NBTA Family Trial common mistakes
NBTA Family Trial · Understand the traps and how to avoid them.
Citing the burden of proof as 'balance of probabilities' in every family trial scenario without checking whether the specific issue (e.g., a contempt application, an interim care application, or a jurisdictional fact) carries a different or heightened standard.
Candidates memorize one overarching standard during early study and then apply it mechanically to every sub-issue, because family trial law is taught first as a single civil standard; the exceptions are learned later and are less rehearsed.
What to do instead
Before answering, classify the issue: substantive fact-finding (civil standard), contempt (criminal standard beyond reasonable doubt), and any statutory presumption or threshold. Build a one-page table of standards by issue type and drill it against past-style scenarios until classification is automatic.
Treating the welfare checklist as a recitation exercise - listing every statutory factor in order and then concluding 'welfare is paramount' - instead of identifying which two or three factors actually drive the outcome and weighing them against each other.
Checklist-style teaching rewards completeness, so candidates equate covering all factors with scoring well; examiners instead reward discrimination and reasoning about conflict between factors.
What to do instead
Practise writing answers that name the decisive factors first, explain the tension between them, and state why one prevails. Use a 'top three factors + one countervailing factor' template and cut any factor that does not change the outcome.
Answering an evidence question by describing the general rule on admissibility and then stopping, without applying the specific exclusion or discretion (e.g., hearsay in children proceedings, improperly obtained evidence, or the approach to a parent's past character) to the facts given.
Candidates learn evidence as a set of definitions and treat the question as asking for the definition; they run out of time or confidence before the application stage, which is where most marks sit.
What to do instead
Structure every evidence answer as rule → exception → discretion → application → conclusion, and allocate at least half the answer to application. Practise with short fact patterns where the rule alone would give the wrong answer.
Confusing the roles and powers of the court at different procedural stages - for example, treating an interim hearing as a full fact-finding exercise, or assuming the court can make a final order at a directions hearing.
Procedure is studied as a timeline of hearings rather than as a set of distinct decision-making powers, so candidates blur what each stage is for and what test applies.
What to do instead
Create a stage-by-stage grid: hearing type, purpose, test applied, evidence permitted, orders available, appeal route. Test yourself by being given an order and identifying which stage could have made it.
Ignoring the child's own views or the weight to be given to a guardian or children's representative report, or mentioning them only in passing at the end of the answer.
Candidates focus on the adult parties' evidence because it is more concrete, and they underestimate how much the child's perspective and expert recommendation shape the welfare analysis in the marking scheme.
What to do instead
In every welfare question, explicitly locate the child's views (age, understanding, manner of expression) and the expert recommendation, then state how much weight each carries and why. If the facts are silent, say what evidence would be needed.
Misstating the threshold for state intervention - describing 'significant harm' or the reasonable-grounds-to-suspect test as if it required proof that harm has already occurred, or conflating the threshold with the final welfare test.
The threshold and the welfare stage are taught close together, and both use the language of harm, so candidates merge them into one test and lose marks on the sequencing.
What to do instead
Write out the two tests side by side and state expressly that the threshold is about suspicion/risk at the point of intervention while welfare is about the child's best interests at disposal. In answers, label each stage and confirm the threshold is satisfied before moving to welfare.
Drafting orders or directions that are unenforceable - vague contact arrangements, no named person responsible for an action, no timetable, or no consequence for breach.
Candidates treat order-drafting as a summary of the outcome rather than as an operative instrument, and they have often not seen enough real orders to know what makes one workable.
What to do instead
Apply a checklist to every draft order: who, what, when, where, how, and what happens on non-compliance. Read the order back as if you were the person who must obey it and ask whether you could comply without further instruction.
Running out of time because the answer reproduces the facts of the scenario at length before reaching the legal analysis, leaving the application and conclusion thin.
Candidates use fact restatement as a comfort zone to build confidence before committing to a legal position, and they underestimate how quickly the clock runs in a written paper.
What to do instead
Practise with a strict time budget: no more than a short paragraph of facts, then straight to issue, rule, application, conclusion. Draft under timed conditions and review where the words went, not just whether the answer was right.
Failing to address the alternative outcome or the appeal/remittal route, so the answer assumes the first-instance decision is final and correct.
Candidates read the question as 'what order should be made' and stop at the answer, missing that examiners often award marks for recognizing the limits of the decision and what follows.
What to do instead
End every substantive answer with a short 'limits and next steps' paragraph: what could be challenged, on what ground, and what a reviewing court could do. Keep it brief but explicit.
Using outdated or imprecise terminology and statutory language - referring to abolished concepts, old names for orders, or paraphrasing a statutory test in words that change its meaning.
Candidates study from secondary summaries and older notes, and they paraphrase statutes from memory rather than checking the exact wording, so errors of terminology slip through under exam pressure.
What to do instead
Keep a personal glossary of current statutory terms and tests, updated against the current version of the relevant legislation, and quote the operative words exactly in answers. Review it weekly and correct any note that uses superseded language.