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Cite as: Mary Hayes and Catherine Williams, <I>Family Law: Principles, Policy and Practice</I>, Butterworths, London, Dublin, Edinburgh

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Mary Hayes and Catherine Williams, Family Law: Principles, Policy and Practice, Butterworths, London, Dublin, Edinburgh (1995), 589 pp, ISBN 0 406 06329 X, Sb Ł24.95.

Reviewed by Stephen Gilmore

Lecturer in Law
University of East London
< S.Gilmore@uel.ac.uk> .

Copyright © 1996 Stephen Gilmore.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Introduction

The authors of this book are to be congratulated on having produced a highly readable, up-to-date, and substantively accurate account of a number of key areas of child law and family law. The book is particularly to be commended for its distillation of, and stimulating commentary on, a large body of case-law, in much of which, principles are only beginning to emerge. This will come as no surprise to family law scholars, who will know Mary Hayes and Catherine Williams as regular contributors to academic journals, and as editor/assistant editor respectively of the Child and Family Law Quarterly. In addition, the authors bring to their writing their experience of teaching family law at Sheffield University, and their practical experience of the law - Mary Hayes is a barrister and Justice of the Peace who has regularly taken the chair in the family proceedings court; Catherine Williams has been an independent investigator in children's cases, and chair of a local authority complaints panel (see cover).

The Book's Aims and Objectives

Drawing on this experience, the authors have set themselves the difficult task of not only conveying the principles of family law, but also, as the book's title suggests, its policy and practice. In addition, they seek a wide readership: although the book is written primarily for law students, the authors hope that it will appeal also to lawyers, social workers and other child care practitioners.

The book does not profess to cover all aspects of family law which have been addressed in standard texts. The concern is to impart the underlying principles and policy considerations which inform the main body of law. The writers have thus concentrated on areas which they feel will provide a secure foundation on which students might build their knowledge and skills. The focus therefore is on areas which are considered likely to occur frequently in practice, are of general public interest, are likely to give rise to controversial litigation, or where reform is likely to be implemented. This they have largely achieved, although a notable and surprising omission is devolution of property on death.(1)

The Book's Structure

The book's 589 pages are divided into 8 rather long chapters, but each chapter is divided into many sub- headings which are usefully listed at the beginning of each chapter. There is fairly frequent cross-referencing, although often the reference is only to a particular chapter as opposed to a specific page number. The book is well indexed and contains alphabetical tables of cases and statutes. The latter contains useful references to Halsbury's Statutes (4th Edition). The book appears to divide neatly into two halves: the first 4 chapters cover core aspects of child law: (1) Responsibility for bringing up children, (2) Orders under Section 8 Children Act 1989 and orders under the High Court's inherent jurisdiction, (3) Children needing services care or protection and (4) Approaches to welfare in children cases; the final four chapters deal with common areas of family law: (5) Personal protection and regulating the occupation of the matrimonial home, (6) Ending a marriage by decree, (7) Money and property on marriage breakdown and (8) Child support and homes for unmarried partners and children. This structure enables the book to be used on child law and/or family law courses and, as the authors point out, makes the book particularly suitable for use on modular courses.

Description and Assessment of the Book's Content

The book begins by explaining the concept of parental responsibility in the Children Act 1989 [note, hereafter all sections mentioned refer to the Children Act 1989 unless otherwise stated] and how parents can acquire it. The position of the unmarried father is explored, and there is a thorough analysis of the case-law on parental responsibility orders. There follows a discussion on legal parenthood, recounting the basic framework of the Human Fertilisation and Embryology Act 1990, the presumption of legitimacy, and sections 20-23 Family Law Reform Act 1969 and its attendant case law on blood testing and proof of paternity. Thereafter, a little disjointedly, the discussion returns to parental responsibility, explaining its basic features in section 2 (for example, durability, right of independent action, and the incompatibility principle), and how persons other than parents may acquire parental responsibility. There is a separate discussion of guardianship. The chapter rounds off the discussion with a section on 'competent children, parental responsibility and decision-making'. This briefly discusses the Gillick decision (Gillick v West Norfolk Wisbech Area Health Authority [1986] AC 112, HL), and in a little more detail, subsequent case-law, including a useful analysis of the weight to be attached to children's wishes. Consideration of what a Gillick competent child might do when medical treatment is authorised against his/her consent, leads neatly to Chapter 2, which deals with court orders in relation to children.

Chapter 2 begins with an explanation of the 'no order principle' in s 1(5). Each section 8 order is then explored in turn, its scope and, where appropriate, its relationship to public law orders and its use by local authorities. Building on chapter 1, the legal consequences of residence orders are discussed. The authors set out clearly the scheme of entitlement to apply for a section 8 order, and there is a comprehensive account of the case-law surrounding each of the criteria in s 10(9) on an application for leave to apply, and s 10(8) regarding leave applications by children. The text then sets out and explains reasons for the restrictions in s 9(1),(2) and (5), and the position of local authority foster parents under s 9(3). The chapter ends with discussion of the inherent jurisdiction, explaining the restrictions on its use in s 100, and illustrating by way of case-law some of the tensions between the inherent jurisdiction and the Children Act 1989.

Chapter 2 illustrates many of the strengths of this book. What might otherwise be encountered by students as rather complex and 'dry' statutory provisions, are conveyed in a highly readable style, and simplified by a very clear, logical exposition. The text does not compartmentalize the topic under discussion, but builds on knowledge already imparted, and prepares the reader for what is to come. The authors have managed to pack in much substantive law - the result of this, however, is that the emphasis is heavily on a descriptive account of the law as opposed to policy considerations. It is slightly disappointing that there is not more general discussion of various policy perspectives on legislation (see e.g. Fox-Harding 1991), and it is apparent throughout the text that the authors have not been able to place the law and various debates in historical context. The authors seem aware of this, and wherever possible, the reader is referred to other texts for helpful accounts of the literature on policy debates, although citation of academic and other published comment is a little sparse at times.(2) This may, however, be in line with the writers' aim not to over-complicate the text, and it must be acknowledged that where academic work is cited, it is of the highest quality.

Thus, in Chapter 3 there is no mention of the Review of Child Care Law(3) and perceived inadequacies of the previous law, and although there is some discussion of the 'balance' between family privacy and state intervention, this is not placed in the context of academic debate.(4) The reader is, however, carefully guided through the more important features of Parts III, IV and V of the Children Act 1989, and some of the important influences on the legislation (for example, reports of child abuse inquiries) are neatly woven into the text. The discussion is divided broadly into 6 areas: provision of support and accommodation (the main features of ss 17, 20 and Schedule 2); investigation (ss 47, 37 and Child Assessment Orders); Emergency Protection Orders; definition of significant harm and local authority responses to it; Care and Supervision Orders (including interim orders); and contact with children in care (s 34). The chapter conveys extremely well the underlying philosophy of 'partnership' and provides the reader with a very good 'feel' for the legislation. Emphasising the voluntary nature of local authority accommodation, and building on earlier treatment of parental responsibility and residence orders, restrictions on removal and some of the tensions between s 20(8) and s 3(5) are discussed, including the practice of accommodation agreements. There is clear exposition of the grounds for, and legal implications of, available orders, together with a thorough analysis of how the courts have interpreted the threshold test in s 31(2), in particular the decision in Re M (A Minor) (Care Order: Threshold Conditions) [1994] 3 WLR 558 HL, and of the case-law on standard of proof. Throughout, the authors are at pains to breathe life into the statutory provisions by relating the decision- making process in practice, with, for example, discussion of local authority responses to significant harm, case conferences, and the role of the guardian ad litem.

This practical approach is continued in Chapter 4, where the focus is on how decisions are taken in relation to children. There is a brief resume of arguments surrounding mediation, followed by discussion of commencement of proceedings and children's evidence (sections on legal professional privilege, confidential information, hearsay, children's competence, and video-taped evidence). The authors then discuss the welfare principle in s 1, and the welfare checklist (s1(3)). Here the discretionary nature of much of family law is emphasised, with discussion of the value of precedent, and the limited role of the appeal court. The courts' approach to welfare is then explored in relation to children's residence and contact. Residence is discussed under a number of sub-headings dealing with shared residence, the choice between third parties and parents, continuity of care and snatching cases, and issues of sexual orientation and ethnic origin. The general principles of contact are explained, with possible reasons for denying contact explored under the separate headings of implacable hostility, destabilisation of the family, cases of abuse, and removal from the jurisdiction. The structure of the book thus means that full discussion of residence and contact is split between chapters 2 and 4, but this is probably a small price to pay for not overloading the very clear explanation in chapter 2. Chapter 4 ends with two sections providing respectively good general accounts of child abduction and adoption. These seem rather out of place here, as the discussion is not confined to approaches to welfare. In this chapter, as throughout the book, the authors make suggestions and comments. On occasions these have the flavour of 'preaching' a particular opinion, rather than presenting an argument, but no doubt this is consistent with one of the aims of the book, which is to stimulate further interest and debate.

Chapter 5 provides a very good account and criticism of the law on personal protection and regulation of occupation of the home. The civil remedies under the Domestic Violence and Matrimonial Proceedings Act 1976, the Domestic Proceedings and Magistrates Courts Act 1978 (DPMCA 1978), the Matrimonial Homes Act 1983 (MHA 1983) and their enforcement are described. There is a useful analysis of case-law on each of the criteria in s 1(3) MHA 1983 regarding exercise of the discretion to oust. Deficiencies in the statutory scheme are highlighted, and other options under the general law of tort, injunctions under s 37(1) Supreme Court Act 1981, and orders under the Children Act 1989 are explored, together with practical suggestions. The chapter concludes by considering the Law Commission's proposals in Law Com No 207 (1992), Family Law, Domestic Violence and Occupation of the Family Home.

The substantive law of nullity, divorce, and judicial separation is described in Chapter 6, together with criticism of recent proposals for reform. Chapter 7 deals with money and property on marriage breakdown, and provides a very clear account of the statutory framework and of case law illustrating how the courts have exercised their discretion under s 25 Matrimonial Causes Act 1973 (MCA 1973), and the approach taken to the 'clean break' provisions in s 25A, although the policy debate surrounding the changes effected by the Matrimonial and Family Proceedings Act 1984 is not considered in any detail. Consent orders are briefly discussed, but the limits of private ordering are beyond the book's scope. Financial provision and property adjustment for children are dealt with in the final chapter, which also includes an account of the law on acquiring beneficial interests in property. There is a highly readable account of the scope and workings of the Child Support Act 1991, and the Children Act 1989 Schedule 1, with a clear explanation of the concept of 'child of the family'. The discussion on child support appears to omit an account of orders available under s 27 MCA 1973 or the DPMCA 1978, and provision for children on divorce receives only a brief treatment. Noticeably, there is no specific mention of the criteria in s 25(3) and (4) MCA 1973, although similar provisions in the Children Act 1989 are discussed.

To Whom Will the Book Appeal?

The book is likely to appeal to law students seeking a clear introduction to principles of family law. The book's clarity and discussion of practice will also be attractive to social workers and other child care professionals. This is not, however, a book on legal practice - the reader will not find advice, for example, on what to include in a petition or how to draft an affidavit - and much of the book's content is likely to be familiar to specialist family law practitioners, although as the authors suggest, the book may provide some ideas on which to base advocacy. The more general legal practitioner will find this a useful book for updating knowledge.

The law is stated as at Christmas 1994. Reviewing this book over a year since its publication, it is inevitable that there will have been changes in the law since publication. The text will need to be read with an eye on the Child Support Act 1995, and the Pensions Act 1995. In addition, case law has overtaken the discussion of conditions on contact orders (Re O (A Minor) (Contact: Imposition of Conditions) [1995] 2 FLR 124 CA), and the treatment of standard of proof in Chapter 3 will need to be read in the light of the recent House of Lords decision in Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 (see Smith 1996).

The book is set to become a standard undergraduate text, and it is not difficult to see why it was Butterworths Prize shortlisted.

With the changes in the law soon to be effected by the Family Law Bill, the text will require revision, and students and lecturers alike will welcome the appearance of this book in its second edition.

Bibliography

Fox Harding, L (1991) 'The Children Act 1989 in Context: Four Perspectives on Child Care Law and Policy' Journal of Social Welfare Law 179-93, 285 302.

Smith, V (1996) 'Re H and R - The Standard of Proof' Family Law 168

Footnotes

(1) Arguably controversial, and recently the subject of reform following Law Commission reports - see Law Reform (Succession) Act 1995, and for comment [1996] Fam Law 172. Back to text.

(2) For example, of the extensive analysis of the Gillick case, only two writers' works are cited. Back to text.

(3) Review of Child Care Law: Report to Ministers of an Interdepartmental Working Party, (London: HMSO), 1985. For a critical historical account, see for example, Eekelaar, Dingwall and Murray, 'Victims or Threats? Children in Care Proceedings' [1982] Journal of Social Welfare Law 68. Back to text.

(4) See, for example, the arguments of Goldstein, Freud and Solnit (1979) in Before the Best Interests of the Child, New York, Free Press, and Freeman, (1983) The Rights and Wrongs of Children,(Frances Pinter) Ch 7. Back to text.