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Question 1
1. Despite sociological and legal changes over time, undeniably, individuals still visualize the
establishment of matrimonial relations as a favoured status, due to legal benefits, that bind
the parties in mutual obligations. However, it may also be noted that English laws
governing marriage are rigid1, should be obsolete, and demand a complete makeover, for
they fail to accommodate the changes that have come.
2. When no proper definition of marriage existed, judicial pronouncements defined it as ‘a
voluntary union of a man and a woman’, as stated in Hyde v. Hyde & Woodmansee2.
However, this definition found itself to be modified over time, and owing to certain
legislatures3, marriage is now defined as ‘a union between two people’.
3. Undeniably, Marriage, is not merely a contract, is a status, by virtue of which, not just the
spouses, but the third parties, and even the State find themselves affected.4 The same was
held in Re P [2008], and that the individuals cannot freely decide all the terms, rather, third
parties i.e. their children, and the State and the society have a say in it as well, being
affected by it.
4. Article 12, ECHR provides a right to all to marry, and found a family, but subject to
national legislation. In Schalk and Kopf v. Austria5, not allowing two gay couples to marry
was held not to violate the ECHR, for the national legislation forbade the same. The right,
however, in Art. 12, can be allowed by the state for the best interests of the people,
something that the law in UK did, allowing same sex marriages by virtue of the Marriage
(Same-Sex Couples) Act, 2013.
5. Marriage may be a status, but it can also be seen as a contract as well, mainly because with
the growing responsibility of the spouses, there have arisen mutual sort-of contractual
obligations, arising in the form of property rights and maintenance of children etc.
6. Although state-interference in matters of individual matrimony would be ideally decreased
if the individuals were responsible enough in themselves for a lifetime-union, however, the

John Bingham, British Marriage Laws are ‘hopelessly out of date’, Government told,
told.html. The Telegraph, 11:29PM GMT 16 Dec 2015.
(1886) L.R. 1 P. & D. 130.
Marriage (Same-Sex Couples) Act, 2013
Re P [2008] UKHL 38
App No 31041/04, ECHR (2010).
irresponsible behaviour of theirs that forced the hand of the State in the first place. In order
to sustain lifelong-unions, State had to interfere, in order to develop sufficient guidelines,
and thereby, govern the perspective of the individuals towards lasting sustenance of their
matrimonial relations. Albeit, the individuals, if matured such, would not require such
state-interference, yet, till then, state interference would be necessary.
7. A step towards allowing the autonomy of parties for matrimonial relations was seen in the
case of Radmacher v. Granatino6, initiating a series of events where the prenuptial
agreements were allowed enforceability. Where a French Investment Banker, having
entered into a prenuptial agreement with his wealthy German wife, was held to the
agreement, the individual rights to decide the terms of their matrimonial relations were
upheld. A Prenuptial agreement is a pre-marriage agreement between the parties, one
which provides that each of the parties to the agreement decides or forego any rights,
interest or benefit from the other party’s.7 In Radmacher, when the spouses divorced, the
Banker sought invalidation of the prenuptial agreement, a plea that was struck down by the
Courts, upholding the validity of such agreements, but however, laid down some conditions
for their enforceability. The conditions under which any prenuptial agreement would be
enforced were that the parties had entered into the agreement without any force or duress,
that both were aware and in full appreciation of its implications, and that it would be fair
to hold the parties to the agreement in light of their circumstances. Had the parties entered
into the agreement under due force, or were not actually aware what the conditions of their
agreement actually meant, or if holding either of the parties to the agreement would be
putting them to a disadvantage owing to any change in their circumstances as compared to
before such agreement, such a prenuptial agreement would not be enforceable. In V. v. V.8,
the prenuptial agreements had been upheld by the court. Besides Radmacher, however, in
GS. v. L.9, the parties were not held bound by the prenuptial agreement because they were
not aware of the nature of the agreement they had entered into, and the agreement was also

[2010] UKSC 42.
Sharon Thompson, “Radmacher (formerly Granatino) v. Granatino [2010] UKSC 42” 33 JOURNAL OF SOCIAL
WELFARE & FAMILY LAW, 61-70 (2011).
[2011] EWHC 3230 (Fam.).
[2011] EWHC 1759 (Fam.).
upheld in Kremen v. Agrest10, proper legal advice hadn’t been tendered to them while
entering into such an agreement.
8. Yet, in the Radmacher case, some attention needs to be paid to the dissenting opinion
presented by Lady Hale, where she rightly has opined that ante-nuptial agreement only
should be enforced, if they are fair. “We want to encourage responsible families, in which
people are able to compromise their place in the world outside the home for the sake of
their partners, their children and their elderly or disabled relatives, and can be properly
compensated if the things go wrong.”11 She emphasized mainly that the court lacked
authority in deciding whether a pre-nuptial agreement should be enforced or not, and that
the authority of the court was limited to its discretionary exercise of taking such agreements
into account, and not more than that. According to her, what should be considered is that
whether any unfair advantage has been taken by one party over the other, and that whether
there has been a change in circumstances of such nature which would make the
enforcement of the agreement unfair. Such considerations are justified, since the change in
circumstances are vital to the assessment of the fairness of the agreement.
9. Further the shift from the state-interest to individual autonomy can be seen by the inclusion
of the Section 10 of the Children and Families Act, 2014, which provides for Mediation
Information Assessment Meeting (MIAM), at which the divorcing couples may resort to
mediation before presenting an application of divorce before the Courts.

B. Question 2
1. Despite having been stated expressly in the Children Act, 1989, that the welfare of the child
is to be held paramount over any other considerations, yet the judicial history of the courts
indicates towards their inclination for a preference for the birth parents of the child. For a
long time now, the question has posed itself that the court does not adequately balance the
welfare of the child, when the dispute arises between the primacy of the birth parents, and
the attachment of the child, on two different aspects. Bowlby, in his theory of Attachment,

[2012] EWHC 45 (Fam.).
Brenda Hale, Equality and Autonomy in Family Law, J. SOC. WEL. & FAM. L., 33:01, 3-14 (2011).
suggests that children are pre-programmed before coming to this world, to develop
attachments with others, and such attachments are vital for their survival, and that such
attachments are innate, activated by any circumstance that threatens the achievement of
proximity or insecurity. However, such attachments may or may not be developed with the
birth family, and may be formed over time with others as well.
2. Indeed, as had been stated in the Section 3(1) of the Children Act, 1989, parental
responsibility has been defined as all the rights, duties, powers and responsibilities that a
parent, by law, has in regard to its child, and the child’s property. It is notable that, although
the notion is such that parental responsibility is more centralized towards the duties of the
parent towards their children, rather than the rights of the parents over their children, and
it lays waste to the notion that the children are under the absolute control of the parents,
yet the language of the Section 1 still incorporates the notion of parental rights over
3. Undeniably, under the United Nations Convention on Rights of Child (UNCRC), parents
have been awarded a significant position in the lives of the children, and are held to be
legally responsible for their children, and their rights and responsibilities as such are held
to be respected by the state parties12, while at the same time, the Child is also entitled to be
taken care of by its parents.13 The courts opined in the case of Re KD14, that the best person
for the optimum upbringing of the child is its natural parent, regardless what the parent is
like, but as long as the moral and physical health of the children are not endangered.
4. Indeed, parental preference presumes that the natural parents are the ideal for the
upbringing of the child, and that they will duly perform their duties, but the parental rights
are not paramount; the welfare of the child is. The welfare of the child shall prevail over
such rights and responsibilities of the parents, and if it is found that a claim for such rights
is in the detriment of the welfare of the child, then the court has power to order the local
authorities to take the child into their care.
5. Several cases over time have established and reaffirmed that parental presumption does not
always incline towards the parents. In J. v. C.15, the court held no presumption in favour of

Article 5, UNCRC
Id. Article 7.
[1988] AC 806, at 812.
[1970] UKHL 4.
the birth parents, but held that it would be weighed along with other factors for the welfare
of the child. In Re H.16, the case preferred that the child stay with his aunt in India, to whom
he had been sent to by his parents, to continue the trend. Yet, there are also cases which
prefer the rights of the birth parents. In Re K17, the court was of the opinion that the question
of import was not where the child would get a better home, rather, that is there sufficient
evidence to displace the rights of the birth parents. Similarly, in Re KD18, the court opined
that unless evidence suggests for a suspension of their rights, the court cannot oppose the
claim of the birth parents.
6. Also, despite the supremacy of the welfare of the child, there have been cases, where
parental rights prevailed over the child welfare, as in the case of Re D19, where the court
felt it ought to consider any other compelling factors that shall override the ‘right of the
child’, and incline towards upbringing by the surviving parent. Claim of the natural mother
was preferred over the claim of the parental aunt, with whom the child had spent a
considerable amount of time.
7. Over the times, the courts have delivered various opinions, often ones which contradict
each other, as was observed in the cases of Re G20, where the court preferred the custody
with the parental mother, and opined that the children should not be distanced from their
parents, unless without good reason, whereby, in Re B21, the court observed that once if
proven that the welfare of the child were better served by staying with the grandparents, no
other option remained than ordering the child’s stay with the grandparents, and laid
primacy to the welfare of the child.
8. The Courts have, by such opinions, raised a significant controversy between the concept
of ‘social parents’ and that of ‘birth parents’. In an attempt to balance, they have laid
primacy to the welfare of the child, and that the stay of the child would be decided on the
circumstances, wherein the best route would be targeted towards what best suits the needs
of the child. In a dilemma for what precedes, ‘parenting by being’ or ‘parenting by doing’,

[1990] 1 WLR 431.
[1988] 1 AC 806.
[1999] FLR 1023.
[2006] UKHL 43.
[2009] UKSC 5.
the courts seem to have adopted the middle way, and have prioritized the development and
the requirement of the child torn in the process as supreme.
9. Whatever the approach the courts may take, it must still take or adopt such measures in a
proportional manner, for there may be a chance that the immediacy of the measures taken
in light of the harm feared to be caused may be too rash, or that the measures taken may
just be too late due to such probability being assessed in the while. Its optimum for the
court to take measures on the basis of the harm established by it for certain, rather than
10. Such an approach is bound to adequately balance, where it should also consider other
factors, indeed, but the welfare of the child should still be paramount consideration, and
the court should take measures accordingly, as had been done in the Re B22case.

C. Question 3
1. The issues raised by Tom are mainly dealt with in the Children and Families Act, 2014. In
regards to the request for assistance, Tom should primarily resort to the family mediation
meeting, as has been provided for in the Section 10(1) of the Act, and attempt to resolve
the issue for which he intends to apply in the Court, in order to resolve the matter before.23
However, in case the mediation process fails to work out, Tom is advised that he be patient,
for despite the idea of a presumed bias against the father in the matters of ‘continued
involvement’ of a parent in the upbringing of the child, such a presumption is baseless, and
that he should rather be patient, for the process involved takes a considerable amount of
2. He should also know that the complex process is also heavy on the pockets, but not
impossible, for the Court has noted on several occasions that it is almost always in the best
interests of the child that it stay in direct contact with the parent, that they don’t live with,
especially when it is their desire to do so. Besides, the Children Act, 1989, in its section 1,
clearly places the welfare of the child at the paramount consideration.24

Johnathan Herring. “The Welfare Principle and Children Act: Presumably Its about Welfare” 34 J. SOCIAL
3. However, the chances that Tom will be able to get all his wishes fulfilled from the court
are very slim, because, although under the Section 11 of the Children Act, 1989, Tom may
request a ‘child arrangement order’, for the purpose of requesting remaining in touch with
his children, however, the chances that the split of 50:50 care that Tom is seeking, is
granted in a reserved number of cases, and that the mere assumption of continued
involvement of the parent doesn’t necessarily lead to the presumption that he might just be
able to move the court to award so.
4. The chances may be there, since every case of such nature is decided according to its own
facts, yet the chances are slim. Indeed, the Court in deciding such cases, prioritizes the
welfare of the child concerned above all other considerations, and also, it would be well
that Tom not beforehand that when the question revolves around the evenly divided care
of the child, over the period of the previous 25 years, the concept of shared time has
achieved the status of a social norm, but it has not been adopted so commonly into practice,
and is always treated with a caution. Besides, Tom must also know that ‘shared residence’
and 50/50 care are not the same thing, rather what Tom should expect in terms of shared
residence is an arrangement of one or two overnights with the children, for that is usually
what this arranged by the Court on requests by the parent that the children are not living
with.25 However, even for that, it is mandatory that the non-resident parent show that it
would be in the best interests of the child.26 Not to mention, the 50/50 shared residence that
Tom seeks is also a rather rare arrangement.27
5. Tom’s case before the court stands strong on many aspects, because it has been expressly
stated in the Article 9 of the UNCRC, that it is the right of the child to maintain direct
contact with his/her parents28, and it is the view of the Court that the wishes of the children
who are sufficiently mature should be taken into account29. Since, as Tom says, Cruz is
wishing to come and live with Tom, it would indeed be in his favour for Cruz to come and
live with Tom. Yet at the same time, Tom must also realize that this is merely his statement,
and if the court deems fit at the time, it may even overrule the wishes of a mature child 30,

M (A Child) [2014]
D. v. D. [2001] 1 FLR 495.
M [2014] EWCA Civ 1755.
Re W (A Minor) (Contact) [1994] 2 FLR 441
Re S (Contact: Children’s Views) (2002)
Re B (Minors) (Change of Surname0 [1996] 1 FLR 791
were the same not in his/her best interest. Besides such wilfulness of the child, the Court
also takes into account whether Tom will be able to cater to the needs of the children he
wishes to obtain shared residence for, and that whether he will be able to secure such
facilities for the children31, and maintain them for their optimum development, and that
whether the children are as attached to Tom as they are to their mother Katie32. If the case
were that the children, in particular Suriname, being young in age, are attached to their
mother more than they are wilful to remain in the contact of their father, the court would
be inclined against granting Tom’s wishes. However, as Tom suspects, that Katie’s new
boyfriend Jamie, who had moved in with her and the children, is habitual of drinking, and
could be a bad influence on the children, may be looked into by the local authorities, and
if proven true, may help Tom’s case immensely, on account of taking the safety of the
children into account33. Tom, must however not forget the allegations of domestic violence
that have been made against him, and that the Court will investigate into the same34, and if
proven, could prove highly relevant in awarding him the shared residence with the children
he so desires. Although, it would not completely render the case of Tom defeated, yet it
may significantly reduce the chances of such an award.
6. What Tom must realize is that the Court indeed has a wide discretion in deciding the cases
such as these, but there is still a considerable chance that Tom may be able to maintain
direct contact with his children, if not shared residence, mainly because the chances of the
Court awarding it are rare, and also since there was not prearranged agreement between the
partners. When considering the issue of shared residence, the Court would primarily
consider whether his religious affiliation35, or his capacity to spare time for the children
would be a hindrance for the development of the children36.

Re R (A Minor) (Residence: Religion) [1993] 2 FLR 163
Stephenson v. Stephenson 1985
Re D (Safegaurding Checks) [2014] EWHC 2376 (Fam)
LVMH [222] 2 FLR 334
Re M (Children’s Upbrinigng) (1996) 2 FLR 441
Re M (A Child) (Contract: Parental Responsibility) (2001) 2 FLR 342