An Introduction to Family Law in the United Kingdom - Assignment Example

Family Law When is marriage between a woman and her father-in-law valid? Since the year 1948, the various revisions to the Marriage Act have removed the restrictions on a woman marrying her father in law. In 1960 in particular, most of the restrictions on marriages between in-laws have been removed1. As things stand now, a man may marry his son’s wife when if she has been divorced, so long as both individuals are adults over the age of 21 years. Another condition that exists in this respect is that the young woman should have not have lived under the same roof as her father in law before the age of 18 and should not have been treated as a child of the father in law’s family. 2) What is a Mesher Order? What are its advantages and disadvantages? When complete judicial separation is not advisable and where children may need continued maintenance2 the Courts have resorted to Mesher orders in property settlement as set out in the case of Mesher v Mesher, where the wife as the custodial parent3 is allowed to remain in the home until the children reach the age of 184 and receive periodic payments from the father to look after the children. Alternatively, the payments continue till her death, remarriage or cohabitation with another man.5 These constitute once and for all maintenance orders that hold good until children reach 18 years of age.6 The advantage with this system is that provision is made for the child with a primary caretaking parent, however the disadvantage is that there has been a gender bias in favor of women for periodic maintenance payments, since Mesher orders cannot be varied.7 Moreover, as Douglas points out, such maintenance payments have been increasingly transferred into tangible assets,8 providing further advantages for the wife, although there have been cases where possession of the matrimonial home has meant that maintenance payments are reduced or extinguished.9 3) Who is liable to pay maintenance under the Children Act 1989? According to the Children Act of 199, it is generally the father as the earning parent who is responsible for paying maintenance to his wife for looking after the children. In one instance, the tendency of the Courts to allow maintenance payments prompted a woman to try to get her husband murdered for higher maintenance.10 In the case of children who are placed in the care of a local authority, it is the responsibility of the local authority to maintain the child.11 When shared residence orders have been issued, maintenance is to be generally paid by the parent to whom the residence has been given. 4) How can a step parent gain parental responsibility? Under Section 4 of the Children Act of 1989, a man may become the step father of a child who is not of his own blood if he is duly registered as a parent, through a specific agreement between the child’s mother and himself12, allowing him the right to have parental responsibility for the child. Alternatively, in the event of a legal dispute in this regard, or if a man makes an application to be a step parent, a Court may grant him the responsibility after considering all the circumstances involved. 5) Is there a right of appeal against the courts decision whether to grant an emergency protection order? An emergency protection order13 is granted by the police or other local authorities when there are grounds existing to suspect that a child may be in danger of harm coming to him or her at the place of residence from a person under whose care the child is placed. The period of an emergency protection order is restricted to eight days, and its continuance depends upon action by the Courts through the confirmation of the said order. The Children Act of 198914 spells out the provisions under which emergency protection orders will operate and the Court must be sully satisfied that reasonable grounds exist that justify the imposition of such an order. There is provision under the Act for the hearing of both sides and an order may be extended only once. However, once an emergency protection order has been issued, Section 45 (10) of the Children Act of 1989 clearly states that “no appeal may be made against the making of, or refusal to make, an emergency protection order or against any direction given by the Court in connection with such an order.” Therefore the grant of such orders is at the discretion of the Courts in the interest of protecting a child and no appeals of any kind are likely to be entertained against such an order. 6) Who can not apply to be a childs special guardian? Under the Adoption and Children Act of 2002, provision has been made for a special category of guardian for a child, who is not the parent of the child. This measure has been introduced to allow for alternative methods of care for a child which having to resort to public authorities to arrange for the child’s welfare15. No person who is below the age of 18 can apply to be a child’s special guardian. No foster parent who has been caring for a child can apply to be a special guardian before a one year period has elapsed since caring for the child. Moreover, when a child has been under the care of a local authority, consent from that authority would be required before an application can be made. Most importantly, if the child’s actual parents refuse to consent to the designation of a particular person as a special guardian, then such a person cannot apply to be the child’s guardian since the application will be refused by the Court. 7) Critically examine the extent to which English law reflects the view that occupation order is draconian measure and should only be used in extreme circumstances. The Family Law Act of 1996, Part IV allows for non molestation and occupation orders to be issued against an “associated person”, including spouses and cohabitees, living in the same household.16 An occupation order is a Court decision on who should be allowed to remain in the family home and live in it after domestic violence has occurred. According to Cretney, the Family Law Act of 1996 has replaced previously existing statutes with “a consistent set of remedies available in the Courts having jurisdiction in family matters.”17 With the introduction of the domestic Crime and Violence Act of 2004, it may be argued that occupation orders have become even more draconian, since its major focus is to punish perpetrators of domestic violence. For instance sections 5-8 of the Act introduces new criminal elements in the causing of death to a child or vulnerable adult, and the breach of a non molestation order. Under the DCVA 2004, assault becomes an offence where the offender can be arrested.18 Section 12 authorizes the Court to impose a restraining order when it deems it to be necessary to protect the victim, and a breach of a non molestation order is punishable by up to five years in prison19. Courts may also impose restraining orders against acquittal for offences, if a victim is deemed to still need protection, with breaches of such orders being criminal offences punishable by five years.20 While these measures have been implemented to stop recidivism in domestic violence, it is debatable whether the DCVA adopts a victim centered approach. As pointed out by Cretney and Davis, “the interest of the victim may be much harder to discern….she may turn to the police for rescue….[but be reluctant21 to] sustain a prosecution against a partner to whom she still has emotional ties.”22 Therefore while the Family Act required that where molestation and occupation orders were concerned, a “power of arrest” was required to be attached to the order before an offender could be arrested, thereby allowing the victim a choice in the matter, such choice no longer exists. While earlier, the question of whether or not a criminal element could be introduced into the breach of a non molestation order was in the hands of the victim, in that she could decide whether or not to call the police, the DCVA automatically renders such a breach a criminal act and thereby pre-empts the victim’s power of choice. Therefore an occupation order needs to be imposed only in extreme circumstances, since it mandatorily becomes a criminal offence and leads to arrest 8) Critically examine the extent to which the adoption and Children Act 2002 reflects the changing nature of adoptive children and adoptive parents. The Children Act of 2002 is significant in that it explores unconventional means to achieve the care of vulnerable children who are unable to grow up with their birth families for one reason or the other. For example, the provision of special guardianship offers a permanent legal option for a stable home for a child, as an alternate to being in the care of public authorities. Moreover, the welfare of the child has been allowed to assume top priority, in all decisions pertaining to adoption, rather then the opinions of the public authorities or the parents.23 The framework of UK society has been changing and there has been an increasing trend towards cohabitation before marriage24. The number of marriages in the UK has been declining and therefore there are more children being born in and living out of conditions of wedlock. Another development that has occurred is that there are larger numbers of same sex couples living together and the Civil Partnership Act of2004 has also allowed them to legally formalize their living relationship. Therefore, by making provision in the Child and Adoption Act of 2002 to allow adoption of children by same sex couples or unmarried/cohabiting couples, the Act reflects the increasing awareness of the changed legal and domestic framework within which children grow up in present day U.K. Moreover by making allowance for people other than natural parents to adopt children, the thrust of the Act is child centered and geared towards the welfare of the child. Bibliography * Cretney, S, 2003. “Family Law in the Twentieth Century” Oxford: Oxford University Press at pp 7 * Cretney A and Davis G, ‘Prosecuting “Domestic” Assault’ [1996] Criminal Law Review, 162 * Douglas, Gillian, 2005 “Introduction to Family Law”(2nd edn) Oxford University Press * “Emergency Protection Order” [online] available at: www.northamptonshire.gov.uk/Legal/EPO/ * Forbidden marriage laws of the United Kingdom.” [online] available at: http://www.genetic-genealogy.co.uk/Toc115570145.html * K Kiernan, 2001. “The Rise of Cohabitation and Childbearing Outside Marriage in Western Europe” 15, International Journal of Law, Policy and the Family 1. * Special Guardianship” British Association for Adopting and Fostering. [online] available at: http://www.baaf.org.uk/info/lpp/special/index.shtml * The adoption and Children Act 2002. Compact Law [online] available at: http://www.compactlaw.co.uk/free_legal_information/adoption_law/adoptf16.html * Walstead, Mary and Edwards, Susan, “Family Law” Oxford. at 7.33 Legislation cited: * Children and Adoption Act of 2002 * Children Act of 1989 * Domestic Crime and Violence Act of 2004 * Matrimonial Causes Act of 1973 Cases cited: * Browne v Pritchard (1975) 3 All ER 721 * Evans v Evans (1989) 1 FLR 351 * Hanlon v Hanlon (1978) 2 All ER 889 * Lomas v Parle (2004) 1 All ER 1173, see para 15 * Mesher v Mesher (1980) 1 All ER 126 * Martin v Martin (1977) 3 All ER 762 Read More