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Family Ordinary Notes

Scots Law Notes > Family Law (Ordinary) Notes

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Family Law (Ordinary) - Revision Notes


CHAPTER 1: Legal Personality
CHAPTER 2: Introduction to child law
CHAPTER 3: Age and Legal Capacity
CHAPTER 4: Children and Parents
CHAPTER 5: Parental responsibilities and rights in action
CHAPTER 6: Other aspects of parental responsibility and rights
CHAPTER 7: Looked after and accommodated children
CHAPTER 8: Children's Hearing System
CHAPTER 9: Adult relationships (1): Families, marriage and civil partnership
CHAPTER 10: Legal consequences of marriage and civil partnership
CHAPTER 11: Adult relationship (3): Cohabitation
CHAPTER 12: Breakdown of adult relationship
CHAPTER 13: Financial provision on divorce and dissolution
CHAPTER 14: Domestic abuse and family home
CHAPTER 15: Child Support

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Page 1 of 50 Family Law (Ordinary) - Revision Notes

I. General Rule:
- All human being are natural persons.
Knight v Weddburn (1778) M 14545
Fact: W bought K as a slave and brought him back to Scotland. Later K get married want to move to
Dundee. W refused and detained him as his slave.
Held: K is natural person (not property). Slavery is not recognized by law of Scotland.
Modern Slavery Act 2015: All kind of human trafficking is prohibited.

i. Legal personality on human only.

ii. Animals rights are rights conferred by human. (Associative right > separate)
Domestic animals - Animal Welfare Act 2006 / Animal Health and Welfare (Scotland) Act 2006
Wildlife - Wildlife and Countryside Act 1981
Building - Ancient Monuments and Archaeological Area Act 1979

II. Duration of personality n ss.13/14 - Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c.49)
- Legal personality commences at birth
- Legal duty on parents to register birth within 21 days
Exception - Abortion Act 1967
à Not apply to baby where pregnancy terminated nRight of foetus - Abortion Act 1967 (s.1)
No independent right to be borne
Right of termination lies on parent
Note different in NI

n Nasciturus Principle ("Nasciturus pro iam nato habetur guotiens de eius commodo agitur")
- Exception to general rule
- Legal personality could date back for damages suffered by foetus
- he born alive, and
- it is to their direct advantages
- Give child locus standi to sue
- Subsequently born alive child could seek recourse for damage done when he's in foetus
Cohen v Shaw 1992 SLT 1022
Fact: Whole family suffered from traffic accident caused by 3rd party. Dad was killed and Mum claimed damage for later born-alive child for loss of society.
Damages (Scotland) Act 176 - Person who can claim must be relative of the injured at time of accident
Held: Nasciturus applied, damages awarded to the baby as if he is alive when his father was killed.
Stuart v Reid 2014 Rep LR 107
Fact: H(Grandfather) killed from a traffic party by a 3rd party fault. Daughter claimed damages for a grandchild born 5 months after the death.
Held: Damages granted by applying Nasciturus.

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Page 2 of 50 Family Law (Ordinary) - Revision Notes

I. Importance of child law
- State intervention allows child could enter into adulthood prepared, if required.
- Respect child right and dignity (Right to private life)

II. Classification of children.
- Children - Born to age 16.
- Adult - From age 17.
- Cf. England and Wales - 18

i. Legitimate and illegitimate is not relevant (ss.1(1) -Law Reform (Parent and Child) (Scotland)
Act 1986)

III. International dimension
(a) United Nations Convention on the Rights of the Child 1959 (UNCRC)
- UK signed and ratified at 1991
- Could not be directly enforced in UK generally.
- Influences in Scots law
Commissioner for Children and Young People (Scotland) Act 2003
Section 5: Commissioner must pay due regard to relevant provision in UNCRC
Note: Due regard rather than compliance
Children and Young People (Scotland) Act 2014
Section 1(1)(a) and (b): Scottish ministers must keep under consideration any steps to further fulfil UNCRC
Note: No solid meaning, just consideration.
n Article 1
- For UNCRC, child means every human being below age of 18, unless local legislation provides it is attained earlier.
n Article 2 - Equal treatment
(1) State should respect and ensure equal treatment of convention rights without discrimination regardless their background
(2) State should take all appropriate measures to ensure the child is protected against all form of discrimination.
n Article 3 - Best interest of child
(1) Child best interest shall be primary consideration.
(2) State shall take appropriates measures ensuring adequate child protection and necessary care.
n Article 12 - ensure all child could express his opinion
(1) Child capable of forming own views should be given right to express those views freely in all matters affecting the child and given due weight with age and maturity of the child.
(2) Opportunity to be heard shall be provided in any proceedings affecting the child.
(b)European Convention on Human Rights (ECHR)
Incorporated into UK law in Human Rights Act 1998
Directly enforceable
All Scottish law must comply with ECHR (HRA 1998), any contravention must be withdrawn or strike down in court.

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Page 3 of 50 Family Law (Ordinary) - Revision Notes n Article 3 - No one shall subject to torture and inhumane treatment
A v UK [1998] EHRLR 82; [1999] 27 EHRR 611
Fact: Child appeal to ECHR for his abusive stepfather acquitted as jury finds his father act within reasonable guardian. Prosecution fails to prove beyond reasonable doubt it is unreasonable.
Held: UK Government did not provide enough protection to Article 3 rights.
- UK Government admitted inadequate protection
- Scotland passed Criminal Justice (Scotland) Act 2003, s.51 outlaws 3 types of child punishment n Article 6 - Right to fair Trial
S v Miller 2001 SLT 531
Fact: Boy killed his father during a fight went to child hearing system without legal representation in criminal charge of assault.
Held: Child in front of criminal charge in child hearing system must be given legal representation n Article 8 - Respect of private & family life.
White v White 2001 SLT 485 (IH)
Fact: Mum get the right to raise child after divorce. Dad asks for contact.
Held: Any contact would be granted only when it is in the child interest.
- There is no automatically right to contact, proof in child best interest required.
nWelfare principle in Scots Law
Private Law
Welfare of child is paramount consideration
Any decision concerning child by court must base on the best interest of child.

n Public Law (ss.16(5) Child (Scotland) Act 1995)

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CHAPTER 3 - Age and Legal Capacity

I. Current position - Age of Legal Capacity (Scotland) Act 1991
- Capacity = power of a reason under law entering into binding contract
- Evolving/relative concept (Cf. very young child v elder child)
- Parental right and responsibility disappear at 16 (only one exception)
UNCRC Article 5: Respect of parental right and responsibility considering children evolving capacity
UNCRC Article 12: child capable forming their own views should be allowed opportunity of free expression in all matters relating to him and given weight according to his age and maturity.
n General Rule
- People aged under 16 has no legal capacity to enter any transaction, subject s.2 (ss.1(a))
- People aged over 16 has capacity to enter any transaction. (ss.1(b))
Note:No retrospective effect (ss.1(3)(a))
Person has no capacity for reason than non-age still has no capacity (ss.1(3)(b))
No effect on delictual/criminal responsibility. (ss.1(3)(c))
No effect on civil liberties - no child right taken away.

Effect of lack of capacity
- VOID (s.2(5))
n Section 2 Exception
Rationale: Prevent situation where no transaction could be done by child alone.

Section 2(1) - Person under 16 shall have capacity to enter transaction,

(a) The transaction is of a kind commonly entered into by person of that age and circumstances
(b) The terms are not unreasonable.

i. ii.

iii. •

•Commonly entered did not refer to frequency / regularity.
Consideration given to kind of transaction
Lower threshold in validating transaction (Proven the term is unreasonable > reasonable)
Section 2(2): Children aged 12 or above have testamentary capacity (will)
Section 2(3): Children aged 12 or above can consent to adoption order
Section 2(4): Children under 16 could consent to medical procedure, (< 16 but not > 12)
IF, qualified medical practitioner found the child capable to understand the nature and consequences of treatment/procedure


i. Depends on the opinion of medical practitioner ii.
Parent could not refuse treatment of child, if doctor found they have capacity and consented.

iii. NO welfare consideration, just capacity.

iv. Right extended to refuse procedure / treatment v.
Consent is the only defence to delict. Scots Court has no right to sanction consent.
- Court cannot override consent and impose treatment of one having capacity.
Cf. England & Wales: Court could override child's refusal of consent if court finds it's against welfare.

vi. Conflict between parent?
- Medical profession should get parent involved and prevent conflict between child and parent.
- Parent could exercise PRR independent of each other (See below)
Re B(Child) [2003] EWCA Civ 1145 (England Case)
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Page 5 of 50 Family Law (Ordinary) - Revision Notes
Fact: Father wants daughter get vaccine, but mother refused.
Held: Father could give consent.
n Standard of capacity under ss.2(4) - Gillick Competence
Gillick v West Norfolk and Wisbech Area Health Authority [1984] All ER 365
Fact: Mother knowing daughter consulted doctor for contraception and complained that doctor needs her permission before such treatment. Doctor refused mother's request finding daughter capable giving consent.
Mother challenged doctors' refusal.
Held: Child under 16 would have capacity to consent to medical procedure/treatment if qualified medical practitioner found she has the capacity to under the nature and consequences. Parent is not important.
F v F [2013] EWHC 2683 (Fam)
Held: Children having capacity could refuse MMR vaccine.
Re M (Child: Refusal of Medical treatment) [1999] 2 FLR 1097 (England Cases)
Fact: 15-year old's child refuse to heart transplant.
Held: Court sanction to give consent

• Section 2(4A) - Person under 17 could instruct solicitor in any civil matter
IF, the person genuinely understands what it means to do so.
Presumption: Person at 12 or over has sufficient maturity to have such understanding.

i. ii.

iii. Only general but not detailed understanding required.
Child under 12 still able to instruct solicitor as long as the solicitor found he's competent.
Legal aid usually required for child under 16, but such won't be granted if the view is same as parent.

Fourman v Fourman 1998 Fam LR 98
Fact: Mr and Mrs F separated. Mrs F wants to bring children aged 6/10/14 respectively to Australia.
Husband objected, and wife raised action for specific issue order. Legal aid granted to girl instructing solicitors as 3rd party intervening the case.
Held: Not in the children best interest to Australia as court found child wants to stay.
- Under age of 16 could instruct solicitor as long as having capacity.
Shields v Shields 2004 SLT 579
Fact: Child aged 6 at hearing found not capable of forming own view. Order granted when he aged 9 but still have no opportunity his view of wanting to stay in Scotland)
Held: Practicality is the test. Court needs to give opportunity child to express his view on issues affecting him if he's capable of forming his view, even his capacity changed during the case, the difference being the weight given to it.
- Duty to seek children opinion discharge when the order is made.
D v H 2004 Fam LR; 2004 SLT (Sh Ct) 73
Held: Solicitor decides whether the child has the required understanding. 9 years old child could instruct solicitor.
n Other areas not covered by 1991 Act i.
Delict - existing age limits apply.

ii. Child witness iii.
Age of criminal responsibility (8 currently, 12 when Age of Criminal Responsibility
(Scotland) Bill in force.

iv. Age for criminal prosecution is 12 (ss.41(A) of Criminal Procedure (Scotland) Act 1995

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Page 6 of 50 Family Law (Ordinary) - Revision Notes
CHAPTER 4 - Children and Parents

I. •

•Parents - Children (Scotland) Act 1995
Section 15(1) - Children (Scotland) Act 1995
A parent is any person whatever age the genetic father and mother. (Child could be parent)
Genetic parent is not necessarily legal parent.
Issue of Mother
Section 15(1) - Children (Scotland) Act 1995
Genetic mother is the mother who gives birth (even no genetic relationship)
Genetic mother automatically be the legal mother
à Section ss.3(1)(a): Mother of child has parental responsibility and rights regardless married to the father or not.

Artificial Pregnancy / Egg Donation / Surrogacy
Section 33 Human Fertilisation and Embryology Act 2008
Only the mother gives birth the child is mother, even having no genetic relationship
Section 54 Human Fertilisation and Embryology Act 2008
Real parent (those having genetic relationship) should apply to parental order over the child within 6 months of the birth
Aged at or over 18; In a legally recognized relationship (marriage/civil partnership); two people living together in an enduring family relationship and not single
Effect: the born mother right extinguished and the genetic parent is the legal parent.
n Issue of Father
- Genetic father would not automatically be legal father.

• Section 3(1)(b) - When father acquire parental responsibility and right
Marriage to the genetic mother
- Either at the time of child conception or subsequently
Registration as father under the law under Section 1A
- That person becomes father even have no marriage and genetic relationship.
- After 4th May 2006, father registered as father on child's birth certificate automatically becomes legal father, acquiring all PRR by registration.

i. ii.

iii. No retrospective effect that registration before 4th May 2006 cannot benefit from it.
Registration must take place within 21 days of birth.
Evidence required for registration
à Certificate of Marriage / Father's physical presence/ affidavit
Aim: Showing the father is freely and willingly to be registered.

Legal presumption

• Section 5 & 7 - Law Reform (Parent and Child) (Scotland) Act 1986
Section 5(1)(a): A married father is the genetic and legal father of children given birth by his wife.
Effect: Once genetic father married genetic mum, he would be legal father getting full PRRS no matter how old the children are.
Section 7: Father presumed to be legal father if name appears in registration after 4th May 2002.
Children bones before that time already become adult, just to fill gap of new law.
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