CASES Flashcards
McKay v Essex AHA 1982
Wrongful Life Claim Refused. Doctors do not have a duty to end a life.
D v H 2004
E v E 2004
D = 15 year old refusing contact order is refused because she is deemed to be not of age (16).
E = Later that year, with help from an ECHR claim, a 14 year old girl was granted a contact order.
McKenchie v McKenchie
M v C (DIVORCE/RELIGION)
McKenchie = PRRs order refused for a jehovah’s witness.
M = M Seeks declarator that child not partkae in relgious activity wihotu his consent and that wife keeps married name. Crave 1 granted, Crave 2 Not.
O’Neill v O’Neill 1975
W v Taylor
**White v White **
O’Neill = Do-it-yourself enthusiast reduced the family home to a building site for a period of 2 years - found to be grounds for divorce.
W = excessive commitment to work found to be grounds for divorce.
White = Sexual relations with a third party - behavioural ground for divorce (need not be full on adultery)
Gow v Grant
GOW = Similar to a S.91B (fair account of economic advantage) but not as strong as 91B as it is only cohabitation - and therfore Mrs Gow raised an action under S.28 of the FLSA2006, regarding economic disadvantage by selling her flat. Fairness was the guiding principle here, Mrs Gow got the difference in value of the flat from when she sold it and the valud now roughly 40K.
Osbourne v Matan 1998
Trans-racial placement of child disputed but preserving the status quo trumped all.
CLAIM WAS:
“Black child growing up in white neighbourhood was not a good idea”
Held: Welfare of child was paramount consideration - better to stay in UK with guardian than the alternative of following deported mom and being brought up elsewhere.
*Blance v Blance 1978
Person who has residential rights must persuade and encourage kids to meet other parent who has contact.
**Davidson v Davidson **
R v R
**Kerrigan v Kerrigan **
Davidson = court awarded the wife more than a one half share of the value of the matrimonial home on the grounds that it had been purchased by the wife with money from her matrimonial holdings.
R = Wife awarded 1/3 share of matrimonial property because to a very large extent it derived from inherited or gifted assets which had they nod been sold, would have been ouwith the scope of matrimonial property.
Kerrigan = husband’s mother provided the whole deposit for house and husband paid the whole mortgage although title was in joint names, the court awarded the whole house to the husband (S.10-6-b)
STATUS QUO:
**Breingan v Jamieson
**Hannah v Hannah
Breingan = Aunt looking after child, preserve the status quo. Child most comfy with aunt.
Hannah = Father looking after child for 6 years, best to maintain the status quo. Mother obtained a residence order, he appealed and won- as the status quo was successful.
**Mitchell v Mitchell **
Wallis v Wallis 1993
Latter v Latter
Whittome v Whittome
Mitchell = House purchaed as matrimonial home during parties first marriage. They got divorced and re-married. They then remarried and divorced again! House was till matrimonial property because it had been bought for the couple to live in as a family unit.
Mitchell point #2 = Husband’s painting (a gift) was brought into the family home, and it therefore became matrimonial property.
Wallis = THE WALLIS TRAP - Prevented by S. 10(3)(a) - where a property transfer order is made, the date when the property being trasnferred is to be valued by the “appropriate valuation date”—- Mat home rose in value between relevant date and date of divorce - for many cases this factor was not considered and it led to unfairness.
Latter = Wife’s family donated home for the family - found that the home was therefore not matrimonial property but a gift. Husbands shares had been reconstructed into a single of holding of shares, this changing of form meant that it became matrimonial property.
Whittome = Divorce - wife not entitled to husbands shareds as they were a gift and held seperate.
*Early v Early
*T Petitioner
*Salgueiro v Portugal 2001
*X v Y 2002
Early = Lesbian mother denied resident as a result of lack of male role model (Since RULED AGAINST)
T = Adoption order granted to unmarried gay applicant
Salgueiro = Mother awarded custody just because she was heterosexual and father was gay - found to violate articles 8/14 of ECHR - OVERTURNED.
X = Lesbian couple persuaded gay male friend to provide sperm for Invitro Fertilisation. Gay friend was then refused contact - he therefore sought a contact order which was granted.
**Shields v Shields **
Parents separating, mom wanted to go to Australia and take son with her. At the start of the action, the boy was only 7 and his view was not asked. At the end he was 9 and wanted to give his view.
Child should be given a right to give his view - duty of court to hear child’s view.
**Lang v Lang **
SH v KH
Long v Long
Lang = Marriage not void due to misrepresentation that wife was pregnant with fiancee’s baby when it was really someone else’s. IE, having someone elses baby doesnt effect the validity of the marriage)
-best to pursue a divorce via ‘irretrievable breakdown’ and adultery.
SH = Void Marriage/nullified; husband was more interested in VISA and never had intention to live together as husband and wife.
Long = pursuer attempted to nullify marriage to handicapped woman based on her lack of understanding of the concept of marriage - Action dismissed, no way to prove her non-comprehension.
*Porchetta v Porchetta
**Sanderson v McManus
***WHITE v WHITE
Porchetta = father refused contact order - onus of proof to prove it was in the child’s best interests - “not a shred of evidence” - father did not have entitlement.
Sanderson = judge claimed onus of proof in applications in respect of PRRs lies on the applicant to demonstrate that granting PRRs would be in the best interest of the child (See White v White)
White = No Onus of proof in respect of seeking PRRs - welfare of the child is paramount.
L v L
F v F
L = Voidable marraige due to incurable impotency established - declarator of nullity required.
F = The impotent spouse can seek declarator of nullity themselves.
A v UK 1998
A = boy beaten by stepfather with cane. Went to ECHR claiming breach of Art 2 - Led to passing of the Criminal Justice (Scotland) Act 2003 - and the prohibiting of the use of Implements.
Emeh v Kensington AHA 1984
McFarlane v Tayside Health Board 2000
Parkinson v St James and Seacroft University Hospital 2001
Rees v Darlington Memorial Hospital Trust 2004
Emeh = extended damages to upkeep of child in botched sterilisation cases, but this has been reversed
**McFarlane = Botched Sterilisation - damages awarded to parents for solatium and patrimonial loss but not upkeep as considered not fair, just, and reasonable.
Parkinson = Extra damages recoverable for disabled child born from negligent sterilisation for the special costs of raising a disabled child.
Rees = mother visually impaired, botched sterilisation, awarded damages in respect of extra costs due to her disability.
Anderson v Forth Valley Health Board 1998
McLelland v Greater Glasgow HB 2001
Anderson = wrongful birth, twins were born with muscular dystrophy - parents awarded solatium, patrimonial loss and additional costs for disabilities.
McLelland = Wrongful Birth - child born with down syndrome - entitled to damages for solatium, shock and distress and extra expenses in respect of future maintenance due to the disability.
**Doherty v McGlynn **
**Smith v Greenhill
Petrie v Petrie
Doherty = presumptive father can consent to blood sample
Smith = Refusing consent for blood sample - court can choose whether to take adverse inference. I.e., if he doesn’t take the test, the court can infer that he is the father because he is trying to avoid fatherhood - something like that.
Petrie = in general, the ascertainment of truth of parenthood must always be in the interests of the parties and will usually be in the interests of the children.
Conduct of Parent:
*Geddes v Geddes
*Russell v Russell
*NJDB v JEG
Geddes = mother refused residence due to her temperament, instability, and aggressiveness.
Russell = Child terrified of father who sought access. Father Denied! Court will not generally place child in care of the parent they are scared of.
NJDB: Father denied contact as it wasn’t in the best interest of the child and there were concerns about abuse - also the child was very adamant that he wanted no contact with father.
T v T 2000
No longer need to establish whether a child is a competent witness - judge and jury must assess the credibility of the witness.
*** Vulnerable Witnesses Act 2004 - ABOLISHED THE USE OF ANY COMPETENCY TEST FOR CHILD WITNESES.
**Buczynski v Buczynski **
(Long Description)
Buczynski = H married to first wife when he bought a house to live in with new partner. H and new partner lived in new house, H and W got divorced. When they divorced the house was matrimonial property for H and the new wife.
Also cohabitation caused while the parties were still in the same premises via ceasing to share the same bedroom, the wife had ceasing to cook for her husband and the husband’s solicitor notifying the wife of the husband’s intention to raise a divorce action.
Also wife was given a flat by a third party, it was not matrimonial property, but it was part of her resources and was used to reduce the amount of capital to which she would have been entitled.
Shilliday v Smith
Man and woman engaged - man bought the house and woman put $ into it to improve it. Marriage then called off, woman claims Unjustified Enrichment as the man benefitted from her renovations. HELD - contemplation of marriage was sufficient for her to be recompensed.
Bailey Calls these PRINCIPLE 2 (ie. FLSA 9-1-B)
Louden v Louden
Dougan v Dougan
Cahill v Cahill
Welsh v Welsh
Louden = loss of career opportunities, earnings, and pension entitlement when a person stays home to look after house / kids.
Dougan = speculative claims about future losses not allowed but reasonably predicable ones are
(See CAHILL)
Cahill = court found it appropriate to take into account future advantage from past economic contributions (reasonably predicatble future advantage).
Welsh: Most often economic advantages and disadvantages are offset by each other.
