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 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 a 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 xiiiList of abbreviations xvTable of cases xviiTable of statutes xixTable of statutory instruments xxi1 Introduction to family law 1What is family law? 1Rights and obligations 3Evolving definitions of the family 4Excluded relationships 5Challenges to family law 6The international family 8Human rights 9International conventions 9Challenges to the operation of family justice 10Judging judges and justice 10Accountability 12Organisation of the text 12References 132 State intervention in personal relationships 14Form v Function 15Definitions and formation of relationships 19Self-test questions 45References 45Further reading 463 Nullity and its consequences 48Nullity: An important concept 48Void or voidable relationships 49Self-test questions 72References 73Further reading 744 Acquisition and protection of rights in the family home 75The family home: An overview 75Self-test questions 106References 107Further reading 1085 Protecting adults from domestic abuse – the civil remedies 109Contemporary definitions and very public cases 110History: challenging the common law 115Domestic abuse incidence and the criminal law 119Civil remedies for domestic violence and abuse 123Family Law Act 1996, Part IV s 33–41, 43–49: occupation rights 124Family Law Act 1996, Part IV: s 42–42A, 43–49: non-molestation orders 131Other forms of abuse and legal protections 136More protection needed: closing remarks 141Self-test questions 145References 146Further reading 1506 Ending relationships 152The new procedure 161Civil partnerships 168Self-test questions 170References 170Further reading 1717 Financial consequences of relationships 172Part I ownership of personal property and rights to maintenance during a relationship 173Part II financial consequences of ending the relationship 178Self-test questions 223References 224Further reading 2258 The elderly, their rights in family life and death and its consequences 227Social care of the elderly 231On whom should the burden of care fall? 231Abuse of the elderly 232Self-test questions 252References 252Further reading 2549 Family life – parents and carers: From parental rights to responsibilities 255Parenting histories – the exclusive father 257Demise of paternal authority and rise of parental responsibility 259Today – who is a parent in fact? 263Genetic – biological parents and the natural parent presumption 265Gestational – parentage 268Social and psychological parentage – the importance of attachment 277Legal parents and parental responsibility 281Parental responsibility: who is entitled? 285Court orders parental responsibility 286Other parents – stepmothers and stepfathers’ parental responsibility 294Concluding remarks – family rights – article 8 ‘family life’ 295Self-test questions 296References 297Further reading 29910 Adoption – only permissible if nothing else will do 301History of UK adoption 303The legislation 304Who can be adopted? And who can adopt 304The current legal framework 307Court orders 313The placement order 319Adoption order – when nothing else will do 321Adoption or special guardianship order 322Other orders 329International adoption 331Closing remarks: ‘nothing else will do’ 334Self-test questions 337References 338Further reading 34011 Adolescent autonomy – the right to decide and to participate in court proceedings 342Rights of the child and adolescent: general principles and sources of law 343Under 16-year-olds and the Gillick competence precept 350Applying Gillick – how can an adolescent acquire competence? 353‘Gillick competence’: only a right to refuse consent? 355Refusing saying no no no to blood, organs, sedation 359Wardship – trump card 363Adolescent participation in legal proceedings 367Judicial activism or judicial paternalism 373End game – a matter for Parliament! 376Self-test questions 377References 378Further reading 38012 Putting child welfare first in child ‘custody’ and private disputes 381Child custody throughout history 383When parents fall out today 385Partnership – conciliation and mediation 387The legal framework 388Guiding principles of the Children Act 389The welfare checklist: six factors 391Section 8 – the orders 400Child arrangement order (CAO) for residence 401Child arrangement order (CAO) for contact 403Abusive partners and contact strategies 406Specific issue order 410Prohibited steps order 412International relocation and abduction 414International law 416A legitimacy crisis in private law 425Self-test questions 427References 428Further reading 43113 The limitless jurisdiction of wardship 433Contemporary high profile wardship cases 434From the ancient to the modern jurisdiction of wardship 434The inherent jurisdiction 436The legal framework of wardship 438Strictly wardship 440The limitless jurisdiction 445Practice direction 12d [1,2](b) – orders to prevent undesirable association 448Practice direction 12d [1.2](c) – orders relating to medical treatment 12d [1.2](c) 450Practice direction 12j (pd) wardship, abduction and habitual residence 459Reform of wardship 463Self-test questions 463References 464Further reading 46514 Child protection: Local authority, the court and public law procedure 467High profile cases 468Child abuse – an historical denial 468Abuse – from discrete incidents to totality context 472Child abuse – an epidemic 478The legal and procedural framework of safeguarding 479Orders during the preliminary stage 490Court interim orders 497Child protection requires truth – fact finding expert opinion and the truthful parent 498Concluding remarks – how well is the local authority doing in child protection? 504Self-test questions 505References 506Further reading 50915 ‘Significant harm’: Judicial interpretations and state politics 510Social policy and the threshold 512The legal framework 513Evidence – burden and standard 515What conduct falls under ‘significant harm’ s 31(10)? 516Present significant harm: a temporal question 524General principles pre-emptive strike 526The much contested case – Re H and R (1995) ‘likely to suffer’ 528Care proceedings applications of sexual abuse in the shadow of Re H and R 530Truth – uncertain perpetrators and physical injury 534Supervision orders 543Finale – how better can we protect children? 547Self-test questions 549References 550Further reading 55216 Financial provision for children 554Background to child support 555Child support: history 557Self-test questions 579References 579Further reading 580Index 582