Dawn is 26 and has a six year old son, Elliot.  Dawn has mental health problems and in the last three years has been sectioned under the Mental Health Act twice. She has also spent time in hospital as an informal patient. While Dawn has been in hospital, Elliot has been looked after by Dawn’s brother Fergus and his wife Gina.  Eighteen months ago, Dawn went off to stay with some friends for a year and she left Elliot with Fergus and Gina during this time. While Elliot was with Fergus and Gina, Dawn did not make contact with him. On her return she demanded that Elliot come back home with her. She was abusive towards Fergus accusing him of stealing her son and this upset Elliot.

Fergus and Gina would now like the situation formalised. They are happy to care for Elliot as they love him dearly but do not like the fact that Gina can demand his return and unsettle him whenever she wants. Elliot is very happy with Gina and Fergus and has a good relationship with his cousin, Harry. He also loves his mother very much but admits that he finds it frightening when she is ill.

Advise Fergus and Gina.

Good Answer

Fergus and Gina want to formalise their care for Elliot. There are three ways they could do this: an adoption order, a special guardianship order and a residence order. This is a concise introduction which clearly states the options available for Fergus and Gina and suggests a logical structure for the rest of the answer. 

Elliot has already stayed with his aunt and uncle and will not need to be placed for adoption by the local authority; therefore, this is a non-agency placement.  Gina and Fergus will need to inform the local authority of their intention to adopt (Adoption and Children Act 2002 s 44). Assuming that they are over 21 (Adoption and Children Act 2002 s 50), the other requirement before they apply for the order is that Elliot has been placed with them for long enough. According to the Adoption and Children Act 2002 s 42, Elliot will need to have lived with them for three years out of the previous five years before they can be awarded an adoption order. Whilst Elliot has clearly spent a significant amount of time with Fergus and Gina, it is not clear whether they would satisfy this requirement. The answer has identified the correct adoption procedure and explains this in a clear chronological way. Unlike the weaker answers,  it is backed up by references to the relevant sections of the Adoption and Children Act 2002 and the provisions of that Act are applied to the facts for example in relation to the question of whether Elliot has been placed for long enough.

In any case, the court would only make an adoption order if were in Elliot’s welfare, his welfare being paramount to the decision (Adoption and Children Act 2002 s 1(1)). Gina and Fergus are able to meet Elliot’s needs (s 1(4)(b)) and allowing them to adopt him does promote his stability and security.  Elliot has a good relationship with them and seems to want to stay with them, but this does not necessarily mean that he would want to be adopted by them, and in any case, Elliot’s views, whilst important, are not decisive (s 1(4)(a)). The main disadvantage of adoption is that in this case it would skew the family relationship.  Elliot’s aunt and uncle would become his legal parents. Elliot is six so is old enough to know who his birth mother is and it may be, therefore, that it would be too hard for him to adjust to this change. The court has an obligation under the Adoption and Children Act 2002 s 1(6) to consider other options and it may be that these are preferred to adoption. The answer then discusses whether adoption would be in Elliot’s welfare by identifying factors in section 1 that are relevant and applying them to the facts.  Balance is given, as both arguments in favour of adoption and arguments against are discussed.

If the court were to decide that adoption would be in Elliot’s welfare then the question of parental consent would arise. Dawn could oppose the adoption, but her lack of consent would be overridden under s 52(1)(b). If Elliot’s birth father also has parental responsibility, his consent would also be needed or his lack of consent would need to be overridden. On the facts, it seems unlikely that Dawn would consent to an adoption; however, if the court were to decide that adoption were in Elliot’s welfare it is likely that they would then also decide that his welfare required Dawn’s consent to be dispensed with if she were refusing to consent.

The second option is a special guardianship order. Fergus and Gina could obtain leave (Children Act 1989 s 14A(3)(b)) and apply for this order, or the court could make a special guardianship order instead of an adoption order if they were to apply for an adoption order. In any case, whether an order is made depends on Elliot’s welfare (Children Act 1989 s 1(1)). The crucial distinction between adoption and special guardianship is that special guardianship would not remove Dawn’s parental responsibility. Her consent would still be needed for a name change (Children Act 1989 s 14C(3)(a)) or a removal from the jurisdiction.  Moreover, she would legally still be Elliot’s mother and, therefore, entitled to apply for Section 8 orders without leave. The answer has explained how special guardianship differs from adoption. This will be returned to later in the answer when the choice between the different orders is made. Once again the answer is backed by reference to the statute.

The final option is the residence order under the Children Act 1989 s 8. This could be made instead of an adoption order or Gina and Fergus could obtain leave to apply. The crucial question is Elliot’s welfare, which is paramount (Children Act 1989 s 1(1)). Gina and Fergus have a good, strong relationship with their nephew and are capable of raising him. The main problem with a residence order is whether it provides sufficient security. Dawn would retain parental responsibility and could apply for right of contact or residence. There is the danger that she would disrupt the placement and unsettle her son.

It is suggested that the choice is between adoption and special guardianship.  Special guardianship has the advantage that it does not distort the family relationship, which may be especially important given Elliot’s age. On the other hand, adoption does offer more security, especially because it protects the adopter and the child from future interference by the birth parent (Re AJ (a child) [2007] EWCA Civ 55, Re MJ (a child) [2007] EWCA Civ 56). The choice between adoption and special guardianship is clearly stated and recent case law is cited to show how these issues are viewed by the courts. Given that Dawn has been abusive, it seems that adoption is the most suitable option. Unlike the weaker answers, the writer here has made a decision about which is the more appropriate order and has explained why that choice has been made. It can seem difficult to reach a definite conclusion, but just saying that the court would decide is not enough. Furthermore, even if the student’s conclusion differs from that of the examiner, the student can still receive high marks provided that the conclusion is justified.

Medium Answer

Gina and Fergus want to care for Elliot, who has stayed with them in the past when his mother has been unable to care for him because she has been in hospital or away. Elliot’s mother has become abusive and Gina and Fergus want to give him more stability so they are looking for more formal ways of caring for him. Do not need to restate the facts. In an exam, this would be a waste of time and in coursework a waste of words. In this answer, I will not really appropriate style to say ‘I’ explore what there should be their – remember to check your grammar as mistakes like this won’t be picked up by a computer spell check options are. There are three options for them: adoption, special guardianship and residence order.

Adoption is now covered by the Adoption and Children Act 2002, which replaced the Adoption Act 1976. There are two different adoption procedures:  local authority adoption and non local authority adoption. This is not incorrect, but given that this is a problem question should focus on advising Gina and Fergus rather than general history of adoption. Elliot has already lived with Gina and Fergus so this is a non local authority one. Gina and Fergus will need to tell the local authority that they want to adopt Elliot so that a trained social worker can do checks on them and prepare a report for court. This is correct, but could be improved on by referring to the relevant section of the Adoption and Children Act and being more specific about when the notification should happen. The court will allow them to adopt if they have had Elliot with them for the correct amount of time, which is set out in section 42 of the Adoption and Children Act 2002. Ok, but what is the correct period and do Gina and Fergus satisfy it.  The court will only allow the adoption if it is in Elliot’s welfare. His welfare will be paramount. Need to refer to the s 1(1) and also to relevant subsections in the welfare checklist in s 1(4) to explain whether adoption would be judged to be in Elliot’s welfare. This is an important change from the old law because under the Adoption Act 1976 the child’s welfare was just the first consideration. The fact that Elliot has a good relationship with his uncle, aunt and cousin is a good argument that adoption would be in his welfare. A lot more needed on whether adoption is in Elliot’s welfare and also a lot more balance – are there any arguments against adoption.  The answer should also consider whether the court might prefer alternatives to adoption, such as residence or special guardianship.  If the court does decide adoption is in Elliot’s welfare then Dawn can oppose it, but it is likely that her opposition will be overruled because of Elliot’s welfare. This is vague on when lack of consent can be overruled and should refer to relevant sections of the statute.

The next option is for Gina and Fergus to become Elliot’s special guardians.  Unlike adoption, this would not give them all the parental responsibility, as Dawn would still have parental responsibility for the most important decisions. This is correct, but could be improved by explaining what those important decisions are and by referring to statute.  This may seem less drastic than adoption and it may be a better option, as Elliot would not have the confusion of his aunt and uncle becoming his mum and dad. More balance needed – are there any advantages that adoption has over special guardianship?  Gina and Fergus could apply to be special guardians or the court could make a special guardianship order instead of an adoption order. Too superficial and more reference to authority needed.

The final option for Gina and Fergus is to obtain a residence order.  A residence order is one of four Section 8 orders – residence order, contact order, specific issue order and prohibition order. A residence order would determine whom Elliot should live with.  Too descriptive and general.  The answer does not need to list all the Section 8 orders instead it should explain whether Gina and Fergus have a right to apply for a residence order or whether they would need leave, whether leave would be granted and if so whether a residence order would be made.  It should also explain that the court could decide to make a residence order instead of an adoption order if it considers that a residence order would better promote Elliot’s welfare. The court would probably make a residence order as it would be in Elliot’s welfare to live with Gina and Fergus. Why is it in Elliot’s welfare to like with Gina and Fergus? 

So, in conclusion there are three options.  The court would determine which is the most appropriate order on the basis of Elliot’s welfare. This is not a conclusion. The answer needs to determine which option – adoption, residence order or special guardianship order – best promotes Elliot’s welfare and explain why. Particularly important are the security and stability that the orders offer Elliot and their effect on the family dynamic.

Poor Answer

Dawn has spent time in a mental health hospital. We know that she has been sectioned. In a problem question there is no need to restate the facts and, in this particular question, Dawn’s mental health should only be mentioned so far as it is relevant to the long term care of Elliot and what orders the court should make. This could have been under s 2 of the Mental Health Act for assessment, s 3 of the Mental Health act for treatment or section 4 for an Emergency. This is irrelevant speculation. It almost reads as if the student is delaying writing about long term child care orders which he/she does not know about by talking about mental health, which she/he knows a little about. She is angry that her brother is stealing her son and given the fact that he now wants to adopt Elliot she may be right!!!!! It is emotive to refer to adoption as stealing a child and the multiple exclamation points are excessive and unnecessary.

I do not think Not correct style to say ‘I do not think’; better would be ‘The facts do not suggest . . .’ that this is a freeing adoption so the normal provisions of the Adoption Act 1976 will be followed. The Adoption Act 1976 has been replaced by the Adoption and Children Act 2002. Freeing for adoption is no longer available. The answer should instead be based on the Adoption and Children Act 2002. It should explain the correct procedure, which here would be the non-agency procedure, and should discuss whether it would be in Elliot’s welfare to be adopted. Gina and Fergus will have to be accepted as adopters by the court and by their local authority. This is rather vague. The answer should identify rules on who can adopt and explain whether Gina and Fergus satisfy them. This will depend on elliot’s welfare. Far too vague. The answer should explain that Elliot’s welfare is paramount (Adoption and Children Act 2002 s. 1(1)) and should apply the welfare checklist in s 1(4) to discuss whether adoption would be in Elliot’s welfare. The answer should explain that the court will also consider whether alternatives might better promote Elliot’s welfare than adoption and should consider whether a residence order or special guardianship order might be better for Elliot’s welfare. Elliot will need to have lived with them first for at least ten weeks and the court will decide if this requirement has been satisfied. This is wrong. The correct placement period is three years out of the previous five years. The answer should also refer to the relevant section of the Adoption and Children Act 2002 (s. 42). Dawn and elliots father can oppose the adoption. ‘elliots’ father needs a capital E and an apostrophe before the s.  Elliot’s father can only oppose the adoption if he has parental responsibility and the facts are not clear that this is the case. In any case, lack of parental consent can be overridden. The answer needs to explain when this can happen and if those circumstances apply here.

Script for podcast

Thank you for reading the problem question about the long term care of Elliot and the three suggested answers. Hopefully you are aiming for, or have already reached, the standard of the ‘good’ answer. Why, then, is it a ‘good’ answer?

First, its explanation of adoption, residence and special guardianship is correct and confidently stated. The answer gives specific information, for example, on how long Elliot would need to be placed for, and applies this to the facts. It also uses statute and case law to show what the law is. Weaker answers tend to contain more waffle and generalities, as if the writer is afraid to say what he or she thinks the answer is in case he or she gets it wrong.

Second, this is a problem question and the good answer applies the law to the facts of the problem. For example, when discussing whether adoption is in Elliot’s welfare, Elliot’s situation is discussed rather than a general discussion on adoption and welfare. There is also balance, and arguments in favour and against adoption are given.

The “good” answer also has a proper conclusion. Conclusions are probably the most difficult bit of any answer to write but a good answer will always have a strong, clear conclusion. Weaker answers will peter out.

Finally, this is a good answer, it is not the good answer. Please have a try at answering the question and coming up with your own good answer. Furthermore, it is a good answer, not a perfect answer, so you may even be able to improve on it.

Good essays are the gateway to top marks. New to this edition, The Good, The Fair, and The Ugly shows you the style of essay which works well in exams, as well as the simple errors that can cost you essential marks. Written by our Q&A authors, each of these interactive essay-based tutorials highlights key themes and common errors and illustrates essays of specific standards:

Whilst marking criteria will vary, as a general guide, the Good answer will be based on a general mark of a first or upper second class; the Fair answer will be based on a lower second or third class and the Ugly answer would result in a fail.

Click on the glossary term to see the definition

Adoption

A court order which legally recognises the placing of the care of a child with an adoptive parent(s). The child may be adopted by one or two non-biological adoptive parents, in which case, the adoptive parent(s) would be granted parental responsibility for the child and the biological parent's(s)' parental responsibility would cease. Adoption may also occur where a step-parent wishes to adopt their partner's child and therefore the adoptive step-parent would share parental responsibility with the biological parent.

Ancillary Relief

The distribution of finances and property upon divorce, a decree of nullity or judicial separation.

Care Order

An order placing the child in the care of the designated local authority (NB. residence does not have to be with the LA and is determined by the care plan). A care order confers parental responsibility on the LA.

Child Support Agency

A government body set up to deal with the payment of maintenance from the non-resident parent for children cared for by the primary carer.

Civil Partnership

A relationship between two people of the same sex which is formed when they register as civil partners of each other in England & Wales.

Clean Break

A division of finance and property which allows the parties to be independent of one another after the dissolution of the marriage.

Contact Order

An order regulating the contact a child has with one or both of his/her parents. A contact order can be for direct contact, indirect contact or no contact.

Emergency Protection Order

A short term protective order permitting the applicant (usually the Local Authority) to remove the child from the home where there is reasonable cause to believe that the child is suffering or is likely to suffer significant harm if he/she is not removed; or enquiries that are being made of the child's welfare are being frustrated as access to the child is being unreasonably denied.

Ex Parte Application

An application for an order made by the applicant without serving notice on the respondent.

Gillick Competence

A child under 16 years who has sufficient understanding and maturity to be able to make decisions for his/herself.

Harm

Ill-treatment or the impairment of health and development including physical, emotional, intellectual, social or behavioural development.

Harassment

Alarming or causing a person distress

Home Rights

The right of a non-home owning spouse not to be evicted or excluded from the home by the home owning spouse.

Ill-treatment

Includes sexual abuse and forms of ill-treatment which are not physical.

Inherent Jurisdiction

The power of the court to resolve an issue regarding a child. The court can make an order of its own motion irrespective of whether any other person has made an application.

Interim Care/Supervision Order

An order made after the LA's initial application for a care/supervision order, so as to allow for further inquiries and reports to be undertaken and submitted to the court pending the full hearing for a final order. The court shall not make an interim order unless satisfied that there are reasonable grounds for believing that the threshold criteria are made out.

Non-marriage

A ceremony of no legal consequence.

Non-molestation Order

An order prohibiting a person from doing an act (specific or general) which molests the person in whose favour the order is made.

Occupation Order

An order requiring a person to leave the home or an order permitting a person to re-enter and/or remain in the home.

Parental Responsibility

All the rights, duties, powers, responsibility and authority a parent has in relation to a child.

Pre-nuptial Contract

A contract entered into by the parties prior to marriage regarding such things as the division of assets should the parties divorce.

Prohibited Steps Order

An order that a particular step us not taken by a parent in carrying out his/her parental responsibility.

Residence Order

An order regulating where a child should live. Can include shared residence between more than one home.

Significant

Considerable, noteworthy or important.

Specific Issue Order

An order giving a direction determining a specific question which has arisen whilst carrying out the duties arising from parental responsibility.

Supervision Order

An order putting the child under the supervision of the designated LA.

The Threshold Criteria

A court may only make a care/supervision order if it is satisfied that, the child concerned is suffering or is likely to suffer significant harm; and that the harm or likelihood of harm is attributable to the care given to the child, or likely to be given to the child if an order is not made, not being what it would be reasonable to expect a parent to give to him; or the child being beyond parental control.

Undertaking

A promise made by the respondent to the court in the terms of the order sought by the applicant, thereby alleviating the need for the court to make an order. It is at the discretion of the Judge to accept an undertaking subject to certain statutory exceptions.

Void marriage

A marriage which is contrary to legal formalities. Such a marriage is void ab initio and therefore never existed. As a matter of public policy, a declaration of nullity of a void marriage can be sought by any third party.

Voidable marriage

A marriage which contains an inherent defect which makes an annulment available to the parties. It is up to the parties to decide whether they wish to exercise their rights by relying on the defect to end the marriage.

Wardship

Parental responsibility for the child is vested in the court. However, the power of the court is wider than the parents and is derived from the State's duties to protect its citizens.

Welfare Checklist

The criteria listed in section 1 (3) Children Act 1989. The court should have regard to the criteria in determining what is in the best interests of the child.

Welfare Principle

The child's welfare is the paramount consideration when deciding issues regarding the child's upbringing or the administration of the child's property.

Click on the "Answer Key" to display the answer

Problem Question

Jahan and Ben have recently married. Their wedding took place on Saturday 20th June 2009. Very soon after the wedding Jahan found out she was pregnant and in September 2009 had a baby who they named Adam.

After the baby was born Ben and Jahan started to argue regularly. Jahan wanted another child naturally but Ben wanted to adopt. Jahan gave in and in August 2010, they adopted Sam.

Later that year i.e. 2010, Ben started behaving strangely. He stayed out all the time and started staying away for business trips for long periods at a time. When Ben was home he argued with Jahan and in February 2011 he sought to annul the marriage. Both Ben and Jahan are strongly against divorce as it conflicts with their religious beliefs. Jahan is desparate to try and sort the marriage out and does not want the marriage annulled.

Jahan has confronted Ben and accused him of having an affair. He admits this is true but argues he fell out of love with her because he found out Adam, their first child, was not in fact his child. Jahan has confirmed she had a one night stand just before they got married and unfortunately did not use contraceptive but she says she is very sure that Ben was aware that Adam was not his because he was away and the dates did not correspond.

Advise both parties of the grounds for obtaining a decree of nullity and any possible bars.

Answer Key

Relevant facts

• Married May 2009
• Baby Sept 2009
• Adoption 2010
• Jahan cannot get a divorce.
• Jahan does not want to annul
• Ben having an affair
• Ben wants to annul
• Adam is not Ben's child

Relevant Legal issues to address

• Is the marriage void under s11 Matrimonial Causes Act, 1973? A void marriage is one that is void ab initio (right from the beginning). Unlikely on the facts given.
• Is the marriage voidable under s12 Matrimonial Causes Act, 1973? The marriage might be avoidable under s12(f) i.e. that at the time of the marriage the respondent was pregnant by some other person other than the petitioner. (Ben should be advised that he can annul under this section).
• Are there any bars to either bringing such a claim?
  • Approbation by the petitioner s13(1) MCA 1973 - the court will not grant a decree on any ground in s12 if the respondent can prove that the petitioner knew that he or she could have avoided the marriage but whose conduct in relation to the respondent led the respondent to believe that the petitioner would not do so and the court believes that it would be unjust to the respondent to grant the decree. Ben's behaviour in pushing to adopt, it might be argued, was not the behaviour of someone wanted to annul the marriage and led Jahan to believe that the marriage would continue.
  • Ignorance in relation to the pregnancy - a decree cannot be granted on ground (e), (f) and (h) if it can be proven that the petitioner was aware of those facts at the time of the marriage. Ben might be barred if it can be proven that he was aware that Adam was not his

Advice

Jahan - can try to bar Ben's attempts to annul on the grounds that firstly, he behaved in such a way as to lead her to believe that the marriage would continue i.e. pushing for adoption. Secondly, she can try to prove that he was aware, when he married her, that Adam was not his child.

Ben - Ben should be advised that he might be able to annul under s12(f) MCA 1973 but attention should be drawn to the potential bars that might hinder his application under s13(1) MCA 1973.