Flashcards in Parental Rights and Responsibilities Deck (35)
What is meant by "child"? in respect of subsection (1) of the CSA 1995?
CSA 1995 s.1(2) - person under the age of 16
What is meant by "child" in respect of s.(1)(1)(b)(ii)?
CSA 1995 s.1(2)(b) - person under 18 years old
What are parental responsibilities?
See CSA 1995 s.1(1)(a),(b),(c) and (d)
What are the three different ways one may obtain parental responsibilities and rights?
- Automatic attribution of PRandRs
- Rights obtained by agreement
- Rights obtained by a court order
How may a mother obtain PRandRs?
- Automatically (CSA s.3(1)(a)
How may a father obtain PRanRs?
- Automatically if married to mother (s.3(1)(b)(i)
- If unmarried may be registered as father (CSA(1)(b)(ii))
How may a civil partner or other party in same sex marriage obtain PR&Rs?
- Human Fertilisation and Embryology Act 2008, s.42
How may another woman who is not married to the mother or in a civil partnership to the mother obtain PRandRs?
- Human Fertilisation and Embryology Act 2008, s.43
What is the legal presumption about husbands in relations to children?
Law Reform (Parent and Child)(S) Act 1986, s.5
- legal presumption husband of the mother is the father of the child
What happened in Smith v Greenhill 1994?
- 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
- 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
What is attribution by agreement?
- Non automatic route to acquiring PRandRs by a formal legal agreement with the mother
How may an unmarried father acquire rights where not registered on child's birth certificate?
Agreement with the child's mother
- s.4 of CSA 1995 provides for this.
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?
- By applying to the court to acquire PRandRs.
What section of what act may the court make a court order in relation to PRandRs?
Section 11 of the Children(S)Act 1995
What is the key as to whether a court will make an order under s.11 of the CSA 1995?
- If the court thinks that it will be in the best interest of the child
What did Lord Hope state in F v F 1991?
- 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
Will an unmarried father meet the "interest" test?
- More than likely yes but may struggle to meet the welfare test
What happened in Breingan v Jamieson 1993?
- 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
What happened in Bangham v Bangham 1992?
- Stepfather sought custody of stepson who had been accepted into the family on marriage to his mother
- mother contested custody
- since son remained in contact with natural father an award of custody to stepfather was not appropriate
- Step father was granted access
What happened in D v H 2004
- 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
Why may the decision have in D v H 2004 have been decided in the way that it was?
- 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
Why did Professor Norrie criticise the Sheriff in D v H 2004?
- 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
What happened in E v E 2004?
- 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
- 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
What are the three main orders granted by courts in relation to commonly raised applications?
- Residence order (CSA 1995,s.11(2)(c)
- Contact Order (CSA 1995, s.11(2)(d)
- Specific Issue Order s.11(2)(e)
What three principles must the court apply before making any order ono conferring or removing PRandRs?
- 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)
What can the court do in relation to orders of PRandRs?
- Anything it sees fit whether asked or not
Where can the principles that a court must apply before taking an order be found?
CSA 1995, s.11(7)(a),(b)
What happened in Porchetta 1986?
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
What happened in Russell 1991?
- 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