residence orders Flashcards
what are the different factors that a court takes into account when dealing with a residence order?
They no longer take into account the sex of the parties.
they no longer take into account the sexual orienation of the parties.
they no longer take into account the religious uppbringing
they take into account cultural identity
what three things are principle when applying a relocation order?
these are that the status quo should not be disrupted unless it has to.
the child is in danger of abuse.
keeping siblings together.
sex
it was known in the past that women were better at taking care of children.
this was demonstrated by the case of Brixey v Lynas.
This case demonstrated a negative step back in the law as the judge said that it is the woman’s nature to take care of the children and had practical experience thus emphasising that men cannot take care of children. this recieved lots of negative feedback.
however the earlier case of Hannah v Hannah set down the most welcomed rule that it is not the nature but the welfare of the child which is most important. if this rule was followed then it could be argued that Brixey v Lynas may have been decided differently.
moreover, the equality act of 2010 will strike down any judgement for a relocation order which favores an applicant because of their sex.
sexual orientation of parents
In early v early it was held that a boy should not live with his two parent mothers as this would not be in the best interests for the child. the child may be at risk of abuse if it was known to the world that his parents were mothers and he should need a fther figure in his life at this moment. relocation order was granted.
this was changed in the case of T, Petitioner where there was a request for an adoption order of two fathers. however only one father was requesting it. at first instance the court held that the child would not be allowed to live with two fathers however this was overturned and it was underlined that sexual orientation does not matter.
Religious upbringing
in M’clements v M’clements it was held that a father wanted them brought up as roman catholic. decided it was best for the children to be brought up in the same religion as the mother. however now Making residence decisions based on the parents’ religion can violate the ECHR
cultural identity
osborne v matthan
mother was told to leave the UK for selling drugs. she wanted her daughter brought with her however this was not granted even though she was the mother and said that the child would experience difficulties in a majority of a white neighbourhood.
which section should we go to for this and explain why we should use it?
we should go to section 11(11) of the 1995 Children Scotland Act - this emphasises that parental rights and responsibilities can be removed if the parent does not use them correctly for example if another spouse has a contact order and the other refuses this then this spouse can have the right to see their children taken away from them.
In section 11(12) of the Children Scotland Act 1995 it shows that if there has been a residence order granted then if this person does not have parental rights then they can be obtained if they have a residence order.
residence is a big decision so what shall be taken into account?
the views of the child
shields v shields
