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About this book

This popular, long-established textbook provides a clear and engaging account of a fascinating and dynamic subject, while also introducing current debates about the nature, scope and functions of the law, and discussing controversies surrounding the basic doctrines by placing them in a wider context. The book takes an applied approach and provides real life examples to illustrate how the law works in practice.

This book is essential reading for law students taking undergraduate modules in family law and child law. Students on social work, social policy, health care and human rights courses will also find it invaluable, as will postgraduates and those studying the subject for professional purposes.

Table of Contents

Family law – an introduction

Frontmatter

Chapter 1. Introduction

Abstract
This chapter provides an introduction to family law in England and Wales by looking at a range of matters, such as legal and social trends and developments, the nature of judicial decision-making, the importance of agreement and the impact of human rights. It starts, however, by considering the nature of family law as a subject to be studied.
Samantha Davey

Marriage, civil partnership and cohabitation

Frontmatter

Chapter 2. Marriage and civil partnership

Abstract
This chapter deals with marriage (which applies to opposite and same sex couples) and civil partnership (which applies only to same sex couples), and the legal consequences which attach to these relationships. The law and procedure which apply to civil partnerships largely replicate those which apply to marriage, although there are some important differences. This chapter also looks at the law of nullity, and then deals with the following issues: the problem of forced marriage; the changes to the law to allow transsexual people to marry in their newly acquired sex; and the recognition of an overseas marriage. Cohabitation and its legal consequences are considered in Chapter 3.
Samantha Davey

Chapter 3. Cohabitation

Abstract
One of the most striking social changes which has taken place in the last few decades is the significant increase in the number of couples who choose to cohabit. Thus, according to Population Trends 145 (Autumn 2011, by Beaujouan and Ni Bhrolcháin), in the early 1960s fewer than one in a hundred adults under the age of 50 in Britain was estimated to have been cohabiting at any one time, compared with one in six in 2011. Cohabitation is no longer regarded as socially deviant. Many people choose to cohabit instead of marrying; and others as a precursor to marriage. Statistics are more difficult to come by than statistics on marriage and civil partnership as there are no registration and court statistics for cohabitation.
Samantha Davey

Family property and finance

Frontmatter

Chapter 4. Family property

Abstract
This chapter looks at the law governing the property rights of spouses, civil partners and cohabitants during their relationship, on relationship breakdown and on death. The statutory provisions and legal principles which relate to spouses and civil partners are much more extensive than those which relate to cohabitants. Thus, on the breakdown of a cohabitation relationship, the family courts have no jurisdiction to distribute the property assets of cohabitants according to their needs and resources, as they have on divorce or civil partnership dissolution. Cohabitants must rely instead on the general principles of property law, in particular the law of trusts, to determine a property dispute (such as a dispute about the family home). If they have children, they may be able to rely on the provisions of Schedule 1 of the Children Act 1989. Cohabitants may also be in a vulnerable position on the death of a cohabiting partner. Because of the unfairness that cohabitants and their children can suffer in respect of property entitlement, there have been many calls for reform. These have not, however, been taken forward.
Samantha Davey

Chapter 5. Domestic abuse

Abstract
This chapter considers the law which is available to protect family members from domestic abuse. In furtherance of the Government’s aim to improve protection for victims, a range of legislative provisions has been enacted over the years. In addition, as part of its drive to fight domestic abuse, the Government has increasingly recognised the importance of adopting multi-agency and inter-agency approaches to tackle the problem, involving not just the courts, but also the police, housing authorities and other agencies. There are various organisations which campaign for reform of the law, and which provide advice and information for victims.
Samantha Davey

Divorce and dissolution and their consequences

Frontmatter

Chapter 6. Divorce and dissolution

Abstract
This chapter deals first with the development of divorce law, and then with the current law governing how a divorce can be obtained (which applies to both opposite and same sex married couples). The law and procedure which apply to the dissolution of civil partnerships largely replicate those of divorce law, although there are some important differences. This chapter uses the terminology of divorce, mentioning civil partnership separately where necessary to highlight substantive differences in the law. Financial and property matters on divorce and dissolution are dealt with in Chapter 7. Residence and contact with children are dealt with in Chapter 11, and financial provision for children in Chapter 12.
Samantha Davey

Chapter 7. Finance and property on divorce and dissolution

Abstract
This chapter deals with the law relating to financial remedies on divorce and dissolution of a civil partnership. The statutory provisions and judge-made principles herein also apply to the courts’ powers to make orders on annulments and judicial separations. The law and principles governing financial remedies apply equally to divorce and dissolution, except that the provisions governing the latter are laid down in the Civil Partnership Act 2004. For this reason, the words ‘marriage’, ‘divorce’ and ‘spouse’ are interchangeable with ‘civil partnership’, ‘dissolution’ and ‘civil partner’ respectively.
Samantha Davey

Children and parents

Frontmatter

Chapter 8. Children

Abstract
This chapter provides a general introduction to the law relating to children. It looks in particular at children’s rights, both in domestic law and under the United Nations Convention on the Rights of the Child and the European Convention on Human Rights. It considers, in particular, the child’s right to make autonomous decisions and the landmark case of Gillick v West Norfolk and Wisbech Health Authority [1986] AC 112. The law governing the corporal punishment of children by parents and teachers is considered, and also the right of children to participate in family law proceedings. Finally, the use of the inherent jurisdiction and wardship in children’s cases is considered.
Samantha Davey

Chapter 9. Parents

Abstract
This chapter deals with the law governing parents. It deals first with the different types of parent that exist and the importance of parents. It then considers the issue of parentage, and looks at parental responsibility and the various rights, duties and responsibilities that parents have. It concludes by looking at parenthood in the context of both assisted reproduction and surrogacy arrangements.
Samantha Davey

Chapter 10. The Children Act 1989

Abstract
This chapter considers the Children Act 1989. It deals first with the background to the Act and briefly sets out the main provisions therein. It then considers the important principles laid down in section 1 and the range of orders available under section 8 of the Act, before looking at the people who can apply for such orders with and without leave (permission) of the court and the power of the court to make such orders of its own motion. Finally, it concludes by looking at other orders that are available under the Act.
Samantha Davey

Chapter 11. Children on family breakdown

Abstract
This chapter deals with the law governing arrangements for children when parental relationships break down. The law is laid down in the Children Act 1989 (see Chapter 10). After divorce, civil partnership dissolution or parental separation, parents continue to have parental responsibility for their children (see Chapter 9); and they also have a duty to make financial provision (see Chapter 12). Despite the legal provisions and the number of reported cases, most separating couples make their own arrangements for the care of their children without resorting to court proceedings. It is generally recognised that it is better for both parents and children if parents resolve matters themselves, rather than bringing court proceedings.
Samantha Davey

Chapter 12. Financial provision for children

Abstract
All parents have a duty to provide financial support for their children, and this obligation continues when parental relationships break down. Financial provision for children is usually made in the form of periodical payments (child maintenance), although the family courts also have powers to make lump sum and property orders to or for the benefit of a child.
Samantha Davey

Chapter 13. Child abduction

Abstract
Child abduction is a distressing consequence of family breakdown. Unfortunately, due to the increasing number of ‘international families’ and the high incidence of family breakdown, it is also on the increase. Thus, for example, in 2008 the number of global applications made to the central authorities which deal with child abduction under the Hague Convention on International Child Abduction 1980 was 45 per cent higher than in 2003 (see Lowe and Stephens [2011] Fam Law 1216). Figures published in 2013 by the UK’s Foreign and Commonwealth Office also showed a 113 per cent increase in the number of new child abduction and custody cases between 2003 and 2013.
Samantha Davey

Chapter 14. Child protection

Abstract
Many people are involved in the task of providing protection and services for children classified as being ‘in need’. The emphasis is on a multi-agency and inter-agency approach. Of particular importance are local authority social workers who have a statutory responsibility to work together with other agencies and relevant partners to protect and make provision for children in need. Their responsibilities are laid down in the Children Act 1989 and the Children Act 2004; and they are also in rules of practice, regulations and guidance which local authorities have a statutory obligation to comply with (see Working Together to Safeguard Children, 2015). The Children and Family Court Advisory and Support Service (Cafcass) performs a very important function by providing Children’s Guardians in public law proceedings, whose role it is to safeguard the welfare of the child in court proceedings involving local authorities. Voluntary agencies, such as the National Society for the Prevention of Cruelty to Children (NSPCC), also provide services to protect and assist children and their families.
Samantha Davey

Chapter 15. Adoption and special guardianship

Abstract
This chapter deals with adoption and special guardianship. Adoption terminates the parental responsibility of a child’s birth parents and gives parental responsibility to the adoptive parent or parents. As such, it is a draconian step and the courts therefore apply a rigorous approach to adoption applications. Adoption law and procedure is closely related to the law and procedure governing child protection (see Chapter 14). This is because most children who are adopted, and those who are looking for adoptive families, have been in local authority care.
Samantha Davey
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