Critically Analyse Judicial Discretion in Family law

Marriage
The court has the power to give consent for a child to marry. For these purposes a child is someone under the age of 181 but over the age of 16 as someone who is 15 or less can not be a party to a valid marriage 2 . The main purpose of this discretion is to allow person aged 16 or 17 to marry when there is no one else available who can give consent. However it can also be used to go against the wishes of such a person if they have refused to give consent to the marriage. I believe that this is unnecessary as the person whose consent is required will almost certainly be in a better position to decide whether or not the marriage is in the best interests of the child, and not the court.

The court also has the power to grant a party to a marriage a non-molestation order. In deciding whether or not to exercise this discretion, the court must have regard to all of the circumstances of the case including the need to secure the health, safety and wellbeing of the applicant and any relevant child 3 . These orders are used in cases of domestic abuse to help protect the victim and any children involved.

The court has the power to vary maintenance agreements during the lives of the parties. It also has the power to make an order for financial provision for the parties to the marriage and children of the family4 in cases where the respondent has failed to provide reasonable maintenance for the applicant or for any child of the family.

The court has discretion to make a declaration as to marital status 5 , for example, that a marriage is valid, or that it did not subsist on a specified date. It also has discretion to make a declaration as to the presumption of death and dissolution a marriage if it has reasonable grounds to believe that one of the parties to the marriage is dead .6

These discretions are in place to allow the court to ensure that both parties to the marriage are treated fairly with regards to their obligations to one another and their respective rights and those of any children of the family. What is fair treatment will be different in each case depending on the individual circumstances of the parties. I believe that the majority of these discretions are necessary as there can be so many varying factors to be taken into account that it would not be possible to have strict rules as to the proper decision to be taken in each scenario.

Divorce
The only ground for divorce is that the marriage between the parties has broken down irretrievably 7 . The court has no power to decide that this is the case unless one of the 5 facts as specified in the Matrimonial Causes Act 1973 s1(2) is proven. However, even if one of the facts is proven, the court has discretion to refuse to grant a decree nisi if it is still not satisfied that the marriage has broken down irretrievably.

One of the facts which a petition for divorce can be based upon as stated by the Matrimonial Causes Act is behaviour8 . The test for whether or not the petitioner can reasonably be expected to live with the respondent due to their behaviour is an objective one, which means that the court will use its discretion to decide upon what is 'reasonable' in the circumstances. The court will look for three to six examples of the respondent's behaviour and will take into account any cohabitation between the parties which exceeds 6 months and the reasons for such cohabitation .9

Another fact given in the Act is 2 years separation and consent 10 . If the respondent's consent to the divorce is withdrawn after the decree nisi has been granted but before the decree absolute the court has discretion to rescind the decree nisi if it is satisfied that the petitioner misled the respondent about any matter which he took into account when deciding to give consent 11 . However, the court will usually use its discretion to grant the decree absolute despite the respondent having been misled unless this would result in serious consequences.

The court also has discretion not to make a decree absolute based on the fourth fact if it is not satisfied that either the petitioner should not be required to make any financial provision for the respondent, or that that financial provision made is fair and reasonable 12 . This discretion is rarely used in practice but can serve as a useful tool for the respondent to persuade the petitioner to give them a more favourable financial settlement.

The final of the 5 facts given in the Act is based on 5 years separation. If this is the only fact relied upon it is a defence to the proceedings for divorce that the respondent would suffer grave hardship due to the dissolution of the marriage and in all the circumstances it would be wrong to dissolve the marriage 13 . The court must use its discretion in deciding whether the hardship would be grave and whether there are any additional circumstances which would support the petitioner's entitlement to a decree absolute.

All of these discretions which the court has with regard to divorce are meant to serve two purposes. Firstly to only allow the dissolution of a marriage in certain circumstances were the court is satisfied that there is good reason to do so and secondly, to ensure that both parties to the marriage are treated as fairly and as reasonably as possible. I believe that generally the discretions do serve these purposes.

Property
There are various orders a court can make with regard to property in a Family Law context. One such order is a Property Adjustment Order. The court has a wide discretion in deciding how the property should be held and in what shares. The court may use its discretion to order an immediate sale of the matrimonial home. This is most common in clean break cases when the family assets are such that they can meet the needs of both parties separately.

Alternatively the matrimonial home may be retained for occupation by one party and any children of the family. This can be effected by an outright transfer to the party in question or by a deferred trust of land or a deferred charge, which will only be realised on the occurrence of a specified event or events. It is for the court to decide which of these options is most suitable in a given case, by the application of the factors set out in s25 of the Matrimonial Causes Act 1973 14 . The court must also use its discretion to decide what the triggering events should be which will realise the deferred trust of land or deferred charge. This discretion is given to the court so that they may best serve the interest of both parties and of any children of the family. I would submit that there are too many possible orders which the court can chose from and that there should be more restriction on what orders should be made in specific circumstances.

Another type of order which the court can make is an Occupation Order15 in cases of domestic abuse. What provisions the order can contain and what factors the court will take into account when exercising its discretion to grant an order will be dependant on the status of the applicant. For example, where the applicant has an existing right to occupy the home the court has the power to make provisions which require the respondent to permit the applicant to occupy the home and which require the respondent to leave the home, amongst others. The court's power to make such orders is subject to the 'balance of harm test' 16 . This states that if the court believes that the applicant or any child is likely to suffer significant harm due to the respondent's conduct if an occupation order is not made then the court must make such an order unless the harm which would be suffered by the respondent and any child would be greater that that of the applicant and any child if such an order were to be made .17

Al of these discretions are given to the court so that they may take into account all of the circumstances of an individual case when deciding on what orders they should make.

Local Authorities and the Children Act
Although the court does have the power to examine a local authority's decision with regard to action taken under the Children Act 1989 by judicial review it is often reluctant to do so. The court has said that it is essentially a matter for the local authority to decide what consideration and what weight should be given to the circumstances of any given child .18

The court has discretion to order the local authority to investigate a child's circumstances 19 , if it believes that a care or supervision order may be appropriate for the child, and if family proceedings are already taking place in the court. When deciding whether or not to exercise this discretion the court's primary consideration should be the welfare of the child. If the court does choose to order an investigation, then it has a further discretion to make an interim care or supervision order without a formal application. The reason behind both of these discretions is to allow the court the leeway to protect any child that it thinks may be at risk. However, one of the main reasons that the Children Act was passed was to prevent children being removed from their parents by the local authority too quickly and without proper investigation 20 . The court's discretion to make an interim care order would seem to give the local authority the power to go against this.

When the local authority makes an application for a care or supervision order under s31 of the Children Act the court has discretion to decide whether an order should be made, and if so, what type of order, with regard to the welfare principle as specifies in s1 of the Act. If the court is not satisfied by the case put forward by the local authority and their plans for the care of the child then it may refuse to may make any order or may make an interim order.

Under s34 the court has the power to make a contact order. Although the court does have the power to refuse contact by the local authority, it is not able to refuse a child contact with its parents where the local authority deems this to be advantageous to a child's welfare 21 . This is to allow the court to have some ability to curb the local authority's involvement with a family, while leaving the important decision of parental contact up to those who are most involved in the case.

The court has discretion to order an emergency protection order under s44 of the Act if it is satisfied that the child is likely to suffer significant harm if not removed to alternative accommodation or if he does not remain in the place where he is being accommodated. Before making such an order the court must take the welfare principle22 and the no order presumption23 into account.

Overall, the court's discretions under the Children Act 1989 are designed to allow the court ample freedom to protect any child which it considers to be at risk of significant harm, whilst not giving the court so much control that it always has the power to act rashly or without proper investigation into the child's circumstances. It is a difficult balancing act between the power of the court and the rights of a child's parents or guardians.

  1. Marriage Act 1949 s78(1) as amended by the Family Law Reform Act 1987 s33(1), Sch 2 para 10a)[^ Return]
  2. Matrimonial Causes Act 1973 s11(a)(ii)[^ Return]
  3. Family Law Act 1996 s42(5)[^ Return]
  4. Domestic Proceedings and Magistrate's Court Act 1978[^ Return]
  5. Family Law Act 1986 s55[^ Return]
  6. Thompson v Thompson 1 All ER 603[^ Return]
  7. Matrimonial Causes Act 1973 s1(1)[^ Return]
  8. Matrimonial Causes Act 1973 s1(2)(b)[^ Return]
  9. Bradley v Bradley [1973] 1 WLR 1291[^ Return]
  10. Matrimonial Causes Act 1973 s1(2)(d)[^ Return]
  11. Matrimonial Causes Act 1973 s10(1)[^ Return]
  12. Matrimonial Causes Act 1973 s10(3)[^ Return]
  13. Matrimonial Causes Act 1973 s5(1)[^ Return]
  14. Piglowska v Piglowska [1999] 2 FLR 763[^ Return]
  15. Family Law Act 1996 ss 33 and 35-38[^ Return]
  16. Family Law Act 1996 s 33(7)[^ Return]
  17. B v B (Occupation Order) [1999] 1 FLR 715[^ Return]
  18. R v London Borough of Barnet ex parte B [1994] 1 FLR 592[^ Return]
  19. Children Act 1989 s 37[^ Return]
  20. The Cleveland Report[^ Return]
  21. Re W (Section 34(2) Orders) [2000] 1 FLR 502[^ Return]
  22. Children Act 1989 s1(1)[^ Return]
  23. Children Act 1989 s1(5)[^ Return]

BIBLIOGRAPHY

Books

Clout - The Matrimonial Lawyer: A Survival Guide
The College of Law LPC - Kempton & Theobold: Family Law and Practice

Legislation

Children Act 1989
Domestic Proceedings and Magistrate's Court Act 1978
Family Law Act 1996
Marriage Act 1949
Matrimonial Causes Act 1973

Cases

B v B (Occupation Order) [1999] 1 FLR 715
Bradley v Bradley [1973] 1 WLR 1291
Hopes v Hopes [1948] 2 All ER 920
Piglowska v Piglowska [1999] 2 FLR 763
R v London Borough of Barnet ex parte B [1994] 1 FLR 592
Re W (Section 34(2) Orders) [2000] 1 FLR 502
Thompson v Thompson 1 All ER 603

Websites

Butterworth's Lexis Nexis Direct online
Halsbury's Laws Direct online
Westlaw UK online

Reports

The Cleveland Report

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