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Scots Family Law > Parental Rights and Responsibilities > Flashcards

Parental Rights and Responsibilities Flashcards

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1
Q

What is meant by “child”? in respect of subsection (1) of the CSA 1995?

A

CSA 1995 s.1(2) - person under the age of 16

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2
Q

What is meant by “child” in respect of s.(1)(1)(b)(ii)?

A

CSA 1995 s.1(2)(b) - person under 18 years old

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3
Q

What are parental responsibilities?

A

See CSA 1995 s.1(1)(a),(b),(c) and (d)

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4
Q

What are the three different ways one may obtain parental responsibilities and rights?

A
  • Automatic attribution of PRandRs
  • Rights obtained by agreement
  • Rights obtained by a court order
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5
Q

How may a mother obtain PRandRs?

A
  • Automatically (CSA s.3(1)(a)
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6
Q

How may a father obtain PRanRs?

A
  • Automatically if married to mother (s.3(1)(b)(i)

- If unmarried may be registered as father (CSA(1)(b)(ii))

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7
Q

How may a civil partner or other party in same sex marriage obtain PR&Rs?

A
  • Human Fertilisation and Embryology Act 2008, s.42
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8
Q

How may another woman who is not married to the mother or in a civil partnership to the mother obtain PRandRs?

A
  • Human Fertilisation and Embryology Act 2008, s.43
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9
Q

What is the legal presumption about husbands in relations to children?

A 
Law Reform (Parent and Child)(S) Act 1986, s.5
- legal presumption husband of the mother is the father of the child
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10
Q

What happened in Smith v Greenhill 1994?

A
  • Smith (P) sought a declarator that he was the father of child (J) and access to J
  • P gave evidence that J’s mother G who is married to H, had an affair with P from early 1991 until August of the same year
  • J was born in Feb. 1992
  • G stated she only had intercourse with P once
  • P and G’s affair came to an end in August and P harassed G and H
  • Upon J’s birth H was registered as the father
  • Smith requested the court take a DNA sample from J in an attempt to rebut the presumption that H was father
  • G did not consent to DNA test and P’s action failed
    HELD
  • Despite the court preferring P’s evidence the fact G and H were still marred and living together as husband and wife and there was no evidence to suggest they had not had intercourse then it was likely H was father
  • P failed to rebut statutory presumption
  • Court believed it to be in J’s best interest that P not have access since J did not know P and the relationship between P and G had deteriorated
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11
Q

What is attribution by agreement?

A
  • Non automatic route to acquiring PRandRs by a formal legal agreement with the mother
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12
Q

How may an unmarried father acquire rights where not registered on child’s birth certificate?

A

Agreement with the child’s mother

- s.4 of CSA 1995 provides for this.

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13
Q

What may a person do who has not obtain PRandRs in either s.3(1)(b) or (c) or (d) or section 4 of the CSA 1995?

A
  • By applying to the court to acquire PRandRs.
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14
Q

What section of what act may the court make a court order in relation to PRandRs?

A

Section 11 of the Children(S)Act 1995

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15
Q

What is the key as to whether a court will make an order under s.11 of the CSA 1995?

A
  • If the court thinks that it will be in the best interest of the child
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16
Q

What did Lord Hope state in F v F 1991?

A
  • That the requirement of a claim of interest “was not intended to restrict the category of applicants with results which could in some cases be contrary to the bests interests of the child
17
Q

Will an unmarried father meet the “interest” test?

A
  • More than likely yes but may struggle to meet the welfare test
18
Q

What happened in Breingan v Jamieson 1993?

A
  • Stepfather was advised his case was too weak even to dispute custody of child of former wife who had died
  • custody was instead fought between former husband (biological father) and maternal relatives
  • Seen as a rather discriminatory view to be taken by the court as a stepfather who accepts child into his family would be liable for aliment
19
Q

What happened in Bangham v Bangham 1992?

A
  • Stepfather sought custody of stepson who had been accepted into the family on marriage to his mother
  • mother contested custody
    HELD
  • since son remained in contact with natural father an award of custody to stepfather was not appropriate
  • Step father was granted access
20
Q

What happened in D v H 2004

A
  • 15 year old boy claimed interest in sibling of 14 and a half in respect of acquiring PRandRs of contact
  • Sheriff Principle held that the child could not claim and interest in respect of PRandRs essentially because he was a child
  • Sheriff’s decision based on policy grounds, that the act was to give parental responsibilities to those to further parental responsibilities
  • Act did not contemplate giving such responsibility to a person under 16 who could not fulfil them
21
Q

Why may the decision have in D v H 2004 have been decided in the way that it was?

A
  • court may have not seen it to be in the best interests of the child to re-establish a connection with a family she had been adopted away from
22
Q

Why did Professor Norrie criticise the Sheriff in D v H 2004?

A
  • As the sheriff made his decision in the sense the 15 year old applicant was applying for parental responsibilities and rights
  • Section 11 order must relate to PRandRs
  • Does not mean that an order can only be granted in favour of those in which PRandRs can be granted
23
Q

What happened in E v E 2004?

A
  • E (pursuer), raised an action seeking a contact order in relation of her half brother and sister
  • They both resided with her and mother and stepfather
  • E had lived with them as family unit until she was taken in to foster care in 2002
  • Children’s panel determined it was not in E’s best interest to have contact with mother and stepfather but was in her best interests to have contact with half siblings
  • Defenders argued that E appeared to be seeking contact order under s.11 of the CSA, which implode certain parental rights or responsibilities could only be assumed if E was 16
  • E maintained her stating points were the ECHR and UNCRC
    HELD
  • Parliament assumed to have legislated accordingly with the two conventions and orders could be made by the court of its own motion if believed to be conductive to childs welfare
24
Q

What are the three main orders granted by courts in relation to commonly raised applications?

A
  • Residence order (CSA 1995,s.11(2)(c)
  • Contact Order (CSA 1995, s.11(2)(d)
  • Specific Issue Order s.11(2)(e)
25
Q

What three principles must the court apply before making any order ono conferring or removing PRandRs?

A
  • The welfare principle (s.11(7)(a))
  • The views of the child (s.11(7)(b))
  • The “No order” principle (court must not mae order unless the making of an order advances child’s welfare and is better than making no order at all)(s.11(7)(a)
26
Q

What can the court do in relation to orders of PRandRs?

A
  • Anything it sees fit whether asked or not
27
Q

Where can the principles that a court must apply before taking an order be found?

A

CSA 1995, s.11(7)(a),(b)

28
Q

What happened in Porchetta 1986?

A

BEING BIOLOGICAL FATHER IS NOT ENOUGH TO SATISFY CONTACT CLAIM

  • Given paramount interest in the welfare of the child a father cannot have an absolute right to contact
  • Father in this case had virtually no contact with 18 month all daughter since birth
  • mother adamantly opposed to resumption of contact
  • There was not a “shred of evidence” in this case that i would be in the best interest of child for contact to be resumed
  • Court made no award
29
Q

What happened in Russell 1991?

A
  • Father enjoyed access to his child for 2 years from date of separation from spouse in 1986 until 1988
  • Mother denied contact between father and child on basis that the child was unhappy
  • no contact for 2 years and court ruled it was in best interest for child to grow without contact from father as feeling were now negative
  • May seem unfair as these feelings may have been created by the mother
30
Q

What happened in Breingan v Jamieson 1993?

A

WELFARE OF CHILD PARAMOUNT - “NO ORDER PRINCIPLE”

  • mother of young girl died young
  • Custody of daughter was subsequently disputed by her father (who had lost custody at time of divorce with deceased some years before) and the childs aunt who she was living since mothers death
    HELD
  • Lord Macellan felt that although father had positive relationship with father and wife and they could provide home it was deemed not to be in child’s best interest to remove her from her “happy and settled life”
  • court believed this would only cause disruption and may be detrimental to her best interests
  • FURTHER EXAMPLE THAT BEING BIOLOGICAL FATHER IS NOT ENOUGH
31
Q

What happened in Brixey v Lynas 1996?

A
  • mother and father both sought custody of 14 month old child
  • parties separated when child was 4 months old and mother had been caring for her for past 10 months
  • sheriff awarded custody to father on basis the sheriff had a favourable impression on the father’s background and unfavourable impression on mother’s lifestyle
  • Court of session reversed decision and awarded custody ton mother as sheriff failed to balance the advantages of father’s background with maternal care of mother
  • Father appealed to house of lords on basis that there was no principle nor presumption in Scotland whereby infancy of child need for mother is stronger than for father
    HELD
  • Dismissing the appeal HOL stated that it was not presumption nor principle that maternal care was better for child but a widely held belief based on workings of nature
  • Court acknowledged this may not always be a relevant factor and may vary case by case but was significant here
  • Court made clear that it would always consider advantages to child’s welfare but only strongest competing advantages were likely to prevails where child was with mother since birth
32
Q

What happened in the case of Early v Early 1990?

A
  • Divorced father who had previous convictions of child neglect was awarded custody of child
  • F had custody of two out of three children and sought custody of the third
  • First argument was that as mother would not gave them all he should get custody to prevent them being split between parents
  • Second argument was that he was more willing custodian by reason of mother’s unwillingness to contemplate giving him an access.
  • Thirdly he argued the mothers lesbian relationship may have negative effect on child in social group
  • Sheriff awarded custody to father on these arguments
    APPEAL
  • mother reclaimed on grounds that evidence did not support Lord Ordinary’s decision
  • Reclamation motion denied
  • Court stated that basis of the third factor had little merit but in strength of first two factors the decision was correct
  • This being despite failure of the Lord Ordinary to acknowledge the third child already being happy and settled in care of the mother
33
Q

What happened in M v M 2011?

A

PARENTS INTERESTS DO NOT OUTWEIGH CHILD’S WELFARE AS PARAMOUNT CONSIDERATION

  • Appeal by father against Sh. Pr. decision to allow specific issue order of relocation to wife
  • She wished to take two children to England
  • Sheriff refused his application for specific issue order and relocation order
  • Basis of sheriff’s award to W was that she wished to set up a new life with her new partner in England and that the outcome of the move could not have been predicted
  • Sheriff, having regard to children’s welfare as paramount, that it was not helpful to them to frustrate wife’s ability to move where she pleased in the UK

APPEAL

  • Appeal allowed and specific order recalled
  • The Sheriff’s guidance of the English case of Payne was wrong
    (1) The effect refusal of mother’s relocation and the impact it may have on psychological and emotional stability formed no basis in Scots Law
    (2) The children’s welfare is paramount consideration at all time under Scots law and a parents interests must never receive any greater weight
    (3) Failing to satisfy himself that a satisfactory and sufficient level of continuing contact would be achievable, the Sheriff went plainly wrong
    (4) Sheriffs treatment on the transition between schools could be achieved without harm to both children, one of whom required specialist educational support was inconsistent with focus on child’s welfare
34
Q

What happened in JC v CC 2016?

A
  • Mother (D), Husband of youngest child (P), Other Husband (JC)
  • Mother sought specific issue order to relocate her child to england from scotland
  • Sheriff did not take into account eldest child’s views as they were ambiguous

ISSUES

  • Issues where raised as to the mother’s mental health and self harming
  • Mental health argument not accepted by sheriff as well as self harming no longer continuing but aspect of it re-occurring could not be ignored
  • mother’s argument that pursuer agreed to relocation was dismissed by sheriff
  • Alleged that mother had assaulted child which lead to lump and bruising on childs head, she described events that led to injury as accidental which was accepted by sheriff
  • Evidence that mother did use physical means of chastising children and that she had a very short temper which led to angry outbursts
  • Mother argued P had assaulted her and that both pursuers engaged in controlling and bullying behaviour towards her and that relocation was the only means to stop such behaviour
  • D could not refer to any examples of such behaviour other than abusive text message which P had sent upon ending of relationship
  • No proof of JC ever being physically abusing except on occasion where D was trying to self harm and he restrained her
  • JC also actively sought medical help for her

JUDGEMENT

  • Sheriff did not find that there was any abuse or the risk of any abuse by the pursuers
  • There was a principle that if D believed there to be risk of abuse then that may satisfy the sheriff but no authority was cited to support such a proposition
  • Sheriff, after taking into account all circumstances and having regard to child’s welfare as paramount that relocation was not in children’s best interests
  • Sheriff was not satisfied that the making of an order was better than making no order at all
  • Sheriff had regard to close bond between both pursuers and their children and highlighted the detrimental effect relocation would have on these relationships
  • Finally the sheriff considered the prospect of the relocation from children perspective and found them to be happy and settled in Glasgow
  • No interference with the status quo was justified in these circumstances
35
Q

What happened in Shields v Shields 2002?

A
  • Both mother and father sought residence order in respect of their son
  • They both agreed that it was not necessary to intimate action to boy (implying he was too young)
  • Sheriff rules in favour of mother and grants specific issue order for relocation to Australia
  • The sheriff principal upheld the order and the father further appealed to the inner house of the court of session
    APPEAL
  • F appealed on basis that at time Sh. Pr. heard appeal the child was nine years ild and the Sh. Pr. failed to consider whether his opinion should be sought
  • Mother argued that where intimation had been dispensed with it was unnecessary for sheriff to reconsider it unless there was a material change in circumstances or the question arose

HELD

  • Appeal allowed
    (1) duty under s.11(7)(b) of the CSA 1995 required to be discharged at time relevant order was made and if necessary by the court of its own accord
    (2) the lapse of time in present case between intimation being dispensed and the decision being made amounted to a material change in the circumstances
    (3) Existence of evidence of child’s views was no substitute for proper inquiry in to his views
  • Sheriff errer in failing to ascertain whether the child wished to express a view on whether he should go to Australia

Scots Family Law (6 decks)

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