Contemporary Family Law

Susan S. M. Edwards is Professor of Law at Northumbria University, Barrister, Door tenant at Red Lion Chambers London, expert witness, Emerita Professor of Law of University of Buckingham, and has taught and published extensively in the area of family law, homicide, partner and child abuse and gender and human rights. Judith Bray is Barrister and Emerita Professor of Law at University of Buckingham. With many years’ experience of teaching family law at degree level and for professional examinations, Judith has published extensively on property law and equity and trusts, particularly rights in the family home.

Preface xiii

List of abbreviations xv

Table of cases xvii

Table of statutes xix

Table of statutory instruments xxi

1 Introduction to family law 1

What is family law? 1

Rights and obligations 3

Evolving definitions of the family 4

Excluded relationships 5

Challenges to family law 6

The international family 8

Human rights 9

International conventions 9

Challenges to the operation of family justice 10

Judging judges and justice 10

Accountability 12

Organisation of the text 12

References 13

2 State intervention in personal relationships 14

Form v Function 15

Definitions and formation of relationships 19

Self-test questions 45

References 45

Further reading 46

3 Nullity and its consequences 48

Nullity: An important concept 48

Void or voidable relationships 49

Self-test questions 72

References 73

Further reading 74

4 Acquisition and protection of rights in the family home 75

The family home: An overview 75

Self-test questions 106

References 107

Further reading 108

5 Protecting adults from domestic abuse – the civil remedies 109

Contemporary definitions and very public cases 110

History: challenging the common law 115

Domestic abuse incidence and the criminal law 119

Civil remedies for domestic violence and abuse 123

Family Law Act 1996, Part IV s 33–41, 43–49: occupation rights 124

Family Law Act 1996, Part IV: s 42–42A, 43–49: non-molestation orders 131

Other forms of abuse and legal protections 136

More protection needed: closing remarks 141

Self-test questions 145

References 146

Further reading 150

6 Ending relationships 152

The new procedure 161

Civil partnerships 168

Self-test questions 170

References 170

Further reading 171

7 Financial consequences of relationships 172

Part I ownership of personal property and rights to maintenance during a relationship 173

Part II financial consequences of ending the relationship 178

Self-test questions 223

References 224

Further reading 225

8 The elderly, their rights in family life and death and its consequences 227

Social care of the elderly 231

On whom should the burden of care fall? 231

Abuse of the elderly 232

Self-test questions 252

References 252

Further reading 254

9 Family life – parents and carers: From parental rights to responsibilities 255

Parenting histories – the exclusive father 257

Demise of paternal authority and rise of parental responsibility 259

Today – who is a parent in fact? 263

Genetic – biological parents and the natural parent presumption 265

Gestational – parentage 268

Social and psychological parentage – the importance of attachment 277

Legal parents and parental responsibility 281

Parental responsibility: who is entitled? 285

Court orders parental responsibility 286

Other parents – stepmothers and stepfathers’ parental responsibility 294

Concluding remarks – family rights – article 8 ‘family life’ 295

Self-test questions 296

References 297

Further reading 299

10 Adoption – only permissible if nothing else will do 301

History of UK adoption 303

The legislation 304

Who can be adopted? And who can adopt 304

The current legal framework 307

Court orders 313

The placement order 319

Adoption order – when nothing else will do 321

Adoption or special guardianship order 322

Other orders 329

International adoption 331

Closing remarks: ‘nothing else will do’ 334

Self-test questions 337

References 338

Further reading 340

11 Adolescent autonomy – the right to decide and to participate in court proceedings 342

Rights of the child and adolescent: general principles and sources of law 343

Under 16-year-olds and the Gillick competence precept 350

Applying Gillick – how can an adolescent acquire competence? 353

‘Gillick competence’: only a right to refuse consent? 355

Refusing saying no no no to blood, organs, sedation 359

Wardship – trump card 363

Adolescent participation in legal proceedings 367

Judicial activism or judicial paternalism 373

End game – a matter for Parliament! 376

Self-test questions 377

References 378

Further reading 380

12 Putting child welfare first in child ‘custody’ and private disputes 381

Child custody throughout history 383

When parents fall out today 385

Partnership – conciliation and mediation 387

The legal framework 388

Guiding principles of the Children Act 389

The welfare checklist: six factors 391

Section 8 – the orders 400

Child arrangement order (CAO) for residence 401

Child arrangement order (CAO) for contact 403

Abusive partners and contact strategies 406

Specific issue order 410

Prohibited steps order 412

International relocation and abduction 414

International law 416

A legitimacy crisis in private law 425

Self-test questions 427

References 428

Further reading 431

13 The limitless jurisdiction of wardship 433

Contemporary high profile wardship cases 434

From the ancient to the modern jurisdiction of wardship 434

The inherent jurisdiction 436

The legal framework of wardship 438

Strictly wardship 440

The limitless jurisdiction 445

Practice direction 12d [1,2](b) – orders to prevent undesirable association 448

Practice direction 12d [1.2](c) – orders relating to medical treatment 12d [1.2](c) 450

Practice direction 12j (pd) wardship, abduction and habitual residence 459

Reform of wardship 463

Self-test questions 463

References 464

Further reading 465

14 Child protection: Local authority, the court and public law procedure 467

High profile cases 468

Child abuse – an historical denial 468

Abuse – from discrete incidents to totality context 472

Child abuse – an epidemic 478

The legal and procedural framework of safeguarding 479

Orders during the preliminary stage 490

Court interim orders 497

Child protection requires truth – fact finding expert opinion and the truthful parent 498

Concluding remarks – how well is the local authority doing in child protection? 504

Self-test questions 505

References 506

Further reading 509

15 ‘Significant harm’: Judicial interpretations and state politics 510

Social policy and the threshold 512

The legal framework 513

Evidence – burden and standard 515

What conduct falls under ‘significant harm’ s 31(10)? 516

Present significant harm: a temporal question 524

General principles pre-emptive strike 526

The much contested case – Re H and R (1995) ‘likely to suffer’ 528

Care proceedings applications of sexual abuse in the shadow of Re H and R 530

Truth – uncertain perpetrators and physical injury 534

Supervision orders 543

Finale – how better can we protect children? 547

Self-test questions 549

References 550

Further reading 552

16 Financial provision for children 554

Background to child support 555

Child support: history 557

Self-test questions 579

References 579

Further reading 580

Index 582