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Chapter

Patrick Nicholls

This chapter examines how families use and access the legal system, and the recent changes in family justice. The procedural aspects of family law claims and the funding of litigation has seen extensive changes in recent years that have heavily influenced the use of the courts by families and the development of the law. The chapter identifies the source of the legal procedures, and explains the underlying policies and rules which must be followed for persons to obtain what orders the family law courts can make. It also examines the impact of cuts to legal aid on the family justice system. The cuts in legal aid have resulted in many more persons acting for themselves before the court as ‘litigants in person’. This has resulted in significant delays which some argue have put the family justice system in crisis and pitched the judiciary against their political counterparts.

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Julie Doughty

This chapter explains the law of adoption. When an adoption order is made by a court in England and Wales, the legal connection between a child and her birth family is completely and permanently ended and she is transferred in to a new family. Changes in society during the second half of the twentieth century created a new model of adoption, reflected in the legislative framework of the Adoption and Children Act 2002. However, there are ongoing complex questions about what the purpose of adoption should be. The idea that a court order can overcome biological and social relationships can seem artificial, imposing a fictitious narrative that might be difficult to sustain throughout a lifetime. The chapter also discusses special guardianship in the context of alternatives to adoption.

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Parents and caregivers are constantly making decisions about the upbringing of children in their care. This chapter looks at how courts go about doing what is best for the child or children in question in any given case. It considers examples of case work and common types of application that come before the court. In particular, it looks at applications about where a child should live and when they should spend time with a non-resident parent. The chapter ends by looking at cases involving relocation across jurisdictions and child abduction.

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This chapter looks at what happens in issues of child protection when compulsory intervention in the form of care or supervision applications is needed. It considers the legal tests, the processes, and the practicalities involved in proceedings and decisions about what should happen after intervention. For intervention to take place, the local authority must satisfy the court that the child in question is suffering or likely to suffer significant harm attributable to their care or to them being beyond parental control. As far as the court is concerned, the best interests of the child are paramount. The court has to consider all realistic options for the child's future.

Chapter

George Patrick Nicholls

This chapter discusses the challenges of practising family law and the reforms enacted to address the crisis in the family justice system since the beginning of the twenty-first century. These reforms included the streamlining of the family courts into one unified single Family Court, the considerable reduction in available funding, and the introduction of protocols before issuing court proceedings. This chapter examines the Family Procedure Rules and the Family Law Protocol and what is required to comply with them. Legal aid, and the types of cases now eligible for it after the reforms and the legal aid statutory charge are discussed. It then considers the subsequent increase and consequences in the numbers of litigants in person and McKenzie Friends, examines the different types of non court dispute resolution, particularly mediation, and looks at the effects of Covid-19 on the judiciary and court staff.

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23. Financial Remedies:  

Principles and Assessment

N V Lowe and G Douglas

Most of the legislation governing the financial arrangements on the ending of a marriage dates back over 40 years, when attitudes and economic and social factors affecting marriage were very different. This chapter examines courts' attempts to keep the law in step with societal changes through case-law. It considers how the orders made by the courts are enforced or altered in the light of subsequent events, and what provision can be made for spouses who are divorced abroad and may have been unable to receive appropriate financial protection in those proceedings. It concludes by discussing proposals for thoroughgoing reform of this area of law.

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17. Children and Local Authorities:  

Care and Supervision Proceedings

N V Lowe and G Douglas

The Children Act 1989 places considerable importance on local authorities working in partnership with families and the avoidance wherever possible of court proceedings. However, the Act also makes provision, in the form of care and supervision orders, for compulsory measures to be taken to safeguard and promote children's welfare. This chapter focuses on care and supervision orders. It covers the initiation of proceedings; the threshold criteria, which refers to conditions set out by Section 31(2) that must be satisfied before a care or supervision order may be made; the ‘welfare stage’, where the court must, pursuant to s 1(1), regard the welfare of the child as the paramount consideration; tackling delay in care proceedings; court orders; appeals; and discharge of care orders and discharge and variation of supervision orders.

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A legal obligation to provide financial support for another member of the family, often referred to as ‘family solidarity’ in civil law systems, may be seen as the most tangible recognition of the moral ties created by family relationships. This chapter begins with a brief review of the historical development of the law, including the role of the welfare state. It then considers mechanisms whereby family members can seek support from each other, namely through private agreements, court orders, and finally under the child support scheme.

Chapter

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter, which discusses financial provision for children who live apart from one or both parents, whether in a single-parent family, step-family, or with other carers, begins with a brief history of financial provision for children. It then discusses the current law on child support; court-based provision; ‘family-based arrangements’ and other private ordering; and policy questions relating to the financial support of children.

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All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter begins with an overview of families and family law in England and Wales today. It then discusses themes and issues in contemporary family law, covering rules versus discretion; women’s and men’s perspectives on family law; sex and gender identity; sexual orientation; cultural diversity; and state intervention versus private ordering, including the role of the family court and of non-court dispute resolution in family cases, and challenges facing the family justice system.

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One of the main issues that the parties need to consider when a marriage or civil partnership ends is the financial consequences of the divorce, dissolution, or judicial separation. Amongst other things, they need to consider where they are going to live and what money they need to live on in the future. Their current assets will need to be evaluated and divided accordingly. The parties do not always agree on how to do this. Whatever they decide, the court has to approve of the decision. The chapter looks at the courts' powers, the legal principles they apply, the practical implications, and the problems that may arise in financial remedy practice. A number of different scenarios are used to help with this analysis.

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This chapter discusses the High Court's inherent powers in respect of children. The development of these powers, principally under the aegis of the wardship jurisdiction, was highly influential in the modern development of law and practice concerning children, and the Children Act 1989 incorporates many of its features. The chapter covers the High Court's exercise of inherent jurisdiction; the court's powers; local authority use of the jurisdiction; and private law use of the jurisdiction.

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This chapter examines the legal framework which determines the distribution of money and property between spouses or civil partners on divorce or dissolution. The chapter considers the background to the current law before providing an in-depth analysis of the relevant legislative framework under the MCA 1973 and important case law guiding the courts’ exercise of discretion, including in respect of pensions and the matrimonial home. The chapter also considers the enforceability of, and weight given to, separation agreements and pre-nuptial agreements.

Chapter

N V Lowe, G Douglas, E Hitchings, and R Taylor

This chapter discusses the High Court’s inherent powers in respect of children. The development of these powers, principally under the aegis of the wardship jurisdiction, was highly influential in the modern development of law and practice concerning children, and the Children Act 1989 incorporates many of its features. In detail, the chapter first considers the High Court’s exercise of inherent jurisdiction; the court’s powers; local authority use of the jurisdiction; and private law use of the jurisdiction. It then does the same for wardship.

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This chapter considers the courts' powers under Part II of the Children Act 1989 to make orders, other than financial orders, in what are termed ‘family proceedings’. It first discusses the original scheme of Part II; changes made by the Children and Adoption Act 2006; and changes made by the Children and Families Act 2014. It then considers section 8 orders; family assistance orders; and section 37 directions.

Chapter

N V Lowe, G Douglas, E Hitchings, and R Taylor

The Children Act 1989 places considerable importance on local authorities working in partnership with families and the avoidance wherever possible of court proceedings. However, the Act also makes provision, in the form of care and supervision orders, for compulsory measures to be taken to safeguard and promote children’s welfare. This chapter focuses on care and supervision orders. It covers the initiation of proceedings; the threshold criteria, which refers to conditions set out by s 31(2) that must be satisfied before a care or supervision order may be made; the ‘welfare stage’, where the court must, pursuant to s 1(1), regard the welfare of the child as the paramount consideration; tackling delay in care proceedings; court orders; appeals; and discharge of care orders and discharge and variation of supervision orders. The chapter ends by discussing the position of children in local authority care, focusing on the critical issue of contact with children in care.

Chapter

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on child abduction whereby a parent takes a child out of England and Wales. It looks at two forms of parent–child abduction—removal without consent, and retention once consent has expired—and considers methods of preventing child abduction, including port alerts and court orders. The chapter also discusses the role of the International Child Abduction and Contact Unit (ICACU) in the recovery of an abducted child under the Child Abduction and Custody Act 1985, as long as the child is in a country that is signatory to the Hague Convention 1980, Hague Convention 1996, or European Convention. It concludes by considering extradition of the guilty parent to England and Wales.

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This examines how the courts deal with private law issues or disputes relating to children’s upbringing, such as post-separation residence or contact disputes, or other specific issues, including international child abduction. It begins by setting out some general principles for deciding children cases which are contained in section 1 of the Children Act 1989, and procedural matters relating to such cases.