and the other a toddler. The mother had led a chaotic
lifestyle, exposing the toddler to drug taking and violence. The toddler was taken into interim care
and the baby was too, at birth. On appeal, the Court found the threshold crossed with respect to
both children and made a care order. Wilson LJ gave the lead judgement. He said that the recorder
had equated the word ‘likely’ with probability. This was clearly demonstrated on the evidence in this
case. As the threshold was crossed, the Court was able to make an interim care order over both
children.

2. The requirement for a placement order and the court’s power to grant a placement order
and to dispense with parental consent

The Placement Scheme Under the 2002 Act

(a) The general scheme

The general scheme for adoption placements is set out by s 18. There are only two routes:
placements with parental consent and those authorised by court order. By s 18(1), except in the
case of a child who is less than six weeks old, an adoption agency (that is, both a local authority or
a registered adoption society) may only place a child for adoption with prospective adopters where
each parent or guardian has consented to the placement or, if the agency is a local authority, where
it has obtained a placement order.

The birth parent(s) retain parental responsibility notwithstanding a placement, an authorisation to

place or a placement order until the final adoption order is made, though it is shared with the
adoption agency and prospective adopters with whom the child is placed.

(b) Placing children with parental consent

Section 19 allows an adoption agency to place a child for adoption where it is satisfied that each
parent or guardian has consented to the child being placed for adoption and that that consent has
not been withdrawn. The consent may be to placements with identified prospective adopters or with
any prospective adopters who may be chosen by the agency. Consent may be withdrawn at any
point before an application for an adoption order has been made. By s 20, a parent may consent to
the making of a future adoption order at the same time as consenting to the placement. This
‘advance consent’ can be withdrawn before any application to adopt is made but such withdrawal
must be by notice in writing to the agency or in the form prescribed.

(c) Placement orders

When placement orders should be sought:

By s 21(1) a placement order is one made by a court authorising a local authority to place a child
with any prospective adopters who may be chosen by the authority. It will be noted that only local
authorities (and not, therefore, registered adoption agencies) are able to apply for a placement
order.
By s 22 local authorities must apply for a placement order if:
the child is placed for adoption by them or is being provided with accommodation by them;
no adoption agency is authorised to place the child for adoption (ie there is no formal parental
consent);
(c) the child has no parent or guardian or the authority consider that the

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conditions in s 31(2) of the Children Act (the so-called threshold conditions) are met; and
(d) the authority are satisfied that the child ought to be placed for adoption.

Local authorities must also apply if they are satisfied that the child ought to be placed for adoption
and either care proceedings are pending or a care order has been made and the authority are not
authorised to place the child for adoption. Local authorities may also apply for an order
notwithstanding that the child is subject to a care order and the authority is authorised to place the
child for adoption with parental consent.

Deciding whether to make a placement order

The court may only make a placement order if (a) the child is subject to a care order, or (b) it is
satisfied that the statutory threshold criteria for making a care order are satisfied, or (c) the child has
no parent or guardian. Section 21(3) further provides that a court may only make a placement order
if it is satisfied that each parent or guardian has consented to the placement for the child with any
prospective adopters chosen by the authority and have not withdrawn that consent, or that their
consent should be dispensed with.

Re F (a child) (placement order best interests)

In Re F (a child) (placement order best interests), for example, the placement order was discharged
because the child was found not to be ready for adoption since she needed to undergo a
programme of therapeutic training designed to strengthen the bond between her and her main
carer. In determining the application the court is bound by the general principles set out in s 1 of the
2002 Act and in particular must, having regard to the welfare checklist, treat the child’s welfare
throughout his or her life as the paramount consideration and be satisfied, having considered the
whole range of its powers, that making the placement order is better for the child than not doing so.
In this regard, judges should apply the guidelines set out by the Court of Appeal in Re B-S
(Children) (Adoption Order: Leave to Oppose), namely that there be (a) proper evidence from the
local authority and guardian addressing all the realistic options including an analysis of the pros and
cons of each option, and (b) an adequately reasoned judgment evaluating all the options.

Duration and revocation of placement orders

A placement order remains in force until an adoption order is made or until the child marries, forms
a civil partnership or reaches 18 or until it is revoked. Revocation is governed by s 24. It may be
sought at any time by the child or local authority or by anyone else, including a parent, provided
they have court leave and the child has not yet been placed with prospective adopters. By
‘placement’ is meant where the child begins to live with the prospective adopters or, if already living
with them in their capacity of foster parents, when the adoption agency formally allows the child to
continue to live with them in their fresh capacity as prospective adopters.

By s 24(3) leave to apply to revoke a placement order may only be given if there has been a change
in circumstances since the order was made. It is established that granting leave is a two-stage
process, namely, first, determining whether there has been a change of circumstances and, if so,
secondly, determining whether leave should be given. The change of circumstances does not have
to be significant but does need to be of a nature and degree sufficient to open the door to a
consideration of whether leave should be given. If there has been no change of circumstances then
leave cannot be given, but even if there has, that in itself does not justify leave being given: that
remains a matter of judicial discretion, which is the second stage.

3. The requirements of an adoption order and the courts powers to grant leave to oppose an
adoption order.

The Making of Adoption Orders

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Who May be Adopted

While it remains the case that applications may only be made in respect of a person who is under
the age of 18, orders can be made until the person has reached the age of 19. The child must be
single and never been married or entered a civil partnership. An adopted child may be re- adopted.”

Who May Apply for Adoption

(a) Age, health, and domicile of applicant

Currently, reflecting changes originally made by the Children Act 1989, applicants must be 21,
save where the application is made by a couple where it is sufficient if one is the mother or father of
the child and aged at least 18 and the other is at least 21. Although there is no prescribed maximum
age, it should be appreciated that in practice adoption agencies will take age into account
particularly as regards potential adopters for healthy babies.”

(b) Adoptions by one person or a couple

An application for an adoption order may be made by a couple or by one person. Reversing the
former rule that only married couples were allowed to make a joint adoption application, the 2002
Act permits joint applications by spouses (including same sex spouses), civil partners and by ‘two
people (whether of different sexes or the same sex) living in an enduring family relationship’. In
other words, spouses, civil partners and unmarried couples (whether of different sexes or the same
sex) may all apply for joint adoptions though the latter have to prove that they are living ‘in an
enduring family relationship’.

If the sole applicant is the mother or father of the child, by s 51(4), no order may be made unless the
court is satisfied that the other natural parent is dead or cannot be found or by virtue of the Human
Fertilisation and Embryology Act 2008 legislation there is no other parent, or there is some other
reason justifying the child being adopted by the applicant alone. The court must record that it is
satisfied as to either of the first two mentioned facts or, in the latter case, record its reason. Section
51(4) has the potential for severing the ties with the other birth parent rather than to promote the
child’s welfare, which was the issue in Re B (Adoption: Natural Parent).

Re B (Adoption: Natural Parent)

There, a baby had been put up for adoption by an unmarried mother who had informed the father
neither of her pregnancy nor the birth. By chance the local authority discovered the father’s
whereabouts and he, when contacted, expressed the desire to care for the child himself. The child
was placed with him, and the father gave up work to look after her. The Court of Appeal set the
adoption aside, holding that because of the general importance of having two parents adoption was,
within the terms of Art 8 of the European Convention on Human Rights, a disproportionate
response. The House of Lords, however, while agreeing that the circumstances in which it was in
the best interests of the child to be adopted by one parent to the exclusion of the other were likely to
be exceptional, could not fault Bracewell J’s decision, which was accordingly reinstated.

(c) Step-parent adoptions

An important change introduced by the 2002 Act was ending the necessity of the birth parent and
new partner having jointly to adopt. The former requirement meant that to effect a step-parent
adoption the birth parent had to adopt their own child which was described during the debates on
the Bill as a ‘ridiculous anomaly’. This change results, somewhat obscurely, from s 51(2) which
provides that ‘an adoption order may be made on the application of one person who has attained
the age of 21 if the court is satisfied that the person is the partner of a parent of the person to be

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adopted’ and s 46(3)(b) which says that in such cases the adoption by the partner ‘does not affect
the parental responsibility of that parent’.

(d) Adoption by relatives

Although there are no formal restrictions against relatives applying to adopt, the courts have long
had reservations about granting adoption to such applicants not least because it distorts the natural
relationship, particularly in the case of adoption by grandparents. It is also felt that the severance of
legal ties with the birth parents fits uneasily with an adoption within the family. Another concern in
the case of grandparent applicants can be their age.

Special guardianship in particular, but also a child arrangements order dealing with the child’s living
arrangements, offer very real alternatives to adoption by relatives, especially so since the clear
message of Re B-S (Children) (Adoption Order: Leave to Oppose) that alternative options need to
be considered before making an adoption order, they nevertheless do not always rule out the
appropriateness of adoption for such applicants.

N v B and Others (Adoption by Grandmother)

A good example is N v B and Others (Adoption by Grandmother) in which adoption orders in

respect of two children were granted to the maternal grandmother following the murder of the
mother by the father (for which he was serving a life sentence). As Theis J observed, the children
needed a secure home and it was undesirable for the grandmother to share parental responsibility
with the father.

Consent to the Making of an Order

By s 47(2) it is one of the fundamental conditions for the making of an adoption order that:
in the case of each parent or guardian of the child, the court is satisfied—
(a) that the parent or guardian consents to the making of the adoption order,
(b) that the parent or guardian has consented under section 20 (and has not withdrawn the
consent) and does not oppose the making of the adoption
order, or
(c) that the parent’s or guardian’s consent should be dispensed with.
It is by this means that the law recognises and seeks to protect the parental interest. Indeed, so
important is the right to refuse to consent, that it is not lost even if others, including a local authority,
acquire parental responsibility.

(a) Whose consent is required?

The Act requires the consent of each parent or guardian. By ‘parent’ is meant a parent with parental
responsibility. It does not therefore include the unmarried father, unless he has parental
responsibility through registration, court order or agreement. However, if the mother has already
consented to the child’s placement for adoption before the father acquires parental responsibility, he
will be deemed to have given consent.

The parents’ position where their child has been placed by an adoption agency

By s 47(5) a parent may not, without court leave, oppose the making of an adoption order if a child
has been placed by an adoption agency with parental consent or under a placement order. Leave
cannot be given unless the court is ‘satisfied that there has been a change of circumstances since
the consent of the parent was given or, as the case may be, the placement order was made.’

4. The effect of placement and adoption orders.

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The legal effects of placement

Placements or authorisations to place under s 19 and placement orders, give parental responsibility
to the agency concerned and, where placed, to the prospective adopters. Although parents do not
thereby lose parental responsibility, at all times the agency may determine that the parents’ parental
responsibility or that of the prospective adopters be restricted. This latter power, however, is fettered
to the extent that without court leave or the parents’ or guardians’ written consent, no-one can
cause the child to be known by a new surname or remove the child from the United Kingdom for any
period of a month or more.

Placements or authorisations to place under s 19 prevent the parent or guardian from applying for a
child arrangements order regulating the child’s living arrangements and a guardian from applying for
a special guardianship order without court leave. Upon the making of a placement order, any
existing s 8 order under the Children Act 1989 and any supervision order cease to have any effect
and while in force no prohibited steps order, specific issue order, supervision order or child
assessment order may be made.

Separate provision is made for contact by s 26. Any contact provision in an existing s 8 child
arrangements orders and any related activity direction and any s 34 order providing for parental
contact with a child in care cease to have effect upon s 19 placements or authorisations to place
and placement orders; applications can nevertheless be made for a new contact order under s 26.
In this respect note should be taken of the requirement under the Adoption Agencies Regulations
2005, reg 46 (reg 47 of the Adoption Agencies (Wales) Regulations 2005) that agencies should
consider when deciding that a child be placed for adoption what arrangements they should make for
contact. Deciding whether to make a s 26 order is deemed by s 1(7) to be a decision relating to
adoption.

Procedure for the Making of Adoption Orders

1. The Child Must Live with the Applicants before the Making of an Order

Before any adoption order may be made there has to have been a ‘settling in’ period so as to be
able to assess whether such a placement would be in the child’s interests. The required period is
governed by s 42. This provides that in the case of agency placements, placements made in
pursuance of a High Court order or where the applicant is a parent of the child, no application may
be made unless the child has had his home with the applicant or, in the case of an application by a
couple, with one or both of them at all times during the period of 10 weeks before the application.

‘Home’ is not defined in the Act but pre-2002 Act case law considered that, though difficult to define
with precision, it must comprise some element of regular occupation (whether past, present, or
intended for the future, even if intermittent) with some degree of permanency, based on some right
of occupation whenever it is required: it is where you find the fixed comforts of a home; the fixed
residence of a family or household. While ultimately a question of fact to be determined in each
case, a house that is merely visited by members of the family is unlikely to constitute a ‘home’ for
these purposes.

Notice to Local Authority Must be given in Non-Agency Placements

Contact Considerations

1. Section 46(6)

By s 46(6), before making an adoption order:

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the court must consider whether there should be arrangements for allowing any person
contact with the child; and for that purpose the court must consider any existing or proposed
arrangements and obtain the views of the parties to the proceedings.

Notwithstanding s 46(6) and certain judicial statements identifying the value of post-adoption
contact, the general reluctance to impose a contact order against the wishes of adopters that was
evident before the 2002 Act, remains the case after the Act. The tone was set by Wall LJ in Re R
(Adoption: Contact), who said ‘under the jurisprudence which has developed, contact orders in
adoption proceedings are of themselves unusual, and that both the practice of the court and the
courts approaching them have regarded such orders as unusual.’ In that case the Court of Appeal
dismissed an appeal refusing a half-sister leave to apply for contact.

2. Section 51A Orders

Although s 46(6) directs the court to consider contact it does not itself confer a power to make an
order. Instead an order must be sought and made, if at all, either under the 1989 Act in the case of
non-agency adoptions (which means that the welfare principle and checklist under that Act rather
than the 2002 Act and, as just discussed, the leave provisions under the 1989 Act apply) or by
virtue of a new ‘s 51A order’ in the case of agency adoptions (that is, where an agency has placed
or was authorised to place a child for adoption). A s 51A order, which may be made by the court
when making an adoption order or at any time afterwards, is one either:

requiring the person in whose favour the adoption order is or has been made
to allow the child to visit or stay with the person named in the order...or for the person named
in that order to have contact with each other, or (b) prohibiting the person named in the
order...from having contact with the child. It is expressly provided that orders prohibiting
contact can be made by the court on its own initiative, the implication being therefore that
contact orders can only be made upon application.

The child, adoptive applicant(s) and adopter(s) are entitled without court leave to apply for a s 51A
order. Everyone else, including former relatives, need court leave to make an application. In
determining whether to grant leave s 51A(5) directs the court to consider the possible risk of harm
that might be caused to the child by the proposed application, the applicant’s connection to the child
and any representations made to the court by the child, the adoptive applicant(s) or the adopter(s).
A s 51A order may contain directions on how it will be carried into effect and be made subject to
appropriate conditions.

Determining applications under s 51A is deemed to be ‘coming to a decision relating to the adoption
of a child’ within the meaning of s 1(7). Consequently, in contrast to an application made under the
1989 Act in relation to non-agency adoption, the welfare principles and checklist under s 1 of the
2002 Act apply. The s 51A powers, where applicable, supersede those under a child arrangements
order and a specific issue or prohibited steps order may not be made when the same result could
be achieved by a s 51A order.

5. Post–adoption contact

Contact Considerations

1. Section 46(6)

By s 46(6), before making an adoption order:

“the court must consider whether there should be arrangements for allowing any person
contact with the child; and for that purpose the court must consider any existing or proposed
arrangements and obtain the views of the parties to the proceedings. Although, as discussed

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earlier, it has long been accepted that in principle the court may make an order for post-
adoption contact this was the first statutory recognition of such a power.

Notwithstanding s 46(6) and certain judicial statements identifying the value of post-adoption
contact, the general reluctance to impose a contact order against the wishes of adopters that was
evident before the 2002 Act, remains the case after the Act. The tone was set by Wall LJ in Re R
(Adoption: Contact), who said ‘under the jurisprudence which has developed, contact orders in
adoption proceedings are of themselves unusual, and that both the practice of the court and the
courts approaching them have regarded such orders as unusual.’ In that case the Court of Appeal
dismissed an appeal refusing a half-sister leave to apply for contact.

6. Special guardianship orders.

Alternatives to Adoption: Special Guardianship

Although the Labour Government was strongly committed to adoption as the preferred option for
children in care, it recognized that there would remain some children for whom adoption was not
appropriate. The ACA 2002 therefore amended the CA 1989 to make available a new alternative
order for securing permanence outside the care system termed special guardianship. The rationale
behind this new order is explained in the 2000 White Paper:

An application for a special guardianship order may be made by: (i) the child’s guardian; (ii) any
person in whose favour a child arrangements order (CAO) providing for a child to live with him/her is
in force with respect to the child; (iii) any person with whom the child has lived for at least three
years; (iv) any person who has the consent of any person in whose favour a ‘lives with’ CAO is in
force; (v) any person who has the consent of the local authority if the child is in care; (vi) any person
who has the consent of all persons with parental responsibility for the child; (vii) a local authority
foster parent with whom the child has lived for a period of at least one year immediately preceding
the application; and (viii) any relative with whom the child has lived for at least one year immediate
preceding the application. Anyone else may apply with leave. The court may also make a special
guardianship order of its own motion in any family proceedings.

The main effect of the order is to confer parental responsibility on the special guardian. Special
guardianship is, however, intended as a stronger, more permanent measure than a CAO. The
special guardian is thus entitled to exercise parental responsibility to the exclusion of any other
person. Whilst the order is in force the child’s surname cannot be changed and the child cannot be
removed from the jurisdiction other than by the special guardian for a period of no more than three
months without leave of the court. Unlike an adoption order, a special guardianship order does not
automatically discharge a s 8 order.

The Court of Appeal has provided helpful guidance on special guardianship in three important
cases. The three cases were all concerned with one central issue: whether it was more appropriate
for the child to be adopted or made the subject of a special guardianship order. The three appeals
were heard by differently constituted courts but Wall LJ, giving judgment in Re S (A Child) (Adoption
Order or Special Guardianship Order), provided a general ‘commentary’ on the new legislative
provisions which was adopted in all three appeals.

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