5. Parental Responsilities and Rights Flashcards
What orders can be raised as per s.11?
- Residence order
- Contact order
- Specific issue order(non prr holders can claim if have an interest)
What is D v H and E v E?
Siblings separated, try to raise action to see u16 with u16. Contact order is for PRRs so must be over 16. Law imposed on foster carers
What are the overarching principles?
- Welfare of child paramount
- Minimum intervention
- Age and maturity for the child’s views
S.11
What is the welfare of the child?
No presumption of legal right for parent to have right to see their child. Article 8 of ECHR
4 cases?
Sanderson v McManus
White v White
A v S
B v G
S v M?
Dad has partial wanted full. Rejected three times as not in best interest of child
Ratio: genetic parents doesn’t mean legal right to have contact or residency
White v White?
Father wanted contract and was granted. Overruled on appeal. CSIH allows appeal since child’s best interest is decided by court and not needed proved by father
A v S?
Parents separate, no see 4 years father wants contact. Allowed. Appealed, Sheriff was wrong in saying genetic father had right to see child.
B v G?
Failed all the way to Supreme Court. Far too long
Three cases for parental care, behaviour and lifestyle?
W v G
AY v MM
J v M
W v G?
Both parents wanted residence, given to father. Father put child first, mum was drug user
AY v MM
Child born to two 15 year olds. PRRs go to mum, father wanted residence at 16 and granted. Boys life stable. Girl known to have been violent to child.
J v M?
Father granted interim contact; allegations of sexual abuse to paused. No convincing evidence but Sheriff, P and CSIH said no. Relationship too toxic
What did Lord Malcolm say?
S.11 is about what’s best for the child.
X v Y?
Husband wants divorce but wife claims rape. Wife takes kids to grandparents. Father raised contact, admitted he did wrong but said was both of them. Sheriff granted supervised contact, progressing to overnight then unsupervised
Abuse?
Treasure v McGrath
Child’s voice of saying feared her dad meant contact not granted
4 cases for sexuality?
Early v Early
Meredith b Meredith
T, Petitioner
X v Y
Early v Ealry?
Ex-convict granges résidence since mother was lesbian
Meredith v Meredith?
Father given residence but not allowed to show gay affection in front of child
T, Petitioner?
Disability nurse had gay partner. Wanted to adopt one of her disabled children, denied. CSIH said welfare of child not parents and over turned
X v Y
X wanted child and donated sperm to lesbian couple. Raised s.11 and got PRRs. All about welfare of child
Case for religion?
McKechnie v McKechnie
Father wanted to impose Jehovah on child. Denied access even on appeal
Two cases for other considerations?
Osborne v Matthan
Mother in prison, daughter given away. Wasn’t about colour, about child
Brixey v Lynda
Custody given to mother as more important in early years. Load of shire today
Two cases for minimum intervention?
Breingan v Jamieson
Mum died, aunt took over, dad denied on MI
Fourman v Fourman
Two more cases?
Q v P
Mum raise specific issue, sheriff refused wish to relocate. Burden on mum to prove in best interest of child.
MCB v NMF
Dad raises specific issue to stop mum taking child to Cyprus. Refused the mother to take child
How are the views of the child looked at?
- Opportunity to want to express
- Hear
- Have regard to them
S.11
Three cases for child of 12 presumed?
Shields v Shields
At 9 decided mature enough to have view
G v G
6 year old could give view. Child psychologist said too young to choose parents
C v McM
Mother appealed saying children weren’t given chance for views. Held sheriff decided correctly
Case for weight given to child’s view?
X v Y
Age and maturity, not a regurgitation of parents views. Made clear mother had influenced child.
Case for child talking to sheriff
Shields v Shields
By joining the action?
Fourman v Fourman
B v B
12 year old wanted to instruct solicitor but denied. Curator ad litem’s decision followed to grant contact
What is a curator ad litem?
Like Child Welfare Reporter but for younger children
What does article 12 of UNCRC state
Right to express views freely
What doe 1995 imply
Child should be free from harsh réponse in expressing
Are children’s views allowed to be kept from parents?
Yes, even though Article 6 of ECHR states right to fair trial
Case for this?
Dosso v Dosso
Two boys scared of father, entered with own solicitor. Dad found out. Sheriff refused to open document despite article 6,8. Child’s views must be respected
Failure to obtemper a court order?
2 cases
Balance v Blance
Person having custody should do his or her best to ensure that the access granted is in fact enjoyed
Russel v Russell
Mother made child scared of dad so refused contact. Created horrible situation for child
case for imprisonment?
M v S
Mother imprisoned for failure to obtemper order for contact
