Arden University

LLB(Hons)

Family Law

Legal Drafting Task

STU49009
Question 1 Answer

Baroness’s Hale closing statement in her dissent on Radmacher1, if

taken out of context, can be misinterpreted as a praise to
conservative views on marriage and family2.Rather this statement
stands as a point of caution that by sacrificing protections previously
afforded by marriage law in exchange for expedited results and legal
certainty, through affording equality to pre and post-nuptial
agreements, could leave already financially weaker parties to a
marriage at danger of economic ruin. While these statements and
subsequently Baroness Hale’s apprehensions may seem
contradictory to the widely held approach of the Supreme Court,
both align in a common element of “fairness”3 as is shown in the
succeeding response in the Law Commission’s Report4.

In handing down its decision in Radmacher the Supreme Court

clarified its stance on marital agreements. Traditionally, pre-nuptial
agreements were not enforceable in English Law5. The court echoed
this stance in its ruling in Hyman:6 stating that a private agreement
could not be binding on the court to avert an application for ancillary
relief, although it could be taken into account as one of the
circumstances of the case7.

While it accepted Hyman as good law, it simultaneously rejected the

ruling of the Privy Council in MacLeod8 that the Matrimonial Causes
Act 19739 could apply to post-nuptial agreements.

1
Granatino v Radmacher [2010] UKSC 42 at [195] (B. Hale dissent)
2
Janet Kentridge, "Case Comment: Radmacher (formerly Granatino) v Granatino [2010] UKSC 42", 2010Blog
3
Chris Barton, "'In Stoke-On-Trent, My Lord, They Speak of Little Else': Radmacher v Granatino" (2011) 67
Family Law 70
4
THE LAW COMMISSION, "MATRIMONIAL PROPERTY, NEEDS AND AGREEMENTS", 2014
5
Westmeath v Westmeath (1831) 1 Dow & Cl 519, 5 ER 349; Cocksedge v Cocksedge (1844
6
Hyman [1929] AC 601
7
M v M [2002] 1 FLR 654)
8
MacLeod v MacLeod [2008] UKPC 64
9
Matrimonial Causes Act 1973 S. 34,35
In MacLeod the Privy Council held that only post nuptial agreements
could have effect, as they were made during conditions existing at
the time, distinguishing from pre-nuptial agreements which were
based on assumptions, not certainties. It should be noted that while
Radmacher has reversed the Council’s ruling on this (with respect to
pre-nuptial agreements) MacLeod still stands useful as guidance for
post nuptial agreements.1011

The majority in Radmacher then proceeded to disassemble this

distinction set out in MacLeod, stating that neither pre nor post
nuptial agreements were contrary to public policy nor that ancillary
relief powers found in the MCA 1973 should apply the same
principles to both forms of agreements.12

Previously it was established in White v White13 and Miller v Miller14

that the dominant principle to be applied in ancillary hearings was
that of “fairness”. Radmacher agreed on its importance in the
modern approach to pre and post nuptial agreements and set out its
suggestion in the Majority of the Supreme Court as follows:

"The court should give effect to a nuptial agreement that is

freely entered into by each party with a full appreciation of its
implications unless in the circumstances prevailing it would not be
fair to hold the parties to their agreement.15"

It is of note that this regard is strictly comparable to the case of

Edgar v Edgar16 almost 30 years earlier.

10
Brenda Hale, "Equality and autonomy in family law" (2011) 33 Journal of Social Welfare and Family Law 3-14
11
Andrew Meehan, "Agreements and Ancillary Relief After S v S and MacLeod v MacLeod" (2009) 7 Family Law
12
Granatino v Radmacher [2010] UKSC 42 [63-65]
13
White v White [2001] 1 AC 596
14
Miller v Miller [2006] UKHL 24
15
Granatino v Radmacher [2010] UKSC 42 at [75] (Lord Phillips for Majority)
16
Edgar v Edgar [1980] EWCA Civ 2
This sets out a test in Radmacher that can be applied for fairness
using the three elements set out above in the majority:

1) freely entered into by each party

2) a full appreciation of its implications
3) in the circumstances prevailing it would not be fair to hold the
parties to their agreement

Resulting from the judgement in Radmacher the predominant

principle guiding the assessment of marital agreements is that of
“fairness”17 which allows for a more consistent degree of legal
certainty within the courts.

In her dissenting statements Baroness Hale suggested that the courts

have done the most they could in terms of nuptial agreements and
further clarity through reform should be left up to Parliament.18

The law commission in its report: MATRIMONIAL PROPERTY, NEEDS

AND AGREEMENTS, outlined the current law on marital property
agreements leading through the courts to Radmacher, it noted that
the law was stretched to its maximum development as it could be
without statutory reform.19 The commission recommended two
reforms in its report:

1) The striking down of the common law rule of contracts making

financial provisions for hypothetical separation, void on
grounds of public policy, through legislation
AND
2) Development of a new form of marital agreement: The
qualifying nuptial agreement

17
Jens M. Scherpe, "Marital Agreements in England and Wales after Radmacher V. Granatino:
Fairness, Freedom and ‘Foreign Elements’" [2012] SSRN Electronic Journal
18
Granatino v Radmacher [2010] UKSC 42 [80]
19
THE LAW COMMISSION, "MATRIMONIAL PROPERTY, NEEDS AND AGREEMENTS", 2014 5.1 p73
The agreement is proposed to be a specific contractual tool for pre
and post nuptial agreements that would be tailor made to work
within the current developments in case law, with respect to marital
financial orders, and aims to run through the principle of fairness
previously established to be of importance in the courts. This
proposal also makes references to necessity of maintaining current
principles such as paramount importance of welfare of the child in
these matters.20

In truth while Baroness Hale may have seemed to be contrary to the

majority, her criticism of the ruling is less of the outcome of the case
and more so on the application of the law itself. Indeed her
argument was based on her belief that Mr Granatino did not receive
sufficient remedy , pointing out that his settlement was no more
than he would have been awarded had he been an unmarried
father21. Baronesses Hale’s issue was the court bringing the value of
a married father down to the level of an unmarried one, her point
being that the court should have placed higher value on the status of
a married father22: The marriage should count for something. Indeed
she agreed with the majority on the issue of “fairness”. The findings
and subsequent reports and proposals of the law commission shows
agrees with her stance and has made proposals to reform in the
“muddled” area of martial agreements, however these proposals are
yet to be implemented.

20
THE LAW COMMISSION, "MATRIMONIAL PROPERTY, NEEDS AND AGREEMENTS", 2014 5.87 p95
21
Granatino v Radmacher [2010] UKSC 42 [191]
22
Granatino v Radmacher [2010] UKSC 42 [193]
Question 2 Answer:

The main issue at hand for Vicky is whether Abdul possesses any
parental responsibility towards Jade? Would Abdul be able to take
Jade to be raised as a Muslim after six years of being in the Catholic
Faith and taking into account any special needs of Jade, is it possible
to Abdul could apply for an Order to provide custody and/or contact
for Jade?

And finally is Jade at risk of child abduction and can any steps be
taken for her protection?

Parental responsibility is defined in the CA 1989 as “all the rights,

duties, powers, responsibilities and authority which by law a parent
of a child has in relation to the child and his property.”23 Parental
responsibility is closely linked with the idea of who is a parent or acts
as a parent.24 The CA 1989 provides that where the father and
mother are married to each other at the time of the birth of the
child, they each possess parental responsibility25, however if at the
time of birth they are unmarried only the mother gains parental
responsibility automatically, unmarried fathers can acquire it
following the child’s birth through provisions set out in CA 1989, such
as marrying the child’s mother or by registering on the birth
certificate26. This has been argued as prejudiced but has been found
in the courts to be permissible as there is reasonable rationalisation
for treating married and unmarried fathers discriminatorily with
regard to automatic attainment of parental responsibilities.27

23
Children Act 1989 S 3(1)
24
Re Z (A Minor)(Freedom of Publication) [1996] 1 FLR 191
25
Children Act 1989 S2 (1)
26
Children Act 1989 S.2 (2)(b)
27
B v United Kingdom[2000] 1 FLR 1
Of importance in proceedings involving children are three main
principles set out. The principle found in S1 CA198928 which states
that in all proceeding involving a child, the child’s welfare will be the
courts primary consideration. This originated in the case of J v C29
and was passed into law in the CA 1989, commonly known as the
welfare principle. This is in line with ECHR30 and has been reaffirmed
as such in the domestic courts.31

The no order principle set out in S1(5) of CA 1989, stated that before
the court could make any order, it was to determine that in making
any order does the court benefit the welfare of the child versus
making no order at all? This was confirmed in the case of Re
G(Children)32.

The third principle is set out in S1(2) CA 1989 and is referred to as

the “no delay principle” states that any proceedings involving
children should be concluded with as much haste as possible, as
delays have shown to be unfavourable to the child’s welfare33

Orders pertaining to the child can be applied for in court under CA

198934 and can fall under three types:

1) Child arrangement orders – Controls with whom and for how

long a child is to live and/or have contact with a person (this
contact can be direct or indirect35)
2) Specific Issue Order –Controls a specific issue in a child’s life

28
Children Act 1989 S1.(1)
29
J v C [1970] AC 688
30
European Convention on Human Rights At 8
31
Yousef v The Netherlands [2002] 3 FCR 577
32
Re G (children)(residence order: no order principle) [2005] All ER 399
33
Emma Larkin and others, "Room for improvement? Views of key professionals involved in care order
proceedings" [2005] Child and Family Law Quarterly
34
Children Act 1989 S8
35
Re B (A Child) (No 2) (Welfare: Child Arrangements Order) [2017] 2 FLR 1326
 3) Prohibited Steps Order – Court enforces a stop to an action
taking place that related to a child’s upbringing Eg. Stopping a
medical procedure on a religious basis3637

In considering applications for these orders, there exists a checklist

of factors that the court is required to consider when making its
decision listed in CA198938. This list must be accorded sufficient
weight in making decisions as it has been shown that not rendering
even one element as a factor in decision making has led to decisions
being overturned on appeal39.This list is made up of40

1) Ascertainable wishes and feelings of the child concerned (in

light of age and understanding)–with the more mature the child
the greater weight given41
2) Child’s physical, emotional and educational needs
3) Likely effect on the child of any change in circumstances – It has
been noted that a child should not be removed from a situation
where they are thriving without good reason42
4) The child’s age, sex, background and any characteristics the
court deems relevant
5) Any harm the child has suffered or is at risk of suffering
6) How capable each of the child’s parents is in meeting their
needs: this is contextual to the child , a disabled child will need
special provisions

36
RE T (MINORS) (CUSTODY: RELIGIOUS UPBRINGING) [1981] 2 FLR 239
37
J (child's religious upbringing and circumcision), Re [2000] 1 FLR 571, [2000] 1 FCR 307
38
Children Act S1(4)
39
Re H (Contact Order) [2010] 2 FLR 866
40
Children Act S1(3) (a-f)
41
B v B(M v M) (transfer of Custody: Appeal) [1987] 2 FLR 1986
42
Re B (A Child) [2009] UKSC 5
 7) Presumption of shared involvement in the child’s life –unless
specifically shown the courts will presume that parental
involvement in a child’s life will further the child’s welfare43

In process of obtaining these orders if the question arises with

respect to it being in the best interests of the welfare of the child, in
investigating this the court can issue a supervision order under
powers granted in CA 198944.

In looking to apply the law to the facts of the situation and give
advice to Vicky:

Abdul does not possess parental responsibility as he was unmarried

at the time of birth and he did not sign the birth certificate. Abdul
will however be able to apply for a declaration of parentage from the
court45. If the court does apply for a supervision order they will find
that Jade is in fact thriving at her current school, which has made
additional arrangements for her special requirements,46 under the no
order principle any attempt that Abdul may attempt through the
courts to have Jade moved will fail.

Abduls request that Jade be brought up into the Muslim faith can
only be done with Vicky’s permission and stopped through a
Prohibited Steps Order47.
In case of a Supervision Order being employed by the court, it will be
found that Abdul does not have sufficient resources to take care of
Jade on a quality equal or greater than her mother48. In sending the
text Abdul has given grounds for a Prohibited Steps Order which can
be used in cases where there is a suspected possibility of

43
Children Act 1989 S 1 ( Amended by Children and Families Act 2014 S.11)
44
Children Act 1989 S35
45
SH v MM and RM (Prohibited Steps Order: Abduction) [2012] 1 FLR 837
46
Re G(Education: Religious Upbringing) [2012] EWCA Civ 1104
47
Re N (A Child: Religion: Jehovah's Witness) [2012] 2 FLR 917
48
A London Borough v M and others (through his Children's Guardian) [2017] Lexis Citation 447
abduction49, and can be used to stop children from leaving the U.K if
applied for.

In conclusion, Vicky should be informed that only she possesses

parental responsibility for Jade at the moment, she is solely
responsible for decisions on her education and religious upbringing.
If Abdul does apply for parental responsibility he will have a say
these things, but a court will not comply with his wishes to totally
remove Jade from her current situation where she is thriving, and
she will not be removed from her current settings, the bond between
mother and child is important, although there is no presumption in
favour of mothers in court50.
In using the texts as proof she should obtain an Order prohibiting
Jade from leaving the country and also for Abdul to only have
supervised contact until the court can sort out additional
arrangements.

49
Neustadt v Neustadt (Child Abduction) [2014] EWHC 4307
50
Payne v Payne [2001] EWCA Civ 166
 Question 3 Answer:

STU49009
Arden Chambers
Middlemarch Park, Coventry CV3 4FJ
01st October 2019

Lisa
P& R Accountants
53 Main Street, Ardentown, AR1 3DT

Dear Lisa,

With the information at hand your principle concerns are that

of domestic abuse and your cohabitation situation. The issue at
hand is whether you are the victim of abuse and are your rights with
respect to occupancy of the home with Chris, and we will look at the
law governing this – and your options going forward.

Domestic violence and abuse has been defined by the Home office as

“Any incident or pattern of incidents of controlling, coercive or

threatening behaviour, violence or abuse between those aged 16 or
over who are or have been intimate partners or family members
regardless of gender or sexuality51.”

This encompasses, but is not limited to psychological sexual, financial

and emotional abuse52.
Offences can be bother criminal and civil for domestic violence,
depending on the law relied on.

51
"Domestic abuse: how to get help", 2019
52
Hounslow London BC [2011] UKSC Lady Hale at [19-[24]
Actual bodily harm is a criminal offence found under S.47 of the
Offences against the Person Act 1861 and is described as harm that
causes damage but is not permanent. The Protection from
Harassment Act53 provided the courts with the power to issue a
restraining order to protect a victim of abuse from their abuser but it
cannot make an order concerning habitation arrangements54. The
Serious Crime Act 2015 includes the offence of Controlling or
coercive behaviour in an intimate or family relationship55 which
provides that a person commits an offence if they repeatedly
engages in behaviour that they know or ought to know will have a
serious effect on that person on at least two separate occasions56,
there is also requirement that the two people are “personally
connected57” such as living together58 or in an intimate
relationship59.

The main legislation for domestic violence is Family Law Act 1996, to
be eligible for an order under this act a relationship must exist
between the applicant and defendant, with them being ‘associated
persons’. Under s62 FLA 1996 associated persons are held to be
those that have cohabitated together or former cohabitants60 and it
is of note that if there is any confusion to the status of two
individuals in an application it is the default of the court to treat
them as if they fall under the designation of associated persons61.

53
Protection from Harassment Act 1997 amended by Domestic Violence, Crime and Victims Act 2004
54
Protection from Harassment Act 1997 S. 12 (1)
55
Serious Crime Act 2015 S 76
56
Serious Crime Act 2015 S 76 (1)
57
Serious Crime Act 2015 S 76 (2)
58
Serious Crime Act 2015 S 76 (2) (a)
59
Serious Crime Act 2015 S 76 (2) (b)

60
Family Law Act 1966 S62 (3) (b)
61
G v F ( Non-Molestation Order: Jurisdiction) [2000] FCR 638
Non-molestation orders provide that one party must stop behaviour
deemed as molestation to the other party62. Molestation includes
any conduct that harasses or threatens the applicant63 where the
court has determine its intervention is needed to safeguard the well-
being of the applicant64 and can be made ex parte if deemed
essential to the safety of applicant. It should be noted that while a
non-molestation order is a civil proceeding, breach of the order is a
criminal offence.

Occupation orders are available under FLA 1996 to regulate the

party’s occupancy of the home, and possesses power to override
property rights and interests65. When applicant nor respondent both
neither possess property rights then Section 38 applies. In
determining an occupation order under S 38 the court will consider
the factors similar to the “significant harm” test (only used where
applicant or respondent is entitled to property rights). Set out in
Section 33(7) FLA the test applies that the court will not make an
order unless it appears that significant harm is likely to befall the
applicant unless an order is made, under S 38 the court also
considers circumstances and the nature of the parties’ relationship
and the test is not overriding on the court. It has been held that
mere repairs do not constitute a beneficial interest in property
unless there exists a common intention to do so66

Under the Crimes and Security Act 2010 introduced Domestic

Violence Prevention Notice (DVPN) and Domestic Violence
Protection Order (DVPO)67. These are essentially emergency
occupation orders, where by the police have the powers to have the

62
Family Law Act S 42.
63
Jonathan Herring, Family law (Pearson 2013) p 307
64
Family Law Act S.45 (a)
65
Family Law Act S. 33
66
Drake v Whipp [1996] 1 FLR 826
67
Crimes and Security Act 2010 S24-33
abuser removed from the region of the victim, and can only be
issued on ground that violence was used (or is believed to be
imminent) and that it is necessary to protect the victim68.One the
DVPN is issued within 48 hours an application to magistrates court is
made by police for a DVPO which then provides the victim with
continued protected for 14-28 days.

Under criminal and civil law in applying these rules to your situation,
it is clear you and Chris are in fact associated persons under FLA
1996. Chris has committed assault occasioning actual bodily harm
and can be charged under S.47 OATP 1861, he has also committed an
offence of controlling and coercive behaviour by causing you to
experience distress by wilful action on two occasions. You will have
the option of a restraining order to be issued under Protection from
Harassment Act due to his actions causing a fear of violence.

Since you both do not possess rights to the property you live in, and
are unmarried, you will have to apply for an occupation order under
S38 of FLA 1996. In considering the factors while hearing this
application such as:

1) Chris having no real interest in the property

2) Drug use caution
3) Violence used against you
4) Threat of additional violence

The court will likely grant an application for occupation order to

exclude Chris from the premises.
A non-molestation Order should also be applied for to ensure
additional protection against violent behaviour.

68
Crimes and Security Act 2010 S24 (2) (a) (b)
I would advise you going to the police and filing a report to have a
DVPN issued to expedite the proceedings and give you some
breathing space to continue with your proceedings, and to have
Chris charged with ABH. The DVPN will expedite proceedings and
give you the breathing space you need to continue with the
proceedings of occupation and non molestation orders.

Best Regards,

STU49009
Larkin, Emma, Dominic McSherry, and Dorota Iwaniec, "Room for
improvement? Views of key professionals involved in care order
proceedings" [2005] Child and Family Law Quarterly.
Kentridge, Janet, "Case Comment: Radmacher (formerly Granatino) v
Granatino [2010] UKSC 42", 2010.
Barton, Chris, "'In Stoke-On-Trent, My Lord, They Speak of Little
Else': Radmacher v Granatino" (2011) 67 Family Law.
THE LAW COMMISSION, "MATRIMONIAL PROPERTY,
NEEDS AND AGREEMENTS", 2014
Hale, Brenda, "Equality and autonomy in family law" (2011) 33
Journal of Social Welfare and Family Law.
Meehan, Andrew, "Agreements and Ancillary Relief after S v S and
MacLeod v MacLeod" (2009) 7 Family Law.
Scherpe, Jens M., "Marital Agreements in England and Wales after
Radmacher V. Granatino: Fairness, Freedom and ‘Foreign Elements’"
[2012] SSRN Electronic Journal.
Herring, Jonathan, Family law (Pearson 2013).