Family Law Cases Flashcards
Knight v Wedderburn
LEGAL PERSONALITY
Joseph Knight was a man born in Africa and sold as a slave in Jamaica to John Wedderburn of Ballendean, Scotland. Wedderburn had Knight serve in his household, and took him along when he returned to Scotland in 1769. Inspired by Somersett’s Case (1772) in England, in which the English courts had held that slavery did not exist under English common law, Knight brought a freedom suit against his master. Knight won his claim after two appeals, in a case that established the principle that Scots law would not uphold the institution of slavery.
Re F in Utero
LEGAL PERSONALITY
A foetus prior to the moment of birth does not have independent rights or interests.
Vo V France
LEGAL PERSONALITY
The applicant, Mrs Thi-Nho Vo, attended the Hospital for a medical examination scheduled during the six month of pregnancy. On the same day another woman, Mrs Thi Thanh Van Vo, was due to have a coil removed at the same hospital. Owing to a mix-up caused by the fact that both women shared the same surname, the doctor who examined the applicant pierced her amniotic sac, making a therapeutic abortion necessary.
She tried to bring criminal case held not viable because the baby wasn’t a person. Couldn’t apply one rule and not apply it to abortions.
Cohen v Shaw
NASCITURUS EXCEPTION
Unborn baby’s father died in car crash. The baby was still entitled to sue for damages of his father under the nasciturus fiction.
Hamilton v Fife Health Board
CASES UNDER DAMAGES ACT SCOTLAND
A child was born alive with antenatal injuries caused doctor’s negligence. As a result of this it died three days later. The parents sued the health board for loss of the child’s society. The board argued the action to be irrelevant as the child had not been a Legal Personality at the time injuries were sustained. At first instance, the court held that the nasciturus fiction couldn’t apply as there was no benefit to the deceased child. However, on appeal, the decision was reversed and the House of Lords held that the parents could recover damages under section 1(1) of the Damages (S) Act 1976 as “relatives” of the deceased. As such, there was no need to consider the nasciturus fiction to achieve the same end.Held:”An unborn person, a fetus, is not a person in the eyes of the law - at least in relation to the law of civil remedies - and there can be liability to pay damages to a fetus, even although the fetus has sustained injuries resulting from a negligent act or ommision”.But “once the fetus ceases on birth to be a fetus and becomes a person there is a concurrence of injuria and damnum and the newly born child has a right to sue the person whose breach of duty has resulted in child’s loss. The coming into existence of that right to sue does not depend upon application of any fiction
D v Berkshire CC
CHILDS RIGHT TO SUE FOR ANTENATAL INJURY
The mother of the child was registered drug addict during pregnancy, and continued to take drugs after birth. Her child was born suffering from withdrawal symptoms so acute that it had to be kept in intensive care for several weeks after birth. When the House of Lords considered the case it had to consider the welfare of the child and, therefore, was entitled to look into the past, including events before that child was born.
- In Scotland there is no such case, but it seems no reason why a local authority might not obtain, inter alia, a child protection order to remove newly-born infant to a place of safety if there was evidence either that child was already suffering “significant harm” or if not removed from the family home would be likely to do so
Udale v Bloomsburry Area Health Authority
LIABILITY CLAIMS
In this case “wrongful pregnancy” occurred after the doctor negligently performed sterilisation operation. The judge held that damages under the first head, that is for pain and suffering along with loss of earnings following a negligently performed operation were recoverable. However, an award to cover the cost of bringing up the child was firmly rejected on the ground that the joy of having a child and the benefits brought in terms of love should be offset against any inconvenience and financial disadvantage resulting from its birth.
Emeh v Kensington Area Health Authority
LIABILITY CLAIMS
Criticised the view in Udale v Bloomsburry Area Health Authority. This case involved negligent sterilisation of a woman who gave birth to a congenitally abnormal child. In this case the Court of Appeal awarded damages not only for pain and suffering and loss of earning prior to the birth but also for loss of future earnings, maintenance for the child up to trial and in the future, and for the plaintiff’s future loss of amenity including extra care that the child would require and the cost of rearing the child. Importantly it was held that the damages would be awarded whether the child was disabled or not. Also held that the fact that the pregnancy was discovered at the
McFarlane v Tayside Health Board
LIABILITY CLAIMS
This case has overturned established authority in this area and limited what is recoverable in both cases of wrongful pregnancy and wrongful birth. The pursuers were a married couple with four children who decided that as they did not want any more children, the husband would undergo a vasectomy. The operation was performed by a surgeon employed by the defenders (the Health Board) and the patient was informed by the surgeon later on that the sperm counts were negative and that further contraceptive measures are no longer needed. Following this, the wife became pregnant and gave birth to healthy baby girl. The parents raised an action against the the Health board on the grounds that they have suffered loss as a result of the Board’s negligence and claiming damages:
- for the physical discomfort suffered by the wife from her pregnancy, confinement and delivery (mother’s claim); as well as
- for the financial costs of caring for and bringing up the child (the parent’s claim)
The House of Lord held that, although it was fair and reasonable and just (test of fairness laid by Caparo case) 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. It was impossible to value the pleasure received from the child’s existence which would counteract the financial burden which would be placed on the parents. Mrs Mcfarlane was, therefore, entitled to compensatory damages for the pain and discomfort caused by the unwanted pregnancy, but the Health Borad could not be held liable for any further economic loss suffered by M as this did not seem fair, reasonable and just.
Rees v Darlington Memorial Hospital
WRONGFUL PREGNANCY RESULTING IN HEALTHY CHILD
Negligent sterilisation of disabled woman that was followed by her giving birth to a healthy child. Judgement affirmed on the McFarlane case basis - it was held that damages to cover costs of bringing up the child-rearing costs were not recoverable, and would not be available even though additional child-rearing costs were incurred as a result of the claimant’s disability.
“In question of fairness of a rule that denies the victim of legal wrong and recompense at all beyond an award immediately related to the unwanted pregnancy and birth”
- it was proposed there should be recognition of that the parent of a child born after vasectomy or sterilisation that had been performed negligently was the victim of a legal wrong - conventional award of £15,000 should be made to mark the injury that had been suffered.
*A v UK
ARTICLE 3 - PROHIBITION OF TORTURE
A boy was being beaten up, but nobody was charged for an assault. The case was appealed to the European Court of Human Rights and the boy was found to be subjected to degrading punishment within the boundaries of Article 3 of ECHR. UK was advised to change its law of smacking, which resulted into change in the law of smacking.
S v Miller
ARTICLE 6 - RIGHT TO A FAIR CHILD
15-year boy charged with assaulting father who subsequently, after the boy appeared before the Child’s Hearing System. Appealed to the international court which held that Scotland does not obey Article 6 of ECHR and as a result of this legal representation was brought to Children’s Hearing.
White v White
ARTICLE 8 - RIGHT TO RESPECT PRIVATE AND FAMILY LIFE
Parents divorced and children were living with mother. The dad raised an action for contact with the children. Mother successfully appealed, as it was held that the dad did not sufficiently prove that it was for the best interest of the child to be in contact with him. The father appealed this decision and it was held that the Article 8 of EHCR was not interpreted properly. Held that contact shall be reinstated. There is no legal obligation for the dad to prove that the child was enhanced by the contact.
Mrs Gillic v West Norfolk and Wisbech Area Health Authority
CAPACITY TO CONSENT TO MEDICAL TREATMENT
Girl under the age of 16 obtained contraceptive advice and treatment without the parents being informed and consulted. The House of Lords held that a child under 16 can consent to medical treatment, provided that they had reached certain degree of maturity and understanding.
- it is also provided that if a child was deemed sufficient maturity than it should not matter if the treatment was for his or her benefit or not - if child is found competent it has the right, like adults, to make risks and choices
Whitehall v Whitehall
BLOOD TESTING
To subject a person to a blood test against their will would be to force them to undergo a surgical operation against their will would be to force them to undergo a surgical operation against their will, albeit a minor one, and so would constitute an “unwarrantable invasion of private rights”.
Petrie v Petrie
DNA TESTING
A husband sought to deny paternity of the third child of his wife in the course of their divorce proceedings. He asked the court to request his wife to consent to taking of a sample of blood from their daughter under s.70. The wife argued that no request should be made on the grounds inter alia that:
i) the request if granted might result in the child being found to be illegitimate;
ii) the husband should not be allowed to seek to rebut his own presumed paternity on grounds of “mere suspision”
Rejecting the wife’s argument, the court held that if it were to refuse to make a request for DNA sample, it would be blinding itself to a clear and relevant piece of evidence. It would always be in the interest of the parties and usually in the interests of the child for the truth to be ascertained.
Breingan v Jamieson 1993 STL 186
STATUS QUO
The mother of a seven-year-old girl tragically died young. The daughter’s custody was subsequently disputed by, on the one hand, her father, who had lost custody of the child some years earlier on his divorce from the mother, and on the other, the maternal aunt, who had looked after the child since the mother’s death along with other maternal relatives. Lord MacLean found that although the child had a good relationship with her father and his new wife, and there was no reason they could not supply her with a home, nevertheless, to remove her “to a totally different environment would be disruptive of he settled, happy life and detrimental to her best interest.”
- there is a presumption that the preservation of the status quo is in the child’s best interests
Geddes v Geddes 1987 GWD 11-349
PERSONAL PARENTAL CARE AND LIFESTYLE
Nowadays a general approach that disparities in financial means between two competing parents can be settled y an appropriate award of aliment, and that consequently, the emotional support and stability a household can offer should be regarded as more important than material advantages
Early v Early 1989 SLT 114
SEXUALITY
The mother, who had recently started cohabiting in a lesbian relationship, sought custody of her third child, a boy aged 10. Although the mother had the benefit of the status quo, custody was given to the father. (Not how current law would stand)
McKechnie v McKechnie 1990 SLT (Sh Ct) 75
RELIGION
The court refused to award joint PRRs to the father of the child who was a Jehovah’s Witness, because, inter alia, this would have given the father parental rights in respect of the child’s medical treatment, whose welfare might be prejudiced should he need medical treatment such as blood transfusion.
- In modern English cases, courts have expressed concern about the effect of fringe or cult-like religions such as the Church of Scientology (“immoral and socially obnoxious”) and the Exclusive Brethren (“harsh and restrictive”)
SM v CM [2012] S.L.T. 428
RELOCATION AND RESIDENCE CONTACT
The Inner House took the opportunity to clarify matters - said that there was a dual burden on the pursuer, first to show that the proposed relocation was in the best interest of the child and secondly to show that making a specific issue order was better than making no order (the minimum intervention principle.)
White v White 2001 SLT 485 (IH)
WELFARE OF THE CHILD
NO ORDER PRINCIPLE
The welfare principle is the paramount concern of the court. Also “it may normally be assumed that the child will benefit from continued contact with the natural parents.” - it is up to the mother to demonstrate why father should no have the right of contact - the father does not need to demonstrate this.
Rees v Lowe 1990 SLT 507
CHILDREN AS WITNESSES IN COURT
Child’s capacity: child should know what truth or lie means, and should acknowledge that as a witness it is telling the truth. Children as witnesses are particularly important in cases of neglect/abuse. In this case the involved child was three years old. Giving evidence in an open court seems to be traumatic/impossible for the child.
Set out a test which was later abolished.
Principal Reporter v K [2010] UKSC 56
CHILD HEARINGS
Father had a contact order but contact did not take place and the child was made subject of a children’s hearing on the basis of allegations of abuse. In this case legal proceedings and hearings dragged out until the Supreme Court upheld the sheriff’s interlocutor granting the father PRR’s to extent that he could become a relevant person in the terms of the section. In reaching decision the supreme interpreted the relevant person provision to include person “who appears to have established family life with the child with which the decision of a children’s hearing may interfere.
S v Miller (No.2) 2001 S.L.T. 1304
LEGAL AID
A young boy came in front of the hearing, on the ground that he assaulted his father who subsequently died; he had no legal representation at the children’s hearing. The case then went to the Court of Session which held that not giving the child access to legal aid is in breach of Article 6 of ECHR (the right for fair trial);
- As a consequence regulations allowed for children to be appointed legal representative in certain types of children’s hearing is now Part of Article 19 of the 2011 Act.
Long v Long
CONSENT FOR MARRIAGE
Woman found capable of consent although she had been a subject to supervision in an institution for long periods of time as a result of learning or developmental difficulties.
Sohrab v Khan 2002 SLT 1255
DURESS
Pursuer was 16 at the time of marriage. Mother said she would commit a suicide if the pursuer did not consent.Married in December 1998 and ceased to live together following April.
Accepted that pursuer was put under pressure which was inadequate to her age.
SH v KH 2005 SLT 1025
INVALID MARRIAGE/DEFECTS
While parties consented to signing the marriage schedule, their religious faith meant that true consent was not given until they completion of a religious ceremony. Since that had not yet occurred, they did not consider themselves married and the court agreed, ruling the marriage void for lack of consent and was reported to the Lord Advocate as a “sham” marriage.
Schalk and Kopf v Austria (2011) 53 E.H.R.R.R.
SAME SEX MARRIAGES
The applicants, same sex couple, contended their rights under Article 8, 12 and 14 were not respected in Austrian law since it was not possible for them to marry or otherwise obtain formal recognition of their relationship. Held that it is accepted that same sex couples can establish family life for the purposes of Article 8 and indicated that Article 12 was applicable to same sex couples in some circumstance
Higgins v Higgins 2004 Fam LB 67-7
ALIMENT
A couple had two daughters aged 11 and 7. The parents separated in 1998, entered into a minute of agreement in mid 2000 and divorced few months after. The wife the sought an order for payment of school fees in respect of younger daughter plus variation in both children’s aliment because childcare cost had risen up faster than the retail price indexation allowed for in the agreement. In the agreement both parents had discharged their rights to financial provisions and/or to order for interim aliment or aliment under the terms of Family Law (Scotland) Act 1985. The court held that there had been no express discharge of the right to claim aliment on behalf of a child and, looking at the other terms of the agreement, such a discharge could not be reasonably inferred from them. (Also held material changes in circumstances: e.g. the father’s pay increased from £160,000 to well over £1,000,000…) In reaching the decision the court took into account the fact that her elder sister and the father’s daughter by his remarriage were both being privately educated as well as the fact that the mother’s attempts to obtain better job were constrained
Roberton v Roberton 1999 SLT 38 (IH)
OCCUPANCY RIGHTS
Case of cohabitation. The court is not to act as arbiter over the spouses’ arrangements for sharing matrimonial home, nor to provide relief to one spouse who no longer wishes to live with the other; but rather to provide protection where one spouse is genuinely causing, or in danger of causing, injury of some kind to the other spouse or any child of the family. Furthermore, the injury complained of should derive directly from the acts of the defender spouse, not just be stress or unhappiness generally induced by the breakdown of marriage
Fourman v Fourman
The pursuer/mother asked the court to determine as a specific issue whether she would be allowed to remove the parties’ children to Australia (her homeland) to live there. The children were aged 14, 10 and six. She argued that life for her and the children would be cheaper, easier and better in Australia. Further, in Australia, she would be more capable of pursuing her career ambition to train and practise in acupuncture. The defender argued that under s11(2) of the Children (Scotland) Act 1995 , the court could not make a specific issue order for the children to go to Australia unless it was proved that it would be better for the children to go to Australia than for them not to go.
98-02 Held, that the court was not satisfied that it would be better for the children to go to Australia than to stay in Scotland (para 98-09); that the court had the clear impression that the pursuer wanted to take the children to Australia really because she wanted to go, rather than because it was in their best interests to go, and it had been established that it was in their best interests to go (para 98-08) and application refused .
