1.

Introduction

Family Law (1st edn)

Polly Morgan

p. 1 1. Introduction
Polly Morgan

https://doi.org/10.1093/he/9780198834243.003.0001
Published in print: 14 June 2021
Published online: September 2021

Abstract
Family law is more often than not associated in people's minds with negative times in their lives such as relationship
breakdowns, childcare disputes, and financial problems relating to family life. However, from a legal perspective, family law is
a fascinating area of law as no two cases are ever the same. There are so many issues that need to be considered: Who does
family law protect? Who does family law fail to protect? What human rights affect family law? How far should rules extend into
people's intimate relationships? This chapter asks all of these questions and presents the focus of the chapters to come.

Keywords: family life, human rights, relationships, childcare, rules

1.1 An introduction to the themes of this book

Most people do not know a great deal about family law. It is only when a problem arises that they become
aware of concepts and terms such as parental responsibility, constructive trusts, voidable marriages, or
section 47 investigations. When the matter has concluded, it is not unusual for them to say to their lawyer,
‘thank you for your help and no offence but I hope I never have to see you again’. Rather than being
associated in people’s minds with happy family events, family lawyers are often associated with
relationship breakdown, childcare disputes, financial problems, or children being taken into care or
adopted. When people hear about these things from friends or neighbours, or read about a person’s divorce
in the gossip columns, they may end up with an inaccurate view of what the law is. They may expect
others’ experiences to be typical. But in family law there is no such thing as a typical case.

Yet, as you read this book, a number of different issues and themes will arise time and again. Who does
family law protect and, conversely, who does it fail to protect? What human rights affect family law? When
and how should the state intervene when someone is at risk of harm within their family, whether adult or

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 1. Introduction

child? What rules should there be about how people conduct their intimate relationships, or the quality of
parenting they provide? To what extent should people be able to regulate the terms of their own
relationships or the consequences of breakdown? What responsibilities do people have to their children,
and how does the law recognise the status of being a parent?

The Office for National Statistics defines a family as ‘a married, civil partnered or cohabiting couple with or
1
without children, or a lone parent with at least one child, who live at the same address’. On this basis it
calculates that there are 19,153,000 families in the UK. In this book, we have tried to emphasise the
diversity of family forms. These statistics hide considerable differences in how parents wish to raise their
children and in the economic and social positions of families as well as their race, culture, and sexuality. It
ignores caring relationships, multiple-generational relationships, and families of choice. On the cover to
this book you may at first notice a series of little male and female figures. If you look more closely, you will

p. 2 see that there are non-binary figures, figures with physical disabilities, ↵ elderly people, and those
wearing religious clothing. Family law applies to all of these people, of course, but it can have a different
effect on some of them compared to others. Some relationships are ignored by the law altogether.

Of the 19 million families in the UK recognised by the Office for National Statistics’ definition, 12,740,000
are headed by married couples and there are an additional 46,000 couples in civil partnerships. This means
that marriage is still the most common family form within the UK. In Chapter 2 we ask what accounts for
the continued popularity of marriage. What are the legal consequences? Is being married a privileged social
status? Is there a human right to marry? Does marriage have one meaning or many? Is civil partnership
equal to marriage? How can a valid marriage be formed, and what happens if you get the formalities of
marriage wrong or a person is forced to marry? What does marriage mean to gay couples who for so long
were excluded from this most significant recognition of family relationships?

But, over a 20-year period, 42 per cent of marriages will end in divorce. The state regulates the exit from
marriage just as it does entry to marriage and the consequences of marriage. Those seeking a divorce are
often surprised that the law does not currently allow people to divorce simply because they want to, but
requires either that their spouse be at fault or a period of separation. At the time of writing (November
2020) a new divorce law has been passed but is not yet in force. This introduces no-fault divorce after a few
months of separation. Will the removal of fault and blame from the law change our expectations of
behaviour within marriage?

Many people think that getting their divorce decree terminates the financial responsibilities and rights of
marriage, but this is not the case. In Chapter 4 we look at financial provision on divorce or dissolution and
the extent to which parties can reach their own agreements. We consider the principles underlying our
financial remedy law and what they tell us about the role of the state and the values of paternalism,
autonomy, and equality.

Although at 3,515,000 the number of couples who live together without being married is small compared to
the number of married couples, it is cohabitation that is increasing. In Chapter 5 we consider the legal
protections for cohabiting couples and discover that they are very limited compared to those available to
couples who are or were married, and ask whether we should introduce a scheme of divorce-style rights
for cohabitants, or whether there should be areas of family life that are free of state regulation. This is an

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 1. Introduction

argument about whether it is the role of the state to protect the vulnerable at the expense of individual
choice. It is not only in reform of cohabitation law that this is an issue: it is also an argument against
permitting married couples to enter into binding nuptial agreements. Just as the state regulates the entry
and exit to marriage, so too does it place parameters on the financial outcomes of a divorce which may be
surprising to those of you familiar with freedom of contract. Although individual autonomy is respected, it
is curtailed: only if an agreement is objectively fair will a judge make it enforceable.

Yet, at the same time, successive governments have encouraged private ordering: couples making their
own decisions. To encourage the use of non-court resolution, those wishing to make an application to
court relating to the upbringing of their children or financial provision on divorce must first attend a
mediation information and assessment meeting. Non-dispute resolution is actively promoted as a way of

p. 3 resolving inheritance ↵ disputes, disputes with doctors around the medical treatment of children,
trusts of land claims, and claims under Schedule One Children Act 1989 for the financial support of
children. The Child Maintenance Service levies a charge for using its services and actively encourages
parents to make their own arrangements. While non-court resolution has many advantages including
speed, the number of mediations actually fell after the passing of the Legal Aid, Sentencing and
Punishment of Offenders Act 2012 (LASPO): fewer people saw lawyers and lawyers were the principal
source of referrals to family mediation. Before the cuts to legal aid imposed by LASPO, 80 per cent of
legally aided MIAMs were referred by solicitors. After LASPO, the figure was 10 per cent, as people involved
in a dispute had no guidance about the options available to them. Alongside this fall came a very significant
rise in the number of court applications. Some of those applications—we do not know how many—will be
from people who have entirely meritorious cases which, if resolved, will have a significant impact on their
own or their children’s lives. One of the key themes that run throughout this book, therefore, is the balance
to be struck between individual autonomy and private ordering, on the one hand, and the protective role of
the state and judicial discretion on the other.

Focus Know-How Non-court dispute resolution

There are various forms of non-court dispute resolution:

Negotiations between the parties or through their legal representatives, if they have them

Mediation, where the parties reach agreement and can ask a court to turn their agreement
into an order. In the family law mediation model, unlike commercial mediation, the parties’
lawyers are not usually present, and whether the parties are in the same or separate rooms
depends upon their preferences

Collaborative law, introduced from the United States, in which the parties and specially
trained lawyers commit to resolving issues amicably at a series of meetings, without
contested proceedings

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 1. Introduction

Arbitration, in which a qualified arbitrator (often a barrister or retired judge) hears the case
as a judge would and makes a decision on the outcome. This can avoid court delay and enables
the parties to appoint a specialist in the area in dispute. Arbitration is rare in family law, but
growing.

We see similar arguments about the role of the state in other aspects of family law too. Of the 19 million
families in the UK, over 8 million of them have dependent children living with them and a further 2.8
million of them previously had children who were dependent on them. There are 2,452,000 families
headed by a single parent mother and 400,000 by a single-parent father. Parents are encouraged to reach
their own agreements about child maintenance, and as we see in Chapter 6 the Child Maintenance Service
levies a charge for arranging child maintenance itself, even though there are significant social benefits to
children being financially supported. This is part of an ideology of personal responsibility. In Chapter 8 we
discuss the concept of parental responsibility under the Children Act 1989 and successive government
attempts to legislate for good parents.

Beyond ideology, there are practical reasons for the emphasis on private ordering. Significant budget cuts
and court closures, a shortage of judges, and (currently) the backlog of work caused by closures during the

p. 4 COVID-19 pandemic have all contributed. It is ↵ true, too, that non-court resolution has many
advantages. It enables the parties to reach an outcome that is tailored to them, it avoids court costs, delays,
and litigation risk, and (where children are concerned) may make a future coparenting relationship easier.
Many cases before the family courts relate to agreements that have broken down, and the most common
2
reason is that the parties simply cannot work together. But non-court resolution is not a panacea, and not
all cases are suitable. A significant number of children cases, for example, involve allegations of domestic
abuse or other risks to children. We explore this topic in Chapter 10 and domestic abuse more broadly in
Chapter 7.

There is one area of family life where state intervention has increased and that is in the area of child
protection. In Chapter 11 we look at the rising numbers of children subject to child protection interventions
and potential reasons for this. There is no more fundamental interference with family life than removing a
person’s child from them to be adopted by someone else. As Sonia Harris-Short has written, through
3
adoption, the state is ‘uniquely engaged in the process of creating and destroying family life’. An extra
chapter, on elder law, can be found online. While not currently taught by many institutions, it is an
interesting area of law and one likely to become increasingly important as people live longer lives.

It is here that we come to one of the most significant elements of family law, the influence of the European
Convention on Human Rights both before and after its incorporation into our domestic law. Its importance is
a seam running through this book, from our discussion of whether there is a human right to marry in
Chapter 2, to the positive duties on the state to protect victims of domestic abuse in Chapter 7, to the
ascription of parentage and parental responsibility in Chapter 8, to asking whether there is a right to
contact with one’s children or parents in Chapter 10, to the difficult role that the state has in supporting
children to be raised within their families whilst ensuring that they are not harmed (Chapters 11 and 12). In

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 1. Introduction

Chapter 9 we ask whether children can be said to have human rights and, if so, what rights, and what a
child’s autonomy rights—the right to make his own decision—means for our domestic laws based on
children’s welfare.

It is possible that in the near future the Human Rights Act 1998 will be repealed. Whilst this would not be
the result of the UK leaving the European Union (because, while they have signatory member states in
common, the ECHR is not an instrument of the European Union but rather of a separate organisation called
the Council of Europe), a number of members of Parliament have called for its repeal and replacement.
This presents an area of uncertainty, as does Brexit itself. At the time of writing, the UK has committed to
leaving the European Union but the transition period has not yet reached its end. A great many questions
remain unanswered. Which of the rights and responsibilities given to us by EU laws will remain in, or be
incorporated into, our domestic laws? To what extent will the UK go its own way whilst the remaining
states of the EU move towards harmonisation in matters of family law? What effect will this have upon
families that comprise people of different nationalities living and working in the UK or travelling between
the UK and other states and issues such as child abduction, child contact, and the reciprocal recognition of

p. 5 orders between states? ↵

Test your understanding of this section with these self-assessment questions in the online
resources <https://iws.oupsupport.com/embed/access/content/morgan1e-student-resources/morgan1e-
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1.2 Some issues with access to justice

Family lawyers are used to uncertainty. We operate within an area of law in which judicial discretion is
widespread. In financial proceedings on divorce, for example, judges are simply required to reach an
outcome that is fair. In matters pertaining to a child’s upbringing, judges must do what is best for the
child. A system which leaves considerable discretion to judges is one that enables its outcomes to be
tailored precisely to a particular family situation, so that justice can be done in an individual case. More
prescriptive formulae or guidance would result in outcomes that were unfair in some cases. But discretion
comes at a price, both financial and ideological. Systems which are highly discretionary encourage
litigation because the outcomes are unpredictable. Prejudices can be hidden within the scope of discretion.
Litigants in person may struggle to find and apply the law.

The accessibility or otherwise of the law is particularly important because of the loss of legal aid in the
majority of family law cases as a result of the Legal Aid, Sentencing and Punishment of Offenders Act 2012
(LASPO). Legal aid is now only available for certain case types which are shown in Table 1.1. Note that in
many cases, legal aid is only available where there is evidence that the applicant is a victim of domestic
abuse or that there are certain types of harm to a child.

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1. Introduction

Table 1.1 Types of case where legal aid is available

Type of case Eligibility

Divorce, civil partnership dissolution, and judicial Domestic abuse victims only, and subject to means and merits
separation proceedings and related financial remedy test.
cases

Applications under the Children Act cases (private law) Domestic abuse victims only, and subject to means and merits
concerning arrangements for a child or for decisions test
about their upbringing (prohibited steps and specific
issues applications)

Applications under Schedule 1 to the Children Act 1989 Domestic abuse victims only, and subject to means and merits
test

Applications for a forced marriage protection order Means and merits tested

Applications for a female genital mutilation protection Means and merits tested
order

Applications for a non-molestation order or occupation Means and merits tested

order under the Family Law Act 1996 or an order under
the Protection from Harassment Act 1997

Proceedings brought by a local authority for a care or Available irrespective of means to parents and those with
supervision order, or for a child assessment or parental responsibility. Child represented by legal aided
emergency protection order lawyer appointed by guardian

Child abduction cases (legal proceedings to recover a Available irrespective of means if the Hague Convention or
child taken abroad or prevent them being abducted) Brussels II Revised Regulation applies; otherwise subject to
means and merits test

Mediation There is legal aid for mediation for both child and divorce and
related finance matters. The first meeting is free for both
parties if one of them is legally aided, but for subsequent
meetings only the person eligible on means-testing for legal
aid will get it.

6
Applications relating to children Children who are parties will be legally aided (either to
instruct their own solicitor or for the guardian to instruct a
solicitor)
If the child who is the subject of the application is at risk of
abuse from another person, and the case is to protect the
child from that other person, then legal aid is available to the
adult bringing the application

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1. Introduction

Type of case Eligibility

Any case Exceptional case funding is available for those cases which
would not otherwise be eligible if there is evidence that failure
to fund the case would breach a party’s rights under the
ECHR/Human Rights Act 1998 or under EU law; and the
unrepresented litigant would not otherwise be able to present
their case effectively and without obvious unfairness.
(Gudanaviciene and Others v Director of Legal Aid Casework
7
and Anor). This involves consideration of the complexity of
the legal and factual issues; the procedural complexity of the
case; the importance of the case; and the applicant’s ability to
represent themselves (including their physical and mental
health, language abilities, and educational level). It has been
said that ‘if a litigant in person is able to complete [the
exceptional funding application] form, they are almost able to
show that they are able to represent themselves, so it is self-
8
defeating’.

Even if the type of case is within the scope of legal aid, the parties may have to pass the means test and the
merits test. The means test concerns the financial resources of the person applying for legal aid. In many
cases, a person will earn too much to be eligible for legal aid even though they may struggle to afford a
4
solicitor. This is because the eligibility criteria are very stringent.

The merits test involves consideration by the Legal Aid Agency of the applicant’s prospects of success,
whether the costs are proportionate or reasonable compared to the benefits gained by winning the case,
and whether a hypothetical reasonable person would use their own money to pursue the case or not
consider the expenditure worth it. In cases involving protection from domestic abuse, this is not usually a
problem. Note that a person can lose legal aid if the case begins to go against them. This can happen in
children cases if a report by Cafcass, the Child and Family Court Advisory and Support Service, is
unfavourable to the legally aided person.

If a party recovers or preserves money or property as a result of a case for which they are legally aided, they
may have to repay their legal aid. This is called the ‘statutory charge’. The Legal Aid Agency may register
unpaid debt to them as a charge on the applicant’s home and charge interest at a not insignificant 8 per
cent per annum until the debt is repaid.

LASPO has led to a sharp rise in the number of people representing themselves at court (known as litigants
in person or self-representing litigants). In 2019, of 111,606 parties in private law disputes about children
of the kind discussed in Chapter 10, 65 per cent—some 72,869 people (41,183 respondents and 31,686
5
applicants)—had no recorded legal representative. In 2011, pre-LASPO, the figure was 39 per cent.

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 1. Introduction

Although there have been a number of efforts to simplify procedures and forms so that they can be better

p. 7
6 used by people representing themselves, family law is particularly difficult ↵ ↵ for litigants in
person for a number of reasons. Firstly, the law is not easy to locate. It is heavily discretionary, as we have
said, and guidance on the principles to be applied are found within cases which a person new to the law
may not be able to find. The outcome in one case may wildly differ from an outcome in a different case even
though on the surface they both seem to be about the same thing. Second, family law involves issues that
are important to us: the right to see our child, our financial independence, or personal safety, or ability to
become or to remain a parent. Emotions can often run high in family courts. For family lawyers, that is
part of the excitement, but we have the privilege of not being personally involved.

Of course, some of the law that you read about in this book may have shaped your lived experience. If you
have picked this book up at university, there may well be students in your class who were subjected to
domestic abuse, or taken into care, or whose relationship with one parent has been shaped by relationship
breakdown or child arrangements proceedings. Most students will marry or cohabit at some point. Some
may seek to change legal gender, or enter into arranged marriages, disagree with their parents over
medical treatment, or face homelessness. Some people choose to study family law precisely because it
helps them to make sense of their experiences. Some parts of this book may be distressing even to those
whose lives have been far away from some of the cases we discuss.

As you read this book, consider how you might experience the law coming to it as a lay person rather than
as a scholar guided by a lecturer. How would you have located this law if not for its neat packaging as a
book or e-book? How might you have applied the law to your own divorce or child dispute? How could you,
as a lawyer, help others with family law difficulties?

Watch a video of Polly Morgan introducing you to family law.

Video playback is not supported in this format.

Test your understanding of this section with these self-assessment questions in the online
resources <https://iws.oupsupport.com/embed/access/content/morgan1e-student-resources/morgan1e-
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Notes
1
Office for National Statistics, Families and Households Dataset (2019).
2
L Trinder, J Hunt, A Macleod, J Pearce, and H Woodward, Enforcing Contact Orders: Problem-Solving or Punishment?
(University of Exeter/Nuffield Foundation 2013).
3
S Harris-Short, ‘Making and Breaking Family Life: Adoption, the State, and Human Rights’ (2008) 35(1) Journal of Law
and Society 28, 28.

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1. Introduction

6
In theory, an application for contact with your former child who has been adopted by another family is a category of
cases that since 2015 has been eligible for legal aid, but Andrew Pack has explained how this is theory rather than
practice at https://suesspiciousminds.com/tag/can-i-get-legal-aid-to-apply-for-post-adoption-contact/ <https://
suesspiciousminds.com/tag/can-i-get-legal-aid-to-apply-for-post-adoption-contact/> accessed 23 November 2020.
7
[2014] EWCA Civ 1622.
8
Evidence given by Resolution member David Emmerson to the Justice Select Committee on 2 September 2014.
Resolution is an organisation for family lawyers. See House of Commons Justice Committee, Impact of Changes to Civil
Legal Aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (HC 2014-15, HC 311) para 43.
4
You can find them here: https://www.gov.uk/guidance/civil-legal-aid-means-testing#eligibility-limits <https://
www.gov.uk/guidance/civil-legal-aid-means-testing#eligibility-limits>.
5
Ministry of Justice, Family Court Statistics Quarterly April to June 2020 (2020) at Table 11.

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