Contents. 1 What is family law? 1. Guided tour Table of cases Table of statutes Table of statutory instruments Table of European legislation

Transcription

1 Preface Guided tour Table of cases Table of statutes Table of statutory instruments Table of European legislation xxi xxii xxiv Iviii Ixix Ixxi 1 What is family law? 1 1. Seeking a definition of the family 1 A. The person in the street's definition 2 B. A formaiistic definition 2 C. A function-based definition 3 D. An idealised definition 3 E. A self-definition approach 4 F. Do we give up? 4 G. Discussion of how the law defines families 5 H. New families? 6 2. Should family life be encouraged? 11 A. Proposing new visions for families Approaches to family law 14 A. What is family law? 14 B. How to examine family law Current issues in family law 22 A. How the state interacts with families 22 B. Privatisation of family law 22 C. The decline in 'moral judgements' 24 D. Sending messages through the law 25 E. Legal aid and costs 26 F. Families in crisis 27 G. Solicitors and family law 29 H. Non-legal responses to family law 29 I. Rights and consequentialism 29 J. Rules or discretion 30 K. Partnership 30 L. Multiculturalism The Human Rights Act 1998 and family law The UN Convention on the Rights of the Child Conclusion 35 Further reading 35 VII

2 Marriage, civil partnership and cohabitation Introduction Statistics on marriage What is marriage? 39 A. The meaning of marriage 39 B. The legal definition of marriage 41 C. Why do people marry? Marriage as a status or contract The presumption of marriage Non-marriages, void marriages and voidable marriages 45 A. The difference between divorce and nullity 46 B. The difference between a void marriage and non-marriage 46 C. The difference between a void and a voidable marriage 47 D. The grounds on which a marriage is void 47 E. Grounds on which a marriage is voidable 55 F. Bars to relief in voidable marriages 62 G. Effects of a decree of nullity 64 H. Reform of nullity 65 I. Forced marriages Civil partnerships 67 A. Who can enter a civil partnership? 68 B. How do you form a civil partnership? 68 C. Annulling a civil partnership 68 D. The end of the civil partnership 69 E. The effect of a civil partnership 69 F. The differences between civil partnership and marriage 69 G. Is the Civil Partnership Act to be welcomed? 70 H. The future: gay marriage? Unmarried cohabiting couples Comparisons between the legal position of spouses or civil partners and unmarried couples 80 A. Formalities at the beginning and end of a relationship 80 B. Financial support 80 C. Children 81 D. Inheritance and succession 82 E. Criminal law 82 F. Contract 83 G. Tort 84 H. Evidence 84 I. Matrimonial property 85 J. Marital confidences 85 K. Taxation and benefits 85 L Citizenship 86 M. Statutory succession to tenancies 86 N. Domestic violence 86 O. Fatal Accident Act VIII

3 P. The doctrine of unity 86 Q. Consortium Engagements Should the law treat cohabitation and marriage or civil partnership in the same way? 88 A. Does the state benefit from cohabitation to the same extent as from marriage or civil partnership? 88 B. Choice 93 C. Reflecting current attitudes 94 D. Discrimination 94 E. Should marriage be discouraged? 95 F. Protection The Law Commission's proposed reforms What if the state were to abolish legal marriage? Conclusion 98 Further reading 99 3 Divorce and mediation Statistics on divorce Causes of divorce Social explanations for increasing divorce What should be the aims of divorce law? The present law on divorce: Matrimonial Causes Act A. The background to the Matrimonial Causes Act B. The current law: The Matrimonial Causes Act Problems with the present law 115 A. 'It is confusing and misleading' 115 B. 'It is discriminatory and unjust' 116 C. 'It distorts the parties' bargaining positions' 116 D. 'It provokes unnecessary hostility and bitterness' 116 E. 'It does nothing to save the marriage' 117 F. 'It can make things worse for the children' Reforming the divorce law: the failure of the Family Law Act A. General principles of the Family Law Act B. A timetable for divorce procedures under the Family Law Act C. The information meeting 119 D. Encouragement of reconciliation 121 E. The length of the process 122 F. Counselling and mediation 123 G. Divorce order to be granted only once the financial orders and arrangements for children are made 123 H. Protecting children's interests during divorce 124 I. 'Quickie divorce' 124 J. Idealisation of divorce Some general issues on divorce 126 A. Individualisation of divorce 126 IX

4 B. No-fault versus fault-based divorce 126 C. Length of time for the divorce process 130 D. Reconciliation and divorce 131 E. The Human Rights Act 1998 and divorce 131 F. Financial arrangements to be made before divorce 131 G. Religion and divorce 132 H. Children and divorce Pursuing an action for inducing divorce Separation orders Death and marriage Dissolving a civil partnership Mediation 135 A. Introduction 135 B. What is mediation? 136 C. The role of the mediator 137 D. The benefits of mediation 138 E. The disadvantages of mediation 1 42 F. The false dichotomy of mediation and litigation Conclusion 145 Further reading 146 Family property 1. The reality of family finances The ownership of family property: general theory The ownership of personal property 151 A. Jointly used bank accounts ^ 52 B. Housekeeping and maintenance allowance 152 C. Gifts from one partner to the other 153 D. Gifts to partners from third parties 153 E. Improvements to personal property 153 F. Express declarations of trust 153 G. Criticisms of the present law Maintenance during marriage 154 A. Unmarried cohabitants ^54 B. Married couples ^ Ownership of real property: the family home 156 A. Legal ownership 157 B. Equitable ownership 157 C. Improvements to the home ^67 D. Criticism of the present law 168 E. Reform of the law Rights to occupy the home ^ 72 A. Contractual licences 172 B. Home rights The sale of a family home: enforcing trusts Protection of beneficial interests against purchasers

5 9. Protection of family property on bankruptcy 175 A. Protecting creditors from family members 176 B. Protecting the families from the creditors Spouses, partners and mortgages 179 A. Undue influence Conclusion 184 Further reading Property on separation Child support: theoretical issues 185 A. Does the obligation to support children fall on the state or on the parents? 186 B. Are the parents' obligations independent or joint? 189 C. Biological or social parents? 189 D. What level should the support be? 191 E. Paternity fraud 192 F. 'The lone-parent crisis' 192 G. Child support and parental support 193 H. Should child support be a private issue? Financial support of children 194 A. Financial support of children living with both parents 194 B. The Child Support Act C. The Child Maintenance and Other Payments Act D. The Children Act 1989 and child support 202 E. The Children Act Matrimonial Causes Act 1973 and children 206 A. Powers of the court on divorce or dissolution 206 B. 'Child of the family' 207 C. Applications by children 207 D. Factors to be taken into account Financial support for spouses and civil partners on divorce or dissolution 208 A. The economic realities of divorce 208 B. Why should there be any redistribution? 209 C. The case for the abolition of maintenance 216 D. Certainty or discretion? 216 E. Solicitors and negotiations 218 F. The Human Rights Act 1998 and maintenance 218 G. The importance of discovery 219 H. Orders that the court can make 220 I. Clean break orders 221 J. Interim orders 225 K. Factors to be taken into account when making orders 226 L Particular issues relating to redistribution of property on divorce Consent orders 257 A. The status of agreement before a court order has been made 257 X!

6 6. Enforcement of financial orders 258 A. Avoiding enforcement problems 258 B. Enforcement of periodical payments 258 C. Enforcement of lump sum orders and property adjustment orders Bankruptcy and ancillary relief Variation of, appeals against, and setting aside court orders 260 A. Variation 261 B. Setting aside a consent order 264 C. Appeal Defeating claims: Matrimonial Causes Act 1973, section Transfer of tenancies 266 A. Who can apply? 266 B. Which tenancies can be transferred? 266 C. Orders that can be made 267 D. Factors to be taken into account Reform of the law on financial support for spouses Conclusion 271 Further reading Domestic violence Introductory issues 273 A. Terminology of topic and definitions 273 B. The incidence of domestic violence 275 C. Causes of domestic violence 277 D. The development of the law on domestic violence Injunctions and orders under the Family Law Act A. The non-molestation order 280 B. Occupation orders 287 C. Exparte non-molestation and occupation orders under the Family Law Act D. Undertakings 303 E. Powers of arrest 304 F. Punishment for breach of an order Injunctions under the Protection from Harassment Act 1997 and tort The Children Act 1989 and domestic violence Domestic violence and housing law 307 A. The definition of 'homeless' 308 B. Priority need 308 C. Unintentionally homeless Domestic violence and the criminal law 310 A. The substantive law 310 B. The criminal law in practice 312 C. Reforming the criminal procedure State liability Why the law finds domestic violence difficult 318 A. The traditional image of the family 318 xn

7 B. Privacy 318 C. Difficulties of proof 319 D. Occupation or protection 320 E. Victim autonomy 320 F. Integrated approaches 321 G. The law not appropriate 322 H. Solicitors Conclusion 322 Further reading 323 Who is a parent? Psychological, sociological and biological notions of parenthood 325 A. Child psychologists 325 B. Sociologists 325 C. Biological perceptions The different meanings of being a parent in law Who is the child's mother? Who is the child's father? 329 A. Legal presumptions of paternity 329 B. Rebutting these presumptions 331 C. Fathers and assisted reproduction 331 D. DIY assisted reproduction 335 E. Fatherless children 335 F. Parental orders: surrogacy 336 G. Adoption 338 H. Reform Losing parenthood Social parents 340 A. Guardianship 340 B. Foster parents 343 C. Special guardians 345 D. Those who treat a child as a child of the family 345 E. Step-parents 346 F. Others caring for the child Relatives The Human Rights Act 1998 and the right to respect for family life 351 A. What is family life? 352 B. What is respect? 354 C. When can infringement be justified? Who has parental responsibility? 356 A. Outline of the law 356 B. Consideration of the law in more detail Who should get parental responsibility? 364 A. Unmarried fathers Losing parental responsibility Wider issues over parenthood 370 XIII

8 A. What is the basis for granting parenthood? 370 B. Is there a right to know one's genetic parentage? 374 C. Is there a right to be a parent? 383 D. 'Illegitimacy' 394 E. Licensing parenthood Conclusion 395 Further reading Parents' and children's rights 397 xiv 1. When does childhood begin? When does childhood end? The nature of childhood Parents' rights, responsibilities and discretion 400 A. Parental rights 401 B. Are parents' rights and responsibilities linked? 401 C. Why do parents have rights and responsibilities? Parental responsibility 406 A. What is parental responsibility? 406 B. Parental responsibility in practice 409 C. The rights of a parent without responsibility 411 D. The extent of parental responsibility Sharing parental responsibility 412 A. Are all parental responsibilities equal? 414 B. Is the law in a sound state? 415 C. Co-parenting in practice The welfare principle 417 A. What does 'welfare' mean? 418 B. What does 'paramount' mean? 418 C. When does the welfare principle apply? 419 D. When does the welfare principle not apply? 419 E. What if the case involves two children - whose interests are paramount? 421 F. Conflicts of interests between parents and children The Human Rights Act 1998 and children's welfare and rights 426 A. Balancing the rights of parents and children under the Convention 428 B. Is there any practical difference between the approaches of the European Convention and the Children Act 1989? Criticisms of the welfare principle Alternatives to the welfare principle Children's rights 437 A. Should children have all the rights adults have? 437 B. The argument against rights for children 442 C. Extra rights for children 446 D. Children's rights for adults 446 E. Children's rights in practice 446 F. Is there a difference between a welfare-based approach and a rights-based approach? 448

9 12. Children and medical law 450 A. 16- and 17-year-olds 450 B. Under 16-year-olds 451 C. Comments on the law Children's rights in other cases Children in court 461 A. Children bringing proceedings in their own right 462 B. Representation The Children's Commissioner 469 A. The role of the Commissioner 469 B. What have the Commissioners done? Children and education Children and criminal law Corporal punishment Children's duties Conclusion 481 Further reading Court resolution of private disputes over children Introduction Section 8 orders 485 A. The residence order 485 B. The contact order 487 C. Specific issue orders and prohibited steps orders 489 D. Restrictions on the use of section 8 orders 489 E. Attaching conditions 492 F. Variation, discharge and appeals Who can apply for section 8 orders? 495 A. Persons who can apply without leave 495 B. People who need the leave of the court 496 C. How the court decides whether to grant leave 496 D. Restricting section 8 applications: section 91 (14) Children's welfare on divorce and relationship breakdown How the court decides what is in the child's best interests: the checklist 501 A. How the court obtains information on the child's welfare 501 B. The statutory checklist Issues of controversy in applying the welfare principle 511 A. Is there a presumption in favour of mothers? 511 B. The'natural parent presumption' 512 C. Is there a presumption that siblings should reside together? 515 D. Racial and cultural background 516 E. Religion 516 F. Employed parents 519 G. Sexual orientation of parents 519 H. Disabled parents 521 I. Poverty 521 J. The 'immoral' conduct of a parent 522 xv

10 K. When is shared residence appropriate? 522 L. Publicity 524 M. Names 527 N. Removal from the UK 533 O. When should there be contact between a child and parent? Wardship and the inherent jurisdiction Child abduction 565 A. General 565 B. Child Abduction Act C. Prevention of abduction, and court orders preventing removal 567 D. Recovery in the UK 568 E. The Hague Convention 568 F. European Council Regulation (EC) 2201/ G. Neither convention applies Conclusion 582 Further reading Child protection 584 xvi 1. The Children Act 1989 and child protection The Human Rights Act 1998 and child protection Defining and explaining abuse 592 A. Explanations for abuse Protection of children by the criminal law Voluntary services provided by local authorities 596 A. Voluntary accommodation 596 B. Services for children in need 600 C. The family assistance order Investigations by local authorities 605 A. Section 47 investigations 606 B. Section 37 directions 607 C. Multi-agency co-operation 607 D. Child assessment orders Compulsory orders: care orders and supervision orders 610 A. Who can apply? 610 B. Who can be taken into care? 611 C. The effect of a care order 612 D. The nature and purpose of the supervision order 612 E. Care or supervision order? 612 F. Grounds for supervision and care orders 613 G. Care plans 630 H. Interim care orders 631 I. Exclusion orders Emergencies: police protection and emergency protection orders 635 A. Police protection 635 B. The emergency protection order Representation of children in child protection proceedings Local authorities and section 8 orders 641

11 11. The problem of ousting the abuser Conclusion 643 Further reading Children in care Introduction Human Rights Act 1998 and children in care The effect of a supervision order The effects of a care order 650 A. Distinguishing a child in care and a child voluntarily accommodated 650 B. The legal effects of the care order Questioning local authority decisions 662 A. Avoiding disputes 662 B. Procedures to challenge local authority decisions The position of local authority foster carers Duration of care and supervision orders Duties to children leaving care The balance of power between courts and local authorities Secure accommodation orders Adoption 677 A. The use of adoption today 677 B. Encouraging adoption 680 C. Adoption and secret birth 681 D. Who can adopt? 683 E. Who can be adopted? 684 F. Selecting adopters and matching adopters and children 685 G. Criminal prohibitions on illegal placements 689 H. The making of an adoption order 689 I. The effect of an adoption order 695 J. Open adoption 697 K. Adoption by a parent 699 L Adoption by parent and step-parent 700 M. Adoption by relatives 701 N. Post-adoption support 701 O. Revocation of an adoption order 702 P. The breakdown of adoption 703 Q. Access to birth and adoption register 703 R. Intercountry adoption 705 S. Special guardianship Conclusion 711 Further reading Families and older people Introduction Statistics on older people 714 A. Number of older people 714 xvii

12 B. Older people and their families 714 C. Income 715 D. Age discrimination Do children have an obligation to support their parents? 717 A. Moral obligations or legal obligations? 718 B. What obligations do people actually feel? 719 C. Integrating family and state care 719 D. Conclusion Financial support for older people and their carers Inter-generational justice 722 A. Health care and older people: health care rationing Incapable older people 725 A. Do older people have rights? 725 B. When does an older person lose capacity in the eyes of the law? 726 C. Advance decisions 729 D. Lasting powers of attorney 730 E. Deputies 730 F. Court decision based on best interests 731 G. The best interests of the person Succession and intestacy 733 A. Theory 733 B. The law in cases where there is a will 734 C. Intestacy 735 D. The Inheritance (Provision for Family and Dependants) Act Elder abuse 743 A. Defining elder abuse 743 B. The law 743 C. Issues concerning elder abuse Conclusion 746 Further reading 746 Bibliography and further reading 747 Index 823 XVIII