Family Flashcards
Kelly v kelly
father unable to stop abortion as the child needs a seperate existance
Re F
A foetus has no legal rights
Vo v France
Amniotic sac ruptrued. accused of uniintentional homicide- but this requires legal personality. She reffered to art 2 ECHR ‘right to life to be protected by law’
she could have gone down civil proceeding but time was up
Elliot v Joicey
Nasciturus Rule
If child could be/ is born alive can have legal personality if it is to their advantage.
In this case after the death of the testator, the child born afterwards had a right to inheritance
Cohen v shaw
nasciturus rule- child born after negligent deth of father in road accident- child had right to sue under damages scotland act 1976 (now 2011) as child of the deceased
Damages can also be sued for if there is antenatal injury- delict.
Hamilton v Fife Health Board
SUed for personal damage caused by negligent use of forceps and stress. Baby died shortly after birth
nascituris held to not be applicable as not the child suing or benefiting.
Appealed due to macwilliams. Held by inner house that to sue for damages there must be DAMNUM (loss) and INJURIA (wrongful act)
This case noted that; a foetus is not a person in the eyes of the law (at least in relation to civil remedies- there can be no liabiloty to pay damages to a foetus even though has susteained injury from negligent act.
however once on birth it ceases to be a foetus and becomes a person- there is concurrance of injuria and damnum. The existancec of this is not dependant on any fiction
Macwilliams
the parents of a cild who has died after being born of injuries sustained in utero, they have a title to sue for damages of death of that child
Lord Morton- that the act which casues injury and the acual sustaining of the injury (death) needn’t occur simultaneously
Bolam
Caan raise action for negligent doctor so long as have not conferred to a practice generally and routinly adopted by a responsible medical body
D v Berkshire Community Council
english case
child born with severe withdrawal symptooms and placed in intensive care
court when looking at welfare of child need to look at past i.e before birth Art 16 1995 Childrens act and art 3 UNCRC
Udale
Neglgent sterilisation. damages awarded for pain and suffering of gestation
joy of child and benefits of love offset against economic loss and inconvenience
Emeh
Neg steriz- resulted in congentially abnormal child. awarded damages for pain/suffering and loss of earnigns prior to birth but also loss of future earnings, child maintenance and also extra costs. this case was positivly followed by Thake v Maurice- dissmissing again the claim that love and joy offset extra costs
MacFarlyne
4 kids neg steriz- HOL said pregnancy was a form of personal injuries so could be compensated for the pain/suffering.
But can’t claim damages for pure economic loss as caparo test of being fair just and resonable (for doctors to effectivly pay for upkeep of child- too remote a causation) was not fuffilled
The case of Allan was overturned by macfaryle as it limited what you could claim for in daages for both wronful preganc and wrongful birth.
This case is about the upkeep of a healthy child- lord syne and lord clyde both raised concerns about its applicability for cases re dasabled kids
Cattanach
Said expenses were recoverable- this went against macfarlyne- in australia but they don’t have the caparo test- found that was liable for maintenance
Byrne
Irish case going along with Macfarlyne
Anderson
NIMMO SMITH!!!!
not given correct genetic counciling- 2 boys born with muscular dystrophey. Under law of delict had both suffered personal injuries so could claim soltatium and patrimonial loss
Maclelland
child born with downs as was not identified at time abortion could of taken place.
Held that both parties entitled to claim solatium for distress
initially were going to also award cost of maintenance - lord macfadyne discussed how he would not limit it to the costs associated with just bringing up a disable child nor did he accet that th costs incurred should be offset against costs the pursuers wouldv’e spent on a health child.
but macfarlyne had come out so it was not considered just and resonable under caparo
Rand
Downs not detected/ had to give up business. In england claimed damages under economic loss- upheld this was due to hadley byrne principle - finincial loss flowing form disability not existance
Hardman
failure to test for rubella. Damages only awarded for EXTRA costs stemming from child disability. they referred to what lord styne had said in macfarlene ‘I commutors on a london underground were asked who should bear the costs of bringing up an handicapped child, a substantial majorty would say the expense should fall on the worngdoer. This case was fllowed by Parkinson re child with autism
Rees
Disbaled woman. neg steriz. Initially only awarded pain damages due to macfarlyne but judge said that neg steriz should be awarded with £15,000 due to ‘breach of womans automony to plan life as she wishes’
Parkinson
in this the autistic child born due to neg steriz. court awarded extra costs due to deisability.
Lady Justic Hale provided alternitive opinion supporting the inner house in macfarlyne- she said that when a woman became pregant against her will this is an invasion of her bodily privacy- include physiological and physchological changes which ‘one life is no longer ones own’
This case is the precedent in this area
Gillick
16 y/o. went for contraception.
This resulted in section 2(4)- consent to medical treatment so long as understand.
Gillick compentent applies in england along with best interests rul, in scotland have that you are entirly elegible through maturity
Fourman v Fourman
14 y/o enetered proceedings under s2(4A)- didn’t want to move to OZ
Granted legal aid
Mothers action for s.11 specifit issue order not upheld
G v H
15 y/o boy raised contact action to see sister
held not competent as she was not his legal guardian
E v E
contact action to see half siblings based on art 8 ECHR right to private and family life.
Imposed order on parents to allow kids to see each other
R v Legal Aid
Henderson v Henderson
Legal aid will not be applied if they feel that the children are just restating parents views. wont pay to duplicate represenation
Sheilds v Sheilds
Move to OZ
Boy when court case opened too young for soliciter yet by the time actually went to court was 9 and deemed to have maturity so able instruct solicitor
Rees v Lowe
Child is competent as witness when judge satisfied knows difference between truth and lies and duty to tell truth
in this case witness was 3 y/o girl- decided court would be too traumatic
Whitehall
cannot compel someone to take a dna test ‘invasion of bodily privacy
Bangham
stepfather not awarded custody
Mcgynne
presumptive challange does not get rid of presummed PRR’s including right to consnet
Snith v Greehil
If seeking to disestablish paternity not give consent- only if seeking to establish it- in this case they decided not to draw adverse inference
Petrie v Petrie
Mother didn’t consent but courts decided that it was better for the doubts to be resolved- truth always in the child’s best interests
C v S
Surrogate must consent - however in this case commisioning parents were looking after the child and it didn;t know birth mother they were awarded custody as in paramount interests of child
F v F
anyone with legitimate interest in the child can apply and be enterained in court for s.11 order- in US have to actually have PRR’s to apply to court
Glass
Decision to treat child against mothers wish interfered with her PPR’s and her art 8 right to private and family life
D v H
this case goes against liberalising and empowering law we strive to achieve. contact with sister denied- act didn;t cntemplate this under 16
E v E had a different approach- to stay in line with ECHR and UN convention- said that s.11 shuld not be interpreted restrictivly- confered rights of contact on parents as opposed to child who was under 16
Principles for s.11 order
welfare of child is paramount
shouldn’t make order unless it is better than making no order at all - minimum intervention principle (status quo- Beinigan, Hannah and Black)
As far as practicle listen to the views of the child and take them into account- this is in recognition of UNCRC art 12- childrens views have a right to be expressed and hear in judicial hearings (subject to rees whetehr actually take into account)
Is art 12 incorporated?
NGO report to UN on UNCRC implementation in Scotland
disporoportionate effect of uk government austerity on vunrble children
cuts in legal aid and continued lack of justice
age of criminal responsibility still 8- one of lowest in europe
UNCRC still not been fully incorporated
Early v Early
Meredit v Meredith
lesbian mother was deemed not to be good role model for son so put in fathers custody- broke status quo priciple.
this type of action and discrimination is unlikly to occur today due to uncrc art 2
Sloss v taylor
Unmarried man sucessfully applied for custody
Mackechnie
religion- father atheist- siad would deny children of right to religion
nattal v Osbourne
Race- osbourne surprisingly allowed to have custody but had to reguarly take child to see mother in jamacia and had to teach child about her heritage
Broxy
This raised the question of maternal position- especially in infancy
how do kids have views heard
s.6- have right to be consulted on welfare curator appointed parents appoint expert judge speak directly with child join as party
Harris
deemed there was no criminal or evil intention despite fact child hit with belt- unlikly be tolerated today
A v UK
step father
uk found to be in preach of art 3 ‘no one should be subject to torture. UL asked to reform their laws on chastisement
Guest
Father smacking 8y/o in fit of anger not deemed to have criminal mens rea- blow was exessive but not evil
Peebles v Mcphail
mother slapped 2 y/o on face knocking him over charged with assult and appeal refused
judge- ‘to slap a 2 y/o on the face knocking him off balance is as far from reasonable chastisement as one can possibly imagine’
T v T
Rees criteria on competency never comes into effect unless child directly elects in court to give evidence
Blance v Blance
it is the duty of the resident parent to ensure that contact is enforced by all means short of physical force
Russel
If child is severly distressed is it really in their best interests to continue contact? need look at longterm welfare- onus on parent show will bring positive aspect
Treasure v macGrath
’ the dividing line between listening to a child and doing what a child wants is a thin one’
10 y/o viewed as having normal maturity for child of that age so not appropriate to take views into account
G v G
In this case it was stated taht the courts only have a responsibility to listen to the child twice (expressed views through social workers as court reporters this view was overcome by shilds- said have responsibility to continualy listen to childs views
McGrath
begin with entitlement to disclose THEN decide if this will have significant harm on the child- no confirmation when child gives views
Ray v D
would disclosure cause significant harm to child? if yes- would their long term interests benefit from non- disclosure?
Dosso
Didn’t want father to knwo what said in court. He claimed under art 6 and 8. Judge held for them to be able to express their views- need be allowed confidentiality
B v G
observed that parctically there is a limit as to extent one can physically force a child into contact- in this case father had abused mother.
Porchetta
The prevailing interests of the child are paramount
Sanderson v MacManus
Parent had not intrinsic right to access, no intimate right- needed to prove something extra- owness of proof- in us called Biology plus
White v White
Got rid of term in sanderson - test now that welfare of child is paramount - no longer owness to prove acess
Lamont
It may be enough just for the parent to prove a benefit
there is however no presumption that father should have contact though courts usually see it as a good thing
shearer
Mother drank so residence order favoured father
Mcmichael case
provided for greater concern for unmarried fathers within CHS
Geddes
tehre was agression and violence on fathers side so order not made
Family named professional
so don’t fail to get services as are being presumed to be dealt with by other agency
co-ordinate actions to benefit child
prevent further and unceccesary state intervention
Must do assesment of risk- based on likliehood/potential of significant harm
Emergency protection orders
if at risik 3 options;
with parental consent can remove and accomodate child
CPO if can no longer act voluntarily- resonable grounds must be satisfied for sig harm or potential of sig harm
if grounds of suspicion can make equiries
Radmacher v Granatino
In the wake of this case, engliish law has begun to respect pre-nups. also since this case the english courts have tended to disregard agreements containing predjudics toward children.
Variation of periodicalallowance or aliment
only if parties have written in that thi is allowedbut joint minute with aliment written in can be recalled if contains a periodical
Statutor challange
if not deemed fair and reasonable Macaky- set aside as man failed to disclose info on significant pension interests
Clarkson
Anderson
this case sets the precedent that pre-nups are binding
Horton v Horton
court cannot apply for s.11 order if a residence or contact order has already been signed
Norton v HOrton
neither party may withdraw from the joint minute it is
J v Childrens reproter for sitrlling
putting a a child in secure accomodation iis complient with convention of human rights- art 5
Ingils v Ingils
she had knowlede of pension but she renounced this claim as it sped up husbands departure from home
Worth v worth
in this case parties were on good terms and decided not to take independant legal advice, forgot about pension rights so term of agreement was reduced
Gillon
court held that including thepension the agreement was fair and resonable - she had also recieved hoome at substantial discount- court decided nt to vary order
Macafee
the legal advice is a factor to be taken into account pbut nt the only one to bear in mind when deciding what is fair and reasonable
Clarkson
sheriff decided agreement to be set aside as husband failed to disclose substantial vaat liabilities
Kibble
took prurposive view on moa are vunerable to attack under s.16 if unfair
s.16
agreement can only be reduced or variedd under s.16 either before a decree is graanted or within sucha time that court may specify
T. Quail the begining of the end
If the client advises you not to obtain a valuation of any particular asset or if the clients wish to insert an agreed value of any asset (whether it be the matrimonial home, a transfer value of a pension or an actuarial valuation of a pension in payment), the agreement should reflect this.
M v I
nature of cohbaitation- in thi case no hesitation that they were cohabiting
Harley v Robertson
defender admitted they had been cohabiting but sheriff after arguing found out had only been cohabittatin for 7 months and had fractured relationship
M v T
defender said cohabitation had ended following unwanted sexual advances so didn;t share a bed. yet they continued to share a house and presented as a couple howver in april 2011 wife asked to move out
Gutcher v Butcher
illustrates the knife ede of cohabitation. Despiete him saying that if they were married their living arrangements would be the same because of their financial agreements were deemed not to be cohabiting
Gow v grant
at supreme curt money given to wife as seen she woudlnt have sold house had it not been for cohabitation.
didn’t need to show advantage on usbands behalf
Whigham v Owenhe
cohaitation for 26 years her work had to be compensated
Savage
same sex relationship deceased didn;t make new will in savages favour but he could of done so no claim to money
Time limits
if you want money from bereavement must be within 6 months and claim has to be made against exectuor datiff
for non death is 12 months after cessation
Finances
often stronger than pre-nup as can’t take into account s.16 unless done by force and fear
very hard to agree one
Shilliday v Smith
spent a lot of money on refururbishment. this was in the contemplation of marriage
satchwell v Mackintosh
mackitosh said she never contemplated marriage so causa data non secuta didn’t apply
defender must have recieved a benefit
but
taken in the name of one of the cohabitants but the other had contributed to the purchase price and to certain refurbishment costs. The non-entitled cohabitant successfully claimed back the monies directly contributed
stack
if the property is in one persons name it is for the other to prove shares
norrie
In England, absent a statute, the matter is analysed as one of “common intention constructive trust”, with the courts aiming to give effect to what is taken to be the intention of the parties. This is not a search for a “fair” outcome (per Baroness Hale at para 61 and Lord Neuberger at paras 127 and 144). In Scotland, however, where the matter is dealt with as unjustified enrichment, notions of fairness are central to the analysis. So, in England (as we learnt last year in Miller; MacFarlane), fairness is central to the division of property at the end of marriage or civil partnership, but at best incidental (as we learn here) at the end of a cohabitation; in Scotland fairness is central at the end of a cohabitation but is no more than a moderating influence on certainty at the end of a marriage or civil partnership.
Mackenzie v Nutter
• -mackenzies house would be sold but not enough to buy new house so they got mortgage. They lived there together. Miss Mackenzie wouldn’t be entitled to half a claim to the house, she hadn’t contributed at all- unjustified enrichment.
•
