Scots Family Law

Question 1

Telfer v Kellock 2004 SLT 1290

Answer 1

Jill Telfer, her female partner, her daughter and her partners son live as a family. Jill dies in a car crash and family sue Kellock. Which relatives can sue under Damages (Scotland) Act 1976? Jill’s daughter (father is suing on her behalf), her partners son can as it is accepted he is a child of the family. Her partner cannot sue as Damages (Scotland) Act does not extend ‘partners living as husband and wife’ to same-sex couples.

Question 2

Fitzpatrick v Sterling 2001 1 AC 27

Answer 2

Case which considered a same-sex male couple who were together long term. Concerned rights to tenants to flats If a tenant died you can inherit flat if you were living with (the now deceased) tenant as ‘family’ or ‘as husband and wife’? No, must be a man and a woman. Two men ‘as family’? Yes. Hallmarks of family essentially that there should be a degree of mutual interdependence, of the sharing of lives, of caring and love, of commitment and support.

Question 3

Ghaidan v Godin - Mendoza 2004 2 AC 557

Answer 3

Similar scenario to Fitzpatrick v Sterling. As if husband and wife? Yes (ruling possible as Human Rights Act had come into force). Protection open to unmarried couples; no good reason to exclude same-sex couples.

Question 4

Burden & Burden v UK

Answer 4

Two sisters argue violation of Article 1 of Protocol 1 and Article 14 - they were a stable cohabiting couple so why were they not treated as equal with husbands and wives especially now Ghaidan case extended recognition to same-sex couples. Held their relationship was not ‘marriage-like’ and so there was, in fact, no discrimination in treating them differently to a married couple or civil partners.

Question 5

Vo v France 2005 40 EHRR 12

Answer 5

A French doctor carelessly caused the termination of the pregnancy after confusing two patients and piercing the atonic sack of the applicant by mistake. After the criminal judges in France established that homicide was not applicable to a foetal because they are not persons, the European Courts of Human Rights concluded that the absence of criminal laws protecting the foetus did not generate a violation of Article 2.

Question 6

Kelly v Kelly 1997 SLT IH 896

Answer 6

Father representing foetus. Held that nobody can represent a foetus because it is not a human. Sperm contributors have absolutely no standing in regards to what happens with the foetus. Only the pregnant woman and the law can decide.

Question 7

Gillick 1986 AC 112

Answer 7

Mrs Gillick was a mother with five daughters under the age of 16. She sought a declaration that it would be unlawful for a doctor to prescribe contraceptives to girls under 16 without the knowledge or consent of the parent. The declaration was refused. Based upon Lord Frasers guidelines. Established the Gillick competency test.

Question 8

Houston, Applicant 1996 SCLR 943

Answer 8

Child with mental illness refused treatment. Child’s parent was in favour of the treatment. Judge accepted that the child had growing capacity which would usually overveil. However because the child was mentally ill, the judge ruled in favour of the parent and ordered the treatment to be administered.

Question 9

A v United Kingdom 1998 2 FLR 959

Answer 9

A nine year old boy was discovered to have numerous bruises as he had been beaten with a garden cane on more than one occasion. These injuries were caused by the boys stepfather who was then charged with assault resulting in actual bodily harm. Stepfather successfully claimed defence of reasonable chastisement. Boy took case to ECHR. The beating was of sufficient severity to amount to inhuman or degrading treatment under Article 3.

Question 10

Smith v Greenhill 1994 SLT (Sh Ct) 22

Answer 10

Establishes the presumption that a woman’s husband is the father of any child she gives birth to (s.5 1986 Act).

Question 11

V v F 1991 SCLR 225

Answer 11

Held that parents had the right to consent to the treatment of a 15-year-old girl for depression, even in spite of her own refusal to accept treatment (hospitalisation).

Question 12

F v F 1991 SLT 357

Answer 12

Lord Hope: His attitude was 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 best interests of the child”.

Question 13

Bangham v Bangham 1992 GWD 23-1296

Answer 13

A stepfather sought custody of his stepson, aged 12, who had been accepted into the family on his marriage to the mother over eight years before. The mother contested custody. It was held that since the son remained in contact with his natural father, an award of custody to the stepfather was not appropriate. He was, however, allowed access.

Question 14

Breingan v Jamieson 1993 SLT 186

Answer 14

A stepfather was advised his case was too weak even to attempt to dispute the custody of the child of his wife by her former husband, after his wife’s untimely death. Instead the custody was fought out between the former husband and the maternal relatives (who won).

Question 15

Porchetta v Porchetta 1986 SLT 105

Answer 15

The father had had virtually no contact with his 18-month-old son since his birth, and the mother was adamantly opposed to the resumption of contact. In the circumstances, there was “not a shred of evidence” to suggest that this would be in the best interests of the child. The court made no award of access.

Question 16

Russell v Russell 1991 SCLR 429

Answer 16

Mother was undermining father by acting in a way that meant that when the father of the child showed up it made the child upset. Despite this being unfortunate for the father, this meant that his contact was not in the best interests of the child as it was causing upset.

Question 17

Brixey v. Lynas 1996 SLT 908

Answer 17

14 month old girl who had lived for the past 10 months with mother. Sheriff awards residence to father – no evidence against either parent but father from affluent middle-class background & that could not be ignored as positive to welfare test. Maternal care is best for infant” was not a presumption that could stand against an evaluation of the child’s welfare but it was always a factor the courts considered.

Question 18

Early v Early 1990 SLT 221 [IH]

Answer 18

The father had two prior convictions for child neglect and had drunk heavily in the past, but was now seen as reformed character and was awarded custody in competition with a lesbian mother. Based on the idea that living with his lesbian mother would subject him to bullying.

Question 19

M v M [2011] CSIH 65, 2012 SLT 428

Answer 19

Relocation - The court said there was a dual burden on the pursuer, first to show that the proposed relocation was in the best interests of the child and secondly to show that making a specific issue order was better than making no order at all.

Question 20

Shields v Shields 2002 SLT 579

Answer 20

Both M&F sought residence in respect of son aged seven; agreed that it was not necessary to intimate action to the boy (implying that he was too young). Sheriff rules for M and also grants specific issue order that M and boy can relocate to Australia. H appeals but decision upheld by Sheriff Principal. H further appeals inter alia that as at time Sh P heard appeal boy was nine years old and the Sh P has failed to consider whether the boy’s views should be sought. Inner House ruled that both the Sheriff and the Sh P were required by s. 11(7)(b) to apply their own minds to whether boy should be given an opportunity to express views on moving to Australia.

Question 21

JQ v CC 2016

Answer 21

Mother of children aged 4 and 10 sought a Specific Issue Order to relocate the children from Scotland to Exeter. The fathers maintained that it was in their child’s best interests to retain the status quo (shared care). The court refused the mother’s craves for specific issue orders on the basis that, from the children’s perspectives, the proposed relocation was not reasonable and, having regard to the welfare principle, the status quo should continue.

Question 22

Corbett v Corbett [1971] P 83

Answer 22

A party who wanted to be recognised as a wife “Mrs Corbett” who was born male but had lived as, and been accepted as, a woman, including significant gender realignment medical treatment; nonetheless their birth certificate still indicated that they were male. Set the rigid rule that if, eg, you were designated male at birth, and this was not an apparent error at that time, then you remained male. The consequence was that “Mrs Corbett” could not be married or become married to their male partners because although they were accepted as women and in many respects were women, they would always remain male and a man could not marry a man.

Question 23

Goodwin v UK (2002) 35 EHRR 18

Answer 23

The applicant argued that they were effectively denied their right to marry while they lived their life as a heterosexual woman and were accepted as such in society they could legal marry a woman as their birth certificate indicated that they were male but that was, in practice, no option at all. The UK government lost and so had to act – which led to the Gender Recognition Act 2004.

Question 24

Long v Long 1950 SLT 3

Answer 24

The pursuer, Mr Long, sought to nullify his marriage as at the time his wife was a ‘mental defective’. His action failed because the judge ruled that even if the defender was a ‘mental defective’ she still may have been capable of understanding the nature of marriage. He also required medical evidence – but when this was presented, it was found that Mrs Long DID understand the concept of marriage.

Question 25

Johnstone v Brown 1823

Answer 25

Held that extreme intoxication would be accepted as a lack of capacity to consent to marriage.

Question 26

Mahmood v Mahmood 1993 SLT 589

Answer 26

• A Pakistani wife W petitioned for the annulment of an arranged marriage. She said her parents had threatened to disown her, cut off all her financial support, and send her back to Pakistan if she did not go through with the marriage, and had already disowned her elder sister. In preliminary proceedings, the judge said there was a case to go for trial: the alleged threats were such as might go beyond the limits of proper parental influence and could overwhelm the will of a young woman of W’s age (21) and cultural background. But obiter, the consent required for marriage need not be enthusiastic consent: reluctant consent is enough as long as it is genuine.

Question 27

Da Silva Mouta v Portugal (2001) 31 EHRR 47

Answer 27

A homosexual claimed that an award of custody of his daughter to her mother was an unjustified interference with his right to respect for family life, and with his right to respect for his private life since he was required in respect of his right of access to his daughter to conceal from her his homosexuality. His claim was held admissible.

Question 28

Evans v UK [2006] ECHR 200

Answer 28

Natalie Evans and Howard Johnston were an unmarried couple seeking to have a child via infertility treatment. Embryos were created with the sperm of Mr Johnston and eggs of Ms Evans. The couple separated before the embryos were implanted and Mr J withdrew his consent to them being used to create babies. Without consent the clinic could not release the embryos and they would have to be destroyed. Ms Evans sought to have this rule declared a breach of her right to found a family.ECHR held that she did not have a right to found a family in circumstances which imposed family life on another person against his wishes. Any right she had to use the embryos was no stronger than his right to refuse to allow them to be used. It was also said that she could still become a mother by using another woman’s eggs (as she was no longer able to produce eggs) and finding another man to fertilise them.

Question 29

Leeds Teaching Hosp NHS Trust v A & Others [2003] EWHC 259 (QB)

Answer 29

A white couple had infertility treatment but the child born was mixed race, as there had been a mix-up with sperm at the clinic. Section 28(2) HFEA 1990 (now s 35 of HFEA 2008) provides that the husband of a woman who becomes pregnant as a result of infertility treatment is the father, unless it can be shown that he did not consent. Court held that white man had not consented to his wife being impregnated by the sperm of the other man and therefore he was not the legal father.

Question 30

C v S 1996 SLT 1387

Answer 30

Mr and Mrs C agreed with Ms S that Ms S would be artificially inseminated with Mr C’s sperm and carry a child for Mr and Mrs S, on the understanding that the couple would seek a parental order under the HFEA 1990 and the mother would agree (as was required by that Act). The child was born and Ms S was paid £8,000. Birth registered by Ms S naming Mr C as father. Mr and Mrs C took child home but then Ms S changed her mind and wanted the child back. Mr and Mrs C applied to adopt the child. Sheriff held that the £8,000 payment prevented adoption as it contravened the Adoption (S) Act 1978, but he made a residence order in favour of Mr and Mrs C and refused contact with Ms S. NB that Mr S was already on birth certificate as father here. On appeal the Court of Session held that the sheriff had been wrong: the £8,000 related to a parental order and not an adoption order. So the adoption order was made in favour of Mr and Mrs S.