Case Summaries Flashcards
What is Vo v France about?
LEGAL PERSONALITY/RIGHT OF A FETUS:
Mix up between another patient called Vo – her amniotic sac was penetrated, resulting in the death of the fetus.
Vo wanted to sue doctors for unintentional homicide – unsuccessful.
What is Elliott v Joicey about?
LEGAL PERSONALITY/SUCCESSION:
NASCITURUS RULE!
- Child is conceived after the genetic father has died by means of a stored embryo or sperm the child has no succession rights in the father’s estate.
What is Hamilton v Fife Health Board about?
LEGAL PERSONALITY/DAMAGES CLAIMS IN RESPECT OF DEATH:
(Nasciturus rule had no effect as was not child who was suing). Parents alleged negligence by medical personnel, prior to the birth of the child, caused by injuries sustained ante-natally. Lord Prosser said child has no legal personality when injuries were sustained and so could not be said to have died in consequences of these injuries.
What is McWilliamson v Ld Adv about?
LEGAL PERSONALITY/DAMAGES CLAIMS IN RESPECT OF DEATH:
(Nasciturus rule had no effect as was not child who was suing). Parents alleged negligence by medical personnel, prior to the birth of the child, caused by injuries sustained ante-natally.
Lord Morton said that the act which causes injury and the sustaining of injury by legal person need not occur simultaneously.
In Hamilton appeal to inner house, Lord Morton’s approach upheld.
Parents sought damages in form of loss of society under
Damages (S) Act 1976 s1.
What is McCluskey v HMA about?
LEGAL PERSONALITY/CRIMINAL LIABILITY FOR ANTENATAL INJURY:
Woman as a result of accident gave birth prematurely and the child died. Driver charged with death by reckless driving, because the child was alive and therefore had legal personality.
What is McKay v Essex Area Health Authority about?
LEGAL PERSONALITY/ CHILD CLAIM FOR WRONGFUL LIFE:
Example 1 McKay v Essex Area Health Authority. Had to be decided on common law because it was before the 1976 civil liabilities act. The mother of a (subsequently) handicapped child had been in contact with a germ, which contracted German measles whilst pregnant. The mother went to a doctor and was eventually told that the measles would not affect her or her child. BUT when the child was born, it was found that it was severely ill.
The child claimed damages on the ground that she had been “suffered entry into a life in which her injuries are highly debilitating,” and for distress, loss and damage.
The court recognised that the Doctor owes a duty to a foetus to avoid injuring it BUT the problem in this case is that what caused the injury was the virus, and the doctor did not cause this injury. Although the Doctor was negligent in not carrying out tests properly, the doctor did not injure the child, the infection did.
If a claim were to go through, the child would have to claim that it had a right to be aborted. Although the doctor owed a duty to the mother in terms of treatment of the virus, he was not under duty to the foetus in terms of giving it the right to die. Such a claim would be against sanctity of human life.
Final decision:- The judge rewarded no damages on the grounds that it was illogical. Since there was no way of proving that the mother would have chosen to abort the child had she known of the “chance” of a disability – what the Doctor is being blamed for is permitting the child to be born. There is no claim in law which allows a child born alive with deformities to claim damages for negligence against doctors in allowing it to be born alive.
What is McFarlane v Tayside health board about?
WRONGFUL PREGNANCY:
Pursuers were a married couple that had 4 children. They didn’t want any more children – the husband had a vasectomy performed by a doctor from the Tayside health board and was subsequently told that his sperm count was low and the vasectomy was successful. BUT his wife later became pregnant and kept the child. The child integrated well into the family etc but they still put forward a claim.
Tried to sue damages for the physical discomfort suffered by the wife during delivery, the financial costs of caring for and bringing up the child (enlargement of the family home and costs of upbringing), and lastly, damages for the negligent nature of the information provided regarding the husbands sperm count.
Judge ruled that although it was fair and reasonable to impose on a doctor a duty of care to prevent an unwanted pregnancy, it was unfair to extend that duty to include the costs of raising a child. Basically, damages could not be claimed in terms of financial – that the benefits of having a child and of parenthood outweighed the economic costs. Had sympathy with the health boards plea under these circumstances.
Quote from The Lord Ordinary (Lord Gill) supporting this;
“I am of the opinion that this case should be decided on the principle that the privilege of being a parent is immeasurable in money terms; that the benefits of parenthood transcend any patrimonial loss, if it may be so regarded, that the parents may incur in consequence of the child’s existence and that therefore the pursuers in a case such as this cannot be said to be in an overall position of loss.”
RECLAIMED APPEAL TO THE INNER HOUSE. Judges overturned the first ruling. Argued that the financial damage claims had to be looked at in the terms of Loss. Scots law would recognise that loss fits with regards to the wife. Went on to say the extra expenditure that the parents would incur with raising the child – could claim. No principle in scots law that recognised that the benefits of parenthood outweighed financial costs. Overturned all of the previous Judge’s argument.
WENT TO HOUSE OF LORDS. Argued the case could only be examined in terms of the economic loss, not any personal loss. Overturned the inner house judgement BUT did recognise the argument regarding physical damage to the wife, she would get damages for pain and distress and economic loss incurred throughout the pregnancy.
What is McLelland v Greater Glasgow health board about?
WRONGFUL BIRTH:
Had an unplanned son with downs syndrome. Argued that the health board had negligently failed to diagnose the unborn babies condition before the pregnancy could have been terminated. They would have terminated the pregnancy had they known. Clearly a case for negligence, but it was disputed as to how much should be paid in damages.
The father could not claim emotional damages for distress etc as he did not give birth to the child.
The McLellans were not entitled to damages in terms of economic costs of the child, as they would have kept it anyway had they known for sure it was not going to have any sort of condition.
Also reclaimed to inner house. Upheld that they should not get damages for the child’s upkeep – said it was unfair, unjust and unreasonable, even if the child had a disability.
What is A v UK about?
ECHR Article 3:
9 year old boy repeatedly beaten with a cane by his father. Matter went to English court. The step-father was acquitted, no charges for assault. The boy appealed to the European Court on this. It was held by the EU courts on human rights that the UK failed to provide this boy with protection – that he had been subjected to degrading punishment within the boundaries of article 3 of the act.
This was one of the cases that kickstarted the change in Scotland that outlaws the 3 activities against children.
What is S v Miller about?
ECHR Article 6:
S was a 15 year old by charged with hitting his father, who subsequently died. The boy appeared before a childrens hearing system (consists of a panel made up of 3 lay people who listen to the facts of the case who later decide what should happen to the child. It is welfarist, not punitive).
S rejected the Grounds of referral. If this had happened in court, the case would have gone to trial. BUT in this case, it was referred to the sheriff courts. If the sheriff courts think he did it, it’s as good as admitted.
This could not be described as a fair trial. We were not complying with article 6 and we were not allowing them to have a fair trial.
As a result of this, we changed our law in order to be in compliance with this – by bringing in the ability for a child to have legal representation.
What is Elsholz v Germany about?
ECHR Article 8:
German dad had a child but was unmarried. 1988, parents separated. Boy and mum moved out of family home. Dad continued to see child. Stopped in 1991 when boy decided he didn’t want to see his dad. Dad raised actions in German court, which refused to reinstate contact. Dad went to European court to challenge German court. They found a violation of article 8. You don’t have to be married to have a family.
What is White v White about?
ECHR Article 8:
Mum and Dad were married but got divorced. Mum got residence of the children. The dad raised an action for contact. When parents separate, usually what happens is that the children will live with ONE parent, and the other parent will get contact i.e. have them at weekends or something.
Contact was granted to the father. The mother appealed the decision. The appeal was allowed because the decision was that the father had to prove that contact was in the best interests of the child, and he hadn’t done that.
The father appealed this. He said that the Sheriff had not interpreted Article 8 properly.
It was held by the courts that contact would be re-instated. This was because there was no legal onus on the father to prove that the welfare of the child was enhanced by contact. The right to respect family life was there.
What is Gillick v West Norfolk about?
CHILD CONSENTING TO OWN MEDICAL TREATMENT:
Mrs Gillock raised an action against her local area health board because they had given her daughter – who was under 16 – advice and treatment on contraception without informing her mother that they were doing it.
This went all the way to the HOL.
The courts held that a child under 16 DID have capacity to consent to their own treatment, so long as they had the required maturity (as long as they understand the consequences and nature of the treatment).
What is Fourman v Fourman about?
CHILD INSTRUCTING A SOLICITOR:
Husband and wife were separated. Wife wanted to go back and live in Australia and wanted to take her children with her – all 3 children were under 16. Mr F wanted to stay in Scotland with the kids.
In such a case, no one person wins, they have equal rights.
Goes to the court on a specific issue order. Mrs F wanted courts to overrule the fathers opposition to them going.
The 14 year old daughter raised her own opinion in the proceedings – she got a solicitor and entered into the process because she didn’t want to go to Australia. She didn’t side with either parent, she just didn’t want to go.
It was held by the courts that they were not satisfied that going to Australia would benefit the children. Mrs F wasn’t going to Australia because the thought the children would have a better life, but because she got offered a job promotion.
Courts decided that the children should stay in Scotland.
What is D v H about?
CHILD INSTRUCTING A SOLICITOR:
A 15-year old boy instructed a solicitor and raised an action for a contact order under section 11 of the 1995 Act in respect of his younger sister who had been adopted several years before by the defenders.
The sheriff held that the action was incompetent as an order imposing parental responsibilities and parental rights could not be granted to a person under 16 years old. The boy appealed to the sheriff principal.
Held: appeal refused. The sheriff principal agreed with the sheriff that the action was incompetent on account of the boy’s age.
What is E v E about?
CHILD INSTRUCTING A SOLICITOR:
A 14-year old girl instructed a solicitor and raised an action seeking a contact order in respect of her half-brother aged 12 and her half-sister aged 4. She had lived with them as part of a family until she was taken into foster care at the end of 2002. The girl’s action was based on Article 8 (amongst other things) of ECHR. Mum and stepfather were opposed to the contact and defended the action saying that the sheriff should follow the ruling in D v H.
Held: supervised contact between the girl and her step-siblings was allowed.
What is Shields v Shields about?
CHILD’S RIGHT TO BE HEARD UNDER ARTICLE 12 UN CONVENTION:
The parties were married and separated. They had one child, D. D lived with mum. Dad saw D regularly. Mum wanted to take up a promoted post in Australia and wanted to take D with her. Dad refused to give his permission and mum raised a specific issue order under s 11 of 1995 Act. At the start of the proceedings, D was 7½ years old. The action was not intimated to him – both parties sought dispensation of intimation to D on the grounds of his young age. By the time the sheriff gave his decision, D was 9 years old. His views were not sought. Both the sheriff and the sheriff principal found in favour of mum. Dad appealed to the Court of Session on the grounds that the sheriff had erred in failing to take account of D’s views. By the time the case came to appeal at the Court of Session, D was now 9 years old and was deemed old enough to have a view and to express it. He did, and he did not want to go to Australia.
Held: That the sheriff erred in failing to ascertain whether or not D wished to be heard on the matter of going to Australia. The boy did not want to go to Australia. Dad’s appeal was successful.
What is Whitehall v Whitehall about?
PROOF OF PARENTHOOD/LEGA GUARDIANSHIP:
This was an adultery case as the instance of a husband against his wife. The husband (pursuer) averred that the defencer (his wife) had given birth to a child whom he was not, and could not be the father.
With a view to proving the paternity of the child, the husband communicated a willingness to provide a blood test if his wife herself would also provide one, and the child would too. The wife declined to do so.
The husband wanted the courts to make the wife and child provide a blood sample.
Courts held that you cannot force a person to undergo a paternity test against his / her will. It was argued that such actions would be an invasion of private rights – the judges held that a blood sample is an operation (albeit a small one) but would still be an invasion of rights.
The case was not just to do with DNA testing and proof of parenthood.
It also contained an element as to the question of legal guardianship. The husband wanted the child to provide a blood sample – yet the mother refused this, and the husband himself claims he is not the father hence has no PRR’s with the child. The child, being only 4 years of age could not herself consult to the blood sample being taken. The child was not a party to the action.
Since the parents were getting divorced and custody had not yet been decided, neither the husband nor the wife could be said to be legal guardian of the child. The courts held that because of this, no order which may affect the rights of the child (the blood sample) could be passed, at least until a legal guardian was provided.
What is Torrie v Turner about?
PROOF OF PARENTHOOD:
Pursuer enrolled in a motion craving that the defendant submit himself for DNA sampling – this was so the pursuer could prove the defendant was the father of her illegitimate child.
Courts held that even if DNA testing was not as invasive as a small operation such as a blood sample, you still cannot force someone to undergo a test which may affect their rights and responsibilities. The lord justice Clerk pointed out that if the courts were to enforce the DNA testing, not only would they be forcing a surgical operation, but IF the defendant refused the courts ruling, the courts would have to regard this refusal as contempt of court- i.e. placing the defendant in jail until they thought better of their refusal.
The courts referred to Whitehall v Whitehall in the judgements of this case.
What is Docherty v Glinn about?
DNA TESTING:
Woman had a child and subsequently died. At the time of conception and birth, she was married to McGlynn – he was the presumed father.
BUT the wife had left her husband and was living with another man - Docherty at the time of the conception and birth of the child. Docherty was convinced that he was the genetic father of the child.
McGlynn sought to uphold his claim to paternity using blood sample evidence.
The question in this case was whether or not McGlynn could use his presumption of paternity to consent to the child being tested. Important because if McGlynn couldn’t do it – no one could.
Courts held that a presumptive father retained the right to give legal consent, because was to all intents the legal father of the child UNTIL the presumption was rebutted by proof.
Important to note that, in this case McGlynn wanted to use his presumption of paternity to give consent to the tests on behalf of the child in order to establish that he was the genetic father of the child. The courts may not have been as sympathetic had he wished to prove he was not the genetic father of the child.
What is Petrie v Petrie about?
DNA TESTING:
Unlike Docherty v McGlynn, in this case we have a husband who wants to prove that he was not the father of the third child produced throughout the course of the marriage.
Petrie was divorcing his wife, and did not want to be responsible for the upbringing of this child that he claimed was not his.
He requested for consent of the taking of a blood sample from the daughter. The wife argued that no such sample should be taken because, if the daughter was not his, he should not be able to rebut his presumed parenthood to the child.
Courts rejected the wifes argument. It was unwilling to avoid making the request because it would be blinding itself to a blatant piece of evidence.
Argued it was better for a child to know, as the father had already expressed the desire to know.
What is Smith v Greenhill about?
DNA TESTING: The pursuer (S) raised an action against his wife/ defender (G) regarding paternity of and access to a child whom the defender had given birth to in Feb 1992. S was not G’s husband. S averred that he and G had frequent sexual intercourse throughout 1991. G denied this, maintaining that the child was her husband’s. G admitted to having sexual intercourse with S ONCE during 1991. G and her husband refused to consent to the taking of DNA samples on behalf of the child.
Courts held that G’s refusal of consent inferred that she was not telling the truth about her relationship with S.
Sheriff held it proved that G had sexual relations with S throughout 1991. Also held it proved that G continued to have sexual relations with her husband over the same time period.
BUT Sheriff ruled that S had failed to prove on a balance of probabilities that he was the father of the child – as it was equally likely that G’s husband was the father.
• S appealed this on the grounds of paternity only. Wanted the court to order DNA tests under the Law reform (miscellaneous provisions) (S) Act 1990 Section 70. S also wanted the courts to draw inference from G’s refusal to consent to a DNA sample being taken.
BUT courts declined this appeal. Held that Section 70 of the act did not mean that inference could ALWAYS be drawn from a refusal.
What is C v S about?
SURROGACY FOR SAME SEX COUPLES:Surrogate mother didn’t want to give up the child. The sheriff had to make the decision. The child had been living with the couple for a year. He awarded custody to the commissioning couple in the best interests of the child. It went on a reclaiming motion to the inner house. They agreed on the basis of an adoption border being put in place. The surrogate mother had been paid £8000. The inner house decided that the expenses didn’t relate to ‘baby buying’, they related to securing a parental order.
Sheriff awarded custody to the commissioning parents rather than the gestational mother on the grounds that the child had been living with the commissioning parents rather than the gestational mother – who was a near stranger.
BUT the inner house didn’t like this. Rather than re-inforcing this, they reversed the decision and sought to deal with it through the question of adoption as opposed to the notions of surrogacy.
What is Breingan v Jamieson about?
STATUS QUO PRINCIPLE IN COURT ORDERING:
The mother of a 7 year old girl died young. Custody for the daughter was disputed by, on one hand, her father who had lost custody of the child some years earlier during the divorce with the mother, and on the other, the maternal aunt who had looked after the daughter since the mother’s death along with other maternal relatives.
Courts found that although the child had a good relationship with her father and his new wife, to remove her to a totally new environment would be disruptive to her settled, happy life. Basically, the chid was settled with the Aunt and hence should stay with her. The child’s best interests trumped the biological claim of the father.
