cases

Question 1

telfer v kellock (2004):

Answer 1

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’

Question 2

fitzpatrick v stirling housing association 2001 / ghiadan (2004):

Answer 2

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

Question 3

burden and burden v uk (2007):

Answer 3

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

Question 4

vo v france (2005):

Answer 4

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

Question 5

kelly v kelly (1997):

Answer 5

husband or any other partner does not have right to interfere with wife’s decisions in pregnancy (in this case to prevent abortion)

Question 6

gillock (english case but leading authority) 1986:

Answer 6

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

Question 7

V v F (1991):

Answer 7

15 yr old can consent to treatment but not refuse without parental consent

Question 8

case on parent’s ‘right’ to assault their child:

Answer 8

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-note, now repealed and child has same protection as adult

Question 9

smith v greenhill (1994):

Answer 9

legal presumption that husband is father of wife’s child; her refusal to have DNA tested did not overturn presumption

Question 10

evans v uk (2006):

Answer 10

assisted reproduction requires right from both man and woman; right of refusal of man equal to wishes of woman (in this case embryos destroyed)

Question 11

leeds teaching hosp NHS Trust v A and Others (2003):

Answer 11

husband of a woman who becomes pregnant as result of infertility treatment is the father, unless he did not consent (s.35 HFEA 2008)

Question 12

3 types of order that can be made under s.11 C(S)Act?

Answer 12

residence, contact and specific issue

Question 13

breignan v jamieson (1993):

Answer 13

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)

Question 14

brixey v lynas (1996):

Answer 14

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)

Question 15

early v early (1990):

Answer 15

all circumstances considered, even if prejudice (case where held homosexual mother may expose child to difficulties in school)

Question 16

shields v shields (2002):

Answer 16

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

Question 17

porchetta v porchetta (1986) / russell v russell (1991):

Answer 17

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)

Question 18

white v white (2001):

Answer 18

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

Question 19

clayton v clayton (1996):

Answer 19

fathers contant interference was undermining single mothers authority therefore awarded her sole custody since did not support childs welfare

Question 20

H v H (2016):

Answer 20

welfare paramount so genuine fears of mother and unreliability of father are a factor; but could be overcome

Question 21

corbett v corbett (1971):

Answer 21

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

Question 22

goodwin v uk (2002):

Answer 22

corbett was found to be a breach of articles 8 and 12 ECHR - led to introduction of the GRA 2004

Question 23

‘marriage as understood by Christendom is the voluntary union for life of one man and one woman to the exclusion of all others’ case:

Answer 23

Hyde v Hyde 1866 - gives the classic definition of marriage; outdated and now we only consider it must be voluntary and involves 2 people

Question 24

lang v lang (1921):

Answer 24

• 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)

Question 25

Schalk and Kopf v Austria (2011):

Answer 25

ECtHR still haven’t ruled on gay marriage; held right to recognise but not yet right to marry

Question 26

engagement is a private matter under what Act?

Answer 26

Law Reform (Husband and Wife) Act 1984 s.1(1)

Question 27

grieve v morrison 1993:

Answer 27

if a wedding gift is conditional, can get it back if couple do not marry under unjust enrichment

Question 28

sohrab v khan (2002):

Answer 28

case regarding s.23A 1977 Act (marriage only null on error in age or related persons ss1 and 2), where error in s.3 of marriage schedule - contrary to s.23A held schedule essential to proceedings therefore failure to have one is not a valid marriage

Question 29

difference between related by affinity and by consanguinity?

Answer 29

affinity - related through marriage; consanguinity - related through genetics

Question 30

case where lack of ‘understanding’ was a defence to consent:

Answer 30

Long v Long 1950: woman with learning difficulties - both parties consented to marriage so he cannot back out because of her lack of intelligence

Question 31

johnston v brown 1823:

Answer 31

defence of consent to marriage due to intoxication

Question 32

macleod v adams 1920:

Answer 32

defence of ‘error’ to consent to marriage (failed, woman argued man was not who she believed she was marrying after he turned out to be con-man but court held she married whom she intended)

Question 33

when would a marriage be void by reason of duress? case:

Answer 33

force and fear - where threats overcame the will of the pursuer; more likely to effect woman and those of eastern decent
-case: Mahmood v Mahmood

Question 34

where is the definition of a sham marriage found?

Answer 34

1977 Act s.20A(4) - almost void

Question 35

voidable marriage case and reason:

Answer 35

incurable impotency; J v J (1978)

Question 36

effect of void and voidable marriages?

Answer 36

void - never existed and no need to obtain declarator from the court unless child involved;
voidable - marriage existed but liable to be annulled by declarator - action must be brought by one of the parties