cases Flashcards
telfer v kellock (2004):
prior to the recognition of same sex marriage; ms t’s partner not ‘family’, however partners son was within definition at the time as ‘recognised child’
fitzpatrick v stirling housing association 2001 / ghiadan (2004):
both led to the creation of the Civil Partnership Act 2004; fitz: saw partners receive less protection in tenancy inheritance; could be ‘family’ but not ‘husband and wife’; ghiadan: opened protection to unmarried same sex couples since HRA came into force
burden and burden v uk (2007):
two eldery sisters; inheritance tax avoidance case - lived together all their lives like civil partners - case failed despite strong dissent since they ultimately were not living like a sexual couple
vo v france (2005):
at birth; a foetus is not regarded as a person under Art 2. ECHR; case where negligence of medics harmed foetus but held not liable since less than 26 weeks so didn’t have rights
kelly v kelly (1997):
husband or any other partner does not have right to interfere with wife’s decisions in pregnancy (in this case to prevent abortion)
gillock (english case but leading authority) 1986:
health authority allowed contraceptive advice to be given to under 16’s in extreme circumstances; mrs G argued under 16’s were a child and parents have rights to protect them (if doctor believes child to understand the advice and refuses to tell parents then its more practical to give support)
-key question is whether the child is competent or not
V v F (1991):
15 yr old can consent to treatment but not refuse without parental consent
case on parent’s ‘right’ to assault their child:
A v UK 1998: young boy beaten, parent acquitted on defence of ‘reasonable chastisement’ under s.51 defence CJ(S)A 2003
-note, now repealed and child has same protection as adult
smith v greenhill (1994):
legal presumption that husband is father of wife’s child; her refusal to have DNA tested did not overturn presumption
evans v uk (2006):
assisted reproduction requires right from both man and woman; right of refusal of man equal to wishes of woman (in this case embryos destroyed)
leeds teaching hosp NHS Trust v A and Others (2003):
husband of a woman who becomes pregnant as result of infertility treatment is the father, unless he did not consent (s.35 HFEA 2008)
3 types of order that can be made under s.11 C(S)Act?
residence, contact and specific issue
breignan v jamieson (1993):
residence is not about what is fair to adults: paramount consideration was child’s welfare, and since she was happy is was in her best interests to stay with aunt rather than father (following mothers death)
brixey v lynas (1996):
once minimum conditions satisfied, material advantages (wealth and oppurtunities) also considered but less important - now possible to reduce financial disadvantages by aliment to the child (case where rich dad initially won custody over poorer mum)
early v early (1990):
all circumstances considered, even if prejudice (case where held homosexual mother may expose child to difficulties in school)
shields v shields (2002):
it is a requirement of the court, as far as possible, to regard the views of the child (depending on age and maturity) - case where appeal allowed since delay in the case from when child was 7 -9 - should be asked his view at later age
porchetta v porchetta (1986) / russell v russell (1991):
contact is not an absolute right of a father or anyone else; only if court satisfied in best interests of the child; child better to be undisturbed (no order principle)
white v white (2001):
welfare is paramount but must acknowledge child’s right to maintain relationship with parents - consider all relevant facts then decide whats best
-conducive to childs welfare to maintain personal relations with absent parent
clayton v clayton (1996):
fathers contant interference was undermining single mothers authority therefore awarded her sole custody since did not support childs welfare
H v H (2016):
welfare paramount so genuine fears of mother and unreliability of father are a factor; but could be overcome
corbett v corbett (1971):
at this time you cannot change the sex registered on a birth certificate unless a mistake at the time of registration - no subsequent development counted
goodwin v uk (2002):
corbett was found to be a breach of articles 8 and 12 ECHR - led to introduction of the GRA 2004
‘marriage as understood by Christendom is the voluntary union for life of one man and one woman to the exclusion of all others’ case:
Hyde v Hyde 1866 - gives the classic definition of marriage; outdated and now we only consider it must be voluntary and involves 2 people
lang v lang (1921):
- marriages are unconditional and any agreements with spouse are not legally enforceable;
- man married woman on basis she was pregnant with his child, was not actually his child and argued marriage should be void on basis it is like a contract and requires consent (his consent was though fraud since she lied)
