5. Parental Responsilities and Rights

Question 1

What orders can be raised as per s.11?

Answer 1

1. Residence order
2. Contact order
3. Specific issue order(non prr holders can claim if have an interest)

Question 2

What is D v H and E v E?

Answer 2

Siblings separated, try to raise action to see u16 with u16. Contact order is for PRRs so must be over 16. Law imposed on foster carers

Question 3

What are the overarching principles?

Answer 3

1. Welfare of child paramount
2. Minimum intervention
3. Age and maturity for the child’s views

S.11

Question 4

What is the welfare of the child?

Answer 4

No presumption of legal right for parent to have right to see their child. Article 8 of ECHR

Question 5

4 cases?

Answer 5

Sanderson v McManus
White v White
A v S
B v G

Question 6

S v M?

Answer 6

Dad has partial wanted full. Rejected three times as not in best interest of child

Ratio: genetic parents doesn’t mean legal right to have contact or residency

Question 7

White v White?

Answer 7

Father wanted contract and was granted. Overruled on appeal. CSIH allows appeal since child’s best interest is decided by court and not needed proved by father

Question 8

A v S?

Answer 8

Parents separate, no see 4 years father wants contact. Allowed. Appealed, Sheriff was wrong in saying genetic father had right to see child.

Question 9

B v G?

Answer 9

Failed all the way to Supreme Court. Far too long

Question 10

Three cases for parental care, behaviour and lifestyle?

Answer 10

W v G
AY v MM
J v M

Question 11

W v G?

Answer 11

Both parents wanted residence, given to father. Father put child first, mum was drug user

Question 12

AY v MM

Answer 12

Child born to two 15 year olds. PRRs go to mum, father wanted residence at 16 and granted. Boys life stable. Girl known to have been violent to child.

Question 13

J v M?

Answer 13

Father granted interim contact; allegations of sexual abuse to paused. No convincing evidence but Sheriff, P and CSIH said no. Relationship too toxic

Question 14

What did Lord Malcolm say?

Answer 14

S.11 is about what’s best for the child.

Question 15

X v Y?

Answer 15

Husband wants divorce but wife claims rape. Wife takes kids to grandparents. Father raised contact, admitted he did wrong but said was both of them. Sheriff granted supervised contact, progressing to overnight then unsupervised

Question 16

Abuse?

Answer 16

Treasure v McGrath

Child’s voice of saying feared her dad meant contact not granted

Question 17

4 cases for sexuality?

Answer 17

Early v Early
Meredith b Meredith
T, Petitioner
X v Y

Question 18

Early v Ealry?

Answer 18

Ex-convict granges résidence since mother was lesbian

Question 19

Meredith v Meredith?

Answer 19

Father given residence but not allowed to show gay affection in front of child

Question 20

T, Petitioner?

Answer 20

Disability nurse had gay partner. Wanted to adopt one of her disabled children, denied. CSIH said welfare of child not parents and over turned

Question 21

X v Y

Answer 21

X wanted child and donated sperm to lesbian couple. Raised s.11 and got PRRs. All about welfare of child

Question 22

Case for religion?

Answer 22

McKechnie v McKechnie

Father wanted to impose Jehovah on child. Denied access even on appeal

Question 23

Two cases for other considerations?

Answer 23

Osborne v Matthan

Mother in prison, daughter given away. Wasn’t about colour, about child

Brixey v Lynda

Custody given to mother as more important in early years. Load of shire today

Question 24

Two cases for minimum intervention?

Answer 24

Breingan v Jamieson

Mum died, aunt took over, dad denied on MI

Fourman v Fourman

Question 25

Two more cases?

Answer 25

Q v P

Mum raise specific issue, sheriff refused wish to relocate. Burden on mum to prove in best interest of child.

MCB v NMF

Dad raises specific issue to stop mum taking child to Cyprus. Refused the mother to take child

Question 26

How are the views of the child looked at?

Answer 26

1. Opportunity to want to express
2. Hear
3. Have regard to them

S.11

Question 27

Three cases for child of 12 presumed?

Answer 27

Shields v Shields

At 9 decided mature enough to have view

G v G

6 year old could give view. Child psychologist said too young to choose parents

C v McM

Mother appealed saying children weren’t given chance for views. Held sheriff decided correctly

Question 28

Case for weight given to child’s view?

Answer 28

X v Y

Age and maturity, not a regurgitation of parents views. Made clear mother had influenced child.

Question 29

Case for child talking to sheriff

Answer 29

Shields v Shields

Question 30

By joining the action?

Answer 30

Fourman v Fourman

B v B
12 year old wanted to instruct solicitor but denied. Curator ad litem’s decision followed to grant contact

Question 31

What is a curator ad litem?

Answer 31

Like Child Welfare Reporter but for younger children

Question 32

What does article 12 of UNCRC state

Answer 32

Right to express views freely

Question 33

What doe 1995 imply

Answer 33

Child should be free from harsh réponse in expressing

Question 34

Are children’s views allowed to be kept from parents?

Answer 34

Yes, even though Article 6 of ECHR states right to fair trial

Question 35

Case for this?

Answer 35

Dosso v Dosso

Two boys scared of father, entered with own solicitor. Dad found out. Sheriff refused to open document despite article 6,8. Child’s views must be respected

Question 36

Failure to obtemper a court order?

2 cases

Answer 36

Balance v Blance

Person having custody should do his or her best to ensure that the access granted is in fact enjoyed

Russel v Russell

Mother made child scared of dad so refused contact. Created horrible situation for child

Question 37

case for imprisonment?

Answer 37

M v S

Mother imprisoned for failure to obtemper order for contact