Payne and Payne [2001] EWCA Civ 166 – According to Lord Justice Thorpe, what two propositions have governed relocation cases over the past 3 decades?

 

Part 1 – Case Analysis

 

Read the case of Payne and Payne [2001] EWCA Civ 166 and using this case only answer the following questions:

 

Your answers must be based on this case extract only.

 

 

  1. In the English court of first instance, who was the judge? (1 mark)

 

 

  1. What were the parties seeking from the court at first instance (2 marks)

 

  1. What was the outcome at first instance? (2 marks)

 

  1. Who were the Court of Appeal judges and when did they hear the appeal? (2 marks)

 

 

  1. According to Lord Justice Thorpe, what two propositions have governed relocation cases over the past 3 decades? (2 marks)

 

  1. What important authority relied on by the court of first instance was challenged by the appellant? (1 mark)

 

 

  1. What issues did the appellant raise in respect of the European Convention on Human Rights? Did the Court of Appeal agree and what reported European cases were cited in support? (6 marks)

 

 

 

  1. What does Lord Justice Thorpe believe is the most crucial assessment and finding for a judge in a relocation case and why? (1 mark)

 

  1. What guidelines for relocation cases did Lord Justice Thorpe set out?

(2 marks)

 

 

  1. Please identify from the below, which are the material facts in Payne v Payne and which are not? (4 marks)
    1. The claimant worked in Kuala Lumpar for 6 months during the parties’
    2. The respondent had an intense dislike of life in London.
  • An application can be made under the Hague Convention in relation to any child wrongfully removed from the country in which they are habitually
  1. The claimant’s contact with the child went exceptionally

 

 

  1. Which of the following is/are the ratio decidendi of the case? If you think a statement is part of the ratio decidendi explain If you think a statement is not part of the ratio decidendi explain why. (6 marks)

 

  1. The mother’s family support network was in Auckland, New
  2. The welfare of the child is the paramount
  3. The opportunity for continuing contact between the child and the parent left behind may be very

 

 

  1. What was the decision in the Court of Appeal? (1 marks)

 

 

  1. Omar and Roccio divorced 1 year ago, shortly after the birth of their third child and Roccio was granted a residence order in respect of the When the parties divorced they had to move out of the family home due to financial pressures. Roccio moved to a rented two bedroom flat with the parties’ three children (aged 1, 3 and 16) in a less expensive area of the city and Omar moved back in with his parents who live at least an hour away by car. Although the parties have an acrimonious relationship, Omar sees the children every other weekend and one evening during the week. Omar has gathered from their oldest child that Roccio is struggling to cope and has been feeling lonely and depressed for some months.

 

Omar has recently received notification from the court that Roccio has applied under the Children Act 1989 for an order to relocate with their three children back to Valencia, Spain where she is from. She argues that she has a strong support network there with parents, siblings and cousins nearby. She says that she also has better prospects for work and has been offered a job in the family business there. Omar is distraught by this news and is planning to oppose her application.   He says he is especially concerned about the impact of any move on his relationship with the two youngest children.

 

Using only the principles of law developed from Payne v Payne, advise Omar. (20 marks)

 

 

Part 2 – Statute Analysis

 

 

Read the Bail Act 1976 to answer the following questions.

 

Guidance

  1. All references in the questions below to the ‘1976 Act’ are to the Bail Act

 

  1. Except for questions 1 and 2, your answers should be based solely on the provisions of the 1976 Act reproduced and provided as part of this

 

  1. You must give reasons for your

 

  1. When answering questions, you should quote the relevant section from the 1976

 

  1. When answering questions, you should explain the relevant law derived from the 1976 Act and your reasoning based on this law as clearly and fully as You should answer the questions in your own words rather than repeating lengthy excerpts from the provisions of the 1976 Act.

 

 

 

  1. Explain the difference between the literal, golden and mischief (8 marks)

 

 2. When interpreting a word or phrase in a statute, is a court most likely to refer to the long title of a statute when applying the literal or mischief rule of statutory interpretation? (3 marks)

 

 

  1. Does the 1976 Act concern bail in civil or criminal cases or both? (3 marks)

 

 

  1. Under the 1976 Act, at what age does a person cease to be a ‘child’? (2 marks)

 

 

  1. Marnie has been found not guilty of arson by reason of Has Marnie been ‘convicted’ of an offence under the 1976 Act? (2 marks)

 

 

  1. John has been charged with theft and is due to appear in the Crown Court for John tells you that he has read S3 sub sections 1-6 of the 1976 Act but can’t understand what they mean. Write a summary explaining the main effect of S3 (sub sections 1-6 only). (6 marks)

 

 

  1. What conditions have to be met before a court can impose an ‘electronic monitoring requirement’ under the 1976 Act? (5 marks)

 

 

  1. Adil has been charged with theft and has applied to the Magistrate’s Court for Under S4 of the 1976 Act, should the magistrates proceed on the basis that they should grant him bail unless there are reasons not to do so or on the basis that they should not grant him bail unless there are reasons to do so? (3 marks)

 

 

  1. Ben has been charged with arson and has applied to the Magistrate’s Court for Ben intends to plead not guilty despite video evidence clearly showing him starting a fire in a dustbin near a block of flats. Ben lives with his mother and has a full time job working in a fast food restaurant. Ben has one previous conviction, two years ago, for setting fire to a car. He was granted bail prior to his trial for setting fire to the car and appeared in court at the appointed time for his trial.

Advise Ben whether he likely to be granted bail under the 1976 Act before his trial for setting fire to the dustbin.

Would it make any difference to your answer if Ben was already on bail pending trial for another offence at the time he is alleged to have set fire to the dustbin? (12 marks)

 

 

 

  1. Del was granted bail pending his trial for violence at a football match in the He failed to turn up for his trial because doing so would have caused him to miss watching an important football match involving the team he supports.

Explain whether

  1. Dell is likely to have committed an offence under the 1976

 

  1. If Del has committed an offence under the 1976 Act and is tried for doing so summarily, the maximum sentence the magistrates can impose upon

(6 marks)

 

 

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